A notary avoids liability for an unconscionable home sale by a senior and a tree bylaw can't stop farming

This week on Legally Speaking with Michael Mulligan:

Following 7 days of hearings, with 79 pages of notices of application, responses to applications, and pleadings, 13 affidavits totalling more than 500 pages, 67 authorities, and over 90 pages of written submissions, a BC Supreme Court Judge has concluded that the District of Central Saanich did not have authority, pursuant to its Tree Protection Bylaw, to prevent a farmer from clearing trees to expand their farm.

The judge concluded that while municipalities have some authority to regulate tree removal, the Community Charter, which delegated this authority to municipalities, does not permit such bylaws or regulations to prevent trees from being removed to the extent necessary to permit a property owner from engaging in “development to the density permitted” by applicable zoning.

The District of Central Saanich argued, unsuccessfully, that the words “development” and “density” should be narrowly construed so as to apply only to the construction of homes or buildings.

The judge hearing the case concluded that the terms “development” and “density” include more than the construction of homes or buildings and that these terms include things such as the development of a farm to increase crop yields.

As the property owners pointed out, and the judge accepted, one cannot farm in a forest.

Also on the show, a case involving a vulnerable, elderly, woman who signed away her home as part of an unconscionable purchase and sale agreement is discussed.

The woman, who was 84 at the time of trial, was persuaded to sign a transfer of her home after she had moved into an assisted living facility. The sale agreement said that the woman would receive $485,000 but the terms of the sale provided that no payments would be made for 24 months and then, over between 20 and 40 years, she would be paid from profits of a proposed winery.

Two of the people involved in the purchase took the woman to a notary, rather than a lawyer, to have the home transferred.

Unlike lawyers, notaries don’t provide legal advice.

This notary made no inquiries about the transaction, made no inquiries about the relationship between the woman and the men who brought her to the notary's office, made no inquiries about the woman’s capacity, did not recommend legal advice, and made no notes.

The notary charged $50 and executed the document transferring the woman’s home to the would-be wine company.

At trial, the judge found that the notary had breached even the duty of care the notary owed the elderly woman and ordered that the notary pay the woman for the home.

The BC Court of Appeal agreed that the notary had breached his duty of care but found there was insufficient evidence for the trial judge to have concluded the woman would not have signed the paperwork to transfer her home even if she had been told that she should obtain independent legal advice before signing the transfer papers.

The case is a cautionary tale about the risk of harm to vulnerable people when significant transactions occur without proper legal advice.

It’s not likely a coincidence that the men involved in the unconscionable purchase of the home took the woman to a notary to execute the transfer, rather than a lawyer who would be expected to make further inquiries and offer the woman legal advice about what she was being asked to sign.

Follow this link for a transcript of the show and links to the cases discussed.