MacMillan Tucker & Mackay

Home Sweet Home?…

22 February 2018

What would you do if you were the Judge?  Judges decide the facts based on evidence put before them, and then apply the law.  Here is a fact pattern.  How would you decide who was at fault?  Fact patterns similar to this one are often presented in court and assessed by Judges.  Test your judgment!…

All Mary and her husband wanted was a place to live for the rest of their lives. That’s what they told Mary’s daughter and son-in-law when they gave the kids $150,000 to help them to buy a home with a suite that Mary and her husband could live in. At the time, they decided that they did not want to go on title to the home and, trusting that they would all get along, they did not put their agreement in writing. The arrangement worked out for about nine years, during which Mary and her husband also assisted the kids with $28,500 worth of various household related expenses. However, sometime after Mary’s hubby died, Mary and the kids had a falling out and Mary decided to move out. The kids found a renter for the suite.

Lawyer, George Gunnink

Unhappy that she now had no home and was out $150,000, Mary sued the kids for what she felt was her proportionate 29% share of the value of the house – which had, of course, gone up considerably in value. The kids did not agree that she was entitled to anything. In their view, the $150,000 was pre-paid rent for about ten years, so she got what she bargained for. Why should they pay because she decided to move out? The courts would have to sort this one out.

If you were the Judge, how would you decide?

A judge initially found that Mary should get nothing except the $28,500 that she paid in household expenses. Mary was not too pleased with this, and appealed the decision to the Court of Appeal. The Court of Appeal partly agreed with the trial judge, finding that Mary never had an expectation that she would get a return on her investment in the home. However, the Appeal court did find that Mary bargained for a place to live rent-free for the rest of her life, something that she did not get.

“Why should they pay because she decided to move out?…”
“should get nothing except the…”
“…If they could not come up with an agreement, they…”

So, the appeal judges told the parties to figure out between them what the value of lifetime rent-free living would be for Mary in a suite of the type that was in the home. And, if they could not come up with an agreement, they could come back to court and have a judge determine the value.

George Gunnink is a lawyer who practices in Cloverdale with the firm MacMillan Tucker & Mackay at 5690 – 176A Street, Cloverdale (Surrey), B.C.  At MacMillan Tucker & Mackay, lawyers are available to answer questions about wills and estates, ICBC claims, personal injury, professional negligence, family matters and other issues.  If you require legal assistance, please call (604) 574-7431 to book an appointment.

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