Rogers owns the house at 50 Albert Street, which hedecides to sell, and accordingly lists it in the spring of 2018 for$130,000. The property is bounded by two driveways servicingtwo properties, i.e 52 Albert Street on the right, and 48 AlbertStreet on the left. The property on the left had a right of wayagreement permitting its owners to use the left hand driveway forcertain limited purposes, which is covered by a ROW ( right ofway) agreement. Bell, who is a first-time home buyer has beenscouting for properties, happens to come across this property. Heengages you, a newly licensed Real Estate Agent, to arrange aviewing.

You facilitate a viewing of the property on Oct 19, 2018 atabout 11 am. Rogers shows you and Bell around, and explains thatthe driveway was subject to an easement in favor of the owners/occupants of 48 Albert Street. Soon thereafter, Rogers faxes youthe Property Condition Disclosure Statement (PCDS) and a plot planfor 50 Albert Street, but not the ROW agreement. While the PCDSindicates the granting of an easement in favor of 48 Albert Street,the Plot plan does not show the existence of anyencroachments by 48 Albert Street, although it indicated a drivewayencroachment by 50 Albert onto 52 Albert Street. You share thesewith Bell on the 20th of Oct, who indicates that he would like tomake an offer, which is then communicated to Rogers on the 21st at10 a.m, the offer to be open until 4 p.m that very day.

Rogers responds to this, faxing your office a counter-offerdated 22nd October, which is to remain open until 9.00 p.m. thatday. Attached to it was a copy of the ROW agreement that Rogers hasretrieved from his lawyer. You share this information over thephone with Bell, who accepts the Counteroffer on the same day. Atthis point, neither you nor Bell has scrutinized the ROW, whichdetails the easementary right as also granting the right to parkcars on the driveway, and along the sidewalk in front of 50 AlbertStreet, and an additional covenant not to plant trees bordering thedriveway. Two days later, Bell goes through the ROW and is alarmedat the extent of the easements granted and the negative covenant.Further scrutiny of the property and its neighborhood reveals thatthe neighbouring property is occupied by students who usually haveparties over the weekend, with the likelihood of cars being parkedall over the place. Bell now has second thoughts about this dealand wishes to get out of it. You are eager to please your clientand assure him that you will take care of this.

You consult with the broker, who advises you to fax a notice oftermination to Rogers, citing the easement as a reason.Accordingly, you fax Rogers the notice. Meanwhile, Rogers has, asconveyed to you earlier, left on vacation, expecting to be back ina month. Relying on your assurance to take care of the situation,Bell puts in an offer on another property. A month later, Rogersreturns to find the Notice of Termination and is adamant that hewill not release Bell from the deal. Rogers has now filed a suitfor breach of contract against Bell, who also faces the possibilityof being sued by the owner of the second property if he fails to goahead with that deal. Additionally, Bell is seeking to hold youresponsible for his losses.

Please answer the following questions

( In developing your answers to questions 1 and 2, you may makenecessary assumptions to base your reasoning; i.e if any ancillaryfact is vital to making a conclusion, you may make an assumptionthat a party acted or failed to act in a required way, so as todevelop your rationale/ conclusion; as an eg. if you wanted todiscuss the relevance of a ‘condition precedent’ clause, you mayassume either that there was or was no clause relating to it in theAgreement, in developing your conclusions. )

1. a. Speculate on how the courts would interpret the mutualrights and obligations of the parties, i.e Rogers and Bell. Whatare potential reliefs Rogers would seek for breach of contract, andwhat would be the basis of his claim. Would Rogers succeed in hissuit. Why or why not?

b. Explain what are normalconsiderations for rescinding a contract, and whether they apply inthis case. Can Bell rescind the contract; if yes, why, if no,why not? Discuss what are usual grounds to rescind a contract, andwhether they apply to this case

c. Examine whether a validcontract has been formed, and at what point (actual date and when)was it formed

e. Has either party been negligent?Discuss implications ( from a tort standpoint) to the outcomeof the case.

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