When real estate investors get comfortable or casual or just want to get a great deal done, they sometimes rely on oral “handshake” deals.  Putting promises, understandings or statements/assertions in writing may also be seen as “impolite” or an “unnecessary complication”.  However, putting these different types of communications in writing and making any written record as accurate and clear as possible, can be critical to protecting an investment in a deal if a dispute arises.  It can be the difference between having to hire a real estate litigator or not, between settling a dispute on good terms or not or winning or losing in court.

Generally, A’s oral promise to sell a future subdivided lot to B is not enforceable in law unless that promise is in writing and supported by something B gives A in return.  There are exceptions to that rule, such as where B can show their reliance on A’s promise or that A did something consistent with that promise. 

However, B will almost certainly have to hire a real estate litigator to figure out whether B can prove A’s promise was even made, before having to then prove reliance on it.  Moreover, without putting an oral promise in writing, proof of that promise may not even be admissible in court if a written document intended to be the entire agreement expressly states that there are no other promises outside of that document.

Proving in court that A made the promise can be very easy if the promise is in writing.  A written promise to B is enforceable on its face if it is made in return for something A received or that B gave to someone else (ie…it is a real estate contract). 

Separate from a promise, a mere understanding between two developers may be that A will contribute 20% of the development cost and B will contribute 80%.  That understanding may never amount to a legally enforceable promise by A to B, let alone a contract between them.  Yet it may be very helpful to B to put that understanding in writing if A later says they never intended to pay any development costs.  For example, a dispute may arise if A claims they gave an extra $500,000 towards A & B’s joint purchase of some development land on A’s understanding that B would pay 100% of the development costs. 

In that case, a simple text or email that B had sent to A about B’s understanding of a 20/80 split of the costs could be critical.  That one text sent at the right time and not disputed by A at that time could be very valuable to B.  It could give B the leverage needed to get a favourable settlement with A or help get a win in court if B sues A for 20% of the development costs.  In that scenario, B may assert that they would never have purchased the land with A had there not been an understanding that A would contribute 20%. 

Therefore, although there is no promise or contract B can enforce, B could claim that A would be “unjustly enriched” in law if A gets a certain share of profits without having paid 20% of the development costs.  Based on the text B had sent to A, B might be able to prove that B and A had a “reasonable expectation” that A would share 20%, even though A made no promise to do so and paid an extra $500,000 to purchase the land.

In the case of assertions, these are communications from one person to another that are merely of a factual state of affairs.  There is no promise to do something in the future and there is no understanding without which a deal may not have been made.  If A asserts to B that two parcels A wants to sell to B are approved for subdivision into 15 lots, that is a statement of fact.  The governing municipality has either approved that subdivision or it has not.  Yet as simple as it may be to mention that fact in a text or email, very often someone like B enters into a contract with A to buy those parcels in reliance on A’s assertion, without mentioning that in writing.

If that assertion is not ideally put into a formal contract, even just a Whatsapp message from B to A like “Since you’ve said the city approved it for 15 lots, I’ve decided to buy it”, may be of great value to B.  The value of that message could be the difference between success and failure in court if B sues A for negligent misrepresentation or B seeks to rescind the contract.  Formal contracts are much better than simple texts or emails, but even a contract may not be enough if the promise or assertion is not clearly written.  Without input from a seasoned realtor or real estate solicitor or litigator, what might be intended as an accurate record of the deal does not actually reflect that. 

By putting important communications in writing and in accurate and clear language, one strengthens the utility of promises, understandings or assertions made by someone else with whom you buy or sell dirt.  Otherwise, there is great risk to relying on promises, assertions or understandings not recorded somewhere in writing before consummating a deal.  The foregoing is a very general statement of rules of law and is a simplified way of making a point.  It is no substitute for seasoned, careful and practical legal advice in a given situation.

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The trust provisions of the Builders Lien Act¹ (“BLA”) are often misunderstood and misapplied by practitioners. Although most of the provisions of the BLA pertain to lien rights (unsurprisingly), the trust relationships created by this statute should not be given short shrift. If understood and applied correctly, breach of trust and related claims arising from the trust provisions of the BLA can be powerful tools for an aggrieved party in a construction dispute.

Two Types

There are two types of trust relationships created under the BLA.

Pursuant to s. 5(2), all funds in the owner’s holdback account are held in trust for the benefit of the contractor from whom the holdback was retained, subject to, inter alia, any lien claims by those engaged below the said contractor.

Pursuant to s. 10, all funds received by a contractor (or subcontractor) on account of the price of their contract (or subcontract) are held in trust for the benefit of all persons that the contractor (or subcontractor) engaged in connection with the improvement. All beneficiaries of the s. 10 trust must be paid before the trustee can appropriate the trust funds for its own use or uses not authorized by the trust.²

By way of an example, suppose that Alpha is the owner of a property. Alpha contracts with Bravo for the construction of a building on that property. In turn, Bravo contracts with Charlie to perform the roofing work and with Delta to perform the painting work. Charlie then contracts with Echo to supply the materials for the roofing work.

In this scenario:

• pursuant to s. 5(2), the funds held back from Bravo in Alpha’s holdback account would be held in trust for Bravo, subject to the lien claims of Charlie, Delta, and Echo; and 
• pursuant to s. 10:
  • Bravo would hold all amounts received from Alpha on account of the price of its contract with Alpha in trust for Charlie and Delta; and
  • Charlie would hold all amounts received from Bravo on account of the price of its contract with Bravo in trust for Echo.

Flow of Relationships

The scheme of ss. 5(2) and 10 is such that the trust obligations created by these provisions only flow one step down the construction pyramid. This means that the trustee-beneficiary relationship only exists between those directly above or below one another in the construction pyramid and that the trust obligations only flow downward.³

Consequently, owners do not hold s. 5(2) funds in trust for subcontractors⁴ and contractors do not hold s. 10 funds in trust for the owner⁵ or for those engaged by their subcontractors.

Using the same scenario as above:

• Alpha would only hold the s. 5(2) funds in trust for the contractor from whom the funds were held back, namely Bravo, and not for Charlie, Delta, or Echo; and
• Bravo would only hold the s. 10 trust funds in trust for the parties it directly engaged, namely Charlie and Delta, and not for Alpha or Echo.

Limitation Period

Pursuant to s. 14, all s. 10 trust claims are subject to a one-year limitation period, running from the date that the head contract is completed, abandoned or terminated, or if there is no head contract, then running from the date that the relevant improvement was completed or abandoned.⁶ Therefore, a party who has failed to file a lien within the 45-day time period stipulated by s. 20 may still be at liberty to advance a trust claim under s. 10.

Architects, Engineers, and Material Suppliers

Although architects, engineers, and material suppliers can be beneficiaries of a s. 10 trust, pursuant to s. 10(4), they are not trustees of a s. 10 trust. Given that the funds received by architects, engineers, and material suppliers on account of the contract or subcontract price are not impressed with a s. 10 trust, these parties are free to appropriate these funds without risking a breach of the statutory trust.

That said however, when an architect, engineer, or material supplier is providing services or materials to one party on account of multiple improvements, they are required to make inquiries to the party from whom they are receiving the funds in order to determine which improvement the funds are being advanced on account of⁷ and to credit the funds against the debt in respect of the improvement.⁸ Failure to do so will not constitute a breach of trust but may impact an architect, engineer, or material supplier’s BLA rights.⁹

Breach of Trust

Section 11 of the BLA specifies the statutory consequences of a breach of a s. 10 trust, for both trustees and, in cases where the trustee is a corporation, its directors or officers. The statutory penalties include fines and imprisonment; however, these provisions are not exhaustive with respect to the claims, liabilities, and remedies which may flow from a breach of a s. 10 trust.

A trustee’s directors, officers, and other “strangers to the trust” may also be liable in tort for, inter alia, knowing assistance in breach of trust and/or knowing receipt of trust funds.¹⁰ Therefore, whenever a breach of trust claim is being advanced under the BLA, whether the relevant facts give rise to these tort claims should also be considered as such claims, if proven, may entitle a wronged beneficiary to restitutionary remedies which are not expressly set out under s. 11.

————

¹ Builders Lien Act, SBC 1997, c 45 [BLA].

² Aside from payment to beneficiaries, see s 11(4) of the BLA for other authorized uses of s 10 trust funds.

³ It should be noted that trust relationships flowed differently under the previous scheme of the Builders Lien Act, RSBC 1979, c 40 (and more specifically, s 2) Therefore, one should be mindful of this when relying on case law interpreting the predecessor statute. See also Columere Park Developments Ltd. v Enviro Custom Homes Inc., 2010 BCSC 1248 at paras 61-63 [Columere Park Developments Ltd.].

⁴ Bear Creek Contracting Ltd. v Pretium Exploration Inc., 2020 BCSC 1523 at paras 61, 66-68.

⁵ Columere Park Developments Ltd., supra note 3 at para 63. Although the court in this case confirmed that the owner was not the beneficiary of a statutory trust under the BLA, it did find a wrongful conduct constructive trust in favour of the owner over the monies advanced by the owner to the contractor for the construction project. See paras 85-89.

⁶ For further discussion regarding the implications of s 14 and the issues arising with respect to same, see British Columbia Law Institute, “Report on the Builders Lien Act” (2020) BCLI Report No 89 at 155.

⁷ Ross Gibson Industries Ltd. v Greater Vancouver Housing Corp., 1985 CarswellBC 293, [1985] BCWLD 3469 [Ross Gibson Industries Ltd.].

⁸ BLA, supra note 1 s 12.

⁹ See Ross Gibson Industries Ltd., supra note 7.

¹⁰ For a detailed discussion regarding these torts, see DBDC Spadina Ltd. v Walton, 2018 ONCA 60.

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