Here’s a sneak peek at the one of the stories in the book:

WHEN CAN A PROPERTY’S VIEWS BE ‘UNOBSTRUCTED’?

An off-the-plan buyer takes a developer to Court after a bad experience on the balcony of a near-finished unit.

From her fourth floor high-rise apartment, two streets from the beach, real estate agent Sarah Parker watched construction proceed on a nearby building. This unit block would be closer to the beach than Sarah’s.

The ocean views from Sarah’s place were not spectacular because of several buildings in the way. In fact, this building-under-construction would be just one more obstruction.

“Perhaps if you can’t beat them, join them,” mused Sarah. A fourth floor unit in this new development might, she wondered, have better views than hers.

So Sarah began negotiations with the developer’s selling agent about making an offer to buy Unit 403 which would, on completion of the building, be on the fourth floor. While the agent was suitably cautious about representing what ocean views this unit might have, Sarah made it clear that she expected them to be significantly better than those from her existing unit. She soon signed an off-the-plan contract offer for Unit 403 which the developer happily accepted. The concluded contract included this condition drafted by Sarah:

“The positioning of the unit must provide unobstructed ocean views.”

Once the development had been substantially completed Sarah arranged an inspection of Unit 403. On checking the view she was horrified to see more roof-top clothes-lines than rolling ocean swells.

“Not happy, Jan,” she immediately told the agent. The developer (who needed every sale he could get) rejected Sarah’s subsequent cancellation of the contract, and refused to refund her deposit.

Sarah promptly sued in the Supreme Court for a declaration that the developer had breached the special condition, and that this entitled her to validly terminate the contract.

Dealing first with Sarah’s condition, the Judge in his judgment explained that his task was to “ascertain on a reasonable basis the objective meaning of the clause”.

Thus “unobstructed ocean views” were, to his mind, plain words “susceptible of ready comprehension and application.” Their clear meaning was that such views should obviously be available from the unit. Although this did not mean panoramic views from all points, the word “views” (rather than ‘view’) suggested a ‘wider range of vision than a single aspect’. The intended views must not be merely ‘particular slices of the ocean or sky above the ocean’. They had to be ocean views which were “unobstructed”. This word, the Judge said, really “speaks for itself”.

The place within the unit where one might expect the most “unobstructed ocean views” was, according to the Judge, its large eastern balcony. Photographs from the balcony were tendered in evidence, but His Honour made a site inspection to assess for himself the extent of the views from the balcony and elsewhere in the unit.

“If you stand on the balcony and look due east beyond the esplanade”, he explained in his judgement, “you look across a lowset building to a ‘vista of ocean’”. This was “undoubtedly an ocean view”.

However when you look north-east, he continued, roof-tops and buildings “completely obstruct” any ocean views. At best you could see sky above the ocean, but nothing of the ocean itself. When you look south-east, any ocean view is “significantly obstructed” by the roof of a neighbouring building. Again you could see sky above the ocean, but “very little ocean itself”. At best, this aspect provided “ocean glimpses”.

While Sarah’s barrister had argued that the beach protection zone vegetation also interfered generally with the ocean view, the Judge ruled that this vegetation interfered only with a view of any breakers on the beach itself. His Honour’s “own observation” was that the protection zone trees and plants “were not such a hindrance as to obstruct one’s view of the ocean by themselves.”

In the end he ruled that Unit 403 did not have “unobstructed ocean views”, so the developer was in breach of the special condition.

But could Sarah terminate on this account? This question turned on whether the breached condition was a fundamental or essential term. His Honour found it to be the latter because Sarah’s pre-contract negotiations had made it clear the contract was not merely for the purchase of a unit but was more for the purchase of a unit with “unobstructed ocean views”.

Sarah consequently secured her judicial declarations and was released from the contract. Costs were ordered against the developer.

MORAL: The views are not always better on the other side of the street.