Back

Vacant - A Definition of Vacancy

August 12, 2021

Nova Scotia

,

Canada

Issue

How have the courts interpreted the term 'vacancy' in property insurance policies?

Conclusion

Black’s Law Dictionary defines “vacant”:

Vacant - empty, unoccupied as a vacant office or parcel of land. Deprived of contents; without inanimate objects. It implies entire abandonment; non-occupancy for any purpose. Absolutely free, unclaimed and unoccupied. Vacant and unoccupied as used together in rider to fire policy have different meanings. Term vacant meaning empty, while term unoccupied means lack of habitual presence of human being. (Halifax Insurance Co. v. Killick)

Being an insurance contract, vacancy must be defined narrowly and the court must examine all the circumstances with particular reference to the use of the property and intentions of the insured. When the property contains no furniture, no food, no clothing and no arrangement had been made by the owners for reasonable or adequate inspection of the property, the property can be considered vacant with no occupancy and no intention of any occupancy. (Halifax Insurance Co. v. Killick)

A mere temporary vacancy or absence of the occupant, or a temporary period of non-user, which is reasonable in view of the contemplated uses of the property and of all the circumstances, and which is evidenced by some act or acts fairly showing not only an intent to return but also an intent not to abandon the premises for the purposes of their use, will not of itself operate as a breach of a condition as to vacancy or non-occupation. Occupancy is not re-established by a return for transitory purposes or intent to return for such purposes, but premises are not considered to be vacant within the meaning of this definition if the occupant moves out temporarily, for example, to stay with parents or friends. Premises would be vacant if the occupant moved out with no intent to return except, for example, to clean up the premises or to obtain the return of a damage deposit. Property will be considered to be vacant if there is only a remote possibility an insured may change his plans after quitting his occupation. (Peebles v. The Wawanesa Mutual Insurance Company)

If the occupant of the Property has moved out with no intention of returning, then the Property is, by the definition the parties have agreed to, vacant. Although the Policy may not explicitly say so, it only makes sense that the Property becomes occupied or non‑vacant when a tenant takes possession of it. If it is unclear whether a tenant has actually moved out or if it is unclear whether the tenant might return; that is, if the Property does not have the furnishings or household equipment sufficient to make it habitable, then it will be deemed vacant. Both of these scenarios are reasonably clear and unambiguous, and neither of them results in an absurdity. (Coburn v. Zorkin Insurance Brokers Inc.)

Taking up residence in order to avoid a vacancy as defined in the insurance policy requires more than mere possession, but less than establishing a usual place of residence. At some stage after occupying the house and before starting to actually live there, the occupant must take up residence, otherwise, it is by definition vacant. Acquiring paint and starting to paint the interior of the house is an act signifying that residence had been taken up. In the same way that laying new carpets, remodelling, installing doors or windows before moving furnishings into a house demonstrates that residence has been taken up, so too does painting the interior. It matters not whether the occupant is the owner or a tenant. It matters only that the occupant has taken up residence. (Mattock v. Saskatchewan Mutual Insurance Co.)

In Jessome v. General Accident Assurance Co., a three unit apartment building owned by the plaintiff was heavily damaged by fire and subsequently bulldozed by the municipality. The plaintiff's insurance coverage under his policy was denied by the defendant on the grounds that it had been vacant for more than 30 days and they had not been informed of this material change in circumstances. The plaintiffs admitited that no tenants had been living in the building at the time, but that it was not vacant. The Court, in examining whether the policy had been breached, examined the meaning of the word "vacant", and found that due to the lack of tenants or furnishings, it was vacant.

In Wu v. Gore Mutual Insurance Company, the plaintiffs owned a house that they rented out to tenants. The house was severly damaged by fire. The defendant insurers denied their claim under the insurance policy they had purchased for the house on the grounds that it had been vacant at the time of the fire. The fire occured after the previous tenants had moved out, and before new tenants were to move in, as the plaintiffs were obliged to spend some time cleaning and repairing the property. The plaintiffs argued that they attended the house every day, and that it was not vacant. The Court, after careful analysis, held that because no one slept or cooked there and it was no one's "habitual abode", the property had in fact been vacant at the time of the fire.

In Maracle v. Bay of Quinte Mutual Insurance Co. et al., the owner of a house had removed permenantly to a retirement home when the house suffered significant water damage. The insurance provider denied a damages claim on the grounds that the house was vacant at thte material time. Her spouse and her sons had all claimed to have visited the house from time to time, and one of her sons testified that he was engaged in searching for in-home nursing care so that his mother could return. The Court, employing a very straightforward definition of "vacant", deemed on assessment of the evidence that as the occupants of house had moved out and had no intent to return, the house had been vacant and the claim therefore was void.

Law

In Halifax Insurance Co. v. Killick, 2000 NSSC 167 (CanLII), the owners of a home moved to Whitehorse, Yukon for an employment opportunity. The owners retained a property manager to rent the property to various tenants in their absence. An insurance claim for water damage became the subject of this litigation. At the time of the damage, the dwelling had been left unoccupied for more than four months, triggering an exclusion in their insurance policy coverage. In the ruling, the Court examined the work "vacant", and sought its definition:

[21] The policy contained an exclusion:

We do not insure:
Loss or damage occurring after your dwelling has, to your knowledge, been vacant for more than 30 consecutive days.


[22] Black’s Law Dictionary defines “vacant”:

Vacant - empty, unoccupied as a vacant office or parcel of land. Deprived of contents; without inanimate objects. It implies entire abandonment; non-occupancy for any purpose. Absolutely free, unclaimed and unoccupied. Vacant and unoccupied as used together in rider to fire policy have different meanings. Term vacant meaning empty, while term unoccupied means lack of habitual presence of human being.

[23] In MacLean v. The Dominion Insurance Corporation, 1977 CanLII 1182 (ON CA), [1978] I.L.R. 1-975 (N.S.S.C.), Hallett, J. states at p.1039:

I find that according to the plain meaning of the word “vacant”, the plaintiff’s property that was destroyed by fire was vacant to the knowledge of the plaintiff for more than thirty consecutive days prior to the loss on December 9, 1975. As a consequence, there is no coverage under the policy.

[24] Hallett, J. further states at p. 1041:

The plaintiff’s house was vacant according to the plain meaning of the word for an excess of thirty days prior to the loss and the plaintiff had knowledge of its vacancy. The dwelling was therefore excluded from coverage under the terms of the policy.

[25] Vacancy is not defined within the language of the policy. Being an insurance contract, vacancy must be defined narrowly and the court must examine all the circumstances with particular reference to the use of the property and intentions of the insured. The Killicks were advised in no uncertain terms by the independent insurance broker, D. Cormier, that leaving the property vacant while they were attempting its sale required a Vacancy Permit. Even without this evidence, I am satisfied that Mr. Killick in particular was such a meticulous person that he knew of the exemptions to his policy and indeed admitted such in cross-examination.

[26] It is clear that from approximately October the 1st, 1991 to the date of February the 17th, 1992, a period of approximately four and half months, the Killicks wished to sell this property. They were residing outside the Province and apparently had only asked their co-worker, Brian Skahar, to look after the property during the summer. They terminated their Rental Agreement with Century 21 expert/Kathy LeBlanc. The property contained no furniture, no food, no clothing and no arrangement had been made by the Killicks for reasonable or adequate inspection of the property. The Killicks retained onto themselves the security and management of the property with respect to utilities, etcetera. They went on with their own lives and literally sat back hoping that the property would sell, all the time knowing that it was empty. The Killicks had directed their minds as to the consequences of walking away from the property as early as late 1991. In these circumstances, it is my view that the insurance company has met the requirement of establishing on a balance of probabilities that the property was vacant with no occupancy and no intention of any occupancy, unless and until the property was sold.

In Peebles v. The Wawanesa Mutual Insurance Company, 2012 BCSC 590 (CanLII), the plaintiff owned a house that was completely destroyed by explosion and fire. Their insurer denied its liability to indemnify them under the terms of the insurance policy in effect at the time. The insurer said the loss was excluded from coverage because it occurred after the dwelling had been vacant for more than 30 consecutive days. The plaintiff lived in the house sporadically with periods of absence lasting several weeks when he was working in the Northwest Territories, and also shorter periods of absence when he would stay with his girlfriend who live a short distance away. The Court was therefore asked to define the word "vacant". After an exhaustive examination of related cases, the Court found that temporary absences will not constitute a breach of a condition as to vacancy or non-occupation:

[96] In summary, the Court’s objective in construing the vacancy exclusion in this case must be to give effect to the words of the definition in the policy. The phrase, "moved out with no intent to return" is to be read as a whole. The words are interconnected and must be read together, as they would be by a reasonable policyholder. The phrase connotes permanence. It does not apply to an occupier who moves out of premises temporarily with the intent to return to live there. A mere temporary vacancy or absence of the occupant, or a temporary period of non-user, which is reasonable in view of the contemplated uses of the property and of all the circumstances, and which is evidenced by some act or acts fairly showing not only an intent to return but also an intent not to abandon the premises for the purposes of their use, will not of itself operate as a breach of a condition as to vacancy or non-occupation.

[97] Occupancy is not re-established by a return for transitory purposes or intent to return for such purposes, but premises are not considered to be vacant within the meaning of this definition if the occupant moves out temporarily, for example, to stay with parents or friends. Premises would be vacant if the occupant moved out with no intent to return except, for example, to clean up the premises or to obtain the return of a damage deposit. Property will be considered to be vacant if there is only a remote possibility an insured may change his plans after quitting his occupation.

In Wu v. Gore Mutual Insurance Company, 2009 CanLII 68220 (ON SC), the plaintiffs owned a house that they rented out to tenants. The house was severly damaged by fire. The defendant insurers denied their claim under the insurance policy they had purchased for the house on the grounds that it had been vacant at the time of the fire. The fire occured after the previous tenants had moved out, and before new tenants were to move in, as the plaintiffs were obliged to spend some time cleaning and repairing the property. The plaintiffs argued that they attended the house every day, and that it was not vacant. The Court, after careful analysis, held that because no one slept or cooked there and it was no one's "habitual abode", the property had in fact been vacant at the time of the fire:

[87] In the case before me, while the Wu's did not have the utilities shut off to the home after Ms. Ouellette and Mr. Steptoe moved out on August 5, 2006, there was no one "occupying" the property. While the Wu's attended the home on a regular basis, no one slept or cooked there and it was no one's "habitual abode" for more than 30 days. Thus, I find that the property was "vacant" for more than 30 consecutive days. It may be that Mr. Wu did not appreciate that the home became "vacant" in accordance with the definition in the policy when the last tenants moved out. That lack of appreciation, however, does not result in the vacancy exclusion being unenforceable. The Wu's had owned the rental property since 1993. Mr. Wu had never used a rental agent or property manager to deal with the property. He advertised the property by putting a sign on the lawn, he interviewed prospective renters, he prepared rental agreements and explained them to the renters. He was an experienced landlord. He had purchased the property as an investment for the future and his actions demonstrated that, up until the problem with the last tenants, he had taken care of the property. Nevertheless, on all of the evidence, I find that as of the date of the fire, October 10, 2006, 1613 St. Clair was vacant for more than 30 consecutive days. It was no tenant's habitual abode and the Wu's had no intention of moving in themselves. Indeed, the new tenant was not going to move in until November 1, 2006.

In Jessome v. General Accident Assurance Co., 1999 CanLII 13140 (NS SC), a three unit apartment building owned by the plaintiff was heavily damaged by fire and subsequently bulldozed by the municipality. The plaintiff's insurance coverage under his policy was denied by the defendant on the grounds that it had been vacant for more than 30 days and they had not been informed of this material change in circumstances. The plaintiffs admitited that no tenants had been living in the building at the time, but that it was not vacant. The Court, in examining whether the policy had been breached, examined the meaning of the word "vacant", and found that due to the lack of tenants or furnishings, it was vacant:

The meaning to be given to the exclusionary words relied upon by the defendant is a question of law.

Here the words "shut down" have no bearing on the circumstances before me and may be ignored. Exclusion 6 makes it clear that the form does not insure, in other words coverage is denied for (h)

"Property at locations which to the knowledge of the Insured are vacant, unoccupied...for more than 30 days."

Black's Law Dictionary defines "unoccupied" as follows:

"Unoccupied within fire policy exempting insurer from liability in case dwelling is unoccupied means when it is not used as a residence, when it is no longer used for the accustomed and ordinary purposes of a dwelling or place of abode or when it is not the place of usual return and habitual stoppage. Hence a mere temporary absence of occupants of dwelling house form such premises with intention to return thereto does not render dwelling unoccupied."

Black's Law Dictionary defines "vacant":

"Vacant ‑ empty, unoccupied as a vacant office or parcel of land. Deprived of contents; without inanimate objects. It implies entire abandonment; non‑occupancy for any purpose. Absolutely free, unclaimed and unoccupied. Vacant and unoccupied as used together in rider to fire policy have different meanings. Term vacant meaning empty, while term unoccupied mean lack of habitual presence of human being"
Couch on Insurance, (2d) Volume 8 p. 467 under the heading ‑ When is a dwelling house considered vacant or unoccupied states,

"So a dwelling house is vacant or unoccupied in the sense in which those terms are employed in a policy when it is used otherwise than as a fixed abode. Although employees occasionally sleep there and some provisions are kept in the house which is visited to obtain them and visiting a dwelling house every day after it becomes vacant by the insured or his hired man or some member of his family to see that things are alright does not constitute an occupancy."

Those are the meanings that I have applied as a matter of law. It then becomes a question of fact whether at any given time a property is "vacant" or "unoccupied".
[...]

Having given all of the evidence as careful a consideration as I can muster, I have concluded that the Defendant has established a proper basis for denying the Plaintiff's claim and their action is dismissed. I am satisfied on a balance of probabilities that the property was both "vacant" and "unoccupied" for more than thirty days prior to September 20, 1995 to the knowledge of the owner. And while I appreciate that the words, vacant and unoccupied, when used in the policy, are used disjunctively, I simply underline that in my view 27 Peppett was both vacant and unoccupied within the meaning to be attributed to those words from some time in July, 1995 when Bradley MacLean started to move the bulk of his belongings to King Street.

In Coburn v. Zorkin Insurance Brokers Inc., 2013 BCSC 2462 (CanLII), the owners of a property were between tenants when a fire broke out resulting in significant damage. Their claim was denied by their insurance company on the grounds that the premises was vacant for more than 30 days at the time of the fire, thus invalidating their claim. The plaintiffs argued the house that had been habitable at the time, as there were functioning appliances and utilities, and there had been some Spartan furniture that allowed Mr. Coburn to eat his lunch there and possibly sleep on the floor, if need be. The plaintiffs claimed that this was sufficient to constitute occupancy by them during the period up to the date of the fire. In other words, the property was no longer vacant. The Court examined the meaning of the term:

[31] The Coburns maintain that FIS must establish both criteria contained in the Policy's definition of "vacant". That is, for FIS to be able to rely upon the vacancy exclusion clause found at paragraph 4(n) of the Policy, it must prove:

(a) the occupant of the Property had moved out with no intent to return; and (b) the dwelling did not contain furnishings sufficient to make it habitable.

[32] I disagree with the Coburns on this point. Many of the cases cited by counsel for the Coburns in support of their argument on the interpretation of the term "vacant" are distinguishable from the case at bar, as the policies in these cases did not have a contractual definition of the term "vacant". Consequently, it fell to the court in each of those cases to judicially interpret the entire policy and, in the circumstances of the case, to determine an appropriate definition of the term (see Kayvon Construction Ltd. v. Commercial Union Assurance Co. of Canada, [1985] B.C.J. No. 636 (S.C.); Hirst v. Commercial Union Assurance Co. of Canada, [1979] B.C.J. No. 824 (C.A.); Morton v. Canadian Northern Shield Co., [1998] B.C.J. No. 1094 (B.C.C.A.); Cody v. Beaver Insurance Co., [1964] A.J. No. 76, (C.A.); Wright v. Capri Insurance Services Inc.,2004 BCSC 265, aff’d 2005 BCCA 559; Harnden v. Farmer’s Mutual Fire Insurance Co., [1997] O.J. No. 4412 (O.C.J.); Shaeen v. Meridian Insurance Group Inc., 2011 ONSC 1578). In this respect, the following observations of Justice Willcock of this court in Peebles are apposite to the case at bar:

[64] Jurisprudence on the meaning of “vacancy” in insurance policies will be of some assistance in determining what meaning has been ascribed to the term by other courts involved in the same exercise as that in which I am engaged . . . Where, as here, however, the policy contains a definition of the word, care should be taken not to substitute a judicial definition for one chosen by the contracting parties ...

A similar conclusion was reached by Justice Barrow in Wright, at para. 25.

[33] In my view, the disjunctive definition of "vacant" in the Policy is not vague or ambiguous, nor does it lead to any uncertainty or absurdity. If the occupant of the Property has moved out with no intention of returning, then the Property is, by the definition the parties have agreed to, vacant. Although the Policy does not explicitly say so, it only makes sense that the Property becomes occupied or non‑vacant when a tenant takes possession of it. If it is unclear whether a tenant has actually moved out or if it is unclear whether the tenant might return, then the second branch of the definition applies. That is, if the Property does not have the furnishings or household equipment sufficient to make it habitable, then it will be deemed vacant. Both of these scenarios are reasonably clear and unambiguous, and neither of them results in an absurdity. In my view, if the Coburns' suggested conjunctive interpretation of "vacant" was adopted in this case, it would create the realistic prospect of the Property never being vacant. Under the Coburns' suggested definition of "vacant", FIS would not only have to show that the tenant had vacated the Property with no intent to return, but also that the residence did not contain furnishings sufficient to make it habitable. Using this definition, all the Coburns would have to do to avoid the Property being vacant under the terms of the Policy would be to maintain sufficient furnishings in it. If this were a fully furnished rental property then, according to the Coburns, it would never be vacant. In my view, that would not reflect the parties' contractual intent, nor would it make any sense.
[34] In my opinion, the definition of "vacant" contained in the Policy provides both parties with the certainty and knowledge that if the tenant moved out of the Property, that it needed to be re‑tenanted within 30 days. The only alternative, the one the Coburns followed when it became clear to them that they did not have a tenant on 1 February 2011, 30 days after the previous tenant had vacated the Property, is to obtain a vacancy permit for the Property. If neither of those two options are met, then the Policy is not being complied with.

In Mattock v. Saskatchewan Mutual Insurance Co., 2006 SKQB 308 (CanLII), the plaintiff owned a property that was subject to water damage. His claim was denied by his insurer on the grounds that the property had been vacant at the time of the damage, and its policy therefore void. The house was rented to various parties. The previous tenant had moved out at the end of December, and the plaintiff turned over access to the house on the 23rd of January. The tenant began painting the interior prior to moving in. The Court found that painting the walls constituted taking up residence, despite the fact that the tenant had not yet actually moved in to the house, and deemed that it had not been vacant in accordance to the terms in the policy:

[4] Under the personal insurance policy definitions contained in the insurance policy in effect prior to when the damage occurred to the plaintiff’s property the following definition appears:

A dwelling or unit is “vacant” when it is not being used by anyone as their usual place of residence, whether or not it contains furniture. A newly constructed dwelling is vacant after it is completed and before the occupant(s) move(s) in. This does not apply to a Seasonal dwelling. A Seasonal dwelling is vacant if most of the furnishings have been removed. [Emphasis added]

[5] In the insurance policy in effect at the time of the plaintiff’s loss the definition changed slightly. It reads:

“Vacant” refers to circumstances where, regardless of the presence of furnishings, all occupants have moved out with no intention of returning and no new occupant has taken up residence; or, in the case of a newly constructed dwelling, no occupant has yet taken up residence.[Emphasis added]

The words “their usual place of residence” has in the applicable policy been replaced by the words “occupant has taken up residence”.

[6] Under II Homeowners Form D there is an exclusion that reads as follows:

We do not insure loss or damage:
30. caused directly or indirectly by sudden and accidental bursting, tearing apart, cracking, burning or bulging due to the pressure of, or the lack of water or steam, in a plumbing, heating, sprinkler or air conditioning system or an appliance for heating water occurring while your dwelling is under construction or vacant even if we have given permission for construction or vacancy.

[7] The words “vacant” and “unoccupied” are used in different senses. Under the homeowners’ exclusion provisions one finds:

We do not insure loss or damage:
12. occurring after your dwelling or unit has, to your knowledge, been vacant for more than 30 consecutive days;
13. occurring after your dwelling or unit has, to your knowledge, been unoccupied for more than 12 consecutive months;


“Occupied” is not defined in the insurance policy.

[8] I am satisfied that on January 23, 2003, Marcel Tyler Duquette took possession of the house owned by the plaintiff. He did so for the purpose of painting the interior and therefore occupied the house. The only issue is whether, as an occupant, he also took up residence at that time. Unfortunately “residence” is not defined in the insurance policy.
[...]

[12] In 4081471 Canada Inc. v. Dadswell Forster Insurance Services Ltd., 2005 ABPC 60 (CanLII), the insurance policy contains an identical definition of “vacant” as is contained in the policy under consideration. It reads:

“Vacant” refers to the circumstance where, regardless of the presence of furnishings: all occupants have moved out with no intention of returning and no new occupant has taken up residence; or in the case of a newly constructed house, no occupant has yet taken up residence.

Unfortunately the trial judge in deciding that case did not address the issue of “taken up residence”.

[13] Black’s Law Dictionary (Sixth Edition) states:

The terms “resident” and “residence” have no precise legal meaning; sometimes they mean domicile plus physical presence; sometimes they mean domicile; and sometimes they mean something less than domicile.

The Dictionary of Canadian Law
at page 918 defines “residence” as “the chief or habitual place of abode of a person”. The plain dictionary meaning is the place where one actually lives or has his home; house where one’s home is; a dwelling house.

[14] The defendant’s position is that the words “taken up residence” contemplates a completed act of becoming a resident. Marcel Tyler Duquette had not moved a significant portion of his belongings into the house. He did not spend a night there. The painting was not yet complete. The plaintiff argued that Marcel Tyler Duquette was renting the house, he was in control of it. The plaintiff was not free to rent the house to anyone else or to himself occupy it.

[15] I am satisfied that a person can have more than one residence. In this age of jet travel people tend to maintain residences in several different places, even in different countries. They come and go frequently and for various lengths of time. Residency cannot be understood to be either permanent or all inclusive.

[16] The mere intention to reside at an address does not constitute either residency or occupancy. See Hirst v. Commercial Union Assurance Co. of Canada, 1979 CarswellBC 486; 70 B.C.L.R. (2d) 361. It is not the material risk, but rather the wording of the policy and in particular the definition of “vacant” where one is used that governs. See Wright v. Capri Insurances Services Ltd., supra.

[17] The change in the definition of “vacant” from the policy in place prior to the loss and the one in effect at the time of the loss removes the requirement that the house or unit be the usual place of residence. The change permits more than one place of residence and does not require a primary place of residence. What is required by the policy in effect at the time of the loss is that residency has been taken up. In my view, that is less onerous than establishing a usual place of residence even in the absence of furniture. Taking up residence is used in its broadest sense.

[18] By its definition, sleeping and eating in a house are not required in order to have taken up residence. Furnishings are not necessary. Not all residences have house delivery of mail. Cell phones sometimes replace phones installed in the residence. I am of the view that Marcel Tyler Duquette had not yet abandoned any other residence he may have had, but he had taken up residence in the house rented from the plaintiff. To hold otherwise would require full-time day-to-day living in the house. In other words, establishing a “usual place of residence”.

[19] Taking up residence in order to avoid a vacancy as defined in the insurance policy requires more than mere possession, but less than establishing a usual place of residence. At some stage after occupying the house and before starting to actually live there, the occupant must take up residence, otherwise, it is by definition vacant. I am of the view that acquiring paint and starting to paint the interior of the house was an act signifying that residence had been taken up. In the same way that laying new carpets, remodelling, installing doors or windows before moving furnishings into a house demonstrates that residence has been taken up, so too does painting the interior. It matters not whether the occupant is the owner or a tenant. It matters only that the occupant has taken up residence.

CONCLUSION

[20] The interpretation of the policy and the intent reflected in the change of the definition of the word “vacant” suggest a particular meaning of “taken up residence”. The tenant maintained control over and directed the activity in the house from and after January 23, 2003. By doing so he took up residence within the meaning of the insurance policy in place at the time of the loss. The house was not vacant. The plaintiff is entitled to coverage under the policy. Either party may refer this matter back to me for further directions or order if necessary.

In Maracle v. Bay of Quinte Mutual Insurance Co. et al., 2010 ONSC 5217 (CanLII), the owner of a house had removed permenantly to a retirement home when the house suffered significant water damage. The insurance provider denied a damages claim on the grounds that the house was vacant at thte material time. Her spouse and her sons had all claimed to have visited the house from time to time, and one of her sons testified that he was engaged in searching for in-home nursing care so that his mother could return. The Court, employing a very straightforward definition of "vacant", deemed on assessment of the evidence that as the occupants of house had moved out and had no intent to return, the house had been vacant and the claim therefore was void:

[5] Occupation of the insured premises is an important component of the insurer’s underwriting decision making processes. For example, the policy provides that Quinte does not insure any loss or damage occurring after the dwelling has to the knowledge of the insured or her spouse been vacant for more than 30 consecutive days (loss or damage not insured s. 13). The policy further provides that Quinte does not insure loss or damage caused by freezing which occurs during the usual heating season if the insured or her spouse have been away from the premises more than 4 consecutive days unless there are, in place, arrangements for daily inspection or the water supply has been shut off and all pipes drained (loss or damage not insured s. 28). Losses resulting from accidental discharge from a plumbing system or sudden and accidental bursting of a plumbing system are excluded when the dwelling is vacant even with insurer’s consent under both section I and II coverage. Additionally, such losses are excluded under Section I coverage when the dwelling is unoccupied.

[6] Vacant is a more restricted exclusion than unoccupied.
[...]

[13] Under the policy “vacant’ means the occupant(s) has/have moved out with no intent to return. A newly constructed dwelling is vacant after it is completed and before the occupants move in. Furthermore, the dwelling is also vacant when the occupants move out and before any new occupant moves in.
Alexsei publishing date:
28