Real Estate Law

Two related applications were brought to determine the priority and validity of $283,508.64 in disputed fees claimed by the first mortgagees following a power of sale.

The second mortgagee argued the fees were not part of the first mortgage and violated s. 8(1) of the Interest Act.

The court held that the forbearance agreement containing the fees did not form part of the first mortgage and could not be enforced in priority to the second mortgage.

Furthermore, the court found the default and prepayment fees constituted unenforceable penalties under s. 8(1) of the Interest Act, meaning they could not be claimed against the mortgagor or guarantor either.

The plaintiff landlord sought to continue an ex parte injunction preventing the defendant tenant from removing equipment, including an external HVAC unit and generator, from the leased premises.

The tenant argued it had paid for the equipment and had the right to remove it.

The court found a serious issue to be tried regarding the ownership of the equipment and whether it constituted fixtures or trade fixtures.

The court concluded that the balance of convenience favoured leaving the external HVAC unit and generator in place pending the litigation, effectively granting a preservation order, while noting that damages would be an adequate remedy for equipment already removed.

The plaintiff brought an action claiming 100% beneficial ownership of a family property that had been transferred multiple times among family members and ultimately sold to a third-party corporation.

The plaintiff sought to set aside the sale as a fraudulent conveyance.

The court found that the plaintiff and his father were equal 50% beneficial owners of the property.

The court declined to set aside the sale, finding the third-party corporation was a bona fide purchaser for value without notice.

The court ordered the plaintiff's parents to pay him 50% of the net sale proceeds under a constructive trust.

All counterclaims were dismissed.

The plaintiff brought an urgent motion for injunctive relief to prevent the defendant, who is incapable of instructing counsel and whose financial matters are managed by her sons as powers of attorney, from dissipating her assets and becoming unable to satisfy a potential judgment for failing to close a real estate purchase.

The court found a real concern regarding the dissipation of assets and granted the injunction, ordering the net sale proceeds of the defendant's properties to be paid into court.

The court also appointed the Public Guardian and Trustee as litigation guardian for the defendant due to a potential conflict of interest with her sons.

The plaintiff moved for default judgment against the defendant for failing to close a real estate transaction.

The defendant did not file a Statement of Defence and was noted in default.

The court found the defendant breached the contract to sell her home and awarded the plaintiff $125,000 in damages, representing the difference between the purchase price and the property's appraised value on the closing date.

The plaintiff was also awarded costs on a partial indemnity basis.

The defendants brought a motion for summary judgment to dismiss the plaintiff's claim for an equitable mortgage.

The plaintiff brought a cross-motion to determine the proper amount of the remaining proceeds from a power of sale.

The court granted the defendants' motion, finding no genuine issue requiring a trial as the parties always intended the plaintiff to have a second-ranking charge behind construction financing.

On the cross-motion, the court disallowed the defendants' three-month interest charge under section 8 of the Interest Act, reduced the claimed legal fees, and ordered the defendants to pay the plaintiff the balance of the residual proceeds of $99,400.83.

The plaintiff real estate brokerage sued the defendants for a $250,000 commission under a Buyer Representation Agreement (BRA) after the defendants purchased a commercial property.

The sole issue at trial was whether the defendant signed a specific initial on the BRA extending its term to one year, which would cover the date of the purchase.

Both parties called forensic document examiners to testify on the authenticity of the initial.

The court found the plaintiff's expert more reliable and concluded on a balance of probabilities that the defendant did sign the initial.

The plaintiff was awarded the $250,000 commission.

The plaintiff mortgagor sought summary judgment against the defendant second mortgagee regarding disputed charges included in a discharge statement.

The mortgagee had charged a $42,000 default maturity fee, increased the interest rate from 12% to 18% upon default, and levied $4,000 in administrative fees for payments made to the first mortgagee.

The court found that the default maturity fee and interest rate increase violated section 8 of the Interest Act as prohibited penalties.

The court also found no contractual basis for the administrative fees.

Summary judgment was granted in favour of the plaintiff for the overpaid amount of $53,457.10 plus costs.

The plaintiff sued for damages arising from the defendants' refusal to close a real estate transaction for commercial property intended for condominium development.

Liability for breach of contract was previously determined by summary judgment.

At trial to quantify damages, the plaintiff sought disgorgement of profits or, alternatively, expectation damages including reimbursement of development expenses.

The court declined to award gain-based restitution but awarded expectation damages to make the plaintiff whole, comprising the $323,000 difference between the purchase price and the land's value on the closing date, plus 90% of the plaintiff's out-of-pocket development expenses ($1,062,901).

The defendants' counterclaim was allowed in part for admitted debts and rent up to the date of breach.

The plaintiff, former owner of a commercial property, sued the neighbouring property owner for environmental contamination caused by the migration of dry-cleaning solvents (PCE, TCE, DCE).

The defendant purchased the neighbouring property in 2007 and was put on notice of the contamination in 2010 but failed to take reasonable steps to investigate or remediate the issue, ignoring Ministry of the Environment requests until a Provincial Officer's Order was issued.

The court found the defendant liable in nuisance and negligence for allowing the continuing migration of contaminants after acquiring knowledge of the issue.

The plaintiff was awarded $1,291,307.21 in damages, representing the diminution in the property's market value and reasonable engineering expenses incurred to obtain a Record of Site Condition.

The applicant sought a declaration that it held an implied easement by common intention over the airspace occupied by a private bridge connecting its properties over a city-owned public road.

The bridge was built as compensation for a 1968 expropriation.

The respondent argued the applicant only held a revocable license.

The court found that the 1973 conveyance of private road lands abutting the bridge evinced a common intention to grant an easement over the airspace, as a mere license would defeat the commercial purpose of the bridge.

The court declared the bridge a fixture to the applicant's lands and ordered the registration of an implied easement.

The applicants, a private management company and a school board, sought a declaration that a sports facility operated by the company on school board land was exempt from property tax.

The municipal assessment corporation had assessed the land as taxable, arguing the company was a tenant.

The Superior Court of Justice dismissed the application, finding that the licence agreement between the company and the school board created a landlord-tenant relationship.

The company satisfied the essential elements for rateable occupation, including actual occupation, exclusivity, value, and permanence.

Consequently, the land was not exempt from taxation under the Assessment Act.

The plaintiff brought a motion for summary judgment against his title insurer, FCT, for amounts owing under a policy following a mortgage fraud.

The parties agreed that some amount was owing, leaving only the quantification of interest and coverage of certain fees in dispute.

The court held that the plaintiff was entitled to compound interest as provided in the mortgage, rejecting FCT's argument to substitute statutory interest.

However, the court dismissed the plaintiff's claims for a notice of sale fee and a lender's fee, finding they were not covered under the policy's terms.

The applicant property owner brought an application to quash a municipal by-law that commenced expropriation proceedings for its land.

The municipality passed the by-law to implement a downtown redevelopment plan that did not yet conform to its official plan.

The applicant argued the by-law violated s. 24(1) of the Planning Act.

The court dismissed the application, finding that s. 24(3) of the Planning Act permits a municipality to pass by-laws to take preliminary steps, such as seeking approval and giving notice of expropriation, before an official plan is amended.

Following the dismissal of the applicant's motion for summary judgment regarding a real estate transaction deposit, the parties were unable to settle the quantum of costs.

The respondent sought $31,015.72 on a partial indemnity basis, while the applicant argued for approximately $11,000.

The court found the time spent by the respondent's counsel reasonable but reduced the partial indemnity hourly rate from 80% to 60% of the actual rate.

Costs were fixed at $24,314.82 inclusive of fees, disbursements, and HST.

The defendant son brought a motion under Rule 45.02 for an order requiring the plaintiff mother to pay into court all rents received from a disputed property, as well as occupancy rent, pending the outcome of her action for a declaration of beneficial ownership.

The court dismissed the motion, finding that anticipated future rental revenues and disputed occupancy rent do not constitute a 'specific fund' within the meaning of the rule.

The court also found that the balance of convenience favoured the plaintiff, who relied on the rental income to pay for the property's utilities and expenses.

The plaintiff was entirely successful on a motion for summary judgment for specific performance of an agreement of purchase and sale for a residential property.

The court determined the quantum of costs to be awarded to the plaintiff.

Finding the plaintiff's claimed fees and disbursements to be fair, reasonable, and proportional, the court awarded costs of $51,886.75 on a partial indemnity scale.

Following a successful motion for summary judgment and possession of land subject to a defaulted mortgage, the plaintiff sought substantial indemnity costs of $32,143.58.

The defendants argued for partial indemnity costs, noting a forbearance agreement was in place and there were live issues regarding the amounts claimed.

The court found the defendants' conduct did not warrant substantial indemnity costs and awarded partial indemnity costs.

Costs were fixed at $20,544.34, inclusive of fees, disbursements, and HST.