Real Estate Law

The applicant mortgagee brought an application for possession of a mortgaged property, judgment for the outstanding debt, and leave to issue a writ of possession following the respondent mortgagor's default.

The court held that a mortgagee may proceed by way of application rather than an action under Rule 64 where there are no material facts in dispute.

The court granted judgment for the debt and an order for possession, but denied leave to issue a writ of possession because the applicant failed to prove it had given notice to all persons in actual possession of the property as required by Rule 60.10(2).

The applicant brought an ex parte motion seeking to appoint her husband as her litigation guardian and for leave to issue a certificate of pending litigation against a preconstruction condominium property.

The court granted the appointment of the litigation guardian as the applicant was incapable following a serious traffic accident.

However, the court dismissed the motion for a certificate of pending litigation.

Although there was a triable issue regarding the termination of the agreement of purchase and sale, the court applied the Dhunna factors and found that the equities favoured the respondent, noting the property was not unique, damages would be an adequate remedy, and there was another willing purchaser whose transaction was scheduled to close imminently.

The applicant parents and respondent son brought competing applications under the Partition Act regarding the ownership of a residential property.

The parents claimed 100% beneficial ownership based on a resulting or constructive trust, while the son claimed 100% beneficial ownership based on monetary gifts and his legal title.

The court found that the property was purchased as part of a family real estate joint venture.

The court declared the parties to be 50:50 owners, subject to a resulting trust recognizing the parents' financial contributions, and ordered the partition and sale of the property with the net proceeds to be divided equally.

The plaintiffs brought a motion to maintain a certificate of pending litigation (CPL) on a property owned by the defendants.

The plaintiffs had paid deposits for pre-construction townhomes, but the defendants made no progress on the development and attempted to sell the property to a third party.

The defendants argued the CPL should be discharged based on a 'no registration clause' in the agreements of purchase and sale.

The court found a triable issue regarding an interest in land and held that the equitable factors favoured maintaining the CPL to protect the plaintiffs' investments, despite the contractual prohibition.

The plaintiff vendor brought a motion for summary judgment against the defendant purchaser for breaching an Agreement of Purchase and Sale for a residential property.

The defendant failed to close the transaction after the real estate market declined and she was unable to secure sufficient financing.

The court found no genuine issue for trial, rejecting the defendant's argument that the plaintiff's agent misrepresented the property's value.

Summary judgment was granted, the $60,000 deposit was forfeited, and the plaintiff was awarded $98,936.56 in damages for loss of bargain and carrying costs.

The defendants brought a motion to adjourn a three-week trial scheduled to commence in one month, citing the plaintiffs' late production of documents and two expert reports.

The plaintiffs agreed to withdraw one expert report if the trial proceeded.

The court applied the factors from Ariston Realty and Igbinosun, finding that the defendants failed to provide sufficient evidence demonstrating why they could not proceed or how their defence would be significantly compromised.

The court emphasized the prejudice of delay to the plaintiffs in an eight-year-old action and dismissed the motion, without prejudice to the defendants seeking relief at trial regarding the late productions.

The respondent brought a motion to set aside an ex parte order granting a certificate of pending litigation (CPL) over a residential property and to discharge the CPL.

The applicant father claimed he provided funds for the property's purchase and mortgage, alleging an oral trust agreement.

The court found the applicant failed to make full and fair disclosure of material facts on the ex parte motion, including discrepancies in the amounts allegedly provided and his involvement in the mortgage.

Although a triable issue regarding an interest in land was established, the court held that the equities favoured discharging the CPL, as damages would be an adequate remedy and a sale was pending.

The CPL was discharged on the condition that a portion of the sale proceeds be paid into court.

The plaintiff brought a motion for a certificate of pending litigation in an action for specific performance of an agreement of purchase and sale of a residential property.

The transaction failed to close after the property remained occupied by a tenant and other individuals, and the plaintiff subsequently asked for her deposit back.

The court dismissed the motion, finding that the plaintiff lost any claim to an interest in the land when she chose to terminate the agreement, and that her allegations of misrepresentation would only give rise to a claim for damages.

The applicants sought a declaration that a secondary building on their property had legal nonconforming status for industrial use.

The property was zoned residential in 1985, but the previous owner had operated a small engine repair business there, establishing a legal nonconforming use.

After the previous owner's death in 1995, the industrial use ceased for nearly 12 years, with the building used only for storage until the applicants purchased it in 2007 and began operating a crane business.

The court dismissed the application, finding that the legal nonconforming use had been discontinued and lost long before the applicants purchased the property.

The plaintiffs brought a motion for a certificate of pending litigation (CPL) after the defendants terminated an agreement of purchase and sale for a residential property.

The defendants claimed the agreement was terminated because the plaintiffs failed to provide a certified cheque for the deposit, though the agreement only required a 'negotiable cheque'.

The court found that the plaintiffs had established a reasonable claim to an interest in the land, noting the property's unique feature of abutting a public park.

Concluding that the defendants likely repudiated the agreement to seek a higher purchase price in a rising market, the court held that the equities strongly favoured the plaintiffs and granted the CPL.

The applicants sought to appoint a receiver over a commercial property due to an alleged default on a third mortgage.

The respondents brought a counter-application arguing the mortgage was void or unenforceable due to material alterations, lack of independent legal advice, and unconscionability.

The court found the mortgage valid and enforceable, rejecting the respondents' arguments.

However, the court disallowed several fees claimed by the applicants, determining the actual amount secured by the mortgage.

Finding sufficient equity in the property to satisfy the debt, the court dismissed the application to appoint a receiver, without prejudice to future applications if the debt remains unpaid.

The plaintiff estate trustee brought a motion for default judgment to rectify title to a condominium property.

The deceased plaintiff had alleged that the defendants fraudulently transferred the property into joint tenancy, registered a forged power of attorney, and obtained a mortgage without his knowledge or consent.

The court found the instruments were fraudulent under the Land Titles Act and ordered them deleted from title.

The court also awarded $10,000 in punitive damages against the fraudulent actor and substantial indemnity costs.

The applicants brought an application seeking a declaration of a 25% equitable ownership interest in a property based on an alleged oral agreement.

The respondents denied the agreement.

At the hearing, the parties jointly requested an adjournment to conduct cross-examinations on affidavits.

The court questioned whether the matter should proceed by application given the fundamental factual dispute, but allowed it to continue as an application on consent, noting it is functionally similar to a summary judgment motion and the hearing judge will ultimately determine if the record is sufficient to resolve the dispute.

The defendant lawyers brought a motion to strike the plaintiff's claim against them for professional negligence under Rule 21.01(1)(b) of the Rules of Civil Procedure.

The plaintiff, a lender in a private mortgage transaction, alleged that the defendant lawyers, who represented the borrower, owed it a duty of care and failed to conduct adequate due diligence.

The court granted the motion, finding that opposing counsel generally owe no duty of care to an opposing party, especially when both parties are represented by independent counsel.

The court concluded that there was no special relationship or sufficient proximity to establish a duty of care, and struck the pleadings against the defendant lawyers.

The plaintiff and defendant are neighbours involved in a property dispute over a concrete wall.

The plaintiff previously sued the defendant in Small Claims Court, which resulted in a consent dismissal.

The plaintiff then commenced a new action in the Superior Court for negligence, trespass, and nuisance.

The defendant moved for summary judgment.

The court granted the motion, finding that the new action was barred by cause of action estoppel and constituted an abuse of process, as it was an attempt to re-litigate the previously dismissed claim.

The defendant solicitor brought a motion to strike the plaintiffs' claims against him for damages for an improvident sale and for an accounting of sale proceeds.

The plaintiffs, who were third mortgagees, conceded the improvident sale claim against the solicitor.

However, they maintained the claim for an accounting, arguing the solicitor owed a duty to disburse funds honestly and account to subsequent encumbrancers under the Mortgages Act.

The court found the accounting claim was not doomed to fail and dismissed the motion to strike it, but ordered that the claim against the solicitor would be struck if he provided the accounting within 10 days.

The applicant was successful in an application for the partition and sale of a property held as tenants in common with the respondent.

The court previously ordered the sale and directed a reference to the Master.

In this endorsement, the court determined the quantum of costs payable to the applicant.

The applicant sought $12,459.98 on a partial indemnity basis.

The court reduced the amount claimed for drafting the notice of application and supporting affidavit due to overlap between counsel and a student-at-law.

Costs were fixed at $11,454.28, inclusive of disbursements and HST, to be paid from the respondent's share of the net proceeds of sale.

The applicants brought an application for a declaration regarding the boundary between their property and the respondents' property, alleging trespass, negligent misrepresentation, and nuisance.

The court dismissed the trespass claim, finding the respondents had established a crystallized claim for adverse possession of a narrow strip of land up to an old fence line prior to the properties' conversion to the Land Titles system.

The negligent misrepresentation claim was dismissed as improperly pleaded and unproved.

The nuisance claim regarding water run-off was converted to an action and directed to a summary trial.