Real Estate Law - OCA

The respondent municipality gave notice of termination of a 1999 lease to the appellant soccer park corporation.

The respondent offered a new lease for the same property, but with a shorter term and a requirement that the appellant contribute to maintenance costs.

The 1999 lease required the respondent to provide another reasonably similar soccer facility at another location at its own expense upon termination.

The Court of Appeal held that the respondent failed to comply with these clear terms, rendering the termination invalid.

The appeal was allowed.

The appellants appealed a trial decision dismissing their claim for adverse possession over a 2.6-foot strip of land on the respondents' property.

The appellants argued the trial judge erred in his factual findings and in applying the test for adverse possession, specifically regarding mutual mistake and the requirement to exclude the true owner.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings and confirming that effective exclusion of the true owner throughout the 10-year period remains a requirement for adverse possession, even in cases of mutual mistake.

The appellant mortgagee appealed an order dismissing its motion to re-open a default judgment for foreclosure to request a reference on the mortgage covenant.

The default judgment had been obtained on consent 2.5 years prior.

The Court of Appeal dismissed the appeal, finding that the Master properly exercised his discretion to deny the relief given the unexplained delay, the finality of the judgment, and the prejudice to the mortgagors.

The appellants appealed an order striking their claims against a bank and its legal counsel regarding the enforcement of two mortgages on properties in default.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that there was no basis for a claim against the bank's counsel, one appellant lacked standing, and the other appellant's claims should have been raised in the underlying enforcement proceedings.

The appellant appealed an order granting an injunction to prevent him from developing land without a permit from the Conservation Authority.

The appellant had a history of developing land without a permit and explicitly stated his intention to continue doing so without seeking one.

The Court of Appeal dismissed the appeal, finding that while the Authority typically relies on penal provisions to ensure compliance, the injunction was justified in this case to protect the public interest in the wetland environment.

The appellants appealed a mortgage enforcement judgment, arguing that the application judge erred by allowing the respondent bank to proceed by way of application rather than an action.

The Court of Appeal dismissed the appeal, finding that Rule 14.05(3)(e) of the Rules of Civil Procedure authorizes applications for declarations of an interest in land.

Furthermore, the procedural objection was raised for the first time on appeal.

The appeal was dismissed with costs awarded to the respondent.

The landlord sued the tenant in negligence after a fire started in the tenant's unit, causing property damage.

The parties brought a motion by special case to determine if the landlord's subrogated insurer was precluded from maintaining the claim.

The motion judge allowed the claim to proceed.

On appeal, the Court of Appeal reversed, holding that because the Offer to Lease required the tenant to contribute to the cost of insurance, the risk of fire loss passed to the landlord, precluding the subrogated claim.

The appellant proceeded by way of power of sale but the Notice of Sale did not reference an obligation under the Agreement of Purchase and Sale.

The respondent tendered the full amount of the debt specified in the Notice of Sale.

The Court of Appeal upheld the application judge's finding that the appellant was bound to deliver the discharge upon tender of the specified amount, as finding otherwise would impermissibly clog the equity of redemption.

The appellant purchased 88 lots from the respondent developer.

The parties disputed who was responsible for paying certain development charges to the municipality under their Agreement of Purchase and Sale.

The motion judge found the respondent was not required to pay charges due after the registration of the Plan of Subdivision, interpreting 'prerequisite' temporally.

The Court of Appeal allowed the appeal, holding that interpreting the contract as a whole required 'prerequisite' to mean an obligation to pay, giving effect to a clause permitting payment after registration.

The appellant appealed the dismissal of his action against the respondent bank regarding the sale of four properties.

The Court of Appeal dismissed the appeal, finding that the bank had authority to sell the properties, did not sell them imprudently, and properly applied the sale proceeds to the outstanding mortgages.

Furthermore, the court agreed with the trial judge that the appellant's action was barred by the Statute of Limitations.

The City of Windsor appealed a decision finding it had no interest in land referable to certain parking spaces.

On appeal, the City attempted to argue for the first time that it had statutory rights of enforcement under s. 41.1(10) of the Planning Act.

The Court of Appeal dismissed the appeal, holding that the new argument could not be raised due to appellate practice and an insufficient factual record.

The court found no error in the application judge's conclusion that the City had no interest in the land.

The appellant appealed an order dismissing her request for leave to institute a new proceeding against the respondent bank.

The appellant had previously defaulted on her mortgage, resulting in a default judgment and the sale of her home.

After multiple unsuccessful proceedings to set aside the default judgment, she was prohibited from instituting further proceedings without leave.

The Court of Appeal upheld the motion judge's decision to deny leave, agreeing that the appellant sought to relitigate previously decided matters and had failed to pay costs from prior proceedings.

The appellants appealed a motion judge's refusal to allow them to amend their statement of defence to include a counterclaim, her refusal to stay a summary judgment granted on a defaulted mortgage, and her refusal to enjoin the respondent from exercising its power of sale.

The Court of Appeal dismissed the appeal, finding that the proposed counterclaim regarding an improvident sale was no longer viable because the sale did not occur.

The court also held that the appellants could not rely on the delay in enforcement due to forbearance agreements to invalidate the notice of sale.

The appellants appealed an order finding that their commercial lease was not renewed and had not become a yearly tenancy.

The Court of Appeal upheld the motion judge's conclusion that the tenancy did not become a yearly tenancy requiring six months' notice because the lease contained a no-overholding clause.

The appeal was dismissed with costs fixed at $7,500.

The appellant appealed the motion judge's refusal to grant relief from forfeiture regarding a lease.

The Court of Appeal found no error in principle in the motion judge's exercise of equitable and discretionary power, concluding the order was not unreasonable.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed the dismissal of his claims against a solicitor and other defendants, as well as the award of substantial indemnity costs.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's findings of fact and credibility regarding the solicitor.

The court also rejected the claim against the other defendants, noting that any vendor's lien was extinguished when the bank exercised its security.

The award of substantial indemnity costs was upheld due to the appellant's attack on the respondent's character.

The appellant appealed a decision dismissing its motion to set aside a default judgment.

The motion judge found that the statement of claim was properly served, the appellant made a tactical decision not to defend, and the appellant failed to raise an arguable defence on the merits.

The Court of Appeal upheld the decision, noting the appellant failed to explain its failure to defend under Rule 16.07(a) and did not respond to the respondent's allegations regarding the mortgages.

The appeal was dismissed with costs.

The respondent and a second mortgagee advanced funds to a mortgagor, but their mortgages were registered in the wrong order due to a solicitor's error.

The appellant, a third mortgagee, learned of the error and subsequently purchased an assignment of the mistakenly first-registered mortgage at a discount, claiming priority over the respondent.

The application judge found the appellant had actual notice of the true priority before acquiring the assignment, defeating its claim.

The Court of Appeal upheld this finding and dismissed the appeal.

The appellant appealed an order determining a question of law under Rule 21.01(1)(a) regarding the interpretation of a lease.

The Court of Appeal upheld the motion judge's finding that the tenant could only look to its insurer for loss due to sprinkler leakages, even if the loss was less than the deductible under the insurance policy.

The appeal was dismissed with costs.

The appellants, who held a certificate of pending litigation on a property, appealed a judgment obtained without notice to them.

The Court of Appeal allowed the appeal, holding that under Rule 37.07(1) the appellants were affected parties entitled to notice, and under Rule 37.14 the motion judge should have set aside the judgment obtained without notice.