Real Estate Law - OCA

The appellant appealed a motion judge's order, arguing the judge misapprehended evidence regarding the interpretation of a quitclaim deed and its tax consequences.

The Court of Appeal dismissed the appeal, finding that the interpretation of the deed was a matter of law and intention, not evidence, and that the motion judge correctly considered the tax consequences without misapprehending the evidence.

The appellant appealed an order striking his amended statement of claim and dismissing his action as statute-barred under the Limitations Act, 2002.

The underlying action involved allegations of water infiltration from neighbouring properties caused by the respondents' excavation of a trench, installation of a drainage ditch, and engineering of water drainage into a culvert.

The Court of Appeal allowed the appeal, finding that the motion judge erred by treating multiple distinct instances of alleged tortious conduct as a single event.

Reading the pleadings generously, it was not plain and obvious that all claims were statute-barred, highlighting the desirability of waiting until pleadings are closed before bringing a Rule 21.01(1)(a) motion on limitation issues.

The appellant purchaser appealed a summary judgment finding she breached an agreement of purchase and sale.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the appellant was never in a position to close the transaction.

A one-day error by the respondent in setting the closing date was deemed minor and immaterial to the appellant's ability to complete the purchase.

The appellants appealed a summary judgment dismissing their action against the respondent builder.

The appellants had purchased a newly built home but failed to transfer the closing funds until 9 minutes past the 5:00 p.m. deadline on the extended closing date.

The respondent terminated the agreement relying on a 'time is of the essence' clause, but subsequently offered to revive the agreement for an additional $113,000, which the appellants paid.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings that the 5:00 p.m. deadline was unambiguous, the termination was not unconscionable, the revival fee was part of a new contract rather than an impermissible penalty, and the appellants did not act under economic duress.

The City of Ottawa appealed a remittal decision that found various provisions of a 1981 Agreement and related contracts governing golf course lands to be inoperative.

The Court of Appeal had previously struck down conveyancing provisions in the agreement for violating the rule against perpetuities.

The application judge held that without these provisions, the remaining obligations to operate a golf course in perpetuity fundamentally altered the parties' original bargain and were therefore inoperative.

The Court of Appeal dismissed the appeal, agreeing that the removal of the conveyancing provisions frustrated the balance of the agreement, rendering all provisions relating to the golf course lands void.

The appellant sought a declaration of beneficial ownership of a condominium owned by the estate of the deceased, claiming an express or resulting trust.

The application judge dismissed the application, finding insufficient evidence of a trust agreement or gratuitous payments, and noting that oral evidence alone cannot create an interest in land under the Statute of Frauds.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's assessment of the evidence.

The appellants appealed a summary judgment decision granting the respondent commissions on the sale of two properties.

The motion judge found that the appellant Zaman had executed a valid buyer representation agreement and rejected his defenses based on dyslexia, alleged oral amendments, and failure to disclose commissions.

On appeal, the appellants argued that summary judgment was inappropriate because a counterclaim for negligence was inextricably intertwined with the claim.

The Court of Appeal rejected this argument, finding the counterclaim was not inextricably intertwined with the claim and was premised on the validity of the buyer representation agreement itself.

The appellant appealed a summary judgment decision that enforced an oral agreement of purchase and sale for the sale of his property to the respondents for $750,000 (after a $100,000 gift to his daughter).

The motion judge had found that the parties agreed to extend the closing date beyond August 31, 2016.

The Court of Appeal allowed the appeal, finding that the motion judge made a palpable and overriding error in making a factual determination regarding whether the parties had agreed to extend the closing date.

The court held that this crucial factual question, which turned on credibility assessments and competing versions of events, could not be properly resolved on summary judgment and required a trial.

The appellant appealed from a motion judge's dismissal of his action seeking a declaration of adverse possession over part of the respondents' property.

The appellant contended that the motion judge failed to consider evidence of his predecessor in title's mistaken understanding regarding the boundary location.

The Court of Appeal found no error in the motion judge's conclusion that the predecessors had no intention to use the land to the exclusion of its true owner, based on the totality of evidence including the R-Plan filed in support of conversion to the Land Titles Act regime.

The court also rejected the appellant's assertion regarding an old fence creating a boundary, finding it unsupported by evidence.

The appellants appealed a summary judgment order granting the respondents relief for breach of a real estate purchase agreement.

The appellants had breached an agreement to purchase property at 800 Sales Court, Milton, Ontario, and their deposit was forfeited.

The appellants argued on appeal that the respondents failed to mitigate their loss by refusing the appellants' offer to complete the transaction at a reduced price.

The Court of Appeal dismissed the appeal, holding that the respondents had no obligation to mitigate prior to the appellants' breach and were not required to give the appellants an opportunity to match a third-party offer after the property was re-listed.

The appellant, Georgian Properties Corporation, appealed a summary judgment that reduced the principal amounts owing under two vendor take-back mortgages given by the respondent condominium corporation to the developer.

The mortgages related to HVAC service units and unsold parking and storage units.

The motion judge found the developer's revised disclosure documents infringed the Condominium Act and that both transactions were oppressive.

The principal amounts were reduced to reflect fair market value.

The Court of Appeal upheld the motion judge's findings regarding insufficient disclosure and oppression, dismissing the appeal and cross-appeal.

The appellant appealed a summary judgment decision requiring him to return a $50,000 deposit to the respondent in a real estate transaction.

The respondent had refused to close the purchase after discovering a second TransCanada Pipeline easement running under the pool, cabana, and patio that had not been disclosed in the Agreement of Purchase and Sale, along with undisclosed litigation between the appellant and the pipeline company.

The Court of Appeal upheld the summary judgment, finding that the appellant breached the APS by failing to convey title free from undisclosed restrictions and by attempting to require the respondent to sign an agreement the appellant had contracted to execute.

The appellant sought specific performance of an agreement of purchase and sale for a mixed commercial/residential property in Port Perry.

The agreement contained a mortgage assumption condition requiring approval from the mortgagee, Alterna Savings, on terms acceptable to the buyer.

The application judge dismissed the application, finding the condition precedent had not been satisfied because the buyer failed to formally accept Alterna's approval by signing and returning the approval letter before the deadline.

The Court of Appeal allowed the appeal, holding that the condition precedent was satisfied when Alterna sent its approval letter, and that formal execution was not required.

The court ordered specific performance subject to Alterna renewing its approval on substantially similar terms.

The appellants appealed from a motion judge's decision that dismissed their motion for summary judgment to dismiss the plaintiff's action and granted the plaintiff's motion for summary judgment for a declaration that three agreements of purchase and sale were valid and enforceable.

The central issue was the interpretation of handwritten amendments to the agreements that used the terms "verdict" and "official verdict" in place of the defined term "OMB Decision." The appellants argued that the use of different terms presumptively indicated different meanings were intended.

The Court of Appeal upheld the motion judge's conclusion that the terms had the same meaning, finding that the parties' clear intention was to condition the agreements on receipt of a final decision from the Ontario Municipal Board regarding a proposed development.

The appellant appealed the dismissal of a claim for adverse possession against the respondent property owner.

The appellant argued that the application judge erred by departing from agreed facts in concluding that adverse possession had not been established, particularly regarding whether the respondent had been excluded from the disputed property.

The Court of Appeal upheld the dismissal, finding that the application judge's findings were fully supported by the agreed facts, affidavits, and cross-examination evidence.

The court distinguished between exclusion of uninvited persons and exclusion from the owner's intended use of the property.

The appellant purchased an agreement of purchase and sale for a property containing a pub-style restaurant, golf course, residential apartments, and other amenities.

A dispute arose regarding whether the residential apartments constituted a legal non-conforming use under applicable zoning by-laws.

The appellant refused to close, claiming the deficiency was not remedied.

The motion judge dismissed the appellant's motion for summary judgment and the action, finding the appellant had waived its objection through conduct.

The Court of Appeal reversed, holding that the appellant had not communicated an unequivocal and conscious intention to abandon its right to rely on the deficiency, and therefore was entitled to return of deposits.

The appellant sought to purchase real property from the respondent under an offer accepted on October 10, 2015, which included a due diligence clause requiring written notice within 30 days that the condition was satisfied.

The appellant failed to provide such notice by the deadline of November 9, 2015.

Subsequently, the appellant submitted an amendment to the agreement that purported to extend the due diligence period to 60 days.

The application judge found that a new agreement had been created.

The Court of Appeal allowed the appeal, finding that the application judge erred by failing to properly consider the distinction between resurrection of the original agreement and creation of a new agreement, and by not adequately addressing the parties' intentions regarding the fact that the original agreement had become null and void.

The matter was remitted to proceed by action.

This appeal and cross-appeal arose from a failed residential subdivision development project in Fort Erie, Ontario.

The central issues were whether the parties had entered into an enforceable written agreement dated December 13, 2005, whether there was a breach or repudiation of that agreement, and the validity of a construction lien filed by Ravenda Homes.

The motion judge had dismissed Ravenda Homes's breach of contract action, vacated its certificate of pending litigation, allowed its lien action, and allowed the respondent's counterclaim in part.

On appeal, the Court of Appeal upheld most of the motion judge's findings but set aside the award of damages under section 35 of the Construction Lien Act, referring that issue to trial.

Hercules Moulded Products Inc. appealed a summary judgment dismissing its claims against Stewart Title Guaranty Company for indemnification under a Commercial Lender Endorsement title insurance policy.

The claims arose from problems with two adjacent properties in Windsor, Ontario that Hercules held as security for a mortgage.

The issues included: (1) the cost of filling an excavation ordered by the City of Windsor, added to the tax bill; (2) development agreements registered on title; and (3) an alleged encroachment.

The Court of Appeal affirmed the dismissal on two primary grounds: first, the excavation matter was excluded from coverage under the policy's non-disclosure provision as it was known to Hercules but not disclosed to Stewart before the policy date; and second, the development agreements and encroachment caused no actual loss or damage as required by the policy.

The appellant appealed a summary judgment dismissing her action against a lawyer for breach of contract and breach of fiduciary duties arising from real estate transactions in 2011.

The motion judge found the claim was statute-barred, as the appellant knew of her claim and damages by May 2012, but did not commence the action until September 2014, more than two years later.

The appellant argued the motion judge erred in analyzing discoverability and in finding no medical evidence of incompetence during the relevant period.

The Court of Appeal upheld the motion judge's findings and conclusions as available on the record and found no palpable and overriding error.

The appeal was dismissed with costs awarded to the respondent.