Real Estate Law - OCA

The appellants appealed a trial judgment, conceding that all grounds of appeal depended on the trial judge's finding that there was no fourth lease dated October 31, 2007, with Nemesis Entertainment as a tenant.

The Court of Appeal found that the trial judge's rejection of the lease's existence was well anchored in the evidence and contained no palpable and overriding error.

The appeal was dismissed with costs awarded to the respondents.

The vendor appealed a trial judgment finding that an Agreement of Purchase and Sale terminated on its own terms, entitling the purchasers to a return of their deposit.

The vendor argued the trial judge erred in finding time was not of the essence and in placing the onus on the vendor to set a new closing date.

The Court of Appeal dismissed the appeal, finding the original agreement lacked a time of the essence clause and the vendor failed to provide a revised occupancy statement or address the purchasers' concerns as promised.

The vendor was estopped from claiming the agreement was not at an end.

The appellants appealed the dismissal of their solicitor negligence action, arguing the trial judge failed to consider the solicitor's duty to warn about the consequences of signing a mortgage discharge.

The Court of Appeal dismissed the appeal, noting that at trial, the appellants claimed they never met the solicitor, and their counsel conceded the action would fail if the trial judge found they had indeed signed the documents.

Because the trial judge accepted the solicitor's evidence that the meeting occurred, the duty to warn was not a live issue.

The appellant landlord appealed an order granting the respondent tenant relief from forfeiture of a commercial sublease.

The appellant had issued notices of termination alleging the tenant permitted stolen hardwood flooring to be stored on the premises, constituting criminal activity.

The application judge found no admissible evidence of criminal activity by the tenant and granted relief from forfeiture for a minor breach regarding storage by a related company.

The Court of Appeal dismissed the appeal and a motion to admit fresh evidence, finding no palpable or overriding error in the application judge's assessment of the evidence.

The respondents transferred their home to the appellant at below market value as part of a scheme to defraud creditors, with an oral agreement for re-conveyance.

When the appellant refused to re-convey the property, the respondents sued for unjust enrichment and a constructive trust.

The trial judge found the agreement of purchase and sale was a sham and ordered a re-conveyance based on unjust enrichment.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's application of unjust enrichment or the 'clean hands' doctrine.

The appellants purchased luxury hotel condominium units in the Trump International Hotel based on financial estimates provided by the developer, Talon.

The estimates projected significant returns but were based on uninformed opinions and understated expenses.

The appellants sued for misrepresentation.

The motion judge dismissed their claims, finding their reliance on the estimates unreasonable and barred by entire agreement clauses.

The Court of Appeal reversed, holding that reliance was reasonable and it would be unconscionable to enforce the exculpatory clauses given Talon's evasion of Securities Act protections.

The Court ordered rescission for one appellant and damages for the other.

The appellants appealed an order granting a writ of possession to the respondent assignee of a defaulted mortgage.

The appellants argued the motion judge's reasons were inadequate, the Farm Debt Mediation Act applied, the increased interest rate violated s. 8 of the Interest Act, the assignment constituted a new mortgage, the terms were unconscionable, and the motion judge erred by tying two mortgages together.

The Court of Appeal dismissed all arguments, finding the reasons adequate for a simple record, no evidence of farming, no violation of the Interest Act, and that the assignment merely amended existing terms.

The appeal was dismissed with costs.

The appellant tenant sued the respondent landlord for damages arising from two sewer backups, alleging breach of lease, negligence, and misrepresentation.

The motion judge struck most claims, finding they were barred by the lease's covenant to insure.

On appeal, the Court of Appeal held that while the covenant to insure barred the negligence and breach of contract claims, it was not plain and obvious that it or the 'entire agreement' clause barred the negligent misrepresentation claim.

The Court also allowed the tenant's claim that the landlord was estopped from relying on the covenant to insure for the second backup to proceed.

The appellant brought a motion for summary judgment against the respondents on an alleged guarantee of a $30,000 loan.

The motions judge dismissed the motion and granted the respondents' cross-motion for summary judgment, dismissing the action against them.

On appeal, the Court of Appeal upheld the motions judge's findings that there was no agreement to guarantee the loan and that, in any event, an oral guarantee would be unenforceable under section 4 of the Statute of Frauds.

The appeal was dismissed.

The appellant appealed a trial judgment granting the respondents ownership of a portion of a road allowance by adverse possession and finding an easement of necessity over a gravel road on the appellant's property.

The Court of Appeal upheld the adverse possession finding, concluding the trial judge reasonably interpreted a 1998 agreement as not interrupting the ten-year possession period.

However, the Court set aside the finding of an easement of necessity, holding that necessity must be assessed at the time of the original grant, at which point the road allowance provided legal access.

The gravel road was instead declared an access road under the Road Access Act.

The appellants agreed to purchase a home from the respondent for $2.9 million, but the transaction failed to close.

The trial judge found that the appellants repudiated the agreement and forfeited their $75,000 deposit, declining to grant relief from forfeiture despite the property later selling for more.

On appeal, the appellants argued the respondent had repudiated the contract by failing to close on the required date.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the contract remained alive until the appellants chose not to proceed, and that retaining the deposit was not unconscionable.

The appellants appealed a summary judgment granted in favour of the respondent regarding a loan.

The respondent had provided evidence of the loan, an amortization schedule, and a record of payments.

The appellants admitted to the loan but claimed they made additional payments by cash and cheque, which were unsupported by receipts.

The Court of Appeal found that the motion judge carefully analyzed the evidence and correctly concluded that the appellants failed to put their best foot forward.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed the dismissal of her claim for water damage to her property allegedly caused by the respondents, arguing the trial judge erred in credibility findings, was biased, and misapprehended evidence.

The Court of Appeal dismissed the appeal, finding the trial judge's factual and credibility findings were well supported and there was no reasonable apprehension of bias.

The respondents' cross-appeal for substantial indemnity costs was also dismissed, as the trial judge's costs decision was entitled to deference.

The appellants appealed a decision finding that the respondent's proposal to increase the occupancy of townhouse units to seven students, each with individual leases, did not constitute a boarding, lodging or rooming house under the Building Code.

The Court of Appeal allowed the appeal, finding that the proposed use provided lodging for more than four persons in return for remuneration, thereby meeting the definition under the Building Code.

The units as constructed could not accommodate the increase without violating fire exit requirements.

The appellant condominium corporation appealed the dismissal of its motion for summary judgment regarding a lien registered against the respondent's unit for unpaid common expenses.

The Court of Appeal held that under section 85 of the Condominium Act, a separate lien arises upon each default, meaning late registration only invalidates liens arising more than three months prior to registration.

However, the appeal was dismissed because the appellant failed to provide adequate written notice for the subsequent liens, as notice of an expired lien cannot cover subsequent defaults.

The appellants and respondents were involved in a long-standing boundary dispute concerning islands in Lake Huron.

The appellants reached a settlement with one of the defendants and sought to enforce it through consent orders.

The motion judge refused to grant the declarations contemplated by the settlement, finding they could affect the rights of the other defendants in the broader litigation.

The Court of Appeal upheld this decision, confirming that while the settling parties could resolve issues between themselves, they could not do so in a way that affected the other parties.

The appeal was dismissed, though some costs awards from the application were reduced.

The appellant appealed an order granting summary judgment which declared the parties to be 50% beneficial owners of a property based on a trust agreement.

The appellant argued that money owing under a prior agreement allowed him to walk away from the agreements, that the motion judge erred in refusing an adjournment, and that the notice of motion was deficient.

The Court of Appeal dismissed the appeal, finding no error by the motion judge, noting the appellant agreed to proceed, and finding no prejudice from any deficiency in the notice of motion.

The appellants appealed a Superior Court order regarding their compliance with a municipal by-law.

The sole issue on appeal was whether a chain link fence could be considered a 'principal structure' under section 5.16.6 of the by-law.

The Court of Appeal held that, reading the by-law as a whole, a principal structure must have a wall, and a chain link fence does not constitute a wall.

The appeal was dismissed with costs.

The appellant purchased 51.5 acres of land from the respondents, with an agreement to use 'best efforts' to obtain a severance of a one-acre parcel containing the respondents' home.

The trial judge found the appellant breached this obligation and ordered specific performance.

On appeal, the appellant argued the trial judge made palpable and overriding errors in assessing the evidence and erred in awarding specific performance.

The Court of Appeal dismissed the appeal, finding the trial judge's factual conclusions were supported by the record and the award of specific performance was reasonable given the unique nature of the property.

The appellants appealed a summary judgment dismissing their action against the respondent vendors for breach of a real estate contract.

The appellants alleged the vendors misrepresented that certain repairs were completed prior to closing and failed to perform the work in a good and workmanlike manner.

The Court of Appeal upheld the motion judge's finding that the plain language of the agreement only required re-grading the soil.

The court also found no error in the motion judge's rejection of the appellant's credibility, noting the appellants failed to lead evidence that the repairs were improperly done.

The appeal was dismissed.