Real Estate Law - OCA

The appellant, a former condominium director, appealed a decision that upheld the validity of a condominium by-law allowing the board to disqualify a director for violating the Directors' Code of Ethics.

The appellant argued the by-law was unreasonable and inconsistent with the democratic principles of the Condominium Act.

The Court of Appeal dismissed the appeal, finding the by-law valid as it was passed by a majority of owners and the board's power to determine ethics violations was not unreasonable.

The court also upheld the application judge's discretionary decision not to immediately reinstate the appellant, noting the issue was moot as his term had expired.

The appellants appealed a judgment dismissing their counterclaim for damages and an injunction against their neighbours.

The appellants alleged that the respondents' construction of a six-hole golf course caused excessive surface water flooding on their property.

The trial judge found no material change exacerbating the flooding and concluded the golf course construction did not cause a nuisance.

The Court of Appeal found no reversible error in the trial judge's findings of fact and dismissed the appeal.

The appellant appealed a decision regarding the calculation of a mortgage payout rate and the validity of a prepayment clause.

The Court of Appeal dismissed the appeal, agreeing with the application judge that the prepayment clause was not void for uncertainty and that the calculation of the payout rate at 4.35 percent was substantiated by the lender's evidence given the risk-free nature of the loan.

The appellants appealed a summary judgment order granting possession of a mortgaged property to the second mortgagee.

The appellants admitted the mortgage was valid and in default, but argued the property was owned by a trust and expressed concerns about a potential improvident sale.

The Court of Appeal dismissed the appeal, finding that even if the trust owned the property, the admitted default entitled the mortgagee to possession, and concerns about an improvident sale are not a legal defence to a claim for possession.

The appellants, acting as mortgagees, sold a 130-acre commercial property under power of sale for $12.5 million.

The trial judge found the fair market value was $16 million and awarded the respondent mortgagor $3.5 million in damages for an improvident sale, noting the appellants failed to adequately market the property or allow meaningful due diligence by potential buyers.

On appeal, the appellants argued the trial judge erred in finding bad faith, imposing liability without expert evidence of appraiser negligence, and calculating damages.

The Court of Appeal dismissed the appeal, holding that the trial judge applied the correct legal test regarding the mortgagee's duty to take reasonable precautions to obtain fair market value and made no palpable and overriding errors in her factual findings.

The appellant appealed an application judge's decision finding that a 1998 gas storage lease replaced earlier oil and gas agreements, leaving the appellant without gas storage rights after the 1998 lease terminated.

The respondent raised a preliminary objection that the Court of Appeal's jurisdiction was ousted by a subsequent Ontario Energy Board order designating the lands as a gas storage area.

The Court of Appeal dismissed the preliminary objection, holding that the Board's order did not oust the court's jurisdiction to hear an appeal from a final order interpreting contractual rights.

On the merits, the Court upheld the application judge's interpretation that the 1998 lease was intended to replace, rather than supplement, the earlier agreements regarding gas storage rights.

The appellant appealed a motion judge's decision finding he had no standing.

The Court of Appeal agreed with the motion judge that the appellant was not bound by the Site Plan Agreement, a conclusion also agreed to by the respondent.

The appeal was dismissed with costs fixed at $8,000.

The appellant purchaser appealed the dismissal of her application for the return of a $100,000 deposit after a real estate transaction failed to close.

The purchaser had discovered an open building permit, but the application judge found this requisition could be satisfied by title insurance.

The Court of Appeal upheld the application judge's finding that the vendors were ready to close and the purchaser's failure to respond to the vendor's proposal regarding title insurance caused the transaction to fail.

The appeal was dismissed.

The appellant appealed a summary judgment ordering her to pay $355,241.08 pursuant to a mortgage and granting leave to issue a writ of possession.

The appellant argued the respondent failed to provide a statement of arrears and that her spouse should have been added as a party.

The Court of Appeal dismissed the appeal, finding no merit in the arguments and noting that the appellant had never made a single mortgage payment and appeared to have engaged in a complete scam.

The appellants, landlords of a multi-unit commercial property, appealed a decision finding that the respondent tenant was not responsible for the costs of repaving the parking lot.

The appellants argued that repaving fell under the lease terms for 'maintaining and repairing the property'.

The Court of Appeal dismissed the appeal, agreeing with the application judge that repaving was a capital expense rather than maintenance or repair, based on the wording of the lease and the reasonable expectations of the parties.

The appellants appealed an order granting a permanent injunction that restrained them from dumping fill or altering the grade of their property.

They argued the application judge erred in finding their activity was not a 'normal farm practice' and in not deferring to the Normal Farm Practices Protection Board.

The Court of Appeal dismissed the appeal, holding that the application judge's factual findings were supported by ample evidence and that he had jurisdiction to grant the injunction since neither party had applied to the Board.

The appellant law firm acted for the purchaser in a commercial real estate transaction.

After closing, the purchaser discovered a 0.3 metre reserve on the property that required a significant cost recovery payment to the municipality for road access.

The purchaser successfully sued the law firm for negligence.

On appeal, the law firm challenged the negligence finding and the dismissal of its cross-claim against the vendor for contribution and indemnity.

The Court of Appeal dismissed the appeal, finding that the law firm failed to properly investigate the access issues raised by the reserve, and that the vendor had no legal or equitable obligation to disclose the unregistered cost recovery agreement.

The purchaser of a dry cleaning business sought to rescind the purchase agreement, claiming a common mistake regarding the property's zoning.

The motion judge granted rescission, finding the parties shared a mistaken assumption that the business was a 'permitted use' under the zoning by-law.

The Court of Appeal allowed the vendor's appeal, holding that the motion judge made a palpable and overriding error.

The Court found no evidence of a shared assumption about the technical 'permitted use' status, noting the business operated as a legal non-conforming use.

The Court also held that the purchaser bore the risk of zoning issues under the principle of caveat emptor, as the agreement contained no zoning conditions.

The purchaser appealed a trial decision finding that open web steel joists were not part of the structural steel included in an agreement of purchase and sale for a commercial property.

The Court of Appeal allowed the appeal, finding that the trial judge erred by relying on extraneous documents to interpret the agreement.

The Amending Agreement and the documents specifically referenced within it, including the purchase order and structural drawings, clearly included open web steel joists.

As the vendor failed to provide the joists, they breached the agreement, and the funds held in trust were ordered returned to the purchaser.

The appellant municipality appealed a decision declaring that the respondent landowners could enforce a 1953 agreement in which the municipality agreed to perpetually maintain a storm sewer drainage system.

The municipality argued the claim was statute-barred because previous landowners had accepted its anticipatory repudiation of the agreement by their inaction, and that the respondents lacked privity of contract.

The Court of Appeal dismissed the appeal, holding that mere inaction does not constitute acceptance of a repudiatory breach.

Furthermore, the respondents had standing to enforce the agreement as successors in title under the agreement's enurement clause and the principled exception to the privity of contract doctrine.

The owner of a residential apartment complex defaulted on natural gas payments.

The City of Hamilton intervened under its Vital Services By-law, paid for the gas, registered a lien, and directed tenants to pay rent to the City pursuant to s. 221(1) of the Residential Tenancies Act.

The first mortgagee subsequently sold the property under power of sale to a bona fide purchaser for value.

The City claimed its statutory right to collect rents survived the sale.

The Court of Appeal held that the City's right to direct rent payments is a statutory collection device, not an interest in land, and does not survive the transfer of the property to a bona fide purchaser for value.

The appellant, a judgment creditor, appealed an order granting partial summary judgment dismissing his claims to an interest in a property and shares in a company.

The motions judge had found that the transfer of shares in a bare trustee company effectively transferred the beneficial interest in the property it held.

The Court of Appeal allowed the appeal, finding that the motions judge improperly conflated the transfer of shares with the transfer of the beneficial interest in the land, failing to consider the requirements of the Statute of Frauds and the lack of land transfer tax payment.

The partial summary judgment was set aside, a certificate of pending litigation was granted, and the matter was directed to trial.

The appellant municipality discovered an 1854 by-law purporting to establish a public road along the shoreline of Georgian Bay.

It registered the by-law in 2007 and sought a declaration that the road was a public highway owned by the municipality.

The respondents, who own cottage properties on the purported road, successfully moved for summary judgment dismissing the action.

The Court of Appeal upheld the dismissal, finding that summary judgment was appropriate, the 1854 by-law lacked sufficient certainty to establish a road, and the unregistered by-law was void against the respondents who had no actual notice of it.

The appellants and respondent held equal interests in a limited partnership formed to develop a property.

After their relationship soured, the appellants offered to sell their interest to the respondent.

The respondent accepted the offer while secretly negotiating to sell the entire property to a third party at a profit.

The appellants sued for breach of fiduciary duty and breach of the limited partnership agreement.

The Court of Appeal upheld the motion judge's dismissal of the action, finding that the presumption of a fiduciary duty was rebutted because both parties were acting in their own self-interest with the knowledge that the partnership was ending.

The appellant purchased multiple condominium units from a developer in 2008, and a transfer for one specific unit was registered in its name.

However, the respondent had previously purchased and occupied that same unit since 1987, but due to a registration error, it was omitted from the respondent's 1994 conveyance.

The application judge granted title rectification in favour of the respondent, finding the appellant was not a bona fide purchaser for value without notice because there was no agreement or consideration for the specific unit in the 2008 sale.

The Court of Appeal upheld this decision, confirming that the statutory protection of indefeasibility of title under the Land Titles Act only applies to bona fide purchasers.