Real Estate Law - OCA

The appellants appealed a motion judge's decision striking their pleading under Rule 21.01(b).

The motion judge held that alleged violations of sections 4 and 42 of the Mortgages Act offered no defence to the claim for possession and the amount owing on the mortgage.

The Court of Appeal dismissed the appeal, finding no merit and refusing leave to amend the pleading to advance new causes of action.

The appellants appealed a decision granting the respondent specific performance of a right of first refusal contained in a charge on a farm property.

The application judge had found that the right of first refusal survived the balance due date of the charge.

The Court of Appeal allowed the appeal, holding that the application judge erred in interpreting the term of the charge.

The Court concluded that the right of first refusal expired on the balance due date and was not binding when the property was subsequently offered for sale.

The appellant municipality appealed the trial judge's dismissal of its third-party claim for contribution and indemnity against a subdivision developer following a judgment for a homeowner whose basement flooded.

The trial judge found the developer negligent in constructing an asphalt pad without surface water management, but held the municipality's failure to respond reasonably was the proximate cause.

The Court of Appeal allowed the appeal, holding that the trial judge erred by failing to apportion negligence.

The Court apportioned negligence equally between the municipality and the developer, ordering the developer to indemnify the municipality for 50% of the damages and costs.

The appellant landlord appealed a trial judgment awarding the respondent tenant damages for rent paid and the return of a mistaken payment.

The tenant had agreed to terminate its commercial lease early but continued paying rent until the termination date.

Before that date, the landlord leased the premises to a new tenant.

The trial judge found this constituted an eviction, entitling the tenant to the return of rent paid for the overlapping period.

The trial judge also ordered the return of a mistaken payment, rejecting the landlord's claim for set-off as the alleged tax liabilities had not crystallized.

The Court of Appeal agreed with the trial judge on both issues and dismissed the appeal.

The appellants appealed a trial judgment under the Partition Act, arguing the trial judge erred in several factual findings.

The Court of Appeal dismissed the appeal, finding that the trial judge gave cogent reasons for her factual findings based on the written agreement, approved financial statements, and accountants' evidence.

The court found no basis to interfere with the trial judge's findings.

The appellant appealed a trial judgment awarding damages to the respondent for wrongful termination of a commercial lease and the aborted sale of the respondent's business.

The Court of Appeal upheld the trial judge's findings on liability, agreeing that the appellant wrongfully terminated the lease and unreasonably withheld consent to assign it.

However, the Court varied the damages award, reducing it by $10,000 to account for legal fees the respondent had not actually paid.

The respondent's cross-appeal for punitive and aggravated damages was dismissed.

The Crown appealed a decision granting the respondents lawful ownership of an island by way of adverse possession.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's weighing of affidavit evidence or his conclusion that the respondents met the three-pronged test for possessory title.

The Court upheld the finding that the land was not vacant or wasteland, rendering section 16 of the Limitations Act inapplicable.

The appellant appealed a summary judgment decision regarding entitlement to a deposit for a condominium unit.

The Court of Appeal agreed with the motions judge that the appellant's interpretation of the agreement, which would make the purchaser of an individual unit liable for the purchase price of the entire building or damages flowing from breaches between the developer and Skyline, made no commercial sense.

The court found no genuine issue for trial and dismissed the appeal, awarding costs of $15,000 to the respondents.

The appellant estate appealed the dismissal of its claim that the respondent husband was unjustly enriched by the operation of his right of survivorship over farm properties held in joint tenancy with his deceased wife.

The Court of Appeal dismissed the appeal, finding no absence of juristic reason for the enrichment, as it arose by operation of law and was consistent with the parties' expectations to keep the farm properties together.

Arguments for a constructive trust based on wrongful conduct and proprietary estoppel were also dismissed.

The appellants appealed a trial judgment that declared a mortgage null and void based on promissory estoppel.

The Court of Appeal allowed the appeal, holding that promissory estoppel can only be used as a shield, not a sword, and the respondent had improperly used it to seek a declaration.

The Court set aside the judgment and ordered a new trial to determine whether there was consideration for the mortgage, as the trial judge had failed to make a finding on that issue.

The appellant occupied public lands under a land use permit that expired in 1997.

After his claim for an interest in the lands was dismissed in separate proceedings, the Crown applied for vacant possession.

The motion judge granted the application pursuant to s. 24(2) of the Public Lands Act.

The Court of Appeal dismissed the appeal, finding that the appellant had no authorization to occupy the lands and that his various grounds of appeal were irrelevant to the Crown's entitlement to possession.

The appellant, a mortgagee in possession, sought to terminate a fixed-term residential lease on 60 days' notice pursuant to section 53(4) of the Mortgages Act.

The Court of Appeal dismissed the appeal, upholding the Divisional Court's finding that section 51(2) of the Tenant Protection Act, which requires termination at the end of the fixed term, is paramount due to the primacy clause in section 2(4) of the Tenant Protection Act.

The appellants appealed a summary judgment dismissing their action against the respondents for breach of fiduciary duty related to mortgage transactions.

The Court of Appeal dismissed the appeal, finding that the appellants failed to present material facts showing a breach of duty or causation of damages.

The Court noted the appellants defaulted on three mortgages due to lack of financial means, and there were no genuine credibility issues requiring a trial.

The appeal was dismissed with costs awarded to the respondents.

The tenant of a commercial building operated a bar and sought to exercise an option to renew its lease.

The landlord refused to renew, alleging the tenant was in default due to continuous over-serving of alcohol, which resulted in intoxicated patrons causing disturbances, vomiting, and urinating around the building.

The application judge granted the tenant's application for a declaration that it had validly renewed the lease.

The Court of Appeal allowed the landlord's appeal, finding that the tenant was in subsisting breach of the lease covenants at the operative date for renewal.

The Court held that the landlord was not required to give notice of default to refuse renewal, and that the landlord's acceptance of rent waives forfeiture of the existing term but does not bar it from refusing the renewal.

The appellant appealed an order of the applications judge regarding a commercial lease and the elimination of business tax.

The Court of Appeal found that the applications judge's inference that the parties took the elimination of business tax into account when negotiating rent was weak and conflicted with objective evidence.

The Court allowed the appeal, set aside the order, and directed a trial of the issue of whether the remedial provisions of section 444.1(1) of the Municipal Act had been met.

The appellant condominium corporation appealed a motions judge's order regarding a third party claim for contribution and indemnity.

The Court of Appeal allowed the appeal, holding that a claim for contribution and indemnity is not a claim for the recovery of damages within the meaning of s. 14(1) of the Condominium Act.

The court set aside the relevant paragraph of the motions judge's order and awarded costs to the appellant.

The respondent borrower sued for the return of a $138,000 commitment fee after a commercial mortgage transaction failed to close.

The transaction failed because the borrower did not meet the required rental achievement figure due to deteriorating economic conditions.

The trial judge ordered the return of the fee, finding the borrower was not in 'default' because the failure was not its fault.

The Court of Appeal allowed the appeal and dismissed the action, holding that in a commercial contract, 'default' simply means failure to fulfill an obligation, regardless of fault.

The lender was entitled to retain the commitment fee.

The appellant appealed a trial decision finding he breached a contract by tricking the respondent into signing a Trust Deed and Power of Attorney after promising her one-half ownership of a home.

The appellant argued the agreement was unenforceable under the Statute of Frauds as it was not in writing.

The Court of Appeal dismissed the appeal, holding that the Statute of Frauds did not apply because the Deed was in writing and there was part performance when the respondent took possession and spent money improving the home.

The appellant appealed a trial judgment regarding the division of real estate commissions.

The trial judge had found that the principal of the broker corporation had agreed not to take any part of the appellant's earnings, but held that this waiver did not bind a new shareholder.

The Court of Appeal allowed the appeal, finding that the trial judge erred by failing to distinguish between the corporation and its shareholders.

The corporation remained bound by the agreement regardless of the change in shareholders, and the Real Estate and Business Brokers Act did not entitle the broker to a percentage of commissions it had agreed to waive.

The appellant appealed a decision interpreting a commercial lease.

The Court of Appeal upheld the motion judge's finding that the word 'net' in section 2.03(a) of the lease applied to 'Taxes', and that the lease did not require the tenant to pay more than its share of the taxes actually paid under a 'Gross up' argument.

The appeal was dismissed with costs.