BRL Realty Limited v. Equinix Canada Ltd.
[Indexed as: BRL Realty Ltd. v. Equinix Canada Ltd.]
Ontario Reports Ontario Superior Court of Justice Faieta J. May 27, 2019 146 O.R. (3d) 244 | 2019 ONSC 3080
Case Summary
Planning — Subdivision control — Applicant agreeing to sell office building but not land on which it was located to respondent — Parties characterizing building as "chattel" in agreement — Characterization binding parties but not changing building into chattel as matter of law — Building "land" for purposes of Planning Act — Proposed transfer of building and resulting severance from remainder of subject land contravening s. 50(5) of Act — Planning Act, R.S.O. 1990, c. P.13.
The applicant agreed to sell an office building, but not the land on which it was located, to the respondent. The parties characterized the building as a "chattel" in the agreement. The applicant brought an application for a declaration that the sale of the building did not contravene the subdivision control provisions of the Planning Act on the basis that it did not convey an interest in land.
Held, the application should be dismissed.
While the parties' characterization of the building as a chattel bound them, it did not as a matter of law transform the building into a chattel as the agreement did not alter the degree and object of the annexation of the building to the subject lands. The building remained part of the subject lands. Accordingly, it was "land" for the purposes of the Act. The proposed transfer of the building and resulting severance from the remainder of the subject lands contravened s. 50(5) of the Act.
Greater Toronto Airports Authority v. Mississauga (City) (2000), 50 O.R. (3d) 641, [2000] O.J. No. 4086, 192 D.L.R. (4th) 443, 138 O.A.C. 1, 16 M.P.L.R. (3d) 213, 100 A.C.W.S. (3d) 790 (C.A.) [Leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 83]; Melluish (Inspector of Taxes) v. B.M.I. (No. 3) Ltd., [1996] A.C. 454 (H.L.), consd
Other cases referred to
1250264 Ontario Inc. v. Pet Valu Canada Inc., [2011] O.J. No. 2830, 2011 ONSC 3871, 21 C.P.C. (7th) 383, 336 D.L.R. (4th) 554, 203 A.C.W.S. (3d) 702 (S.C.J.); 2105582 Ontario Ltd. (c.o.b. Performance Plus Golf Academy) v. 375445 Ontario Ltd. (c.o.b. Hydeaway Golf Club) (2017), 138 O.R. (3d) 561, [2017] O.J. No. 6526, 2017 ONCA 980, [2018] I.L.R. G-2798, 2018 OREG 59,260; Beaver Lumber Co. v. Saskatchewan General Trusts Co.; Solomon Estate (Re), [1922] S.J. No. 114, 70 D.L.R. 690, [1922] 3 W.W.R. 1061, 16 Sask. L.R. 232, 3 C.B.R. 436 (C.A.); Daniels v. Canada (Indian Affairs and Northern Development), [2016] 1 S.C.R. 99, [2016] S.C.J. No. 12, 2016 SCC 12, 395 D.L.R. (4th) 381, J.E. 2016-643, [2016] 3 C.N.L.R. 56, 355 C.R.R. (2d) 1, 264 A.C.W.S. (3d) 552, EYB 2016-264479, 2016EXP-1195; Glaspell v. Ontario (Minister of Municipal Affairs and Housing), [2015] O.J. No. 3246, 2015 ONSC 3965, 40 M.P.L.R. (5th) 77, 57 R.P.R. (5th) 196, 255 A.C.W.S. (3d) 599 (S.C.J.); North York General Hospital Foundation v. Armstrong, [2005] O.J. No. 3627, 258 D.L.R. (4th) 85, 202 O.A.C. 131, 34 R.P.R. (4th) 173, 142 A.C.W.S. (3d) 163 (C.A.), affg (2004), , 69 O.R. (3d) 603, [2004] O.J. No. 22, 181 O.A.C. 153, 15 R.P.R. (4th) 295, 128 A.C.W.S. (3d) 159 (Div. Ct.); Ontario (Attorney General) v. Yeotes; Ontario (Attorney General) v. Harry (1981), 31 O.R. (2d) 589, [1981] O.J. No. 2495, 120 D.L.R. (3d) 128, 14 M.P.L.R. 156, 18 R.P.R. 161 (C.A.); Plan A Leasing Ltd. v. Canada, [1976] F.C.J. No. 98, [1977] 1 F.C. 73, [1976] C.T.C. 261, 76 D.T.C. 6159 (T.D.)
Statutes referred to
Building Code Act, 1992, S.O. 1992, c. 23 Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34, s. 1(1) Courts of Justice Act, R.S.O. 1990, c. C.43, s. 97 [as am.] Planning Act, R.S.O. 1990, c. P.13, s. 50 [as am.], (2), (3) [as am.], (5) [as am.], (21)
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 14.05(3)(d)
Authorities referred to
La Forest, Anne Warner, Anger and Honsberger, Law of Real Property, 3rd ed. (Toronto: Canada Law Book, 2006)
APPLICATION for a declaration that sale of building did not contravene Planning Act.
Francy Kussner and Scott Kerr, for applicant. Wolfgang Kaufman, for respondent.
FAIETA J.: —
Introduction
[1] BRL Realty Limited ("BRL") has agreed to sell an office building, but not the land on which the building is located, to Equinix Canada Ltd. ("Equinix"). This unopposed notice of application raises a novel issue in that BRL seeks a declaration that the sale of the building does not contravene the subdivision control provisions of the Planning Act, R.S.O. 1990, c. P.13 (the "Act") on the basis that the sale of the building does not convey an interest in land.
[2] I adjourned this matter on May 6, 2019 so that the applicant could serve the Attorney General of Ontario with the application materials. The Attorney General has declined to participate and the hearing of this matter proceeded on May 17, 2019. I subsequently also sought and received counsel's submissions regarding the applicability of the Ontario Court of Appeal's decision in Greater Toronto Airports Authority v. Mississauga (City) (2000), 50 O.R. (3d) 641, [2000] O.J. No. 4086, 192 D.L.R. (4th) 443 (C.A.), leave to appeal to S.C.C. refused [2001] S.C.C.A. No. 83, referenced below.
[3] For reasons given below, this application is dismissed.
Background
[4] The applicant has agreed to sell and the respondent has agreed to purchase "the building and all other structures, fixtures and improvements constructed or affixed to" lands municipally known as 45 Parliament Street, Toronto, Ontario pursuant to a "Chattel Purchase Agreement" made as of March 26, 2019.
[5] At present, there is a building on the subject lands that comprise a total of 253,619 square feet made up of a basement, four floors and a mechanical penthouse ("Office Building"). It was constructed in 2015. Ms. Kussner advises that there are no other buildings, structures, fixtures or improvements on the subject lands referenced in the supporting affidavit of BRL's president, Peter Amirault. As a result, I will proceed with this application on the basis that the Office Building is the only building, structure, fixture and improvement constructed or affixed to the subject lands.
[6] Mr. Amirault states that
- the respondent is not purchasing the land upon or under which the Office Building has been constructed or any of the air rights above the land or within which the Office Building has been constructed;
- ownership of the Office Building, but not the land, will be transferred from BRL to Equinix by way of a bill of sale in the draft form appended to Amirault's affidavit;
- the parties will enter a ground lease in the draft form appended to Amirault's affidavit. The ground lease will have a term of 49 years. The respondent will have exclusive possession of the land. It also states that the Office Building will at all times be owned by the respondent, will not be part of the subject lands, and will not under any principle of law be deemed to be a fixture or a leasehold improvement. It also states that the applicant has not obligations in connection with the Office Building. At the end of the 49-year term, the respondent is required to demolish the Office Building;
- the purchase price is CDN$142 million. The Chattel Purchase Agreement provides that the respondent shall pay HST to the applicant on the purchase price; and
- nothing in the Chattel Purchase Agreement or the transaction will be registered on title for the land other than a notice of the ground lease.
[7] Articles 4.1(b) and 4.2(c) of the Chattel Purchase Agreement states that the obligation of the applicant, and the respondent, respectively, to complete the agreement is subject to the following condition:
On or before the Waiver Date [May 24, 2019], the Purchaser shall have received an order or declaration satisfactory to the Purchaser, acting reasonably, from a judge in the Superior Court of Justice stating that the completion of the transaction contemplated herein in accordance with the terms hereof will not result in a breach of Section 50 of the Planning Act (Ontario).
[8] Article 7.13 of the Chattel Purchase Agreement states:
This Agreement and the Transaction are subject to compliance with Section 50 of the Planning Act (Ontario).
[9] Given the consequences provided for under s. 50(21) of the Act if the conveyance is found to contravene the Act, the Applicant seeks a declaration that the ". . . transaction provided for in the Chattel Purchase Agreement does not breach section 50 of the Act".
Issues
[10] This application raises the following issues:
(1) Should declaratory relief be granted? (2) Does the transaction provided for in the Chattel Purchase Agreement contravene s. 50 of the Act?
[11] The applicant clarified on the hearing of this application that the declaration is sought in respect of the Chattel Purchase Agreement and not the ground lease.
Issue #1: Should Declaratory Relief be Granted?
[12] A court may make binding declarations of right, whether or not any consequential relief is or could be claimed: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 97. It is essentially a request for an advance ruling: 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2011 ONSC 3871, 336 D.L.R. (4th) 554 (S.C.J.) ("1250264 Ontario Inc."), para. 28.
[13] The court's discretion should be exercised sparingly and with extreme caution: Glaspell v. Ontario (Minister of Municipal Affairs and Housing), 2015 ONSC 3965 (S.C.J.), para. 28.
[14] One consideration in deciding whether to grant declaratory relief is whether a person whose interest may be adversely affected by the declaratory relief has been given notice that such relief is being sought: 1250264 Ontario Inc., para. 39. Given that there is no precedent for the declaratory relief sought in these circumstances, I directed that the Attorney General for Ontario be served with the application materials who, in turn, subsequently advised that it would not make submissions.
[15] In Daniels v. Canada (Minister of Indian Affairs and Northern Development), 2016 SCC 12, para. 11, the Supreme Court of Canada stated that declaratory relief should only be granted when
- the court has jurisdiction to hear the issue;
- the party raising the issue has a genuine interest in its resolution; and
- the question is real and not theoretical and the declaratory relief with have practical utility in that it will settle a "live controversy" between the parties.
[16] This court has the authority to grant the requested declaration pursuant to rule 14.05(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The question raised by the parties is novel. The parties seek commercial certainty. The resolution of this question is a condition to the closing of the sale of the Office Building and thus the question raised by the parties, and the consequence of not answering the question, is real. Accordingly, I find that this is an appropriate case for declaratory relief.
Issue #2: Does the Transaction Provided for in the Chattel Purchase Agreement Contravene Section 50 of the Act?
[17] Section 50 of the Act is a lengthy provision and it is re-produced in its entirety in Schedule "A".
[18] The purpose of s. 50 of the Act, as noted in Ontario (Attorney General) v. Yeotes; Ontario (Attorney General) v. Harry, 31 O.R. (2d) 589, [1981] O.J. No. 2495, 120 D.L.R. (3d) 128 (C.A.), at p. 608 O.R., is to
. . . prevent the unrestricted subdivision of land in Ontario . . . To carry out this object, the Act prohibits the conveyance of land unless one of three conditions is met (there are other exceptions but these are for special cases such as land acquired or disposed of by governmental bodies): (1) an approved plan of subdivision has been registered; (2) the grantor retains no interest in abutting land, or (3) a consent to severance has been obtained.
[19] Subdivision control is implemented through the prohibitions found in ss. 50(3) and (5) of the Act. Given that the subject lands are comprised of various lots described on a registered plan of subdivision, s. 50(5) of the Act is the only applicable provision in this case.
[20] The material aspects of s. 50(5) provides that:
50(5) Where land is within a plan of subdivision registered before or after the coming into force of this section, no person shall convey a part of any lot or block of the land by way of a deed, or transfer, or grant, assign or exercise a power of appointment in respect of a part of any lot or block of the land, or mortgage or charge a part of any lot or block of the land, or enter into an agreement of sale and purchase of a part of any lot or block of the land or enter into any agreement that has the effect of granting the use of or right in a part of any lot or block of the land directly or by entitlement to renewal for a period of twenty-one years or more unless,
(a) the grantor by deed or transfer, the person granting, assigning or exercising a power of appointment, the mortgagor or chargor, the vendor under an agreement of purchase and sale or the grantor of a use of or right in land, as the case may be, does not retain the fee or the equity of redemption in, or a power or right to grant, assign or exercise a power of appointment in respect of, any land abutting the land that is being conveyed or otherwise dealt with other than land that is the whole of one or more lots or blocks within one or more registered plans of subdivision[.]
(Emphasis added)
[21] BRL submits that the Office Building is an improvement or fixture upon the land but it is not the land itself and that the Office Building can be separately conveyed.
[22] "Land" is not defined by the Act.
[23] The Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34 ("CLPA"), s. 1(1), defines "land" in an inclusive manner as follows:
"[L]and" includes messuages, tenements, hereditaments, whether corporeal or incorporeal, and any undivided share in land[.]
[24] At common law, "[f]ixtures are assets that are sufficiently affixed to real property such that they are considered permanent in nature and part of the land. Whether fixtures become part of the land depends on the degree and object of annexation to the land": 2105582 Ontario Ltd. (c.o.b. Performance Plus Golf Academy) v. 375445 Ontario Ltd. (c.o.b. Hydeaway Golf Club) (2017), 138 O.R. (3d) 561, 2017 ONCA 980, para. 32. Applying these principles, a building is typically viewed as a fixture: Beaver Lumber Co. v. Saskatchewan General Trusts Co.; Solomon Estate (Re), [1922] S.J. No. 114, 70 D.L.R. 690 (C.A.).
[25] The principle that a building is a fixture on the land on which it sits is inapplicable when the parties have agreed that a building is to be owned separately from the land: North York General Hospital Foundation v. Armstrong (2004), 69 O.R. (3d) 603, [2004] O.J. No. 22 (Div. Ct.), para. 35, affd , [2005] O.J. No. 3627, 258 D.L.R. (4th) 85 (C.A.). To similar effect, the parties rely on Plan A Leasing Ltd. v. Canada, [1976] F.C.J. No. 98, [1977] 1 F.C. 73 (T.D.), for the principle that title to a building can be conveyed separately from title to the related lands. In that case, the court ruled that the owner of a building, but not the land on which that building was located, was the owner rather than the lessee of the building for taxation purposes. At para. 23, the court stated:
In law, the title of the lands and the title to the building on such lands can be conveyed separately when parties have made a special contract to do so. When parties do so by proper conveyances, they may, as was said in Davy v. Lewis (supra) at page 30, define and make a law for themselves in respect to such lands and building. In other words, the usual rule of law that the building is part of the freehold can be abrogated by a contract of parties. They can completely sever the right title and interest in the freehold in the building from the right title and interest in the freehold of the lands on which the building sits, even though the building continues to be annexed to such lands.
(Emphasis added)
[26] However, I am not persuaded that such an agreement affects a third party or the application of the law whether it be the Constitution or a statute.
[27] While parties may agree to convey a building that they have characterized as a chattel despite it being a fixture, their agreement does not affect whether the building is, in law, a chattel or a fixture (and thus part of the land). This principle is outlined in Anger and Honsberger, Law of Real Property, 3rd ed. (Toronto: Canada Law Book, 2006), para. 36.20.20:
A chattel becomes a fixture by implication of law. Thus, whether or not an object has become a fixture is determined by the application of established rules to the facts of the case rather than by agreement or conveyance. Parties may determine by contract their rights as between themselves, but this does not affect the rights of third parties.
(Emphasis added)
[28] In Melluish (Inspector of Taxes) v. B.M.I. (No. 3) Ltd., [1996] A.C. 454 (H.L.), the House of Lords held that central heating equipment leased to the owner of a building was not property that "belonged" to the lessor for taxation purposes. In arriving at this conclusion, the court stated:
The equipment in these cases was attached to the land in such a manner that, to all outward appearance, it formed part of the land and was intended so to do. Such fixtures are, in law, owned by the owner of the land. It was suggested in argument that this result did not follow if it could be demonstrated that, as between the owner of the land and the person fixing the chattel to it, there was a common intention that the chattel should not belong to the owner of the land . . .
[T]he decision in Hobson v. Gorringe [1897] 1 Ch. 182 . . . demonstrates that the intention of the parties as to the ownership of the chattel fixed to the land is only material so far as intention can be presumed from the degree and object of annexation. The terms expressly or implicitly agreed between the fixer of the chattel and the owner of the land cannot affect the determination of the question whether, in law, the chattel has become a fixture and therefore in law belongs to the owner of the soil: see pp. 192-193. The terms of such agreement will regulate the contractual rights to sever the chattel from the land as between the parties to that contract and, where an equitable right is conferred by the contract, as against certain third parties. But such agreement cannot prevent the chattel, once fixed, becoming in law part of the land and as such owned by the owner of the land so long as it remains fixed.
(Emphasis added)
[29] The Ontario Court of Appeal adopted the reasoning described above in Greater Toronto Airports Authority. In that case the federal government leased land at Pearson Airport to the Greater Toronto Airports Authority, a private non-profit corporation. The ground lease deemed that an airport terminal to be constructed by the lessee on the federal government's land would be the "separate property" of the lessee during the term of the lease. The City of Mississauga argued that the Building Code Act, 1992, S.O. 1992, c. 23 applied all new buildings constructed at the airport. Amongst other things, the city argued that the application of the building code scheme did not intrude over Parliament's exclusive jurisdiction over federal Crown property for several including finding that the new buildings remained the property of the federal Crown despite the deeming provision in the lease. At para. 73, the court stated:
The deeming provision between the landlord (the federal Crown) and the tenant (the GTAA) affects certain rights of the parties between themselves. However, this provision cannot affect the rights of third parties, nor, more importantly, can it affect the legal status of new buildings as federal property for constitutional purposes. Buildings constructed on leased land become part of the property of the landlord leased to the tenant. The parties cannot by agreement change this result. By law, this result occurs automatically: see Anger and Honsberger, Law of Real Property, (2d ed.) (1985), Vol. 2, at pp. 1011-12; and Melluish (Inspector of Taxes) v. B.M.I. (No. 3) Ltd., [1996] 1 A.C. 454 (H.L.).
(Emphasis added)
[30] There is no dispute that the Office Building is a fixture on the subject lands. Pursuant to the terms of the Chattel Purchase Agreement the parties have agreed that BRL will transfer the Office Building to Equinix for the term of the ground lease and have characterized the Office Building as a chattel. While the parties' characterization of the Office Building as a chattel binds them, it does not as a matter of law transform the Office Building into a chattel as such agreement does not alter the degree and object of the annexation of the Office Building to the subject land and thus the Office Building remains part of the subject lands.
[31] Accordingly, despite its characterization as a chattel under the Chattel Purchase Agreement, the Office Building is "land" for purposes of the Act and thus the proposed transfer of the Office Building and resulting severance from the remainder of the subject lands contravenes s. 50(5) of the Act.
[32] None of the exceptions found in s. 50 of the Act appear applicable. In particular, BRL has conceded that s. 50(2), which provides that "[f]or the purposes of this section, land shall be deemed and shall always have been deemed not to abut land that is being conveyed or otherwise dealt with if it abuts such land on a horizontal plane only" is inapplicable.
Conclusions
[33] Despite my willingness to entertain granting declaratory relief, the application brought by BRL is dismissed on its merits.
Application dismissed.
SCHEDULE "A"
Interpretation
50(1) In this section and in section 53,
"consent" means,
(a) where land is situate in a lower-tier municipality, a consent given by the council of the upper-tier municipality,
(b) where land is situate in a single-tier municipality that is not in a territorial district, a consent given by the council of the single-tier municipality,
(c) where land is situate in a prescribed single-tier municipality that is in a territorial district, a consent given by the council of the single-tier municipality, and
(d) except as otherwise provided in clauses (a), (b) and (c), a consent given by the Minister.
References include delegates
(1.0.1) A reference in subsection (1) and in section 53 to the Minister includes a delegate of the Minister under sections 4 and 55 and a reference to a council includes a delegate of a council under section 54.
Removal of power
(1.1) The Minister may by order, accompanied by a written explanation for it, remove the powers of the council of a municipality under this section and sections 53 and 57 and the order may be in respect of one or more applications for a consent, an approval under subsection (18) or for a certificate of validation specified in the order or in respect of any or all applications for consents, approvals under subsection (18) or for certificates of validation made after the order is made.
Minister to grant consents, etc.
(1.2) If an order is made under subsection (1.1), the Minister has the power of the council to grant consents, to give approvals under subsection (18) or to issue a certificate of validation in respect of applications to which the order relates and the council shall forward to the Minister all papers, plans, documents and other materials that relate to any matter in respect of which the powers were removed and of which a final disposition was not made by the council before the power was removed.
Effect of revocation
(1.3) If the Minister revokes the order or part of the order made under subsection (1.1), the power to grant consents, give approvals under subsection (18) or issue certificates of validation reverts back to the council in respect of all applications to which the revoked order or revoked part of the order applied.
Delegation
(1.4) If an order is made under subsection (1.1) in respect of land that is located in a municipal planning area, the Minister may by order delegate to the municipal planning authority the power which was removed from the council to grant consents, to give approvals under subsection (18) or to issue certificates of validation and the delegation may be subject to such conditions as the order provides.
Effect of revocation
(1.5) If the Minister revokes the order or part of the order made under subsection (1.4), the power of the municipal planning authority to grant consents, to give approvals under subsection (18) or to issue certificates of validation reverts back to the Minister in respect of all applications to which the revoked order or revoked part of the order applies and the municipal planning authority shall forward to the Minister all papers, plans, documents and other materials that relate to any matter to which the revoked order or part of the order applies and of which a final disposition was not made by the municipal planning authority before the order or part of the order was revoked.
Proviso
(2) For the purposes of this section, land shall be deemed and shall always have been deemed not to abut land that is being conveyed or otherwise dealt with if it abuts such land on a horizontal plane only.
Mining rights
(2.1) For the purposes of this section, land shall be deemed and shall always have been deemed to exclude mining rights in or under land but not mining rights on the land.
Subdivision control
(3) No person shall convey land by way of a deed or transfer, or grant, assign or exercise a power of appointment with respect to land, or mortgage or charge land, or enter into an agreement of sale and purchase of land or enter into any agreement that has the effect of granting the use of or right in land directly or by entitlement to renewal for a period of twenty-one years or more unless,
(a) the land is described in accordance with and is within a registered plan of subdivision;
(b) the grantor by deed or transfer, the person granting, assigning or exercising a power of appointment, the mortgagor or chargor, the vendor under an agreement of purchase and sale or the grantor of a use of or right in land, as the case may be, does not retain the fee or the equity of redemption in, or a power or right to grant, assign or exercise a power of appointment in respect of, any land abutting the land that is being conveyed or otherwise dealt with other than land that is the whole of one or more lots or blocks within one or more registered plans of subdivision;
(b.1) the land is being leased for a period of not less than 21 years and not more than 99 years, for the purpose of constructing or erecting a building or project that will contain affordable housing units;
(c) the land or any use of or right therein is being acquired or disposed of by Her Majesty in right of Canada, Her Majesty in right of Ontario or by any municipality;
(d) the land or any use of or right therein is being acquired for the purpose of an electricity distribution line, electricity transmission line or hydrocarbon line within the meaning of Part VI of the Ontario Energy Board Act, 1998 and in respect of which the person acquiring the land or any use of or right therein has made a declaration that it is being acquired for such purpose, which shall be conclusive evidence that it is being acquired for such purpose;
(d.1) Repealed: 2018, c. 16, s. 8 (7).
(e) the land or any use of or right therein is being acquired for the purposes of flood control, erosion control, bank stabilization, shoreline management works or the preservation of environmentally sensitive lands under a project approved by the Minister of Natural Resources under section 24 of the Conservation Authorities Act and in respect of which an officer of the conservation authority acquiring the land or any use of or right therein has made a declaration that it is being acquired for any of such purposes, which shall be conclusive evidence that it is being acquired for such purpose;
(f) a consent is given to convey, mortgage or charge the land, or grant, assign or exercise a power of appointment in respect of the land or enter into an agreement in respect of the land;
(g) the land or any use of or right therein was acquired for the purpose of an electricity distribution line, electricity transmission line or hydrocarbon line within the meaning of Part VI of the Ontario Energy Board Act, 1998 and is being disposed of to the person from whom it was acquired; or
(h) the only use of or right in land that is granted is an easement or covenant under the Conservation Land Act.
Designation of plans of subdivision not deemed registered
(4) The council of a local municipality may by by-law designate any plan of subdivision, or part thereof, that has been registered for eight years or more, which shall be deemed not to be a registered plan of subdivision for the purposes of subsection (3).
Part-lot control
(5) Where land is within a plan of subdivision registered before or after the coming into force of this section, no person shall convey a part of any lot or block of the land by way of a deed, or transfer, or grant, assign or exercise a power of appointment in respect of a part of any lot or block of the land, or mortgage or charge a part of any lot or block of the land, or enter into an agreement of sale and purchase of a part of any lot or block of the land or enter into any agreement that has the effect of granting the use of or right in a part of any lot or block of the land directly or by entitlement to renewal for a period of twenty-one years or more unless,
(a) the grantor by deed or transfer, the person granting, assigning or exercising a power of appointment, the mortgagor or chargor, the vendor under an agreement of purchase and sale or the grantor of a use of or right in land, as the case may be, does not retain the fee or the equity of redemption in, or a power or right to grant, assign or exercise a power of appointment in respect of, any land abutting the land that is being conveyed or otherwise dealt with other than land that is the whole of one or more lots or blocks within one or more registered plans of subdivision;
(a.1) the land is being leased for a period of not less than 21 years and not more than 99 years, for the purpose of constructing or erecting a building or project that will contain affordable housing units;
(b) the land or any use of or right therein is being acquired or disposed of by Her Majesty in right of Canada, Her Majesty in right of Ontario or by any municipality;
(c) the land or any use of or right therein is being acquired for the purpose of a utility line within the meaning of the Ontario Energy Board Act, 1998 and in respect of which the person acquiring the land or any use of or right therein has made a declaration that it is being acquired for such purpose, which shall be conclusive evidence that it is being acquired for such purpose;
(c.1) Repealed: 2018, c. 16, s. 8 (8).
(d) the land or any use of or right therein is being acquired for the purposes of flood control, erosion control, bank stabilization, shoreline management works or the preservation of environmentally sensitive lands under a project approved by the Minister of Natural Resources under section 24 of the Conservation Authorities Act and in respect of which an officer of the conservation authority acquiring the land or any use of or right therein has made a declaration that it is being acquired for any of such purposes, which shall be conclusive evidence that it is being acquired for such purpose;
(e) the land that is being conveyed, or otherwise dealt with is the remaining part of a lot or block, the other part of which was acquired by a body that has vested in it the right to acquire land by expropriation;
(f) a consent is given to convey, mortgage or charge the land or grant, assign or exercise a power of appointment in respect of the land or enter into an agreement in respect of the land;
(g) the land or any use of or right therein was acquired for the purpose of a utility line within the meaning of the Ontario Energy Board Act, 1998 and is being disposed of to the person from whom it was acquired; or
(h) the only use of or right in land that is granted is an easement or covenant under the Conservation Land Act.
Conveyance of remaining part
(6) Despite subsections (3) and (5), where land is the remaining part of a parcel of land, the other part or parts of which parcel have been the subject of a consent given under clause (3)(f) or (5)(f), the whole of the remaining part may be conveyed or otherwise dealt with before the other part or parts are conveyed or otherwise dealt with, provided that the remaining part is conveyed or otherwise dealt with before the consent mentioned above lapses under subsection 53(43).
Designation of lands not subject to part-lot control
(7) Despite subsection (5), the council of a local municipality may by by-law provide that subsection (5) does not apply to land that is within such registered plan or plans of subdivision or parts of them as are designated in the by-law.
Requirement for approval of by-law
(7.1) A by-law passed under subsection (7) does not take effect until it has been approved by the appropriate approval authority for the purpose of sections 51 and 51.1 in respect of the land covered by the by-law.
Exemption from approval
(7.2) An approval under subsection (7.1) is not required if the council that passes a by-law under subsection (7) is authorized to approve plans of subdivision under section 51.
Expiration of by-law
(7.3) A by-law passed under subsection (7) may provide that the by-law expires at the expiration of the time period specified in the by-law and the by-law expires at that time.
Extension of time period
(7.4) The council of a local municipality may, at any time before the expiration of a by-law under subsection (7), amend the by-law to extend the time period specified for the expiration of the by-law and an approval under subsection (7.1) is not required.
Amendment or repeal
(7.5) The council of a local municipality may, without an approval under subsection (7.1), repeal or amend a by-law passed under subsection (7) to delete part of the land described in it and, when the requirements of subsection (28) have been complied with, subsection (5) applies to the land affected by the repeal or amendment.
Exception
(8) Nothing in subsections (3) and (5) prohibits, and subsections (3) and (5) shall be deemed never to have prohibited, the giving back of a mortgage or charge by a purchaser of land to the vendor of the land as part or all of the consideration for the conveyance of the land, provided that the mortgage or charge applies to all of the land described in the conveyance.
Part of building or structure
(9) Nothing in subsections (3) and (5) prohibits the entering into of an agreement that has the effect of granting the use of or right in a part of a building or structure for any period of years.
Exception
(10) This section does not apply to an agreement entered into under section 2 of the Drainage Act.
Application to ARDD
(11) This section does not apply so as to prevent the Agricultural Rehabilitation and Development Directorate of Ontario from conveying or leasing land where the land that is being conveyed or leased comprises all of the land that was acquired by the Directorate under one registered deed or transfer.
Exception to application of subss. (3, 5)
(12) Where a parcel of land is conveyed by way of a deed or transfer with a consent given under section 53, subsections (3) and (5) of this section do not apply to a subsequent conveyance of, or other transaction involving, the identical parcel of land unless the council or the Minister, as the case may be, in giving the consent, stipulates either that subsection (3) or subsection (5) shall apply to any such subsequent conveyance or transaction.
Reference to stipulation
(13) Where the council or the Minister stipulates in accordance with subsection (12), the certificate provided for under subsection 53(42) shall contain a reference to the stipulation, and if not so contained the consent shall be conclusively deemed to have been given without the stipulation.
Effect of contravention
(14) Where land is within a registered plan of subdivision or within a registered description under the Condominium Act, 1998 or where land is conveyed, mortgaged or charged with a consent given under section 53 or a predecessor thereof, any contravention of this section or a predecessor thereof or of a by-law passed under a predecessor of this section or of an order made under clause 27(1)(b), as it existed on June 25, 1970, of The Planning Act, being chapter 296 of the Revised Statutes of Ontario, 1960, or a predecessor thereof, that occurred before the registration of the plan of subdivision or description or before the giving of a certificate under subsection 53(42) stating that a consent has been given, as the case may be, does not and shall be deemed never to have had the effect of preventing the conveyance of or creation of any interest in the land, but this subsection does not affect the rights acquired by any person from a judgment or order of any court given or made on or before December 15, 1978.
Simultaneous conveyances, etc., of abutting lands
(15) Where a person conveys land or grants, assigns or exercises a power of appointment in respect of land, or mortgages or charges land, or enters into an agreement of sale and purchase of land, or enters into any agreement that has the effect of granting the use of or right in land directly or by entitlement to renewal for a period of twenty-one years or more by way of simultaneous conveyances of abutting lands or by way of other simultaneous dealings with abutting lands, the person so conveying or otherwise dealing with the lands shall be deemed for the purposes of subsections (3) and (5) to retain, as the case may be, the fee or the equity of redemption in, or the power or right to grant, assign or exercise a power of appointment in respect of, land abutting the land that is being conveyed or otherwise dealt with but this subsection does not apply to simultaneous conveyances or other simultaneous dealings involving the same parties acting in their same respective capacities.
Partial discharges, etc., effect of
(16) Where a person gives a partial discharge of a mortgage on land or gives a partial cessation of a charge on land, the person giving the partial discharge or partial cessation shall be deemed to hold the fee in the lands mentioned in the mortgage or charge and to retain, after the giving of the partial discharge or partial cessation, the fee in the balance of the lands, and for the purposes of this section shall be deemed to convey by way of deed or transfer the land mentioned in the partial discharge or partial cessation.
Saving
(17) Subsection (16) does not apply to a partial discharge of mortgage or partial cessation of charge where the land described in the partial discharge or partial cessation,
(a) is the same land in respect of which a consent to convey has previously been given;
(b) includes only the whole of one or more lots or blocks within a registered plan of subdivision, unless such plan of subdivision has been designated under subsection (4);
(c) is owned by Her Majesty in right of Canada or Her Majesty in right of Ontario or by any municipality; or
(d) is land to which clause (3)(g) or (5)(g) applies.
Foreclosure or exercise of power of sale
(18) No foreclosure of or exercise of a power of sale in a mortgage or charge shall have any effect in law without the approval of the Minister or of the council authorized to give a consent under section 53, as the case may be, other than a council authorized to give a consent pursuant to an order under section 4, unless all of the land subject to such mortgage or charge is included in the foreclosure or exercise of the power of sale, but this subsection does not apply where the land foreclosed or in respect of where the power of sale is exercised comprises only,
(a) the whole of one or more lots or blocks within one or more registered plans of subdivision;
(b) one or more parcels of land that do not abut any other parcel of land that is subject to the same mortgage or charge;
(c) the identical parcel of land that has been the subject of a consent to convey given under section 53 and the consent did not stipulate that subsection (3) or (5) applies to any subsequent conveyance or transaction; or
(d) the whole of the remaining part of a parcel of land, the other part or parts of which parcel have been the subject of a consent to convey given under section 53 and the consent did not stipulate that subsection (3) or (5) applies to any subsequent conveyance or transaction.
Criteria
(18.1) No approval shall be given by a council under subsection (18) unless the approval conforms with the prescribed criteria.
Release of interest by joint tenant or tenant in common
(19) Where a joint tenant or tenant in common of land releases or conveys the tenant's interest in such land to one or more other joint tenants or tenants in common of the same land while holding the fee in any abutting land, either alone or together with any other person, the tenant shall be deemed, for the purposes of subsections (3) and (5), to convey such land by way of deed or transfer and to retain the fee in the abutting land.
Partition orders
(20) No order made under the Partition Act for the partition of land shall have any effect in law unless,
(a) irrespective of the order, each part of the land described in the order could be conveyed without contravening this section; or
(b) a consent is given to the order.
Conveyance, etc., contrary to section not to create or convey interest in land
(21) An agreement, conveyance, mortgage or charge made, or a power of appointment granted, assigned or exercised in contravention of this section or a predecessor thereof does not create or convey any interest in land, but this section does not affect an agreement entered into subject to the express condition contained therein that such agreement is to be effective only if the provisions of this section are complied with.
Exception re prescribed statements
(22) Where a deed or transfer,
(a) contains a statement by the grantor, verifying that to the best of the grantor's knowledge and belief the deed or transfer does not contravene this section;
(b) contains a statement by the grantor's solicitor, verifying that,
(i) he or she has explained the effect of this section to the grantor,
(ii) he or she has made inquiries of the grantor to determine that the deed or transfer does not contravene this section,
(iii) based on the information supplied by the grantor, to the best of the solicitor's knowledge and belief, the deed or transfer does not contravene this section, and
(iv) he or she is an Ontario solicitor in good standing; and
(c) contains a statement by the grantee's solicitor, verifying that,
(i) he or she has investigated the title to the land and, where relevant, to abutting land,
(ii) he or she is satisfied that the record of title to the land and, where relevant, to abutting land, reveals no existing contravention of this section or a predecessor thereof or of a by-law passed under a predecessor of this section or of an order made under clause 27(1)(b), as it existed on the 25th day of June, 1970, of The Planning Act, being chapter 296 of the Revised Statutes of Ontario, 1960, or a predecessor thereof, that has the effect of preventing the conveyance of any interest in the land,
(iii) to the best of his or her knowledge and belief, the deed or transfer does not contravene this section, and
(iv) he or she acts independently of the grantor's solicitor and is an Ontario solicitor in good standing; and
(d) is registered under the Land Titles Act or the Registry Act,
any contravention of this section or a predecessor thereof or of a by-law passed under a predecessor of this section or of an order made under clause 27(1)(b), as it existed on the 25th day of June, 1970, of The Planning Act, being chapter 296 of the Revised Statutes of Ontario, 1960, or a predecessor thereof, does not and shall be deemed never to have had the effect of preventing the conveyance of any interest in the land, but this subsection does not affect the rights acquired by any person from a judgment or order of any court given or made on or before the day the deed or transfer is registered.
Search period re Planning Act
(23) For the purposes of the statement referred to in subclause (22)(c)(ii), a solicitor is not required to investigate the registered title to the land except with respect to the time since the registration of the most recent deed or transfer affecting the same land and containing the statements referred to in clauses (22)(a), (b) and (c).
Exempting orders
(24) The Minister may by order designate any part of Ontario as land to which subsection (22) shall not apply after the day a certified copy or duplicate of the order is registered in the proper land registry office in a manner approved by the Director of Land Registration appointed under the Registry Act.
Offence
(25) Every person who knowingly makes a false statement under subsection (22) is guilty of an offence and on conviction is liable to a fine not exceeding the aggregate of the value of,
(a) the land in respect of which the statement is made; and
(b) the relevant abutting land,
determined as of the day of registration of the deed or transfer containing the false statement.
Copy of by-law to be lodged with approval authority
(26) A certified copy or duplicate of every by-law passed under subsection (4) shall be lodged by the clerk of the municipality in the office of the approval authority.
When by-law effective
(27) A by-law passed under subsection (4) is not effective until the requirements of subsection (28) have been complied with.
Registration of by-law
(28) A certified copy or duplicate of every by-law passed under this section shall be registered by the clerk of the municipality in the proper land registry office.
Notice
(29) No notice or hearing is required prior to the passing of a by-law under subsection (4), but the council shall give notice of the passing of any such by-law within thirty days of the passing thereof to each person appearing on the last revised assessment roll to be the owner of land to which the by-law applies, which notice shall be sent to the last known address of each such person.
Hearing by council
(30) The council shall hear in person or by an agent any person to whom a notice was sent under subsection (29), who within twenty days of the mailing of the notice gives notice to the clerk of the municipality that the person desires to make representations respecting the amendment or repeal of the by-law.
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