Court File and Parties
Peterborough Court File No.: CV-21-200 Date: 2022-04-08 Ontario Superior Court of Justice
Between: Mickel Steenburg, Plaintiff And: Hugo Wennekes, Defendant
Counsel: Justin Janzen, Student-at-law, as agent for Counsel for the Plaintiff, Joel Moldaver Ian Peddle, for the Defendant
Heard: March 1, 2022
Reasons for Decision
Overview
1The Defendant is seeking to remove a Certificate of Pending Litigation (“CPL”) that was obtained by the Plaintiff on an ex-parte basis in relation to the property at 713 Bethune Street, Peterborough, Ontario (the “Property”). The Defendant is the current owner of the Property.
2In 2010, the Plaintiff negotiated a Rent-to-Own Agreement with the Defendant in relation to the Property (the “2010 Agreement”).
3The Plaintiff was to make payments in excess of the rental amount towards the purchase price of the house. The Plaintiff was also required to make an application for financing within three to five years to pay out the balance.
4The Plaintiff never made any payments beyond the rental amounts owing. He also never arranged for financing for the purchase of the Property.
5Now that the Defendant wishes to sell the Property, the Plaintiff is seeking to exercise the right to buy the Property for the original price contemplated in the 2010 Agreement. It is this interest in the Property (based on the 2010 Agreement) which he seeks to ground the claim for a CPL.
6The Plaintiff has not satisfied me that he has a reasonable claim to an interest in land. There is no triable issue in this regard in my view. I am also not satisfied that a CPL is warranted having considered all the circumstances of the case.
7Accordingly, I grant the Defendant’s motion discharging the CPL currently registered on the Property.
8The reasons for my decision are outlined below.
Facts
9The Defendant, Hugo Wennekes, is the sole owner of the property municipally located at 713 Bethune Street, Peterborough, Ontario (the “Property”).
10In 2010, the Defendant was moving from the Property to move in with his current partner. The Defendant put an ad up on Kijiji for a renter. At the time he had no intention of selling the Property.
11The Plaintiff responded to the ad. He indicated to the Defendant that he would like to enter a rent-to-own agreement with the Defendant with a view to ultimately purchasing the Property.
12The Plaintiff and Defendant entered into a Rent-to-Own Agreement (“the 2010 Agreement”) on September 8, 2010. The terms of the 2010 Agreement were as follows:
(a) $2,000 down payment; (b) $1,200 monthly rent payment, not applicable toward the principal owing; (c) Extra monthly payments above the $1,200 rent will be applied to the principal owing; (d) An agreed total purchase price of $208,000; and (e) An application for financing the purchase of the house and property will be made in three to five years.
13No steps were taken by the Plaintiff to arrange financing or make additional payments on the Property. While continuing to pay rent on the Property, he never took any steps to act on the terms of the 2010 Agreement.
14The Plaintiff maintains that he could not get a hold of the Defendant. According to the Plaintiff, it is for this reason that he took no further steps to comply with the requirements set out in the 2010 Agreement. He presumed the offer to purchase would accordingly be extended.
15In the spring of 2021, The Defendant decided he wanted to sell the Property. The Defendant spoke to the Plaintiff and indicated he was going to place the Property for sale. According to the Defendant, at that time, the Plaintiff did not bring up the 2010 Agreement or indicate that he wanted to buy the Property.
16On June 1, 2021, the Defendant had the Property listed for sale with Century 21. The Property was listed at $399,900.
17Initially, the Plaintiff seemed cooperative with the sale of the Property but during the process, the Plaintiff created obstacles such as greeting his assistant while holding a shovel in an intimidating manner when she went to take exterior pictures of the Property.
18All of the showings of the Property were also met with hostility and resistance. One of the showings resulted in the Plaintiff assaulting the Defendant in front of a colleague of the real estate agent.
19The Plaintiff has now demanded $70,000 from the Defendant to leave the Property.
20He sought and obtained an ex-parte CPL on the Property despite the Defendant’s request to be served with the material.
Analysis
21The test for granting a Certificate of Pending Litigation, where the motion is on notice, is the same as that applied on a motion to discharge a certificate. Home Builder Inc. v. Man-Sonic Industries Inc. (1987), O.J. No. 862 (Master Donkin) followed in Waxman v. Waxman (1991), O.J. No. 89. The onus is upon the party moving for the certificate to establish that she has a claim to the interest in the land claimed. That claim must be a reasonable one.
22The governing test is that the Court must exercise its discretion in equity and look at all relevant matters between the parties in determining whether a CPL should be granted or vacated. Where there is insufficient evidence to support the plaintiff’s claim to an interest in land, the CPL should be set aside.
23The following are the well-established non-exhaustive factors a Court should consider when determining whether to grant a CPL:
(a) whether there is a triable issue in respect of the moving party’s claim to an interest in the land; (b) whether the land in question is unique; (c) whether there is an alternative claim for damages and whether damages would be a satisfactory remedy; (d) the balance of convenience, or potential harm to each party, if the CPL is or is not granted; (e) whether the CPL appears to be for an improper purpose; (f) whether the interests of the party seeking the CPL can be adequately protected by another form of security; and, (g) whether the moving party has prosecuted the proceeding with reasonable diligence.
24In the main action, the Plaintiff alleges that he was unjustly denied the reasonable opportunity to exercise the purchase option set out in the 2010 Agreement. According to the Plaintiff, the Defendant either intentionally or unintentionally made himself unavailable to the Plaintiff. The Plaintiff assumed that, by default, the financing period would be mutually extended to remedy the situation.
25He also claims he has increased the value of the Property through various improvements to the Property.
26In my view, there is no reasonable claim (triable issue) with respect to an interest in land. The 2010 Agreement was made almost 10 years ago. The terms clearly required that the Plaintiff arrange for financing the Property within 3-5 years. That was never done.
27No steps were taken to obtain financing within the requisite period.
28No steps were taken by the Plaintiff to pursue his claim in the Property within the relevant statutory period.
29While the Plaintiff maintains that he has made improvements to the Property, the evidence does not support this. Regardless, any amounts the Plaintiff is owed for improvements/upgrades can be addressed by way of damages. Nothing in these improvements have made the Property unique.
30I do not accept that there was no opportunity for the Plaintiff to contact the Defendant in the relevant time period. Mr. Steenberg had his telephone number, his daughter’s number, his ex-wife’s number and his son’s number.
31In my view, there is no basis for the CPL to be maintained on the Property.
32Accordingly, I will grant the Order discharging the Certificate of Pending Litigation (“CPL”) obtained and registered by Mickel Steenberg (the “Plaintiff”) on September 1, 2021 against the lands and premises described as PT LTD 22 & 23, PL 127 AS IN R540233; S/T INTEREST IF ANY R540233; PETERBOROUGH (PIN 281130028), municipally known as 713 Bethune Street, Peterborough ON K9H 4A5 (the “Property”).
33I will receive costs submissions from the Defendant within 3 weeks of this decision. The Plaintiff will have one week thereafter to respond.
Justice C.F. de Sa Released: April 8, 2022