Real Estate Law - ONCA

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 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 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 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 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 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 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 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 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 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.