Real Estate Law - SCC

A municipality and a developer entered into an agreement creating a “land area bank” allowing excess land transferred for park purposes to be credited against future development fees.

The contemplated future cadastral operations never occurred, and the developer’s successor sought compensation for the unused bank.

The Supreme Court held that the agreement effected novation, extinguishing the municipality’s original restitution obligation and replacing it with a new contractual obligation based on the bank.

The obligation was subject to a suspensive term tied to future cadastral operations, which the parties considered certain but whose timing was indeterminate.

Applying art. 1512 C.C.Q., the Court fixed the term at the date of the developer’s demand letter and held that damages for performance by equivalence were appropriate.

In an appeal concerning adverse possession of municipal parkland, the appellants sought possessory title to a fenced portion of backyard land registered to the municipality.

The majority held that recognizing a common law immunity for municipal parkland would conflict with Ontario’s statutory scheme under the Real Property Limitations Act and related legislation, which preserves matured possessory claims unless a statutory exception applies.

Because the statutory test for adverse possession was satisfied and no applicable statutory immunity barred the claim, the municipality’s title had been extinguished.

The appeal was allowed and the appellants were entitled to fee simple title to the disputed land.

The appellant municipality constructively expropriated respondents' watershed property by refusing all development, having deprived the owners of all reasonable uses.

The issue on appeal was whether watershed zoning regulations enacted in 1994 formed part of the expropriation scheme and should be ignored when assessing statutory compensation under s. 27(1)(a) of Newfoundland and Labrador's Expropriation Act.

The Supreme Court restored the application judge's order, holding that the watershed zoning was an independent enactment and not made with a view to expropriation, and therefore must be taken into account in fixing the property's market value.

The Court clarified that the Pointe Gourde principle requires inquiry into whether an enactment was made with a view to expropriation, not merely whether it was causally connected to the taking.

Each party was ordered to bear its own costs.

The appellant landowner sued a municipality alleging constructive taking of approximately 965 acres of vacant land, claiming the municipality's refusal to initiate a secondary planning process — combined with alleged encouragement of public use of the lands as a park — amounted to a de facto expropriation without compensation.

The majority (5-4) held that the CPR test for constructive taking requires only that a public authority acquire a 'beneficial interest' understood broadly as an 'advantage' (not necessarily a proprietary interest), and that the municipality's intention may be a relevant material fact.

The majority restored the motion judge's order allowing the constructive taking claim to proceed to trial, finding genuine issues of material fact.

The four dissenting justices would have dismissed the appeal, holding that CPR requires acquisition of a proprietary interest and that intention is irrelevant to the de facto taking analysis.

The appellant sought to route a new electrical transmission line through lands over which it held decades-old servitudes originally established by expropriation for a different line.

The respondents denied access and challenged the scope of the servitudes, contending they were confined to the original line between two named substations.

The Court held that post-expropriation notarial agreements constituted conventional servitude agreements that must prevail over the notices of expropriation, and that those agreements, being clear on their face, authorized up to three electrical transmission lines without restriction as to origin or destination of electricity.

The Court of Appeal had erred by interfering with findings of mixed fact and law in the absence of a palpable and overriding error, and by relying on an order in council not in evidence after the hearing without affording the parties an opportunity to be heard.

The appeal was allowed, the trial judgment restored (except the dismissal of the cross-application), and the case remanded to the Superior Court for hearing of the cross-application.

The appellant strata corporation, established after a developer registered an air space parcel agreement obligating future strata owners to pay annual parking fees, disputed liability under that pre-incorporation agreement.

The majority held that a corporation not bound by a pre-incorporation contract may nonetheless enter into a post-incorporation contract on the same terms through objective conduct, and that the applicable test for contract formation is no different for strata corporations than at common law generally.

The Strata Property Act was found not to oust common law contract formation principles, and no compelling reason existed to modify those principles for the protection of strata lot purchasers.

On the facts, the appellant's years of payment and use of the parking facility objectively manifested assent to a post-incorporation contract on the terms of the air space parcel agreement.

The appeal was accordingly dismissed, with the remaining contractual issues remitted to the trial court, Rowe J. dissenting in part on the basis that the factual question of objective assent should also have been remitted.

The appellant bank held a first-ranking hypothec on an immovable, which was subsequently acquired by the respondents through a taking in payment under their second hypothec.

When the original debtor later defaulted on the bank's loan, the bank exercised its hypothecary remedy by filing a motion for forced surrender and taking in payment against the respondents as the new owners of the immovable.

The Superior Court granted the motion, but the Court of Appeal set it aside on the basis that prescription of the personal obligation had been acquired during the proceeding and extinguished the hypothec.

The majority of the Supreme Court dismissed the appeal on the basis that it agreed entirely with the Court of Appeal's reasoning.

The dissent would have allowed the appeal, holding that a hypothecary creditor exercising its remedy against a hypothecary debtor who is not the personal debtor interrupts prescription at the time of filing, and the conditions of the Civil Code were all met at that date.

The Court allowed the appeal and restored the trial judgment dismissing the action to annul municipal by-laws as untimely and prescribed.

It held that challenges alleging abusive zoning must be brought within a reasonable time, and that the 10-year prescriptive period had expired.

This appeal addressed whether acquisitive prescription of an immovable, once completed by effective possession, can be set up against a subsequent purchaser whose title is published before the possessor seeks judgment.

The majority held that Quebec's publication regime remains primarily declarative and does not displace rights already acquired by prescription.

It concluded the judicial application under art. 2918 C.C.Q. serves to recognize pre-existing ownership rather than constitutively create it for priority purposes in this context.

Because the respondent's possession was peaceful, continuous, public, and unequivocal for the required period, her prescriptive right prevailed over the appellants' later registered title.

The appeal was dismissed, with a dissent treating judgment as constitutive and non-retroactive.

The appeal addressed adverse possession in British Columbia, including whether continuity was proven across an evidentiary gap and whether inconsistent use is a required element.

The court held that inconsistent use does not form part of British Columbia adverse possession law under the province’s legislative history.

However, the appellate court improperly reweighed evidence and displaced factual findings that were open to the chambers judge absent palpable and overriding error.

The claim of uninterrupted possession failed on the record accepted at first instance.

The appeal was allowed and the chambers decisions were restored.

In a property and secured-transactions appeal, the Court considered whether municipal heritage incentive payments registered in an agreement by caveat ran with land, passed in a judicial sale, or remained personal property subject to priority rules.

The Court held that s. 29 of Alberta’s Historical Resources Act allows positive covenants to run only where they are in favour of listed public entities, not in favour of a landowner claimant to payment.

The Court further held the agreement and sale documents did not transfer the payment right to the purchaser and that awarding those payments to the purchaser would create a windfall without commercial rationale.

The payment right was characterized as a chose in action assigned as security, with priorities governed by the Personal Property Security Act and any residual priority dispute remitted to a master.

The appellant used funds advanced by the respondent to purchase property in his own name.

The respondent claimed a beneficial interest via purchase money resulting trust.

The Supreme Court declined to abandon the purchase money resulting trust doctrine in favour of unjust enrichment, holding that the doctrine provides certainty and predictability.

The Court found the trial judge correctly concluded the presumption of resulting trust was rebutted, as the respondent's contribution matched the exact amount of tax arrears it owed to a third party, and the respondent's own fax stated the funds were advanced without conditions or requirements.

The appellant operated a truck stop on Highway 17 that was effectively put out of business when the province constructed a new section of Highway 417, severely restricting access to the property.

The Ontario Municipal Board awarded compensation for injurious affection under the Expropriations Act.

The Court of Appeal set aside the award, finding the Board failed to adequately balance competing rights and to recognize the elevated importance of public utility.

The Supreme Court of Canada allowed the appeal, holding that reasonableness of interference must focus on whether the individual claimant has shouldered a disproportionate share of the burden of construction, not on whether the public benefit outweighs private harm.

The Board's decision was restored.