Chopra v. Vincent

Ontario Reports

Ontario Superior Court of Justice,

Dunphy J.

May 20, 2015

126 O.R. (3d) 77 | 2015 ONSC 3203

Case Summary

Sale of land — Title — Applicant purchasing condominium unit and parking space in 1997 — Applicant discovering in 2015 that parking space had not been conveyed to him because of solicitors' inadvertence — Applicant unable to locate vendor — Applicant applying successfully for declaration that he owned parking space — Vendor a constructive trustee of title to parking space for applicant's benefit — Right of beneficiary of constructive trust to enforce his or her title against trustee governed by Real Property Limitations Act — Limitation period under Act not having expired — Real Property Limitations Act, R.S.O. 1990, c. L.15.

In 1997, the plaintiff purchased a condominium unit and a parking space. The lawyers for the applicant and the vendor inadvertently neglected to include a conveyance of the parking space. The applicant discovered the error in 2015, but was unable to locate the vendor. He brought an application for a declaration that he owned the parking space.

Held, the application should be allowed.

Equitable title to the parking space was transferred to the applicant with the payment of the purchase price in full under a written agreement obliging the vendor to transfer upon payment. The vendor held title to the parking space as constructive trustee in favour of the applicant. The right of a beneficiary of a constructive trust to enforce his or her title as against the trustee is governed by the Real Property Limitations Act ("RPLA"). Where the interest in land claimed is an equitable title under a constructive trust, the ten-year limitation period in the RPLA is subject to the principle of discoverability, or possibly is governed by s. 5(1) of the RPLA and only begins to run from the time of dispossession (which had not yet occurred). The application was not statute-barred.

Cases referred to

McConnell v. Huxtable (2014), 118 O.R. (3d) 561, [2014] O.J. No. 477, 2014 ONCA 86, 41 R.P.R. (5th) 1, 42 R.F.L. (7th) 157, 370 D.L.R. (4th) 554, 315 O.A.C. 3, 237 A.C.W.S. (3d) 505 [page78 ]

Statutes referred to

Land Titles Act, R.S.O. 1990, c. L.5, s. 51(1) [as am.]

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 2(1)(a),15 [as am.], 16(1)(a)

Real Property Limitations Act, R.S.O. 1990, c. L.15, ss. 4, 5(1)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 14.05(3) (e), 16.04(1)

APPLICATION for a declaration regarding an interest in land.

Alfred Schorr, for applicant.

[1] DUNPHY J.: — On June 30, 1997, the applicant agreed to purchase a condominium unit from the respondent, To Wai Shing Vincent, at 45 Carlton Street in Toronto. The agreement of purchase and sale expressly provided for the purchase of both the condominium unit ([suite number omitted]) and the related parking space (B2#46). The purchase price for both was fixed at $167,000. The condominium corporation provided the usual certificate in connection with the closing certifying that the apartment "which includes Parking Unit No. 46, Level B" was owned by the vendor.

[2] The applicant completed the purchase from Mr. Vincent on October 1, 2007, and moved into his new condominium on or about that day. Since that time, he has lived in the unit, parked in the parking, been assessed and paid common area charges and property tax all as the undoubted owner.

[3] Unfortunately, it appears that the lawyers for both vendor and purchaser neglected to include a conveyance of the parking space which has a separate PIN associated with it. The applicant has now discovered the error. The vendor cannot be located. The vendor's solicitor on the transaction indicates that he has long since destroyed his file, has no record of the location of Mr. Vincent but, for what it is worth, concurs that the applicant should have received title to the parking unit at closing. Known addresses have not borne fruit and the phone number formerly associated with Mr. Vincent is no longer in service. A Google search failed to turn up any solid leads.

[4] The applicant wishes to obtain a declaration as to his ownership of the parking unit that he purchased 18 years ago in order that he may be able to sell his condominium without difficulty as he is planning on doing this summer.

[5] I am satisfied that I may dispense with service upon the respondent, Mr. Vincent, in the interests of justice in accordance with rule 16.04(1) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] [page79 ]such that the application is properly returnable before me today. The plaintiff has diligently attempted to locate Mr. Vincent. There is no reason to believe that the conveyancing error was anything other than inadvertent or that Mr. Vincent has made any effort in the past 18 years to assert any claim or interest to the parking unit. The applicant alone has used the spot and has paid all taxes and charges associated with it.

[6] I find based on the record before me that the applicant has purchased and paid for the parking unit associated with his unit. He was entitled to be the registered owner at closing of the transaction in 1997 and has acted ever since as if he were. The issue is what jurisdiction I have to clear his title after all of these years and in light of the fact that the unit is registered under the Land Titles Act, R.S.O. 1990, c. L.5 and s. 51(1) of that Act abolishes the right of adverse possession in respect of land where title is registered thereunder. Section 51(1) of the Land Titles Act provides:

51(1) Despite any provision of this Act, the Real Property Limitations Act or any other Act, no title to and no right or interest in land registered under this Act that is adverse to or in derogation of the title of the registered owner shall be acquired hereafter or be deemed to have been acquired heretofore by any length of possession or by prescription.

[7] While rule 14.05(3)(e) of the Rules of Civil Procedure authorizes the court to make a declaration regarding an interest in land, it cannot authorize me to declare possessory title in contravention of s. 51(1) of the Land Titles Act. As well, I must consider the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, which applies an "ultimate limitation period" of 15 years (Limitations Act, 2002, s. 15). The applicant suggests that s. 16(1)(a) of the Limitations Act, 2002 may provide an exception to the ultimate limitation period in s. 15 since it permits the court to entertain a claim for declaratory relief "if no consequential relief is sought". I am not sure that this provides the desired result for the applicant since a declaration of ownership simpliciter without the consequential relief sought (in particular, a direction to the land registry office to transfer title) will be of little use.

[8] In my view, the correct analysis here is as follows.

[9] The applicant agreed to buy the unit and the parking space with the respondent. He paid the agreed price in full. Since a legal transfer was inadvertently not provided for the parking unit, legal title did not transfer at closing in respect of the parking unit. Equitable title, however, did transfer with the payment of the purchase price in full under a written [page80 ]agreement obliging the vendor to transfer upon payment. From and after closing, the vendor was a constructive trustee of title to the parking unit for the benefit of the purchaser/applicant. The purchaser had paid in full and was entitled to the title which the vendor had inadvertently failed to convey. The vendor retained no beneficial title. The vendor thus has held title to the parking unit as constructive trustee in favour of the purchaser/ applicant.

[10] The right of a beneficiary of a constructive trust to enforce his or her title as against the trustee is governed by the Real Property Limitations Act, R.S.O. 1990, c. L.15 ("RPLA"): McConnell v. Huxtable (2014), 118 O.R. (3d) 561, [2014] O.J. No. 477, 2014 ONCA 86. Section 2(1) (a) of the Limitations Act, 2002 provides that it does not apply to a proceeding to which the RPLA applies. Under the RPLA, there is a ten-year limitation period (RPLA, s. 4) for an action to claim an interest in land. However, where the interest in land claimed is an equitable title under a constructive trust, the limitation period is subject to the principle of discoverability (McConnell v. Huxtable, supra, at paras. 53-54) or possibly is governed by s. 5(1) of the RPLA and only begins to run from the time of dispossession (which has not occurred). In either event, there can be no question of the limitation period having run since the applicant has not been dispossessed and only discovered the error in connection with preparing to sell his condominium over the past few months and has acted promptly.

[11] I am accordingly satisfied that the applicant is entitled to the relief requested and an order will go declaring that he has title to the parking unit and directing the land registry office to register the transfer thereof to his name.

Application allowed.

End of Document