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SALE OF LAND - Agreement of purchase and sale - Description of land

Tuesday, August 20, 2019 @ 8:29 AM  


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Appeal by the plaintiff vendor from summary judgment dismissing her action against the purchasers for damages for failure to close the transaction. After the parties executed the agreement of purchase and sale, the appellant’s neighbours disputed that the appellant owned part of her driveway. Because of the outstanding litigation between the appellant and her neighbours, the respondents refused to close the purchase on the basis that the appellant could not convey clear title to the entire driveway. The motion judge found that there was a defect in the appellant’s title due to the dispute over whether a two-foot-wide strip of the driveway was owned by the appellant and could be conveyed to the respondents. She found that the defect was significant enough to entitle the respondents to refuse to close.

HELD:  Appeal dismissed. There was no error in the motion judge’s finding that the there was a title defect in what the appellant had agreed to convey. The motion judge was entitled to interpret the words used in light of the factual matrix, to deepen her understanding of the mutual and objective intentions of the parties as expressed in the words of the contract. The motion judge was entitled to find that any reasonable person would assume that the driveway referred to in the agreement as owned by the property would include what appeared to the eye to be the driveway which was not seven feet wide but nine. Interpreting the agreement as including the driveway as it visually appeared at the time of contracting led to no inconsistency with the wording of either Schedule. There was no error in the motion judge’s conclusion that the title defect was significant enough to permit the respondents to refuse to close. The respondents’ reliance on it in refusing to close was neither arbitrary nor capricious.

Himidan v. Farquharson, [2019] O.J. No. 3595, Ontario Court of Appeal, G. Huscroft, G.T. Trotter and B. Zarnett JJ.A., July 8, 2019. Digest No. TLD-August19019005