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Thursday, September 15, 2016 @ 08:00 PM

Powers of municipality - Expropriation - Compensation - Valuation - Disturbance damages - Appeals

Appeal by the Province of Manitoba from the amount certified by the Land Value Appraisal Commission as compensation payable for expropriated property. In 2009, the province expropriated a portion of the respondents’ family farm for the purpose of realigning a provincial road and constructing a bridge over a river. At the time of the expropriation, there was a house, barn and other structures on the land. Following the expropriation, the respondents were granted a permit to use a portion of the old road as a driveway to access the new, re-aligned road. The respondents purchased new property and moved the house, various farm buildings (but not the barn) and the grain bins to the new property, along with the cows and the dairy operation. The Commission found that the respondents made a reasonable choice when they decided to purchase the new property and that the province’s lack of co-operation, including their attempts to put the respondents out of business, contributed to that decision. The Commission also concluded that the old barn could not be moved. In determining the “due compensation payable” to respondents, the Commission calculated the market value of the expropriated property and awarded various other amounts on the basis that they were costs, losses and expenses arising out of, or incidental to, the expropriation. The amount of compensation certified by the Commission was $2,735,543. The province sought to set aside or vary the amount certified by the Commission as compensation payable for the expropriated property. The province argued that some of the amounts certified by the Commission were contrary to the intent of the Expropriation Act, significantly over-compensated the respondents and were unreasonable. ... [read more]

Thursday, September 15, 2016 @ 08:00 PM

Municipal Law - Bylaws and resolutions - Enforcement of bylaws

Appeal by the Municipality of the County of Annapolis from dismissal of its application to enforce a land use bylaw. The Coach House was part of a former Canadian Forces Base and was not initially subject to a land use bylaw. Occupation of the building had ceased in 1996 and it largely remained vacant. A prior application to use the Coach House as an apartment, workshop and office were denied. In 2000, a development permit was granted to use the building as a workshop and office. The building was vacant in 2002 and 2003. The respondents purchased the Coach House in 2004 and used it as a residence thereafter. In 2012, the Municipality wrote the respondents to advise residential use of the property was a non-conforming use and asked them to vacate the premises. The respondents initially advised that residential use ceased. They subsequently received legal advice that use as a residence represented a legal, non-confirming use. The Municipality applied to enforce the land-use bylaw. The application judge accepted the respondents’ position. The Municipality appealed. ... [read more]

Thursday, September 08, 2016 @ 08:00 PM

Real Property Law - Interests in land - Easements - Creation - By implication - By implied grant - Right exercised by owner for benefit of property

Appeal by the petitioners from the dismissal of their petition for a declaration of an implied easement or an easement of apparent accommodation. At times, the appellants had used part of a shared driveway located on their neighbours’ property for vehicular access to their property. The driveway was built sometime prior to 1976. Between 1976 and 1981, a hedge between the two properties blocked vehicular access to the appellants’ property. The hedge was removed in 1981 and the appellants’ grandparents were granted vehicular access on a temporary basis. The appellants re-paved the driveway at their expense but were denied a registered easement over the driveway. When the respondents purchased the property in 2009, they were advised that the appellants’ use of the driveway was temporary only. After the respondents purchased the neighbouring property, they erected a fence that cut off the appellants’ use of the driveway. As a result, the only access to the appellant’s property was by way of 23 stairs from the roadway below. The trial judge dismissed the appellants’ petition for a declaration of an easement, finding that there was insufficient evidence to establish that: 1) the original grantor at the time of the original grant in 1934 intended to provide the grantee vehicular access via a shared driveway; and 2) subsequent purchasers of the grantor’s property after 1934 intended to grant the occupants of the appellants’ property an implied easement for the use of the respondents’ driveway; and 3) the shared use of the respondents’ driveway was necessary for the reasonable enjoyment of the property. The appellants appealed, arguing that the judge erred in finding they had failed to demonstrate an implied easement over the respondents’ driveway. ... [read more]

Thursday, September 08, 2016 @ 08:00 PM

B.C. condo board's rental limit bylaw upheld

The impassioned battle between those who mainly want to enjoy their homes and those who see property mainly as an investment recently went before the B.C. Court of Appeal. ... [read more]

Thursday, September 01, 2016 @ 08:00 PM

Title - Chain of - Demonstration of

Appeal by Naugle from a decision quieting the title to competing ownership claims to real property and issuing a certificate of title to the respondent trustee. Of the 300 acres involved, the appellant claimed ownership to approximately 100 acres. The trial judge was of the view that the competing chains of title were close in quality, with the trustee’s title being no worse and perhaps just a bit better than that of the appellant. The 300 acre parcel was landlocked and was comprised of multiple lots. When the bordering property became developed, the trustee sought to sell the property and brought an application under the Quieting Titles Act. The appellant then set about to solidify the transfer of lands from his uncle in 2013 and the prior chain of title which included a 1936 deed to the uncle’s mother. The competing chains of title went back a generation behind two brothers to the will of their father and the wording of his will. The trial judge found that even if the appellant had a good chain of paper title, the trial judge was not able to locate his lands on the ground and within the 300 acre parcel the trustee sought to quiet. The approximate 100 acres in dispute had always been woodland. The trial judge placed a great deal of weight on the estate inventory and the absence of any express reference to woodland therein. ... [read more]

Thursday, September 01, 2016 @ 08:00 PM

Municipal Law - Planning and development - Heritage property protection - Designation of heritage property

Appeal by the Foleys from a judgment affirming a municipal heritage designation bylaw enacted by the Town of St. Marys. The subject property was a downtown two-storey brick and stone commercial property with a clock tower. It was constructed in 1884 for a local jeweler. The interior still featured original walnut showcases, counters, mirrors and a tall wall clock. The appellants purchased the property in 2004 and leased it until 2010. In 2007, the Town advised the appellants of their intent to proceed with a heritage designation. The appellants indicated they were not interested in the process. In 2008, the Town provided formal written notice of the intent to pass a bylaw implementing the designation. The bylaw was passed the following month. The heritage designation included the original exterior and interior heritage attributes. In 2009, the appellants received $13,000 in municipal heritage funding as a result of the designation. In 2010, the appellants listed the property for sale. They attributed the low interest in the property to the heritage designation of the interior features. In 2015, the appellants applied to quash the bylaw on the grounds of illegality, or alternatively, to sever the portions related to the interior features. The application judge found the appellants had actual notice of the bylaw and that the application to quash was not brought within the one-year limitation period. The Foleys appealed. ... [read more]

Thursday, August 25, 2016 @ 08:00 PM

Some municipal websites not up to speed

When acting for a purchaser on a real estate transaction, one of the duties of a solicitor is to do your utmost to ensure the purchaser gets good title. To do this, a variety of certificates and letters from cities or counties must be ordered, including tax and utility certificates and letters to confirm compliance with regulations. In this modern age of technological advancement, one would assume this process would be easy; information is readily accessible online, and almost anything can be purchased at the click of a button and often available instantly. Unfortunately for solicitors and their clients, many cities and counties, at least in Ontario, are far behind when it comes to the availability of online information. ... [read more]

Thursday, August 25, 2016 @ 08:00 PM

Future imperfect

Restrictive covenants registered on land can endure the longest of any document you’ll draft — so careful consideration is in order when doing so. In fact, stories have surfaced regarding such covenants thwarting municipal density policies and even standing in the way of healthy retail competition. ... [read more]

Thursday, August 25, 2016 @ 08:00 PM

Flaws show up in consumer protection legislation

Condo board’s move to terminate developer’s agreement victim of conflicting sections of the law ... [read more]

Thursday, August 25, 2016 @ 08:00 PM

Cooling down Vancouver's red hot market

Popular in B.C., the 15 per cent Foreign Buyers Tax might not fly elsewhere ... [read more]