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Real Estate


Monday, June 19, 2017 @ 11:45 AM

CONDOMINIUMS - Developers - Obligations of - Disclosure statement

Appeal by the petitioners from a decision dismissing their application for declarations that certain lots in a phased strata development were not residential lots within the meaning of s. 128(1) of the Strata Property Act (Act). The lots at issue were part of a resort. The appellant East Barriere Resort (EBR) had obtained Phase 4 lands in 2005 in foreclosure proceedings before Phase 4 was completed. Phases 1, 2 and 4 had been zoned “Recreational Commercial Zone”. Principal uses in that zone included a resort that excluded single family residential dwellings. Phase 3 was zoned as “Country Residential Zone”, which permitted, among other uses, one single family dwelling. Certain declarations were made on the plans filed for Phases 1, 2 and 3 in the Land Title Office, but no declaration was found on the plan covering Phase 4. The record suggested that the resort was comprised of both residential and nonresidential strata lots. Owners had constructed detached single-family homes used as vacation residences since 1996. Since 1996, the strata corporation had considered the strata plan to be composed entirely of residential strata lots and owners had voted collectively on bylaws. EBR took issue with a number of amendments to the bylaws enacted by the strata corporation over the years which prompted the filing of the petition. The appellants argued that since the advent of Phase 3 in 2001, the resort had consisted of both residential and nonresidential strata lots so that voting on bylaws and bylaw amendments should be conducted accordingly. The chambers judge held that all of the strata lots were residential based on the actual use of the lots over an extended period of time. ... [read more]

Monday, June 19, 2017 @ 11:43 AM

INTERESTS IN LAND - Restrictive covenants - General principles - Benefit - Burden - Creation - Covenants at law (leasehold covenant) - Running with land - Benefit - Burden

Appeal by property owners from a decision that they were required to pay an annual levy as a contribution to maintenance costs and taxes for a small community on private land. The properties within the community were subject to a Trust Deed. Under the terms of the Trust Deed, the original covenanters agreed to appoint trustees to hold certain property for the benefit of the original covenanters and persons claiming through them. The original parties granted their interests in the lands comprising the community property to the trustees. The trustees were charged with maintaining the community property and were authorized to charge a levy to property owners in the community for maintenance of the community property and to pay the property taxes. The appellants, a husband and wife, began living at a property that backed onto the community. The property was owned by the husband’s father and was transferred to the appellants upon his death. Unlike other properties in the community, the appellants’ property was accessed and serviced by a public municipal road. The appellants claimed that they derived no benefit from the expenditure of the levy, disclaimed any benefit from their property’s inclusion in the community and maintained that they never agreed to pay the annual levy. They also wished to be excluded from any use of common property. The trustees argued that because the appellants were owners of a property within the community, they were beneficiaries under the Trust Deed and therefore had an obligation to pay their proportionate share of expenses incurred by the trustees in relation to the common property. In a previous action, the trustees successfully sued the father for non-payment of maintenance fees. The appellants did not pay the levy after they took title to the property and therefore the trustees sued them to recover the amount owing. The Deputy Judge found that the Trust Deed was a positive covenant that did not run with the land and that the “benefit and burden exception” recognized under English law was not available in Ontario. The trustees appealed the decision, arguing that the Deputy Judge gave insufficient reasons, made palpable and overriding errors, and erred in law and jurisdiction. The appeal judge allowed the appeal finding that the reasons were legally insufficient and tainted by several factual and legal errors. In light of the errors she found, the appeal judge conducted her own analysis. The appeal judge found that the appellants were bound by the Trust Deed and were obliged to pay their annual levies for the benefits received. She found that both the benefits and burden and the conditional grant exceptions to the positive covenants formed part of Ontario law and were applicable to the present case. Accordingly, she allowed the appeal and ordered the appellants to pay the unpaid levies for 2010 to 2013 in the amount of $12,799 and granted an unqualified declaration that they were liable to pay the annual levies assessed against their property in accordance with the Trust Deed. ... [read more]

Monday, June 19, 2017 @ 9:34 AM

Stewart McKelvey adds associate

Stewart McKelvey welcomes the newest associate to its Charlottetown office, Hilary Foster.  ... [read more]

Wednesday, June 14, 2017 @ 10:27 AM

Miller Thomson adds real estate lawyer Genga as partner

Kyle Genga, formerly with Bennett Jones LLP, has joined Miller Thomson as a partner. ... [read more]

Monday, June 12, 2017 @ 8:34 AM

Proposed changes to Condominium Act would give owners much needed protection

A recent CBC Toronto investigation has highlighted the need for condo owners and prospective buyers to be aware of who is in control of their condo corporation. ... [read more]

Wednesday, June 07, 2017 @ 11:52 AM

Dentons appoints Kubina as Slovakia managing partner

Dentons has announced the appointment of Peter Kubina as Slovakia managing partner. ... [read more]

Wednesday, June 07, 2017 @ 9:44 AM

Cochrane, Sangster join Fasken Martineau in Calgary

Gary Cochrane and Scott Sangster have left Dentons and joined the Calgary office of Fasken Martineau DuMoulin LLP as partners in the banking and finance group. ... [read more]

Monday, June 05, 2017 @ 8:33 AM

Appeal reversal grants relief from civil forfeiture

The Supreme Court recently refused leave to appeal from the decision of the Ontario Court of Appeal in Poplar Point First Nation Development Corporation v. Thunder Bay (City) [2017] S.C.C.A. No. 60, aff’ing 2016 ONCA 934, reversing 2016 ONSC 457. The Court of Appeal held that the court retains discretion to grant relief from forfeiture in a civil proceeding even where the forfeiture is created by operation of statute, as long as the statute does not explicitly or by necessary implication exclude the court’s power to do so. ... [read more]

Monday, May 29, 2017 @ 7:26 AM

Can residential landlords restrict cannabis activity in rental units? Growing cannabis

The legal rules which apply to the growing of Cannabis for personal use have changed significantly in recent years, driven in part by politics but also by decisions of the Courts (R. v. Parker [2000] O.J. No. 2787, Allard v. Canada 2014 FC 280). An assumption that Cannabis regulations will “trump” residential lease provisions should be tempered by practical considerations and the law of contract, subject always to issues of compliance with Human Rights legislation. ... [read more]

Monday, May 29, 2017 @ 7:04 AM

REAL PROPERTY TAX - Assessment - Methods - Valuation of land - Considerations - Methods of - Market value

Appeal by the City of St. Albert and the St. Albert Composite Assessment Review Board from a decision quashing the Board’s dismissal of complaints by the St. Albert Housing Society and Big Point Developments (Big Point). The complaints related to the City’s use of an income approach to determine the market value of 12 Nevada Place, a residential apartment complex containing 78 affordable housing units, for taxation purposes. Big Point was the developer of the complex. It received a capital grant from the Alberta government covering 65 per cent of the construction costs, and agreed to rent out units under market rent. After receiving the grant, the City transferred the land to Big Point for $1 and Big Point transferred title to 15 units in 12 Nevada Place to the Housing Society. The land transfer agreement referenced the provincial funding agreement in several places. The City’s assessor used the mass appraisal technique to estimate the value of 12 Nevada Place, primarily applying an income approach to value. To confirm the assessment value, the assessor also performed valuations using the cost approach and the direct comparison approach. Big Point and the Society complained, arguing that given the mandated cap on rents, the actual rents rather than market rates should have been used for the income calculation, to result in a much lower assessed value. They presented to the Board two appraisals used to determine the fair market value of individual units in 12 Nevada Place after the Housing Society decided to purchase them. The Board gave the appraisals little weight because they were not current, and rejected the argument that actual rents ought to be used for assessment purposes. The Board found that the limits imposed on rental rates were imposed by contract, by way of which Big Point received a capital grant. The management decision to restrict rents in exchange for the grant was not a proper consideration in estimating the value of the fee simple estate in the property, in the opinion of the Board. Big Point and the Society applied for judicial review of the Board’s decision. The judge found that the Board’s decision lacked justification and did not fall within a range of acceptable outcomes. She found that the Board’s rejection of the appraisals presented, because they were not prepared for assessment purposes, was unreasonable. The judge found it was unreasonable for the Board to conclude that the rent caps in the funding agreement did not impact market value, to characterize the funding agreement as akin to a financing agreement, and to conclude that the selling price of 12 Nevada Place would include the pro-rated balance of the remaining grant. ... [read more]