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Thursday, February 09, 2017 @ 7:00 PM

Real Property Law - Condominiums - Declarations - Essential elements - Statement of common areas and elements available

Appeal by the Strata Plan and the co-petitioners from a judgment granting minority owners exclusive use of seven disputed parking spaces. The parties disagreed over the legal status of seven parking spaces in a 37-unit townhouse development. Each townhouse had a garage. Seven parking spaces were adjacent to seven townhouses. Historically, the spaces were described in the original disclosure statement as visitors parking and were treated as such by the owners, and by new purchasers. However, it subsequently surfaced that the strata plan did not show the parking spaces as common property. Instead, the spaces were described as limited common property, such that the owners of the adjacent units were able to assert exclusive right to use of the spaces. The majority of owners argued that the description of the parking spaces as limited common property was a mistake. The dissenting owners brought a petition claiming exclusive use of the parking spaces with related relief to protect that use. The majority of the owners brought a co-petition alleging the description of the parking spaces was in error, and the Strata Plan acted unfairly in failing to amend it through a resolution pursuant to s. 257 of the Strata Property Act. The judge allowed the dissenting owners’ petition and dismissed the co-petition. The co-petitioners appealed. ... [read more]

Thursday, February 09, 2017 @ 7:00 PM

Landlord & Tenant Law - Commercial tenancies - Lease - Restrictive covenants

Not applicable ... [read more]

Thursday, February 09, 2017 @ 10:59 AM

B.C. organization offers online small claims resolution tool

The B.C. Civil Resolution Tribunal (CRT) is offering an online tool to help small claims litigants settle disputes among themselves. ... [read more]

Thursday, February 09, 2017 @ 10:49 AM

Martyn joins McMillan's real estate group

Scott Martyn has joined the commercial real estate group of McMillan LLP. ... [read more]

Tuesday, February 07, 2017 @ 10:39 AM

CONDOMINIUMS - Declarations - Essential elements - Statement of common areas and elements available

Appeal by the Strata Plan and the co-petitioners from a judgment granting minority owners exclusive use of seven disputed parking spaces. The parties disagreed over the legal status of seven parking spaces in a 37-unit townhouse development. Each townhouse had a garage. Seven parking spaces were adjacent to seven townhouses. Historically, the spaces were described in the original disclosure statement as visitors parking and were treated as such by the owners, and by new purchasers. However, it subsequently surfaced that the strata plan did not show the parking spaces as common property. Instead, the spaces were described as limited common property, such that the owners of the adjacent units were able to assert exclusive right to use of the spaces. The majority of owners argued that the description of the parking spaces as limited common property was a mistake. The dissenting owners brought a petition claiming exclusive use of the parking spaces with related relief to protect that use. The majority of the owners brought a co-petition alleging the description of the parking spaces was in error, and the Strata Plan acted unfairly in failing to amend it through a resolution pursuant to s. 257 of the Strata Property Act. The judge allowed the dissenting owners' petition and dismissed the co-petition. The co-petitioners appealed. ... [read more]

Tuesday, February 07, 2017 @ 10:32 AM

COMMERCIAL TENANCIES - Lease - Restrictive covenants

Appeal by the defendants, TEL Management and its principal, Edmonds-Leckie, from a judgment in favour of TEL's landlord, Corydon Village Mall. The tenant leased retail space in the landlord's shopping mall to operate a women's shoe store. The lease specified use of the premises and provided any change required the landlord's prior approval, with such approval not to be unreasonably withheld or delayed. The lease also listed several prohibited uses. Due to difficulties with inventory, the tenant sought to change its business to include ladies' clothing, accessories, giftware and home accessories for the holiday season. The landlord refused to consent to the proposed change due to other mall tenants having exclusivity clauses in their leases. The tenant stopped paying rent and moved out. The landlord sued for damages arising from the non-payment. The defendants asserted the landlord breached the lease by unreasonably withholding consent to the proposed change. The trial judge interpreted the lease to provide that the covenant not to withhold consent did not apply to a proposed change to one of the prohibited uses. The judge determined that the tenant's proposed change involved a prohibited use. The judge concluded that the landlord did not breach the lease by unreasonably withholding consent, or alternatively, acted reasonably. The landlord was granted judgment on the amounts claimed. The tenant and its principal appealed. ... [read more]

Monday, February 06, 2017 @ 4:23 PM

Gowling WLG announces three new partners

Corporate commercial lawyer Lorraine Mastersmith, technology lawyer Parna Sabet-Stephenson and real estate lawyer Sarah Crowe have joined international law firm Gowling WLG as partners. ... [read more]

Friday, February 03, 2017 @ 3:37 PM

POWERS OF MUNICIPALITY - Municipal property - Highways - Ownership and control

Appeal by Lehtiniemi from the dismissal of his application for a declaration that a laneway he constructed on his property was not a public roadway. The appellant purchased the property in 1981. After completing a logging operation, he cleared and ditched a laneway. The appellant did the work and paid for all expenses, and he maintained the laneway. He placed a gate and "Keep Out" signs on the west boundary of his land. In 1993, the appellant's small claims action against the municipality for trespass was dismissed and the Court found that the laneway was a public road. The municipality claimed that the appellant built the laneway on top of an existing, though unmaintained, public road to which it held title. The appellant disputed that assertion claiming that the old public road, now vanished, was a separate road built north of his property. The Court dismissed the appellant’s claim finding that it was barred by issue estoppel given that the Small Claims Court had determined in 1993 that the road that crossed the appellant’s land was a municipal road. It went on to find that the evidence established that there was a dedication and acceptance of the portion of municipal road that crossed the appellant's land and that once a dedication was complete, notwithstanding that the town had not maintained the road ... [read more]

Friday, February 03, 2017 @ 3:33 PM

BYLAWS AND RESOLUTIONS - Interpretation - Broad and purposive approach

Appeal by Tavolini Ventures and Qterra Properties from a decision upholding the denial of its application for a business licence. The property was governed by a land use contract (LUC), which was entered into in 1976. The LUC restricted the use of the land to that permitted by the commercial zoning bylaw in place at the time of the contract, which included “retail trade”. Retail trade in the zoning bylaw was defined as “resale to the general public for personal or household consumption”. In 2016, the appellant sought to establish a retail liquor store on the property and Tavolini applied for a business licence from Delta. Delta rejected the application because when the LUC was signed, provincial law prohibited the proposed use. The appellants filed an application for judicial review of the decision, seeking a declaration that the liquor store was a permitted use and an order of mandamus compelling Delta to issue a business licence. The chambers judge dismissed the petition, finding that the liquor store was not a permitted use under the LUC because of the circumstance at the time the original parties entered into the LUC. The appellants appealed the decision of the chambers judge on the basis that he incorrectly interpreted the LUC. ... [read more]

Friday, February 03, 2017 @ 9:32 AM

Who holds the trump card in building developments: landowners or municipalities?

The city of Toronto has been riding a tidal wave of condo development that doesn’t seem close to crashing. ... [read more]