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Real Estate


Thursday, November 24, 2016 @ 7:00 PM

Letter to the editor

Dear Editor: ... [read more]

Thursday, November 17, 2016 @ 7:00 PM

Real Property Law - Interests in land - Easements - Creation - By implication - By implied reservation from grant - Easements of necessity - Implied reservation by common intention

Appeal by Miles from a ruling in a dispute over ownership of a gravel road situated on Miles’ property. In 1971, the road served an oil and gas well. The road was subsequently used to access properties within a subdivision. In 1973, the north-east quarter of the lands owned presently by Miles was sold by Peel to Schiele. The agreement mentioned the strip of land used as the road, excepted it from the agreement, and provided for its transfer back to Peel. The agreement was never concluded by a formal transfer of the road back to Peel. Peel registered a caveat, which did not describe the road. The road was used, uninterrupted, for forty years to access lands on the north-west and south-west quarters. In 1991, Schiele entered into a surface lease with owners of a well license on the north-east quarter and received lease payments. In 2009, Miles sought to buy the north-east quarter from Schiele’s estate. It was a condition precedent that the caveat be removed. Notice was not provided to Peel’s successor in title, nor to the residents using the road to access their homes. Since then, Miles and the residents disputed the use of the road. Miles at one point sought to close the road with a gate. The Municipality declared it a temporary public road in 2014. The residents applied for lawful access and use of the road. The judge found that the road was not a public highway and that no easement arose by express reservation because the caveat did not expressly protect the road. He found an implied easement by necessary implication. He found that Peel and Schiele appreciated that the road was reserved to allow access to the local residents and that one of the residents enjoyed an implied easement by necessity. The judge enjoined Miles from denying access. ... [read more]

Thursday, November 10, 2016 @ 7:00 PM

Real Property Law - Title - Boundaries - Determination - Surveys

Appeal by Mackenzie from the $8,000 judgment in favour of his neighbour, MacKay, in an action arising from a property line dispute. MacKenzie cut 16 trees near the border of the parties’ respective properties. Mackay obtained a survey to establish the property line, and, dissatisfied with the opinion of surveyor Bernard that the trees lay on MacKenzie’s property, fired Bernard and sought another survey. His second surveyor, Clow, came to a conclusion about the boundary that was favourable to MacKay’s position. MacKenzie then hired Bernard to carry out another survey. Bernard found that the boundary line was two feet west of the tree stumps, meaning that they were situated on MacKenzie’s property. Bernard shared his findings with Clow, who revised his opinion and survey to more closely align with Bernard’s. MacKay commenced his action for trespass against MacKenzie, basing his claim on the location of the legal boundary. MacKenzie counterclaimed for damages for Mackay’s wrongful action in twice knocking down woodpiles MacKenzie made with the felled trees. The judge rejected all the evidence put forth by MacKenzie, his family, Bernard and Clow, found that the boundary was the crooked tree line running an irregular course through the centre of the tree trunks, and found that MacKenzie trespassed on MacKay’s property by cutting boundary trees presumed to be common property. MacKay was ordered to pay MacKenzie $166 for knocking down the wood piles, to be set off against the judgment of $8,000. ... [read more]

Thursday, October 27, 2016 @ 8:00 PM

Real Property Law - Mortgages - Mortgage agreement - Assignment - Validity - Mortgagee’s remedies

Appeal by the defendants from an order granting the respondent a writ of possession on a property owned by the appellants, to be executed if the appellants failed to make the specified payments owing under a mortgage assignment agreement. The appellants were the owners of adjoining properties. The respondent was the assignee of the mortgages of each property. The mortgages on both properties had gone into default. The appellants admitted that they made none of the payments required under the order. The appellants argued that the order under appeal must be set aside because the reasons were wholly inadequate and that the assignment agreement was to constitute a new mortgage, effectively rendering the default judgment obtained by the original mortgagee a nullity, and therefore compelling the respondent to commence a new action. ... [read more]

Thursday, October 20, 2016 @ 8:00 PM

Real Property Law - Condominiums - Condominium corporation - Meetings - Owners’ meetings - Annual general meetings

Appeal by the strata corporation from a decision by a chambers judge concluding that strata developer, 0738039 B.C. Ltd. (073), was not liable to pay a penalty. 073 developed a six unit strata development. The first unit was sold in May 2010. The next two units were sold in April and November 2013, and the forth unit was sold in August 2014. 073 owned the remaining two lots. The principal of 073 was erroneously of the view that a strata developer did not have to call the annual general meeting (AGM) until nine months plus six weeks after the sale of 50 percent plus one of the lots. In fact, the strata developer was required to call an AGM by April 2011 pursuant to s. 16 of the Strata Property Act (Act). 073 did not call the first AGM until February 28, 2015. After the first AGM, the strata council decided to pursue the strata developer for payment of the amount established by s. 17 of the Act. The strata corporation (Strata) filed a petition on July 24, 2015, claiming some $201,000 under s. 17(b) of the Act for the delayed AGM. The chambers judge concluded that 073 was not liable to pay the s. 17(b) penalty. The strata corporation submitted that the chambers judge erred in law by concluding that the penalty to be imposed on an owner developer under s. 17(b) occurred only if an owner called the first annual general meeting under s. 17(a), which didn’t happen in the current case. ... [read more]

Thursday, October 20, 2016 @ 8:00 PM

Planning and development - Building regulations - Stop work orders

Application by a property developer, Mountain Shores Land Ventures Ltd. (Mountain Shores), for leave to appeal from the decision of the Subdivision & Development Appeal Board (SDAB) denying its appeal from the issuance of a stop order by the County requiring it to stop work on a recreational subdivision development under construction. Mountain Shores and the County entered into a development agreement that provided, among other things, that if Mountain Shore defaulted on any of its obligations under the agreement, the County would give written notice of the default and Mountain Shores would be required to remedy the default within 30 days. Mountain Shores did not comply with all of the requirements under the agreement. It was given written notice of the default. Contemporaneous with the issuance of the notice of default, the County issued a stop order. Mountain Shores appealed to the SDAB. The SDAB denied the appeal. Mountain Shores argued on appeal that the SDAB erred in concluding that the interaction of ss. 645(1)(b) and 645(2)(a) of the Municipal Government Act with the provisions of the development agreement requiring the County to give it 30 days to remedy any default meant that the stop order could not validly have been issued on the same day as the notice of default and could not have been validly issued before the expiry of the 30 day period. It also argued that the SDAB erred in dismissing the appeal before the grace period had expired. ... [read more]

Thursday, October 13, 2016 @ 8:00 PM

Municipal Law - Liabilities of municipality - Negligence - Duty of care

Appeal by the City of Toronto from the summary judgment granted to Williams in his class action. The Province of Ontario changed the classification of rooming houses for assessment purposes in 2003, thereby lowering the property tax rates to them. Legislation required landlords to reduce rent payable by tenants and required municipalities to provide notices of the rent reduction to rooming house landlords and tenants. The City of Toronto failed to provide such notices. Williams was the representative plaintiff in a class action against the City for damages for negligence, alleging class members overpaid rent because the City failed to provide them with timely notice. The class of plaintiffs included tenants who occupied rooming houses in the Parkdale area from 2003 to 2008. The City had implemented a project aimed at regularizing and improving illegal housing in Parkdale without leaving tenants homeless. This project involved public meetings and ongoing communications between stakeholders including landlords and tenants with the goal of ensuring adequate housing was available at affordable prices. For his part, Williams had direct interactions with the City as an executive member of the Parkdale Residents’ Association and lived in two different rooming houses between 2004 and 2008, both of which received tax reductions pursuant to the provincial legislation that did not result in a corresponding reduction of the rent Williams paid. The judge found summarily that the tenants made out their negligence claim. He found foreseeability of harm and a proximate relationship between the tenants and the City giving rise to a duty of care. Key to the judge’s finding was the fact that the process leading to the Parkdale Pilot Project (PPP) created sufficient relational proximity between the City and the class members to justify imposing on the City a private law duty of care in addition to its statutory duties pursuant to the Residential Tenancies Act and the Tenant Protection Act. The judge focused on the City’s admission that it made a mistake in failing to mail out notices until 2009 about tax reductions that occurred between 2004 and 2006 in finding that the City failed to meet the requisite standard of care. ... [read more]

Thursday, October 13, 2016 @ 8:00 PM

Real Property Law - Real property tax - Assessment - Methods - Valuation of land - Business property - Methods of - Factors affecting - Market value

Appeal by Deer Lodge Hotels from a decision by the Saskatchewan Municipal Board, Assessment Appeals Committee. This was the lead decision in relation to 11 assessment appeals by Saskatoon hotels and motels. In 2013, a provincial tax reassessment was conducted for all properties valued as of a January 1, 2011 base date, limited to market data occurring in the calendar years of 2008 through 2010. For 2013, the appellant’s hotel was assessed at $31.5 million based on a capitalization rate in respect of two similar properties sold during the reassessment period. The appellant alleged the city assessor’s method for calculating moveable fixtures, furniture and equipment (FFE) in respect of the properties was flawed, as the discount rate attributable to FFE was inadequate. The Board of Revision found that the appellant’s evidence of the actual FFE value for one of the comparable properties was not compelling, and that its suggested methodology was inconsistent. The Board concluded that the FFE deduction from the capitalized value used by the assessor was supported by an industry expert and other jurisdictions, and was thus reasonable. The Assessment Appeals Committee upheld the Board’s decision. The appellant was granted leave to appeal to the Court of Appeal. ... [read more]

Thursday, October 06, 2016 @ 8:00 PM

Taxing the condo flip

In parts of Canada, notably Toronto (Vancouver is quiet due to the new tax), the real estate market is booming. Buying prebuilt condos and then flipping them once they are completed has been a profitable activity in many Canadian real estate markets. ... [read more]

Thursday, October 06, 2016 @ 8:00 PM

Shifting affordable housing burden to developers

Ontario’s Promoting Affordable Housing Act, 2016 (Bill 204) has passed “first reading” stage, but it is the subject of great interest and concern to land use planning stakeholders, including municipalities, the development industry and legal advisers to these stakeholders. ... [read more]