Adding a child to title is one of the more popular real estate transactions in Ontario, especially among elderly parents who want to reduce the probate tax burden on their intended heirs by facilitating a transfer outside their estate after death.
But joint tenancy is also an increasingly common source of real estate litigation involving parents who change their mind after falling out with a child over the control, maintenance or sale of jointly held property that was once theirs alone.
In the recent case of Lahey v. Lahey, which involved a long-running family property dispute, Ontario Superior Court Justice Spencer Nicholson provided a valuable overview of these myriad options, including another underused mechanism that neither party raised.
Although Ontario’s Statute of Frauds generally bars the enforcement of an oral agreement for the purchase of land, Canadian law recognizes an exception to the rule: the equitable doctrine of part performance.
You’ll need more than a simple handshake to prove the existence of an oral agreement, but convincing a judge to apply the doctrine of part performance is possible in the right circumstances, as the recent Court of Appeal decision in 2730453 Ontario Inc. v. 2380673 Ontario Inc. demonstrates.
The summary judgment rule in Ontario’s Rules of Civil Procedure grants judges enhanced fact-finding powers, allowing them to decide cases finally without the need for a full trial. Even partial summary judgment — where a judge decides certain key issues based on a limited record — can move parties a long way towards a final resolution, by narrowing the issues in dispute and encouraging the parties to settle those that remain
When co-owners’ interests diverge, Ontario’s Partition Act provides an effective mechanism for the division and sale of a property, as the Court of Appeal recently demonstrated when it upheld a motion judge’s order for the sale of a jointly owned commercial propertyin Nutrition Guidance Services Inc. v. Schwartz. When co-owners can no longer work together, courts will not force them to remain as co-owners and will order a sale under the Partition Act.
Any buyer who terminates a binding Agreement of Purchase and Sale (APS) should expect the vendor to move for the forfeiture of their deposit immediately. In a depressed market, an innocent seller may even be entitled to further damages to make up the difference between the sale price agreed in the failed deal and any lower bid they ultimately accept.
However, purchasers who successfully shift the blame for the collapsed deal to the vendor may be able to recover their deposit, even if they were the ones to call it off.
Rule 14.05(3) of Ontario’s Rules of Civil Procedure sets out the circumstances when a matter can proceed by way of application, allowing the judge to decide a discrete issue or potentially even the entire case based entirely on a paper record and oral arguments, without hearing from any live witnesses.
In the appropriate case, this allows the parties to circumvent some of the worst aspects of litigation: the costs and scheduling delays associated with discoveries and a full trial.
However, the process is not without risks. Judges retain the ability to convert an application into an action, which means that you could end up right back where you started if the court concludes that further evidence is required.
General contractors are among the most common users of the construction lien process, but Ontario’s Construction Act opens the door to any person under contract who has supplied services or materials for the “improvement” of the property, which could include alterations, additions, repair work, or even complete or partial demolition.
The commercial real estate industry can breathe a little easier after the Court of Appeal for Ontario restored a sense of normalcy to the measure of damages for collapsed property deals. Typically, when a commercial real estate deal fails to close, the measure of...
Judges will do all they can to prevent a lawsuit from falling at the first hurdle, but their patience has limits. When launching their legal cases, many non-lawyers picture the process ending in vindication following their day in court. In reality, only a tiny...