Failure To Close A Real Estate Transaction Can Be Very Costly

Gilbertson Davis LLPCivil Liability, Civil Litigation, Contract Disputes, Real Estate Arbitrator, Real Estate Litigation, Recreational Property Litigation0 Comments

For many reasons, an agreement of purchase and sale to buy real estate may be breached by either the seller or the purchaser. The innocent party may be entitled to significant compensation. For instance, in the recent Ontario Court of Appeal (ONCA) decision, Rosehaven Homes Limited v. Aluko, 2022 ONCA 817, the ONCA upheld a lower court decision granting summary judgment requiring the appellants to pay damages to the respondent arising from the appellants’ failure to complete an agreement of purchase and sale for the purchase of a home. In that case, the appellants were unable to complete the transaction because they could not obtain sufficient financing. However, the agreement was not conditional on them obtaining financing. The respondent ultimately sold the property at a loss (compared to the sale price agreed to between the parties). The lower court awarded $331,922.27 to the respondent (being the difference between the original … Read More

Undocumented Trusts – No Requirement for Formal Trust Agreements

Gilbertson Davis LLPAppeals, Civil Litigation, Commercial and Contract Litigation, Contract Disputes, Recreational Property Litigation, Trust Litigation0 Comments

In the recent decision from the Ontario Court of Appeal (“ONCA”), Corvello v. Colucci, 2022 ONCA 159, the ONCA confirmed that a trust can exist even where there is no written trust agreement. At issue in the case was the ownership of a land use permit which allowed the holder(s) of the permit to build on and use the land for recreational purposes. In the court of first instance, the appellant took the position that the permit belonged to him alone. However, the trial judge determined that the appellant actually held the permit “in trust for himself and the respondents as beneficial owners”. On appeal, the appellant argued that the trial judge erred in law and in fact by determining that an undocumented trust agreement existed. The ONCA advised that it is trite law that a valid trust requires “three certainties: certainty of intention to create a trust, certainty of … Read More

When Construction Contracts Go Awry: Ontario’s New Construction Contract Adjudication Regime

Sabrina Saltmarsh, B.A. (Hons), J.D.Commercial Litigation, Construction | Builders, Construction Equipment & Machinery, Construction Liens, Construction Litigation, Contract Disputes, Cottage Litigation, Professional Liability, Recreational Property Litigation0 Comments

Construction contracts come with expectations and potential risks to property owners and contractors. Property owners can face issues related to quality of workmanship, delays, and incomplete or abandoned work. Contractors (including sub-contractors) can deal with a myriad of problems which delay or hinder payment, including issues with other sub-trades, the general contractor, or the owner. Whether you are a property owner undertaking construction or renovations, or a contractor (or sub contract) who has been engaged on a project, if things don’t go as planned it’s important to know what your options for recourse may be. A newly established cost-effective adjudication regime has become an important option to consider. Want to learn more about how to protect yourself from a home renovation disaster? Check out our blog. With the Ontario Legislature’s ratification of the new Construction Act, prompt payment and adjudication came into effect on October 1, 2019. The new legislation … Read More

Deposits In Failed Real Property Transactions

Sabrina Saltmarsh, B.A. (Hons), J.D.Broker and Agent Claims, Commercial, Contract Disputes, Contract Termination, Cottage Purchase and Sale, Professional Liability, Real Estate Agent and Broker, Real Estate Litigation, Recreational Property Litigation0 Comments

The recent Ontario Court of Appeal decision in Azzarello v. Shawqi, 2019 ONCA 820, illustrates the purpose of providing a deposit when purchasing real property and under what circumstances a purchaser will lose their deposit or be refunded the deposit if the sale does not go through. There are some important general principles that purchasers and sellers should be aware of regarding deposits in a real estate transaction: 1) Contemplation Regarding The Deposit In the Contract Is Important Purchasers and sellers should carefully consider the terms to be included in the purchase and sale agreement regarding the deposit. The contract should be clear about what happens to the deposit in all possible scenarios. In cases where it is not, the courts will look to implied terms in the contract and existing case law which governs how deposits are dealt with. 2) The Reason The Sale Fell Apart Is Important The … Read More

Prompt Payment Regime Takes Effect For Construction Projects

Sabrina Saltmarsh, B.A. (Hons), J.D.Arbitration, Condo Construction, Construction Equipment & Machinery, Construction Litigation, Cottage Litigation, Heavy Machinery Disputes, Mining, Infrastructure and Projects, Real Estate | Developers, Real Estate Litigation, Recreational Property, Recreational Property Litigation0 Comments

A major shift has been underway in Ontario since the legislature ushered in reforms under Bill 142, the Construction Lien Amendment Act, 2017, S.O. 2017, c. 24., perhaps none of which is more significant than the prompt payment regime which took effect on October 1, 2019. Changes To Lien Period: Effective July 1, 2018 Changes to the previous legislation (The Construction Lien Act) have come into effect in phases, with the first set of changes having taken effect in July of last year. We are now in the midst of transition rules which apply depending on the commencement date of a construction project to determine the applicable lien period which changed from 45 days to 60 days for prime construction contracts entered into after July 1, 2018. There were several additional notable changes which took effect as of July 1, 2018, including the extension of the period to perfect a … Read More

Latent Defects or Hidden Damage in Real Property Transactions

Sabrina Saltmarsh, B.A. (Hons), J.D.Agents and Brokers, Broker and Agent Claims, Civil Litigation, Commercial, Condo Litigation, Contract Disputes, Cottage Litigation, Cottage Purchase and Sale, Misrepresentation, Professional Liability, Real Estate Agent and Broker, Real Estate Litigation, Recreational Property, Recreational Property Litigation1 Comment

What Are Latent Defects Or Hidden Damages? Latent defects or Hidden Damage are defects to a property that are not generally discoverable by a prospective purchaser on a reasonable inspection and ordinary vigilance. This can include issues such as, faulty electrical wiring hiding behind the walls or a well-hidden termite or mold problem. Many real estate purchases include a buyer’s right to inspect the property to be purchased. However, these inspections are not exhaustive, and may not reveal latent defects or hidden problems with the property that are not readily visible. Why Do Participants In A Real Estate Transaction Need To Be Concerned About Latent Defects Or Hidden Damage? The problem latent defects or hidden damage can pose for a prospective real estate purchaser is that no amount of vigilance on a visual inspection can uncover such a defect, even one conducted with a home inspector (who’s inspections are typically … Read More

Ontario Cottage Litigation Lawyers: Able to Assist in Disputes Involving Cottage Owners, Purchasers, or Sellers

Gilbertson Davis LLPCottage Litigation, Real Estate | Developers, Real Estate Litigation, Recreational Property, Recreational Property Litigation0 Comments

From our office in Toronto, Ontario, we are able to provide efficient and result-oriented solutions with respect to the unique issues arising from cottage and recreational property disputes. Failures to Close Failures to complete an agreement of purchase and sale may be due to the Vendor or the Purchaser.  Failures of the Purchaser are often attributable to the Purchaser’s inability to obtain financing that was anticipated from a mortgage or another property sale.  In some instances, the Vendor may retain the deposit and claim damages for losses sustained from the failure to close. Failures to close may also be due to the Vendor.  Frequently, the Vendor’s failure to close is due to the Vendor’s inability to provide clean title to the property or to perform the necessary repairs prior to closing.  In some instances, a Purchaser will seek to recover damages for any resultant loss, while in other cases the … Read More

Court Considers Nuisance Test for Neighbours’ Tree in Allen v MacDougall

Yona Gal, J.D., LL.MCottage Litigation, Real Estate Litigation, Recreational Property Litigation1 Comment

In the recent case of Allen v MacDougall, 2019 ONSC 1939, a neighbour applied for a court order authorizing the destruction of a maple tree growing amid two Toronto properties. The Ontario Superior Court refused. In its decision, the Court clarified the applicable test for nuisance and confirmed that “the tendency of courts today is that trees are not lightly ordered removed on the basis of being a nuisance.” Facts The large maple tree sat jointly on the land of two neighbours.  According to s. 10(2) of The Forestry Act (“Act”), the maple is therefore owned by both neighbours: “Every tree whose trunk is growing on the boundary between adjoining lands is the common property of the owners of the adjoining lands.” The Applicants, as part of their home renovations and extensions, wanted the tree chopped down.  The Applicants claimed that their intended home addition on the north side of … Read More

Prescriptive Easements in Ontario Cottage Country

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Civil Litigation, Cottage Litigation, Real Estate Litigation, Recreational Property, Recreational Property Litigation1 Comment

The Ontario Superior Court of Justice decision in Arcon Property Holdings Ltd. v. Nelson, 2019 ONSC 2267, involved a dispute between cottage owners over easement rights related to a 15 foot wide strip of land near Grand Bend. The right-of-way was mainly a paved road used by the cottage owners to access their properties from the road but it also extended past the pavement to the waterfront.  The applicant complained that the respondents parked their vehicles on the right-of-way which prevented them from accessing the beach, launching their boat, building ramps and structures to facilitate launching their boat and parking a trailer in their driveway. The applicant sought an order prohibiting the respondents from parking on the right-of-way and interfering with their easement rights.  The Court found that the applicant’s easement was merely for “ingress and egress, in, over and upon” the property and did not provide the applicant with the right to access … Read More

Court Finds Waterfront Cottage Sufficiently Unique for Specific Performance

Yona Gal, J.D., LL.MCottage Litigation, Cottage Purchase and Sale, Recreational Property, Recreational Property Litigation0 Comments

In Carr v Rivet, 2019 ONSC 1546, the Ontario Superior Court recently dismissed a motion to discharge a certificate of pending litigation (“CPL”).  In doing so, the Court held that a waterfront cottage on Talon Lake was sufficiently unique to form the basis of a claim for specific performance. Importantly, in addition to finding that the particular cottage was specifically unique to the plaintiffs, the Court noted that most waterfront properties are, by their nature, unique.  Unlike mass-produced properties, each waterfront property possesses different exposure and other water-related features that make it unique. Facts The day after their real estate transaction was supposed to close, the Plaintiffs commenced an action seeking specific performance.  Subsequently, the Plaintiffs successfully brought an ex parte motion to register a CPL against the property.  The Defendant then moved to discharge the CPL arguing, among other things, that the property was not sufficiently unique to support … Read More