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Sellers not allowed to rely on “escape clause” to accept a better offer
Monday, November 29, 2021James R.G. CookLitigation, Real EstateAgreement of Purchase and Sale, GTA Real Estate
In some cases, sellers may wish to ‘hedge their bets’ by accepting a conditional offer that contains a term allowing them to continue to market the property for sale until...
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Buyers bound to agreement of purchase and sale negotiated by family friend
Tuesday, October 26, 2021James R.G. CookLitigation, Real EstateAgreement of Purchase and Sale, GTA Real Estate
Buyers who rely on real estate services provided by a family friend would do well to ensure that they are fully aware of the consequences of entering into a...
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Mortgage lender did not breach duty of honest contractual performance
Monday, October 25, 2021James R.G. CookLitigation, Real EstateOntario Mortgages Act
A mortgage lender enforcing its rights under a mortgage may owe the borrower a duty to do so honestly and in good faith. However, this does not mean that...
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Mortgage granted by defendant facing trial judgment set aside as a fraudulent conveyance
Thursday, October 7, 2021James R.G. CookLitigation, Real EstateFraudulent Conveyances Act
Defendants facing the prospect of an unfavourable ruling at trial should be aware that any conveyances or payments to third parties during...
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Dispute between neighbours over fence location results liability for trespass
Monday, October 4, 2021James R.G. CookLitigation, Real Estate
Fences may make good neighbours but not when they can’t agree on where the fence should be located. In Lombardo v. 2672140 Ontario Inc...
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Restrictive covenants and short-term vacation rentals
Monday, September 20, 2021Stephen A. ThieleLitigation, Real EstateCondominium, Restrictive Covenant, Short-term vacation rentals
Owning a condominium unit that can be leased for short-term vacation rentals can be exciting. Not only does the owner have a property at which to stay while on vacation without the need to pay for...
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Condominium owner liable for costs due to tenant’s misconduct
Friday, September 10, 2021James R.G. CookLitigation, Real EstateCondominium, Occupational Health and Safety Act, Condominium Act
Many condominium units are purchased as investment properties with the owners leasing out the units to tenants. This may result in a...
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Buyer entitled to repudiate agreement after discovering water damage
Wednesday, August 11, 2021James R.G. CookLitigation, Real EstateAgreement of Purchase and Sale, GTA Real Estate
During the period between the time an Agreement of Purchase and Sale (APS) is signed and the completion date, a property being purchased usually remains in...
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Buyers lose right to recover deposit after seller breaches agreement
Tuesday, August 3, 2021Litigation, Real EstateAgreement of Purchase and Sale
After an Agreement of Purchase and Sale (APS) is signed and a deposit is paid it may be weeks or months before the scheduled completion date. In the case of new properties under construction, it could be...
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Oral agreement to transfer family home results in years of litigation between father and daughter
Monday, July 5, 2021James R.G. CookLitigation, Real EstateMississauga, GTA Real Estate
Agreements between family members are often informal and not reduced to writing, even if they involve substantial assets such as real estate. The parties may think that they have agreed on some of the terms but...
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Court refuses to hear dispute over requisitions due to self-induced urgency
Friday, June 25, 2021James R.G. CookLitigation, Real EstateVendors and Purchasers Act
Currently, the civil hearings list in Toronto is backlogged and suffering from what one Superior Court Justice has called “unacceptably long timeouts for civil motions and applications due to the effects of the...
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Claim for Road Access Act and prescriptive easement to landlocked property dismissed
Friday, June 11, 2021James R.G. CookLitigation, Real EstateHighway Traffic Act, Ontario Road Access Act
In Balogh v. R.C. Yantha Electric Ltd., 2021 ONCA 266 (CanLII), the Court of Appeal for Ontario affirmed that the appellants had no right to cross the respondents’ land to get to their otherwise landlocked property.
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Compliance Order obtained against condominium owners for unruly behaviour and refusal to wear masks
Friday, May 14, 2021James R.G. CookLitigation, Real EstateCondominium, Compliance, Condominium Act, By-Laws, Masks
Living in a condominium requires a balancing of interests between the residents and compliance with the rules and by-laws that govern the community. No owner can be permitted run amok or...
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Living in a condominium requires a balancing of interests between the residents and compliance with the rules and by-laws that govern the community. No owner can be permitted run amok or...
Tuesday, May 4, 2021James R.G. CookLitigation, Real EstateOntario Mortgages Act, GTA Real Estate
A mortgagor has a right to request a discharge statement from a mortgagee at any time prior to the mortgaged property being sold by...
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Buyers’ liability to sellers in aborted real estate transactions - Part 2
Monday, May 3, 2021James R.G. CookLitigation, Real EstateAgreement of Purchase and Sale, GTA Real Estate
We have previously addressed a number of circumstances in which buyers unsuccessfully attempted to back out of a binding Agreement of Purchase and Sale (APS) for the purchase...
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Agent’s claim to commission owing under BRA dismissed due to non est factum
Tuesday, April 27, 2021James R.G. CookLitigation, Real EstateGTA Real Estate, Buyer's Representation Agreement
Agents often require buyer clients to enter into a Buyer’s Representation Agreement (BRA) which sets out the buyer’s agreement to pay the agent a commission on...
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Owner of corporation personally liable for litigation misfeasance
Wednesday, April 7, 2021James R.G. CookLitigation, Real EstateAgreement of Purchase and Sale, Personal Liability, Ontario
One of the perceived benefits of using a corporation for real estate or other business transactions is to shield the individual owner from personal liability for costs and other...
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Buyers’ liability to sellers in aborted real estate closings - Part 1
Friday, March 26, 2021James R.G. CookLitigation, Real EstateSummary Judgment, Planning Act
“The factual background to this summary judgment motion is a sad story that has frequently been retold in courtrooms across the land with the same tragic ...
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Municipality improperly abandoned ratepayers by failing to oppose application for legal non-conforming use of lakeside land
Monday, March 22, 2021James R.G. CookLitigation, Real Estate, Municipal LawZoning By-Law, Norfolk County, Ontario
Some municipal zoning restrictions are intended to address local planning needs for commercial and residential purposes, while other...
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Claim for adverse possession of land against an unknown owner
Monday, March 8, 2021James R.G. CookLitigation, Real EstateLand Title Act, Land Registry, Adverse Possession
A claim for title by adverse possession can grant property rights to a non-owner of land resulting from their use or occupation of the lands over an...
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Home Owners Ordered to Remove Pool built over Municipal Easement
Friday, January 15, 2021James R.G. CookLitigation, Real EstateMunicipal Act, Easement
Home buyers would do well to ensure that their local municipal by-laws and easements do not prohibit their development plans before they embark...
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Housing construction project turned sour results in personal liability and dismissal of defamation claim
Monday, December 28, 2020Stephen A. ThieleLitigation, Real EstateAlberta, Fraud, Dream Home, Construction , Kickbacks
Although building a house can take much planning and hard work in securing a developer, labour and material, it is meant to be a joyous exercise which...
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Court Denies Mortgagee's Claim for Unproven Fees and Charges under Overdue Mortgage
Thursday, December 24, 2020James R.G. CookLitigation, Real EstateMortgage Fees, Ontario Mortgages Act
Mortgagees suing to recover amounts owing under a mortgage in default should not expect a court to rubber stamp the amounts claimed for fees...
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Seller Not Responsible for Zoning or Future Use Limitations of a Property
Tuesday, December 22, 2020James R.G. CookLitigation, Real EstateZoning By-Law, Agreement of Purchase and Sale, Ontario
A recent decision of the Ontario Superior Court of Justice affirmed that preliminary discussions between a buyer and seller regarding the potential zoning or...
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Misrepresentation in Square Footage leads to Rescission of Agreement of Purchase and Sale
Wednesday, December 2, 2020James R.G. CookLitigation, Real EstateAgreement of Purchase and Sale, Stouffville, Ontario Court of Appeal, Misrepresentation
A misrepresentation by the seller and real estate agent as to the square footage of a residential property in Stouffville, Ontario resulted in the rescission of the Agreement of Purchase and Sale...
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Dock Dispute leads to Nuisance Claim and $598,000 Costs Award
Monday, November 9, 2020James R.G. CookLitigation, Real EstateCottage Country, Ontario Court of Appeal, Damages, Ontario Ministry of Natural Resources and Forestry, Lake Simcoe, Boat Dock
After years of litigation, a dispute between neighbours of waterfront properties on Lake Simcoe led to a mandatory order requiring the removal...
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Municipality Restrained from Interfering with Cottage Owners’ use of Fire-Pit Lands
Friday, November 6, 2020James R.G. CookLitigation, Real EstateCottage Country, Zoning By-Law, Georgian Bay, Fire-Pit
Seasonal residents of cottage properties in Tiny Township obtained an injunction prohibiting the municipality from interfering with their use of disputed lands containing...
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Injunction to Stop Neighbour's House Construction near Escarpment Dismissed
Thursday, November 5, 2020James R.G. CookLitigation, Municipal Law, Real EstateBuilding, Building Code Act, 1992, Conservation Authorities Act
A property owner’s application for an injunction against his neighbour to stop construction of a property which he claimed was in contravention of municipal and conservation authority regulations was...
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Discovery of Water Damage Insufficient to Terminate Real Estate Purchase Transaction
Friday, October 23, 2020James R.G. CookLitigation, Real EstateAgreement of Purchase and Sale, Damages, Flooding, Insurance Policy
In Bilotta v. Booth, 2020 ONCA 522, the Ontario Court of Appeal determined that the buyer of a residential property did not have the right to...
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Real Estate Investor's Claim for Lost Opportunity Damages Rejected
Tuesday, October 20, 2020James R.G. CookLitigation, Real EstateAgreement of Purchase and Sale, Damages
In Akelius Canada Inc. v. 2436196 Ontario Inc., 2020 ONSC 6182 (CanLII), the Ontario Superior Court of Justice...
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