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Blog
No basis to pierce corporate veil in aborted real estate transaction (Dawood v. Popes Property Holdings Inc.)
Thursday, April 10, 2025James R.G. CookLitigationReal Estate, Property, Transactions
In some real estate transactions, individuals may negotiate an agreement in which they do not wish to incur personal liability and may use a shell or holding company for that purpose...
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Do requisitions concerning gas leases go to root of title? (Van Hove v. Dryuff)
Tuesday, April 1, 2025James R.G. Cook, Isabel YooLitigationReal Estate, Agreement of Purchase and Sale, Root of Title
In a real estate transaction, the agreement of purchase and sale will include a deadline by which a buyer may submit requisitions for issues that they want the seller to address prior to closing...
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Claim against Township for failing to monitor building permit dismissed under ultimate limitation period (Huether v. Sharpe)
Tuesday, March 4, 2025James R.G. CookLitigationReal Estate, Limitations Act, 2002
The Ontario Limitations Act, 2002 (the “Act”), provides for an “ultimate” limitation period of 15 years to commence most types of civil claims. Specifically...
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Damages awarded for slander of title and failure to complete transaction (McKenzie v. Fabco Holdings Inc.)
Thursday, November 21, 2024James R.G. CookLitigationReal Estate, slander
Does the threat of litigation over a property allow a buyer to back out of a pending transaction? What are the consequences if the threatened...
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Buyer fails to tender by withholding full purchase price (1785192 Ontario Inc. v. Ontario H Limited Partnership)
Thursday, November 7, 2024James R.G. Cook, Isabel YooLitigationReal Estate, Buyer, Seller, Withholding
A buyer who wishes to dispute whether a seller has completed their obligations leading up to closing may wish to withhold the full amount of the agreed-upon purchase price...
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No failure to mitigate by sellers in failed real estate transaction (Singh and Kaur v. Feneich)
Friday, November 1, 2024James R.G. Cook, Delila BikicLitigationReal Estate, Transactions
Cases arising from failed residential real estate transactions in a falling market continue to affirm that a buyer who breaches an agreement to purchase a property may be liable for substantial damages...
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Commercial Real Estate Lenders and Construction Liens
Tuesday, October 22, 2024Zev ZlotnickCorporate Law, Business LawReal Estate, Construction Liens, Lending
Commercial real estate lenders operating in Ontario must be vigilant about construction liens due to the significant legal and financial implications these
liens can impose...
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Buyer failed to complete real estate transaction as required by time is of the essence clause (Correa v. Valstar Homes)
Friday, September 27, 2024James R.G. CookLitigationReal Estate, Transactions
Real estate purchase transactions generally require that the parties be in a position to complete their obligations by a set closing date...
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Impact of Unsecured Debt on a Mortgage Lender's Security
Wednesday, September 18, 2024Zev ZlotnickBusiness Law, Corporate LawReal Estate, Lending
In the context of commercial lending, the priority of claims is a critical aspect of risk management. A common concern for commercial mortgage lenders is how a borrower’s unsecured debt, such as debt arising from promissory notes, can impact the lender’s security interest in the mortgaged property...
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Specific Assignment of Lease
Thursday, August 29, 2024Zev ZlotnickBusiness Law, Corporate LawReal Estate
Commercial real estate mortgage lenders in Ontario require a comprehensive security package to safeguard their investment...
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Realtor liable for failing to confirm location of new build property (Zhang v. Primont Homes (Caledon) Inc.)
Friday, August 23, 2024James R.G. CookLitigationReal Estate, Agreement of Purchase and Sale, GTA Real Estate, Caledon
In some cases, misrepresentations made prior to the signing of an Agreement of Purchase and Sale (APS), may allow a buyer to sue for damages, as demonstrated...
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Receiver appointed over property notwithstanding allegations of fraudulent mortgage (Hillmount Capital Mortgage Holdings Inc. v. Onsori-Saisan)
Monday, August 19, 2024James R.G. CookLitigationReal Estate, Mortgage, GTA Real Estate, Land Title Act
In Hillmount Capital Mortgage Holdings Inc. v. Onsori-Saisan, 2024 ONSC 4481 (CanLII), the applicant lender sought to appoint a receiver over a property in King City,
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Claim for misrepresentation of property tax amount in real estate listing defeated by entire agreement clause (Langen v. Sharma)
Wednesday, August 7, 2024James R.G. CookLitigationReal Estate, Agreement of Purchase and Sale
When deciding to buy a property, buyers may review various representations in the real estate listing which purport to list the property’s key facts...
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Attornment and Non-Disturbance Agreements
Tuesday, August 6, 2024Zev ZlotnickBusiness Law, Corporate LawReal Estate, Non-Disturbance Agreement, Lease Agreement, Mortgage, Landlord and Tenant
Attornment grants authority or jurisdiction to a party even if no legal right exists. It is a legal device that is comparable to an assignment. Attornment may...
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Buyer fails to prove damages resulting from sellers’ breach of agreement to sell gas station (2511899 Ontario Inc v. 2221465 Ontario)
Monday, July 29, 2024James R.G. CookLitigationAgreement of Purchase and Sale, Real Estate
When a seller breaches an agreement to complete a transaction, the jilted buyer may assume that they will be in a position to obtain damages for breach of contract. This result is...
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Lender’s failure to provide mortgage discharge results in damages for borrower’s inability to complete secondary transaction (De Rita v. 1266078 Ontario Inc.)
Monday, July 15, 2024James R.G. CookLitigationReal Estate, Mortgage, Damages
The failure to provide a mortgage discharge on a timely basis may expose a lender to damages arising from a borrower’s inability to access...
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Claim against jointly-retained real estate lawyer dismissed after party’s repudiation of transaction (Precision Forest Industries Ltd v Cox)
Friday, July 12, 2024James R.G. CookLitigationReal Estate, Alberta
In circumstances where an agreement to complete a real estate transaction fails to close but neither party was in a position to do so, the...
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Agreement of Purchase and Sale not binding due to addition of unsigned Schedule (Ali v. Patel)
Thursday, June 20, 2024James R.G. CookLitigationReal Estate, Agreement of Purchase and Sale
In Ali v. Patel, 2024 ONSC 3505 (CanLII), the Ontario Superior Court of Justice determined that a binding agreement of purchase and sale had not been formed between a seller and buyer...
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Seller did not repudiate agreement of purchase and sale notwithstanding missed deadline (Vandermolen Homes Inc. v. Mani)
Monday, May 27, 2024James R.G. CookLitigationReal Estate, Agreement of Purchase and Sale
In cases where a buyer fails to complete the purchase of a property, they may try to argue that it was the seller who was in breach of the...
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Borrower’s lawyer not liable for payment of mortgage broker’s fee (First Canadian Mortgage Corporation v. Djukic)
Friday, March 15, 2024James R.G. CookLitigationReal Estate, Mortgage, Rules of Professional Conduct, Mortgage Brokerages
Parties in a transaction gone wrong may sometimes blame the other side’s lawyer for the results. However, it is...
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Anti-Money Laundering (AML) - What does it mean and why is it important?
Tuesday, February 27, 2024Zev ZlotnickCorporate Law, Business LawReal Estate, Money Laundering, Financial Transactions and Reports Analysis Centre of Canada (FINTRAC), Proceeds of Crime (Money Laundering) and Terrorist Financing Act
Money laundering is the concealment of the origins of illegally obtained money and disguising them as financial assets, such...
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Specific performance ordered in cottage purchase dispute (Coffey v. High)
Monday, January 29, 2024James R.G. CookLitigationReal Estate, Agreement of Purchase and Sale
In cases where a seller has breached an agreement to transfer title to a property, a buyer may seek an...
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Condominium owner ordered to reconvey title to former brother-in-law (Burbidge v. Casullo)
Thursday, December 28, 2023James R.G. CookLitigationReal Estate, Condominium, Statute of Frauds
In Ontario, the Statute of Frauds generally requires that agreements for the transfer or ownership of an interest in...
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Lost profits of $11 million not the appropriate measure of damages for aborted sale to developer (The Rosseau Group Inc. v. 2528061 Ontario Inc.)
Tuesday, December 12, 2023James R.G. Cook, Isabel YooLitigationReal Estate, Commercial Real Estate
Is the measure of damages for a seller’s failure to complete the sale of commercial land based upon the lost profits that the buyer could...
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Shared laneway overburdened by change of use from summer camp to trailer park (Kranenburg v. Grice)
Friday, December 1, 2023James R.G. CookLitigationReal Estate, Right-of-way Access
Rights-of-way over a neighbouring property may be subject to restrictions on how they can be used. Over time, as ownership of the properties...
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Relisting of property before closing date did not amount to a repudiation of agreement of purchase and sale (Zoleta v. Singh and RE/MAX Twin City Realty)
Monday, November 20, 2023James R.G. CookLitigationAgreement of Purchase and Sale, Real Estate, Contract Law
If a buyer determines that they may not be able to complete a binding agreement to purchase a property by the agreed-upon completion date, they may wish to seek an extension of the...
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Neighbour entitled to retain land upon which lasting improvements were made (Margaritis v. Milne)
Monday, October 30, 2023James R.G. CookLitigationReal Estate, Conveyancing Law and Property Act
A dispute between neighbours over a strip of land between their properties no wider than 21.9 centimetres resulted in years of litigation supported by...
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Property owner allowed to maintain property’s use as three dwelling units (Vitale v. Toronto (City of))
Friday, October 27, 2023James R.G. CookLitigationReal Estate, Municipal Law, Building Code Act
Municipal zoning by-laws regulate, among other things, the number of separate residential units that are permitted in a property. Violation of a...
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Equitable mortgage principles affirmed by Ontario Court of Appeal (Greenspan v. Van Clieaf)
Tuesday, October 24, 2023James R.G. CookLitigationReal Estate, Lending, Mortgage, Loans
In Greenspan v. Van Clieaf, 2023 ONCA 681 (CanLII), the Ontario Court of Appeal affirmed that a lender may be entitled to...
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Builder, surveyor, and municipality liable for encroachment of dwelling built on neighbour’s land (Armstrong v. Penny)
Friday, October 20, 2023James R.G. CookLitigationCourts of Justice Act, Conveyancing Law and Property Act, Real Estate, Municipal Law, Surveyor
In Armstrong v Penny, 2023 ONSC 2843 (CanLII), the Ontario Superior Court of Justice addressed a homeowners’ nightmare...
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How is your Environmental Indemnity?
Wednesday, October 18, 2023Zev ZlotnickBusiness Law, Corporate LawReal Estate, Environmental Protection Act, Ontario
In Ontario, commercial mortgage lenders can be held liable for environmental issues under certain circumstances, especially if they have taken possession of the property or are deemed to be...
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Bare trustee denied order for sale of property under Partition Act (Weise v. Weise)
Monday, October 16, 2023James R.G. CookLitigationReal Estate, GTA Real Estate, Partition Act
Given the high cost of real estate in Ontario, friends and relatives may sometimes assist with the purchase by...
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No collusion or bad faith by private mortgagee and co-owner (1000249084 Ontario Inc. v. Andazesgishahr)
Tuesday, October 10, 2023James R.G. CookLitigationMortgage, Real Estate, GTA Real Estate, Partition Act
When a property is purchased by co-owners for development and sale, they may set out their respective obligations in a...
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Buyer fails to prove property re-sold for improvident price following aborted transaction (Switzer v. Petrie)
Tuesday, September 19, 2023James R.G. CookLitigationReal Estate, Agreement of Purchase and Sale
In collapsing real estate markets, buyers who fail to complete a purchase may face liability vastly exceeding any deposit they may have paid. In most cases, the...
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Partition Act application denied due to oppression (Stothers v. Kazeks)
Thursday, September 14, 2023James R.G. CookLitigationGTA Real Estate, Real Estate, Partition Act, Common Law Relationship
When properties are owned by two or more persons, situations may arise when one of the owners wishes to sell the property contrary to the wishes of the other. The Ontario Partition Act provides a way for...
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No damages caused by listing agent’s failure to recommend legal advice (Stanley v. Grech)
Friday, September 8, 2023James R.G. CookLitigationReal Estate, Strata Property Act
In some cases, real estate agents should recommend that their clients obtain legal advice about a proposed...
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Buyer’s failure to obtain severance amounted to anticipatory breach of contract (Stayside Corporation v. Cyndric Group)
Friday, August 25, 2023James R.G. CookLitigationReal Estate, Agreement of Purchase and Sale, Ontario Planning Act
Agreements for the sale of real estate may sometimes require one of the parties to complete certain steps before the transaction can be completed, such as...
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Contributions to Multi-Generational Home does not Constitute Unjust Enrichment (Sidhu v. Sidhu)
Monday, August 14, 2023Isabel YooLitigationReal Estate, Trusts, Unjust Enrichment
A growing trend in home use is multi-generational housing, which is, as the term implies, multiple generations of...
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The perils of using joint tenancy for estate planning (Jackson v. Rosenberg)
Wednesday, August 9, 2023James R.G. CookLitigationProbate, Real Estate, Tax & Estate Planning
In Ontario, properties may be registered in joint tenancy as an estate planning mechanism. Property that is jointly owned passes automatically to...
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Court refuses to impose 5 pm deadline for delivery of real estate closing proceeds (More v. 1362279 Ontario Ltd. (Seiko Homes))
Tuesday, August 8, 2023James R.G. Cook, Eli BordmanLitigationReal Estate, Agreement of Purchase and Sale
Real estate transactions may be scheduled to be completed by a certain time of day, depending on the wording of the Agreement of Purchase...
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Mortgage provided by corporate borrower with apparent authority is not a “fraudulent instrument” (Froom v. LaFontaine)
Thursday, August 3, 2023James R.G. CookLitigationLand Title Act, Real Estate
The Ontario Land Titles Act (“LTA”) provides that a registered mortgage that is determined to be a fraudulent instrument is void and may...
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Commercial Lending Where There is a Limited Partnership
Wednesday, August 2, 2023Zev ZlotnickBusiness Law, Corporate LawReal Estate, Lending, Limited Partnership
A limited partnership is a business structure comprised of at least one general partner and one limited partner. General partners are...
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Real estate agent not liable for taking instructions from buyer’s spouse
Friday, July 14, 2023James R.G. CookLitigationReal Estate, British Columbia
Real estate agents often represent co-owners or potential buyers during the course of a transaction and at times they may receive communications from...
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Neighbour dispute over driveway and location of well ends up in court (Bender v. Dulovic)
Thursday, July 13, 2023James R.G. CookLitigationReal Estate, Easement, Right-of-way Access, Ontario Boundaries Act
Disputes between neighbours over property boundaries and rights-of-way are often messy and fraught with charged emotions as each party asserts their...
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FCA Upholds TRREB’s Copyright Claims In Its TRREB MLS System
Monday, June 26, 2023Diana MansourLitigation, Intellectual PropertyCopyright, Copyright Act, Real Estate
On March 28, 2023, the Federal Court of Appeal of Canada (FCA), in IMS Incorporated v Toronto Regional Real Estate Board, 2023 FCA 70, upheld...
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Realtor’s action for invasion of privacy and conspiracy dismissed under Anti-SLAPP law (Riopelle v. Riopelle)
Monday, June 12, 2023James R.G. CookLitigationAnti-SLAPP, Courts of Justice Act, Real Estate
Court decisions continue to show that Ontario’s “Anti-SLAPP” legislation may be used to dismiss claims that are not limited to...
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Real estate agent not liable for opinion of value
Friday, June 9, 2023James R.G. CookLitigationReal Estate, Fair Value
Real estate agents are often asked by clients to assess the value of a property. There is a significant difference between an opinion of value as determined by an agent and a...
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What is an Enforceability Opinion and do I need one?
Wednesday, May 31, 2023Zev ZlotnickCorporate Law, Business LawReal Estate
An enforceability opinion is an opinion that the transaction documents constituting legal, valid, and binding obligations of the underlying entities, enforceable against them in...
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Negligence claim statute-barred by ultimate 15-year limitation period
Friday, May 26, 2023James R.G. CookLitigationReal Estate, Limitations Act
Civil claims in Ontario are generally subject to a two-year limitation period, meaning that a plaintiff must start a court action within two years of...
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Condominium breached duty to disclose imminent special assessment in status certificate
Wednesday, May 24, 2023James R.G. CookLitigationReal Estate, Status Certificate
Prospective buyers of a condominium unit in Ontario have the right to obtain a status certificate that is supposed to provide them with essential information about the physical and financial situation of the condominium, including any ...
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Seller not liable for water damage or foundation issues discovered after closing
Tuesday, May 2, 2023James R.G. CookLitigationAgreement of Purchase and Sale, Real Estate
Litigation between buyers and sellers often concerns whether or not a seller had an obligation to disclose deficiencies with a property that were discovered after closing.
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I’m a Lender! How do I get my 3-month Interest Penalty on a Borrower Default?
Wednesday, April 26, 2023Zev ZlotnickBusiness LawReal Estate, Ontario Mortgages Act, Mortgage, Lending
Under Section 17 of the Mortgages Act, R.S.O. 1990, despite any pre-existing mortgage agreement, where a borrower is in default for...
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Developer required to answer discovery questions about misleading other buyers
Thursday, March 23, 2023James R.G. CookLitigationAgreement of Purchase and Sale, Real Estate
During the course of litigation, plaintiffs may seek evidence that a defendant has engaged in a similar pattern of impugned conduct with other people who...
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PPSA Registrations for a GSA vs for a Guarantee
Wednesday, March 15, 2023Zev ZlotnickCorporate Law, Business LawReal Estate, Lending, Loans
Is there a difference between perfecting a general security agreement through a PPSA registration and registering a PPSA in respect of a loan...
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Real estate agent sued for misrepresenting identity of buyer
Monday, February 27, 2023James R.G. CookLitigationRules of Civil Procedure, Real Estate
In Ker v. Deol, 2023 ONSC 1167 (CanLII), a motion judge of the Ontario Superior Court of Justice considered whether the buyer’s real estate agent could be added as a defendant in a lawsuit brought...
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Court of Appeal affirms that entire agreement clause is not bullet-proof
Friday, February 24, 2023Stephen A. ThieleLitigationReal Estate, Contracts, Commercial Tenancies, Entire Agreement Clauses
Drafting clear, concise and bullet-proof provisions in a contract is an art. It takes time and a complete understanding of a client’s agreement with...
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Plaintiff fails to prove notary public's error was the cause of losses from real estate transaction
Friday, February 17, 2023James R.G. CookLitigationBritish Columbia, Real Estate, Negligence, Professional Negligence
In a professional negligence claim, a plaintiff must establish not only that a defendant breached the applicable standard of care but that the breach was the factual cause of the losses being claimed. Depending on the...
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Buyer not to entitled purchaser’s lien to recover deposit following builder’s default
Tuesday, February 14, 2023James R.G. CookLitigationLand Title Act, Real Estate, Ontario Planning Act
Buyers of new homes sometimes enter into an Agreement of Purchase and Sale (APS) with the builder/developer of the proposed dwelling who doesn’t own the underlying land at the time the agreement is made. In such cases, it...
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Everest Finance Corporation v. Jonker, 2023 ONCA 87
Thursday, February 9, 2023Zev ZlotnickBusiness Law, Corporate LawReal Estate
An interesting recent Court of Appeal decision - Everest Finance Corporation v. Jonker...
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Seller ordered to obtain severance of residential properties to complete transaction
Friday, February 3, 2023James R.G. CookLitigationReal Estate, Ontario Planning Act
In a real estate transaction, the seller must be in a position to ensure that good title is conveyed to a buyer at closing. In the time leading up to...
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Seller allowed to re-schedule Tarion closing date following
Friday, January 27, 2023James R.G. CookLitigationOntario, Agreement of Purchase and Sale, Real Estate
New homes in Ontario may include a warranty from the builder for certain construction deficiencies and other...
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Lending Against a Partial Beneficial Interest?
Thursday, January 26, 2023Zev ZlotnickCorporate Law, Business LawReal Estate, Lending
A beneficial interest is an individual’s right to benefit from assets held by someone else. With respect to real property, it is imperative for a...
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Lender can't evict bona fide tenants from property notwithstanding mortgagor's fraud
Monday, December 19, 2022James R.G. CookLitigationResidential Tenancy, Mortgage Fraud, Real Estate, Ontario Mortgages Act, Bankruptcy and Insolvency Act, Mortgage
Courts must occasionally balance property interests between innocent parties who have been victimized by the dishonest or fraudulent conduct of another person. This may involve a conflict between...
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How Do I Get All My Lender Fees?
Wednesday, December 14, 2022Zev ZlotnickBusiness Law, Corporate LawReal Estate, Lending
In Canada, lenders who take mortgages on real property as security should be mindful of section 8 of the Interest Act (the “Act”) and the...
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Neighbour ordered to remove obstructions on mutual driveway
Thursday, December 1, 2022James R.G. CookLitigationReal Estate
As we discussed in a previous blog, an easement may become abandoned as a legal right as a result of prolonged lack of use. However, there is...
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Home owner obtains certificate of pending litigation to stop power of sale
Friday, November 18, 2022James R.G. CookLitigationReal Estate, Courts of Justice Act
Parties who are seeking an interest in a property may seek to register a certificate of pending litigation (CPL) on title for the...
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Limitation Period bars claim for breach of Assignment of Agreement of Purchase and Sale
Wednesday, November 9, 2022James R.G. CookLitigationAgreement of Purchase and Sale, Real Estate, Limitation Periods, Limitations Act
In Ontario, there is a general two-year limitation period for claims relating to a breach of contract which starts on the day when a plaintiff discovers that damage from a breach occurred and knows that a legal proceeding would be an...
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Is Your Demand Loan Demandable?
Tuesday, November 8, 2022Zev ZlotnickBusiness Law, Corporate LawReal Estate, Lending, Loans
A demand loan is a loan that a lender can require to be repaid by the borrower in full at any time. A demand loan has no term, but is simply repayable...
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Nephew not entitled to verbal life interest in aunt’s property
Friday, November 4, 2022James R.G. CookLitigationReal Estate
Living arrangements between adult family members are often informal and based upon the nature of their close relationship rather...
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Anonymization and sealing requests in Ontario civil proceedings
Tuesday, November 1, 2022James R.G. CookLitigationRules of Civil Procedure, Real Estate, Courts of Justice Act
Closed proceedings, sealing orders and publication bans are rare in civil actions in Ontario. When a court decision in a civil proceeding is published it normally bears the names of the parties in the title of...
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Commission not owing to agent under conditional agreement of purchase and sale
Monday, October 31, 2022James R.G. CookLitigationReal Estate, GTA Real Estate
Often, an agreement to purchase real estate will have a conditional period to allow for various steps to be completed by either the buyer or...
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Mortgage Assumptions and VTBs in a Rising Interest Rate Market
Thursday, October 13, 2022Zev ZlotnickBusiness Law, Corporate LawReal Estate, Mortgage
In light of substantial increases in interest rates, real property purchasers are looking for alternative lending arrangements. Some alternatives include...
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1-Minute Read for Commercial Mortgage Lenders: Beneficial Ownership vs. Registered
Tuesday, August 23, 2022Zev ZlotnickBusiness Law, Corporate LawReal Estate, Mortgage, Lending
Ownership of real property in Ontario is divided into legal or registered title ownership and beneficial ownership. Legal ownership and beneficial ownership...
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Lawyer not liable for client’s payment of foreign buyer's tax on North Vancouver property
Tuesday, August 2, 2022James R.G. CookLitigationReal Estate, Property Transfer Tax Act, Foreign Buyer’s Tax
In Tellini v. Bell Alliance, 2022 BCCA 106 (CanLII), the British Columbia Court of Appeal reversed a trial judge’s decision that found the defendant lawyer and law firm liable for the plaintiff’s obligation to pay...
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Power of sale restored by Court of Appeal under "safe harbour protections"
Wednesday, July 20, 2022James R.G. CookLitigationReal Estate, Mortgage Fees, Ontario Mortgages Act
In 2544176 Ontario Inc. v. 2394762 Ontario Inc., 2022 ONCA 529 (CanLII), the Ontario Court of Appeal restored a power of sale transaction that...
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Gift or loan? Father failed to ensure his intentions were made known
Tuesday, July 19, 2022James R.G. CookLitigationReal Estate
How is an adult child able to prove whether funds or property transferred to them by a parent were intended to be a gift rather than a...
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Title insurance dispute over appraisal of "actual loss" for defects relating to municipal work order
Tuesday, June 28, 2022James R.G. CookLitigationReal Estate, Insurance Law
Residential title insurance policies are typically purchased to address potentially issues regarding title to a property. Title insurance policies may also cover...
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Interim injunction ordered to prevent neighbour from blocking private access road
Monday, June 27, 2022James R.G. CookLitigationRight-of-way Access, Real Estate, Road Access Act
Many rural properties in Ontario are accessed through private roads that traverse lands owned by one or more neighbours. The use of a private road may...
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Relief from forfeiture not granted where buyer claimed lack of capacity to enter into real estate purchase agreement
Friday, June 24, 2022James R.G. CookLitigationAgreement of Purchase and Sale, Real Estate, Courts of Justice Act
As real estate markets fall, buyers are sometimes left scrambling to find alternate sources of financing when the available mortgage funds turn out...
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Lawyer not vicariously liable to opposite party in failed real estate transaction
Thursday, June 23, 2022Stephen A. Thiele, James R.G. Cook, Daria RisteskaLitigationRules of Civil Procedure, Agreement of Purchase and Sale, Real Estate
There appears to be a growing propensity on the part of litigants to sue the opposite party’s lawyer when a transaction fails or something else...
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Sale of commercial units by nearly-insolvent debtor not a fraudulent conveyance
Wednesday, June 22, 2022James R.G. CookLitigationInsolvency, Real Estate
Creditors of an insolvent or nearly insolvent debtor may be understandably frustrated if the debtor sells its few remaining assets, leaving the...
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Mortgage provided by corporate borrower not a “fraudulent instrument”
Monday, June 20, 2022James R.G. CookLitigationLand Title Act, Real Estate
The Ontario Land Titles Act (“LTA”) provides that a registered mortgage that is determined to be a fraudulent instrument is void and may...
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No “waiver by conduct” of financing condition in agreement of purchase and sale
Monday, June 6, 2022James R.G. CookLitigationCondominium, Agreement of Purchase and Sale, Real Estate
With the cooling of the real estate markets, buyers may be in a position to negotiate a limited time period to have a home inspection, arrange financing, or complete other due diligence before...
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Vesting order granted for retroactive joint tenancy after death of spouse
Monday, April 4, 2022James R.G. CookLitigationLand Title Act, Real Estate
Spouses often take title to a property as joint tenants rather than tenants in common due to the "right of survivorship," by which the surviving spouse assumes...
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Date of breach of contract affirmed for assessment of buyer’s damages
Thursday, March 31, 2022James R.G. CookLitigationReal Estate, Breach of Contract
In Akelius Canada Ltd. v. 2436196 Ontario Inc., 2022 ONCA 259, the Ontario Court of Appeal upheld a summary judgment decision that ...
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Property developer awarded $11 million in lost profits against seller who refused to complete transaction
Thursday, March 17, 2022James R.G. CookLitigationAgreement of Purchase and Sale, Real Estate
*Trial decision regarding damages overturned by Court of Appeal.
See Lost profits of $11 million not the appropriate measure of damages for aborted sale to developer (The Rosseau Group Inc. v. 2528061 Ontario Inc.)
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Real estate co-ownership dispute leads to sale under Partition Act
Wednesday, March 9, 2022James R.G. CookLitigationReal Estate, GTA Real Estate
Given the high price of real estate in Ontario, co-ownership of properties between friends and family members is increasingly common. Title may be registered in varying ownership ...
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Court refuses to impose 5 pm deadline for delivery of real estate closing proceeds
Tuesday, March 8, 2022James R.G. CookLitigationAgreement of Purchase and Sale, Real Estate, GTA Real Estate
Real estate transactions may be scheduled to be completed by a certain time of day, depending on the wording of the Agreement of Purchase and Sale (APS). In some cases ...
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No duty of care owed by seller to confirm buyers had financing in place
Monday, February 28, 2022James R.G. CookLitigationReal Estate, GTA Real Estate
Cases arising out of the 2017 market correction in the Greater Toronto Area continue to result in decisions favouring innocent sellers and substantial damages awarded against...
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Action stayed as a result of plaintiff’s failure to disclose settlement
Friday, January 28, 2022James R.G. CookLitigationReal Estate, Lease Agreement
Litigation often involves claims by a plaintiff against multiple parties. Defendants in such actions may or may not crossclaim against each other but they are presumed to be adverse to ...
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Realtor’s full and final release extended to cover brokerage
Wednesday, November 3, 2021James R.G. CookLitigationReal Estate, Commercial Real Estate
Litigation claims or the threat thereof are often settled by way of payment by one party to the other in exchange for a full and...
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Lawyer not added as a defendant to counterclaim in real estate dispute
Tuesday, November 2, 2021Stephen A. Thiele, James R.G. CookLitigationRules of Civil Procedure, Real Estate
In general, rules governing the amendment of pleadings in a civil action are generous. Courts are mandated to allow amendments. However in circumstances where an...
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Stepfather’s mortgage to stepdaughter determined to be a gift rather than a loan
Monday, November 1, 2021James R.G. CookLitigationLoans, Real Estate, GTA Real Estate, Monetary Gift, Brampton
Family members who provide financial assistance to each other for the purpose of purchasing real estate may intend that such funds be a gift without any expectation of...
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Ontario Court of Appeal upholds setting aside of a notice of discontinuance
Monday, November 1, 2021Stephen A. Thiele, Anna Husa, Gavin J. Tighe, K.C.LitigationRules of Civil Procedure, Real Estate
On August 3, 2020, lawyers at Gardiner Roberts LLP were successful in getting a notice of discontinuance set aside for their real estate brokerage...
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Court refuses to enforce mortgage prepayment penalty
Friday, September 24, 2021James R.G. CookLitigationReal Estate, Mortgage Fees
Many Canadian mortgages have a prepayment term that imposes a penalty if the mortgage advance is repaid by the borrower before the maturity date. The general purpose of...
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Commission owed to real estate agent despite lack of written agreement
Friday, July 9, 2021James R.G. CookLitigationGTA Real Estate, Real Estate, Caledon, Buyer's Representation Agreement, Small Claims Court
In the real estate industry, relationships between buyers and their real estate agent are often governed by a written Buyers Representation Agreement (“BRA”). A BRA usually...
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Court issues injunction to stop online harassment and intimidation pending trial
Thursday, July 8, 2021James R.G. CookLitigationHarassment, Landlord, Real Estate, Civil Litigation, Ontario Landlord and Tenant Board, YouTube, Internet Harassment
Online harassment has become a major issue in Canadian society and has resulted in the burgeoning tort of “internet harassment” specifically designed to...
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Seller entitled to repossess townhouse after buyer fails to complete purchase
Friday, July 2, 2021James R.G. CookLitigationReal Estate, GTA Real Estate, Agreement of Purchase and Sale
Sales of new condominiums and townhouses may sometimes allow a buyer to move into a unit on an “interim occupancy date” which may be several months before the purchase is scheduled to be finally...
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“Business common sense” determines winner of commission dispute
Wednesday, June 16, 2021James R.G. CookLitigationReal Estate, Commercial Real Estate, Buyer's Representation Agreement
When courts have to decide whose version of a conversation is more likely to have occurred, recourse must often be had to the surrounding circumstances and any available...
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Buyer loses $100,000 deposit after refusing to purchase condominium
Tuesday, May 25, 2021James R.G. CookLitigationReal Estate, Agreement of Purchase and Sale, Ontario Court of Appeal
It is settled law in Ontario that when a buyer fails to complete an agreement of purchase and sale, the seller is entitled to retain the deposit without having to prove any loss. This means that...
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Family Cottage Squabbles: Court orders family members to stop interfering with each other’s enjoyment of cottage property
Tuesday, April 13, 2021James R.G. CookLitigationReal Estate, Cottage Country, Trusts
Cottage properties may be used by extended families over the years without regard to who has legal title or whether there are legally binding rules for ownership and use. When senior members of family age, disputes may...
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Buyers not allowed to terminate purchase due to size misdescription or building
Monday, April 5, 2021James R.G. CookLitigationReal Estate, Mississauga, Renovations
While the discovery of misdescriptions as to the size of a property or unpermitted renovations may allow a buyer to terminate a purchase transaction,...
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Parent’s Claim to Recover Home Transferred to Daughter Dismissed
Friday, December 11, 2020James R.G. CookLitigation, Estate PlanningReal Estate, Wills, Trusts, Smith Falls
Property is often transferred between family members without money exchanging hands. There are many reasons for doing so, including estate planning, assisting children with buying a home, removing property from...
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Abandoned Use of Easement Leads to Loss of Backyard Parking Pad
Monday, November 30, 2020James R.G. CookLitigationToronto, Easement, Land Title Act, Conveyancing Law and Property Act, Real Estate
In a densely populated city like Toronto, many older neighbourhoods contain tightly-packed homes separated by narrow easements which provide access to...
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