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2 Aug

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

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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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20 Jul

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

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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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19 Jul

Gift or loan? Father failed to ensure his intentions were made known

Tuesday, July 19, 2022James R.G. CookLitigationReal Estate

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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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28 Jun

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, Ontario Insurance Act, Title Insurance

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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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27 Jun

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

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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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24 Jun

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

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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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23 Jun

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

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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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22 Jun

Sale of commercial units by nearly-insolvent debtor not a fraudulent conveyance

Wednesday, June 22, 2022James R.G. CookLitigationInsolvency, Real Estate

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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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20 Jun

Mortgage provided by corporate borrower not a “fraudulent instrument”

Monday, June 20, 2022James R.G. CookLitigationLand Title Act, Real Estate

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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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6 Jun

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

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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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4 Apr

Vesting order granted for retroactive joint tenancy after death of spouse

Monday, April 4, 2022James R.G. CookLitigationLand Title Act, Real Estate

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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 sole title to the...

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31 Mar

Date of breach of contract affirmed for assessment of buyer’s damages

Thursday, March 31, 2022James R.G. CookLitigationReal Estate, Breach of Contract

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In Akelius Canada Ltd. v. 2436196 Ontario Inc., 2022 ONCA 259, the Ontario Court of Appeal upheld a summary judgment decision that dismissed a real estate investor’s...

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17 Mar

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

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When a seller breaches an Agreement of Purchase and Sale (APS) by refusing to complete the sale of a property to a buyer, the buyer is generally entitled to the return of...

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9 Mar

Real estate co-ownership dispute leads to sale under Partition Act

Wednesday, March 9, 2022James R.G. CookLitigationReal Estate, GTA Real Estate

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Given the high price of real estate in Ontario, co-ownership of properties between friends and family members is increasingly common. Title may be...

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8 Mar

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

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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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7 Mar

Requisition deadline for present legal use of property clarified by Court of Appeal

Monday, March 7, 2022James R.G. CookLitigationReal Estate, GTA Real Estate

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The Ontario Real Estate Association’s standard form of residential Agreement of Purchase and Sale (APS) contains a paragraph that sets a deadline for a

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28 Feb

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

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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 defaulting...

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17 Feb

B.C. Court awards damages arising from liability for foreign buyers’ tax

Thursday, February 17, 2022James R.G. CookLitigationReal Estate, Negligence

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Some Canadian provinces have introduced a “foreign buyers’ tax” in recent years to curb what is perceived as the impact of foreign speculators on over-heated...

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3 Nov

Realtor’s full and final release extended to cover brokerage

Wednesday, November 3, 2021James R.G. CookLitigationReal Estate, Commercial Real Estate

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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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2 Nov

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

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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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1 Nov

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

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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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1 Nov

Ontario Court of Appeal upholds setting aside of a notice of discontinuance

Monday, November 1, 2021Stephen A. Thiele, Anna Husa, Gavin J. TigheLitigationRules of Civil Procedure, Real Estate

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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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24 Sep

Court refuses to enforce mortgage prepayment penalty

Friday, September 24, 2021James R.G. CookLitigationReal Estate, Mortgage Fees

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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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9 Jul

Commission owed to real estate agent despite lack of written agreement

Friday, July 9, 2021James R.G. CookLitigationSmall Claims Court, Real Estate, Buyer’s Representation Agreement, GTA Real Estate, Caledon

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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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8 Jul

Court issues injunction to stop online harassment and intimidation pending trial

Thursday, July 8, 2021James R.G. CookLitigationLandlord, Real Estate, Civil Litigation, Harassment, Ontario Landlord and Tenant Board, YouTube, Internet Harassment

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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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2 Jul

Seller entitled to repossess townhouse after buyer fails to complete purchase

Friday, July 2, 2021James R.G. CookLitigationAgreement of Purchase and Sale, Real Estate, GTA Real Estate

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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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16 Jun

“Business common sense” determines winner of commission dispute

Wednesday, June 16, 2021James R.G. CookLitigationReal Estate, Buyer’s Representation Agreement, Commercial Real Estate

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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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25 May

Buyer loses $100,000 deposit after refusing to purchase condominium

Tuesday, May 25, 2021James R.G. CookLitigationAgreement of Purchase and Sale, Ontario Court of Appeal , Real Estate

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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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13 Apr

Family Cottage Squabbles: Court orders family members to stop interfering with each other’s enjoyment of cottage property

Tuesday, April 13, 2021James R.G. CookLitigationCottage Country, Real Estate, Trusts

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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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5 Apr

Buyers not allowed to terminate purchase due to size misdescription or building permit concerns

Monday, April 5, 2021James R.G. CookLitigationReal Estate, Mississauga, Renovations

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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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11 Dec

Parent’s Claim to Recover Home Transferred to Daughter Dismissed

Friday, December 11, 2020James R.G. CookLitigationWills, Real Estate, Smith Falls, Trusts

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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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30 Nov

Abandoned Use of Easement Leads to Loss of Backyard Parking Pad

Monday, November 30, 2020James R.G. CookLitigationToronto, Land Title Act, Easement, Conveyancing Law and Property Act , Real Estate

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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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