By Donald H. Lapowich
A developer agreed to purchase the vendor’s property described as “26 acres more or less”. When closing time came, the developer demanded an abatement in the purchase price (actual acreage was 23.883 acres).
When the developer sued the owner, it was found a survey had been obtained along with an architect’s site plan. Both showed 23.883 acres.
The court found that the plaintiff did not have the funds necessary to close the transaction as originally contemplated and it was for that reason alone that the plaintiff sought an abatement of the purchase price. The developer’s action for specific performance with an abatement was dismissed and the developer’s deposit was forfeited to the owner.
“The real issue before the court is whether or not the plaintiff, had it closed, would have received what it bargained for. After careful consideration, I have concluded that the plaintiff would have received what it bargained for,” said Justice M. Edwards in the ruling. (Greenway Estate Homes Ltd. v. McDonald)
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The parents and their daughter purchased property as joint tenants. They obtained a mortgage. When the father died unexpectedly, his name came off title.
Three years later, the daughter transferred her interest in the property to her mother, who took out a new mortgage and used funds to assist her daughter in the purchase of her new automobile. The daughter guaranteed her mother’s new loan.
When the mother transferred half of the property to another sister, the original daughter claimed an interest (resulting trust) since the parents could not afford the property originally without her financial help.
The B.C. Court only recognized the daughter’s original ownership that ceased on her transfer to her mother “for valuable consideration – needed funds to buy a car.” The mere fact that the daughter guaranteed her mother’s loan was not a factor that made her a beneficial owner again. (Tran v. Aujla and Aujla)
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A landlord who had the obligation to repair and maintain heat failed to fix a broken boiler in the middle of winter. The tenant, a medical doctor, could not conduct his practice in the cold and wrote to terminate the lease.
The Ontario Court found the landlord in “fundamental” breach of the lease. The boiler was never fixed or replaced promptly although the landlord had an opportunity to rectify but did not do so. (1723718 Ontario Corp. v. MacLeod)
Donald Lapowich, Q.C. is a partner at the law firm of Koskie, Minsky in Toronto, where he practices civil litigation, with a particular emphasis on real estate litigation and mediation, acting for builders, real estate agents and lawyers.
