A husband (debtor) and his late wife purchased a condo in joint tenancy.
The creditor obtained a judgment against the husband, and issued a writ of service and sale. The creditor took steps to sell the condo unit. Meanwhile, the wife by will left her half of the property to her son.
1. The wife could not sever joint tenancy by a will because on her death the property went to the husband by right of survivorship in joint tenancy.
2. However, before that the creditor took steps not only to obtain judgment, but by proceeding with steps of execution. By those means the joint tenancy had been severed, creating a “tenancy in common” between the husband and now-deceased wife.
3. This meant by the creditor so acting, the deceased wife could convey her one-half interest by a will to her son.
I am sure the creditor was less than happy by its move to try and execute and sell, which created the right of the deceased wife to convey her half.
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It is necessary to show that the parties are ready, willing and able to close on the closing date.
The plaintiff agreed to purchase three adjoining properties from the defendant couples as owners. The Agreement of Purchase and Sale allowed for an extension of closing (four times) so the plaintiff developer could satisfy himself that he had all necessary permits.
A final closing date was set, but the plaintiff then raised the issue of the vendor’s calculation of purchase price and the plaintiff failed to close. The defendants tendered on closing. They showed they were ready, willing and able to close.
By the purchaser failing to tender even its own calculated purchase price on closing, it breached the purchase contract and lost its deposits to the vendors. (2068895 Ontario Inc. v. DiVito, 2011 ONSC 404)
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In a novel case, the plaintiff corporation received an assignment of two mortgages from the mortgagee. The security for the mortgages had been prepared by a law firm in a negligent fashion and the plaintiff (assignee) sued the law firm.
We are talking in this case of $2.5 million covered by the two mortgages on a ground lease of an apartment building.
The wording of the assignment was very wide and included “all other rights, titles, interests and claims … existing or arising under or in connection with the loan”.
The court (and the Court of Appeal) agreed that the assignment of the mortgages included the “cause of action” against the lawyers. The plaintiff had a legitimate financial (commercial) interest in the action so as to defeat any argument of champerty or maintenance. The plaintiff’s commercial interest negated the doctrine that it was a “stranger” trying to enforce an assignment of a tort action. (Gentra Canada Investments Inc. v. Lipson, 2011 ONCA 331)
Court rulings can be found at www.canlii.org.
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.
