A plaintiff co-owned an undeveloped lot with her sister. The defendant was the owner of the adjacent lot.
The defendant built a large pond on both lots without permission, claiming he was unaware of the boundary line. He produced a survey that showed one big lot. But the plaintiff had a survey showing two demarcated lots.
The defendant had approached the plaintiff’s husband 13 years prior to buy the plaintiff’s lot and build a pond. A price could not be agreed upon. Clearly the defendant must have known about the lot lines and altered the town survey. The defendant then trespassed.
He was not allowed to benefit from his unlawful actions. The defendant had to fill the pond in at his own expense. Punitive damages were also ordered for his outrageous behaviour.
* * * * *
Often a person who claims an “interest” in land will register a Certificate of Pending Litigation to give notice to anyone dealing with the land that the registree claims an interest. One would then deal with the property at one’s risk of an alleged prior interest.
In an interesting case, a vendor registered a certificate to protect a purchase of land. The purchase was between corporations and part of the price involved transfer of shares.
The court held that once the shares were delivered, the vendor no longer had a vendor’s lien or interest in the land that could be protected by registering a certificate.
* * * * *
Many unsuccessful purchasers claim specific performance from a vendor and the issue for the court is whether damages would suffice. Such was the case of a purchaser whose vendor reneged on the sale of a property. The property was in the immediate area where the purchaser owned other properties and was assembling them in order to redevelop.
The court was therefore comfortable in finding the property unique to the purchaser, and ordering specific performance. That property was an integral part of the redevelopment and damages were not sufficient.
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.
