Toronto Real Estate and Neighbourhoods Blog | Move Smartly

Good fences make good neighbours, but bad lawsuits

Bob Aaron in Legal

Back in 1915, poet Robert Frost penned the line "Good fences make good neighbours." Last year, in a bitter dispute involving the owners of adjoining cottage properties, Justice Joseph W. Quinn echoed Robert Frost in the first line of his judgment.

"A good fence may make a good neighbour," he wrote, "but does it make a good lawsuit?"

The answer, of course, requires a reading of three separate court decisions, and depends on whether the reader sides with the plaintiff or defendant.

Anthony and Catherine Suprun own a cottage property at Turkey Point, not far from Long Point on Lake Erie. Several members of the Sloat family own a similar cottage next door.

Back in 1981, Norfolk County passed a zoning bylaw defining a "boundary fence" as "any fence, hedge, free standing wall ... intended to delineate a property boundary." The bylaw limits the height of boundary fences in residential areas to a maximum of two metres (6.6 feet).

A separate bylaw, the fence bylaw, prohibits virtually all fences in Norfolk county from exceeding two metres in height.

The fence bylaw allows the county to remove a nonconforming fence, and provides for a fine of up to $2,000 for any contravention.

In early 2001, the local building inspector advised the Sloat family orally and in writing that they could construct a retaining wall between their property and the Suprun property.

Road Access Critical When Buying Cottage in Ontario

Bob Aaron in Legal, Home Buying

The most important question for anyone buying a cottage property is always, "How do I get there from here?" After all, there's no point spending hundreds of thousands of dollars on a recreational home if the only way to get to it is by helicopter.

Access to cottages was the issue in a case heard by the Ontario Court of Appeal last year. A group of cottagers live year-round on the shores of Lake St. John in Ramara township. The cottage sites are on reserve lands of the Mnjikaning First Nation, and the cottagers pay the Crown an annual rent of $1,400 to $1,500 each.

The only existing motor vehicle access to the cottages is over a road located on an adjacent lot, purchased in 2003 by a numbered company owned by the Mnjikaning First Nation.

The previous owner of the adjacent lot charged the cottagers a $500 annual fee for the use and maintenance of the access road. When the numbered company bought the lot, it advised the cottagers that they would each be required to pay $2,000 annually, but only for seasonal access between May and November.

It wasn't long before the corporation owned by the First Nation band sued two of the cottagers for trespass by snowmobile, and a group of cottagers sued the First Nation corporation for an injunction restraining them from interfering with road access to and from their cottages.

The case involves the interpretation of Ontario's Road Access Act, originally passed in 1978 to resolve disputes that occur when the property of one neighbour is landlocked, and the only vehicle access to it is over a road on property owned by another neighbour.

Supreme Court Rules on Joint Name Transfer for Real Estate Assets

Bob Aaron in Legal

It's not uncommon for an elderly parent to transfer real estate or other assets into joint names with his or her adult children. When this happens, does the law presume that the transfer is a gift, or does the child merely hold the asset in trust for the parent?

Those were the questions which arose in the case of Pecore v. Pecore, which was decided by the Supreme Court of Canada last year.

In 1993, Edwin Hughes was advised that his $1 million estate could save significant probate fees on his death if he transferred ownership into the joint names of himself and his daughter Paula Pecore.

After most of the estate was transferred, Hughes was told that this type of transfer could trigger a significant capital gain on the profit on Paula's "half" of the assets.

Since that was not his intention, he wrote letters to the financial institutions holding the assets stating that the ownership change was for probate purposes only (to avoid the 1.5 per cent probate fees), and was not to be interpreted as a gift to Paula during his lifetime.

Shortly before he died, Hughes signed a will dividing his estate equally between Paula and her husband Michael Pecore. When Hughes died, Paula redeemed all of the investments, which she was entitled to do because they were registered jointly with her father.

Two years later, in the midst of divorce proceedings, Michael discovered he was entitled to half of his father-in-law's estate and sued Paula for his share.

Ontario Home Buyer Pays Price for Jilting Agent

Bob Aaron in Home Buying Tips, Legal

Earlier this month, the Ontario Superior Court of Justice released a decision which highlights the obligations of parties signing a buyer-agency agreement.

In the fall of 2005, Helen Clubine was looking at properties in the Orangeville area with her real estate agent Zoi Boussoulas.

By early January, 2006, Clubine had inspected a property known as Willow Hall several times, and was finally ready to put in an offer to purchase it.

At the time the offer was being prepared and signed, Boussoulas presented Clubine with a standard form buyer-agency agreement (now known as a buyer representation agreement), which gave the broker exclusive authority to act as the buyer's agent until June 30, 2006.

This form, which is commonly used in the real estate industry, provides that the broker is entitled to be paid commission if the buyer enters into an agreement to purchase any property, during the running of the agreement. If the seller does not pay the commission, or all of it, the buyer is required to pay it.

Beware if You're Purchasing a New Home or Condo to Flip

Bob Aaron in Legal, Home Selling Tips, Toronto Real Estate News

Ed. Note.  We are pleased to welcome Bob Aaron, a Toronto real estate law expert, to Move Smartly.  A leading practitioner in the legal profession, Bob is an elected director of the Law Society of Upper Canada.  Each week, Bob shares his popular Toronto Star column articles with the readers of Move Smartly.

A recently discovered policy of the Tarion Warranty Corp. could have an enormous impact on the thousands of buyers of new homes and condominiums who resell the properties without moving in.

The policy was brought to my attention by Vidas Augaitis, a colleague who practises real estate law in Collingwood.

In April 2005, two of his clients, whom I will call Deb and Chris, bought a new house in Wasaga Beach from Pinevalley Developments Corp. On closing, the buyers received a Certificate of Completion and Inspection and a warranty certificate from Tarion confirming that the house was enrolled under the warranty program.

When they closed the transaction with the builder, Deb and Chris intended to sell their existing home and move into the new one. For various reasons, they changed their minds and eventually decided to sell the new house. The resale closed on July 24, 2007.

In January of this year, Deb and Chris received a visit from a senior investigator with Tarion's enforcement department. He told them that they should have registered the house with Tarion when they resold the property, since he believed it had not been occupied during the period of their ownership. The Tarion representative pointed out that anyone who sells a new home in Ontario without registering it with Tarion is liable to a fine of up to $25,000 or a term of imprisonment of up to one year, or both.

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