Toronto Real Estate and Neighbourhoods Blog | Move Smartly

Badly Placed Fences Make Angry Neighbours

Bob Aaron in Legal

Frank and Dolores Lipischak are next-door neighbours to Diana DeWolf and Joe Russ on Caille Ave. in the town of Lakeshore in Essex County. Their homes front on Lake St. Clair and their deep lots back onto the municipal street.

When the Lipischaks bought their house in 1969, there was a wire fence running north-south separating the two properties. Shortly afterward, Frank Lipischak replaced it with a new chain link fence in the same location. The fence that was intended to divide the two lots along the property line in fact extended into the DeWolf property by about 3.6 inches.

Due to this misalignment of the boundary fence over a period of many years, the Lipischaks claimed ownership by adverse possession (also known as “squatter’s rights”) to two specific areas of the DeWolf and Russ property, measuring a total of 192 square feet.

Enforcement of Declaration is a Condo Board’s Duty

Bob Aaron in Condo Buying, Legal

Peel Condominium Corp. 108 is an attractive townhouse development built in 2002 on Central Park Dr. in Brampton.

Back in April 2009, the board of directors became aware that Donna Young, one of the owners, had installed in her unit a tankless water heater that vents through the outside wall of the townhouse. The exterior walls are common elements and no alterations may be made without board approval.

Eventually, the board began a court application for an order requiring Young to remove the vent and restore the wall to its original condition.

Young objected saying that the board was selectively enforcing the requirements of the project’s declaration and it would be unfair to enforce it only against her.

When a detached home is not a detached home

Bob Aaron in Legal, Home Selling

When you’re selling a house known as a link-semi, is it wrong to advertise it as a detached home?

The link house style was popular in Toronto in the 1970s and 1980s. The only physical attachment that joins two adjacent houses typically consists of one or two short rows of underground concrete block footings, at right angles to the foundation walls. They are entirely unnecessary for structural reasons.

Looking at the houses from the street, they are clearly detached, with a few feet separating them. It is impossible to tell that the houses are linked because the only physical attachment is the concrete blocks that are invisible above ground level. In fact, the only purpose of the attaching footings was to allow builders to construct what looked like detached houses on lots which were designated for semi-detached models.

One Toronto real estate agent found out the hard way that the Real Estate Council of Ontario (RECO), the industry regulator, takes a dim view of agents who advertise link houses as detached.

Back in May 2007, this selling agent listed a house for a client, describing it on the Multiple Listing Service (MLS) as “detached,” which from a street view, it was.
The property was listed at $320,000, sold for $329,000 through a buyer broker, and closed Aug. 31, 2007.

Revised purchase agreement could ease ‘sticker shock’

Bob Aaron in Legal, Condo Buying

In a landmark consumer protection initiative, the Tarion Warranty Corp. has proposed a requirement that builder purchase agreements set out in one place all the extras that can be added to the price of a new home. (Tarion regulates the home-building industry in Ontario and administers the warranty program for new homes.)

If enacted, this initiative would mark a significant departure from the current practice whereby extras (euphemistically called “adjustments” by developers’ lawyers) are scattered through purchase agreements. It often requires the skills of a legal Sherlock Holmes to ferret them all out and calculate the total cost implications.

The proposed changes arose out of concerns expressed to Tarion about inadequate disclosure of the myriad of different items that are often charged on closing, resulting in “sticker shock” to buyers — and worse, an inability to raise the necessary funds.

When the regulations become law, a new Schedule B will be attached to the Tarion addendum in each builder purchase agreement. The schedule will be divided into two parts.

The first part will contain a list of fixed additional payments, fees and adjustments to the purchase price which the purchaser will be required to pay on closing.

Manitoba Simplifies Seller Disclose Form

Bob Aaron in Legal, Home Selling, Real Estate Trends

The seller property disclosure statement remains a hot topic in the real estate community as Manitoba has now made them compulsory, while Britain has gone in the other direction to repeal the law requiring them in every transaction.

Effective Aug. 1, 2011, the Manitoba Securities Commission has mandated that its own version of the Property Disclosure Statement must be used by real estate agents when they prepare agreements of purchase and sale.

The major difference between the disclosure form created by the Manitoba Real Estate Association and the Ontario Real Estate Association version is their length and complexity. The Manitoba form has 19 questions, the basic Ontario form has 48.

I am a devout opponent of these forms, but given a choice, I would take the Manitoba form any day.

Document Your Possessions in Event Insurance Claim is Necessary

Bob Aaron in Legal

A court case that went all the way to the Supreme Court of Canada highlights the importance of homeowners keeping accurate records of their possessions in the event an insurance claim becomes necessary.

Back in 1997, a fire destroyed the luxury house of Bridgette Sagl on Doulton Dr. in Mississauga.

The house was empty on the night of the fire. It was the housekeeper’s night off. The dog was left in the yard, some of the windows were left open and the owner was out for dinner. At the time, the mortgages, utilities and taxes were in arrears, and Sagl had accumulated large legal bills following contested divorce proceedings.

The house contained Sagl’s huge art collection consisting of hundreds of paintings and sculptures, all of which were destroyed, and dozens of pieces of expensive jewellery. The house was insured for $630,000, the contents for $600,000, the jewellery for $1 million and the art for $2 million.

Chubb insurance refused to pay Sagl’s claim, and alleged that the house was “staged” in preparation for the fire.

Whoever Forms Government Must Protect Property Rights

Bob Aaron in Legal

As I see it, the real issue in this provincial election should be whether the Ontario government is able and willing to act decisively and promptly to maintain the rule of law and protect the citizens of the province and their homes from lawbreakers.

On any scale of measurement, upholding the right of Ontario residents to be safe and secure in our own homes must rank at the top of government priorities, even ahead of health care, the economy, job subsidies and power plants. Sadly, over the last five years, that has not always been the case.

Is Construction Crane 'Trespassing?'

Bob Aaron in Legal

I received an interesting call earlier this month. A reader lives next to a construction site and the builder’s crane is continually passing through the air space above her home. She wanted to know if she was entitled to any compensation.

I discovered the answer in a research paper about crane swing agreements entitled “Can You Swing It?” by Leor Margulies of Robins Appleby & Taub in Toronto. The paper is published on the firm’s website atwww.robinsapplebyandtaub.com.

According to Margulies, an analysis of the neighbour’s question begins with a legal maxim attributed to Accursius of Bologna (1182-1260). Known by its Latin short form, cujus est solum, it is usually translated to mean, “Whoever has the land itself also owns everything up to the vaults of Heaven and down to the floor of Hell.”

Of course, since there were no aircraft or construction cranes in the Middle Ages, the legal principles have undergone some modifications in modern times to balance individual property rights with the public interest.

The Importance of Reviewing Condo Floor Plans

Bob Aaron in Condo Buying, Legal

A Superior Court decision released last month underscores the importance of reviewing condominium floor plans before completing the purchase of a unit.

The trial of the action took 42 court days and involved nine lawyers representing the parties. I was one of the many expert witnesses called to testify about some of the legal issues in the dispute.

Back in September 1997, Kelly Jean Rainville signed an agreement of purchase and sale to buy one of 39 condominium townhouses in the Grand Harbour complex on Lake Shore Blvd. W. in Toronto.

Richard Weldon was one of the developers of the project. He bought one of the townhouse units for $402,366.09 from the court-appointed official receiver when the development ran into financial difficulties. Weldon’s unit was finished as a two-storey unit, with common element attic space above the second floor and a basement below the main floor.

The following spring, Weldon began construction to expand the unit into the attic. The added third-floor area consisted of a new set of stairs, new windows and skylights, a bathroom, sitting area and bedroom, totalling 862.2 square feet.

When the condominium corporation was registered in 1993, the surveyor’s floor plans filed in the Land Registry Office did not account for the finished attic space. The plans showed that the upper boundary of the townhouse was the second floor ceiling. No steps were ever taken to amend the condominium declaration, and plans to legalize the third-floor attic build-out, which would have converted it from common elements to a part of the unit below.

Four years after moving in, Weldon sold the unit to Rainville for $975,000. The certificate she obtained from the property managers as part of the purchase stated that there were no continuing violations of the condominium declaration, bylaws or rules.

In January, 1998, Rainville went to her lawyer’s office and met with a law clerk to review and sign the closing documents. Although she was under the impression that she owned from the ceiling of the third floor right down to the basement, she was not shown any condominium plans.

It's difficult to sell pre-registration condo units

Bob Aaron in Legal, Home Buying, Condo Buying

With thousands of new Toronto condominiums being completed each year, investor purchasers are putting many of them on the market, anxious to cash in on their profits. Unfortunately, the paperwork involved in selling them, either during construction or after completion and registration, is complex and problematic.

Adding to the difficulties, the Ontario Real Estate Association (OREA) has not published a template agreement for these flips, and as a result real estate agents and lawyers involved in these resale transactions are forced to “reinvent the wheel” for each new sale.
The flipping of condo units can take place at different times during the lengthy construction process.

During construction, with the written consent of the builder, the agreements themselves can be transferred to new purchasers. Some builders refuse consent under any circumstances. Others will ask for a fee of $2,000 to $5,000 (plus HST), effectively becoming a partner in any profits garnered by the investor.

When the condo is flipped and the purchase agreement is transferred before the building is finished, the parties need to prepare an assignment agreement which will determine whether the investor gets his profit immediately or only when the building is completed and registered.