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The Lay of the Land DEVELOPMENTS IN CANADIAN REAL PROPERTY LAW

Category Archives: Land Use

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How the Forfeited Corporate Property Act, 2015 Affects Ontario Corporations and Not-for-profit Corporations

Posted in Land Use, Policy

On December 10, 2016, the Forfeited Corporate Property Act, 2015 (the “FCPA”) came into force in Ontario. This statute addresses what happens to property that is not distributed by an Ontario corporation prior to its dissolution.  It also amends the Business Corporations Act (Ontario) (the “OBCA”) and the Corporations Act (Ontario) (the “OCA”) to include a requirement for corporations to maintain a register of ownership interests in land in Ontario. Corresponding amendments were also made to the Not-for-Profit Corporations Act (Ontario) (the “ONCA”), which has not yet come into force.… Continue Reading

In distinguishing Iona, the Court of Queen’s Bench of Alberta confirms the sanctity of the Torrens registration system in determining priority interests even in the face of a statutory trust

Posted in Commercial, Construction, Land Use

In the recent decision of 1864684 Alberta Ltd. v 1693737 Alberta Inc., 2016 ABQB 371, the Court of Queen’s Bench of Alberta held that purchasers claiming a statutory trust pursuant to section 14(3) of the Condominium Property Act, RSA 2000 c C-22 (“Condo Act”) were subject to the same registration requirements, and priority regime, as other creditors under the Land Titles Act, RSA 2000 c L-4 (“Land Act”).… Continue Reading

The Iona Decision (National) – Supreme Court of Canada dismissal bolsters priority of builders’ lien trust

Posted in Construction, Land Use

On April 14, 2016, the priority of statutory trust protections afforded to subcontractors and suppliers under Alberta’s lien legislation was strengthened: the Supreme Court of Canada dismissed an appeal in Iona Contractors Ltd. v. Guarantee Company of North America, 2015 ABCA 240, thereby bolstering the priority of the trust even in the face of a bankrupt general contractor.… Continue Reading

How long is the builders’ lien registration period for drilling and/or servicing a well or well site on an oil sands project? Spoiler Alert – it’s 90 Days!

Posted in Construction, Land Use, Litigation

In the recent decision of Davidson Well Drilling Limited (Re), 2016 ABQB 416 (“Davidson”) the Court of Queen’s Bench of Alberta held that the 90-day lien period to register a lien against an “oil or gas well” or “oil or gas well site” applies to drilling on oil sands mines. The Court also concluded that the costs of trucking equipment away from a project site after it is completed may, in certain circumstances, be properly included in a builders’ lien.… Continue Reading

Residential and Industrial Use – Never the Twain Shall Meet?

Posted in Land Use, Residential

I had the privilege (some would say misfortune) of growing up in a family business. I spent a lot of time after school and during summers in the shop and in spray booths, on crane trucks and on ladders, using all sorts of equipment and tools and generally taking in all the sights and sounds and smells (some noxious I’m sure) of a small sign manufacturing company.… Continue Reading

Does a Lease Created From an Option to Lease Enjoy the Same Priority as the Option?

Posted in Land Use

In large infrastructure projects where multiple parcels of land are required to build the project, project developers will often enter into options to lease with land owners rather than entering into leases in order to enjoy flexibility and to permit time to engage in suitability studies. The developers are frequently advised to register the option to lease on title so as to give notice of its right to the land.  However, the period between the registration of the option and the ultimate execution of the lease (if a developer decides to exercise the option) could last years, and it is … Continue Reading

Beware of the Residential Invasion!

Posted in Construction, Land Use, Municipal, Residential, Zoning

It must tell something about the age we live in, but TV shows and movies dealing with zombies have been all over the place for a couple of years now. However, as a real estate lawyer representing large industrial corporations, there is something I fear more than an invasion of undead people on the lookout for fresh brains: the urban sprawl!  And more specifically, the residential invasion of industrial areas caused by the urban sprawl.… Continue Reading

Housing Affordability and Human Happiness

Posted in Land Use, Residential

Some interesting things are emerging from the froth and churn being generated by the housing affordability crisis on Canada’s left coast.

For the first and probably last time since the dawn of civilization, on June 24th a public rally is being held to demand more economic and demographic data by those who want to know whether foreign buyers, vacant homes, speculation, geography or other factors are responsible.… Continue Reading

Three Innocent Lenders and a Fraudster: A Priorities Dispute

Posted in Land Use

The recent decision of CIBC Mortgages Inc. (c.o.b. Firstline Mortgages) v. Computershare Trust Co. of Canada, [2015] ONSC 543 provides a fact scenario that sounds like it was dreamt up by a law school professor, but for the three innocent lenders involved, the situation was a nightmare. A homeowner granted a first mortgage to Computershare which was later fraudulently discharged from title. After the Computershare mortgage was discharged from title, the homeowner granted further mortgages to Firstline and Secure Capital. Firstline and Secure Capital had no knowledge of the fraudulently discharged Computershare mortgage, so based on their review of … Continue Reading

Proposed amendment to Builders Lien Act expected to be controversial

Posted in Commercial, Construction, Land Use, Policy

On May 5th 2015, Members’ Bill M 216 received first reading in the BC Legislative Assembly. The proposed Builders Lien Notice to Owners Act would amend the Builders Lien Act to impose two new preconditions on a party’s right to file a claim of lien: (1) service of a detailed written notice on the land owner of the lien claimant’s intention to file a claim of lien, and (2) proof that the owner has been served.… Continue Reading

Gone but not forgotten: restrictive covenant restored to title against the interests of a beneficial owner

Posted in Commercial, Land Use, Policy

Is a beneficial owner of real property affected by a restrictive covenant that was mistakenly removed from title? The BC Supreme Court considered this question in BC Retail Partners (Boitanio Mall) Ltd. v. Overwaitea Food Group, 2015 BCSC 404.

In 2004, BC Retail Partners General Partnership (the “General Partnership”) and BC Retail Partners (Boitanio Mall) Ltd. (“BC Retail”) purchased one of the three lots comprising Boitanio Mall in Williams Lake, British Columbia. BC Retail was the registered owner of the lot, and the trustee, nominee and agent for the General Partnership, which was the beneficial owner of the lot.… Continue Reading

When the Keyboard is Mightier than the Sword: Mandatory Online Resolution of Strata Disputes

Posted in Land Use, Policy

As readers of this blog will know, as a result of changes implemented by the Land Title and Survey Authority on November 1, 2012, almost all documents and plans submitted to the land title office for registration must now be submitted electronically. Recently, there has been a similar significant development regarding strata disputes.

On March 10, 2015, the Civil Resolution Tribunal Amendment Act was introduced and, if passed, will make it mandatory for strata disputes to be submitted to the Civil Resolution Tribunal (CRT). The CRT is Canada’s first ever online tribunal, and is intended to be accessible 24 hours … Continue Reading

Amendments to registered interests: who comes out on top?

Posted in Land Use, Policy

To what extent can a subsequent lender rely on the explicit terms of prior registered interests? The recent decision by the Alberta Court of Queen’s Bench, CareVest Capital Inc. v 1336868 Alberta Ltd, 2015 ABQB 94, considered that very issue.

The facts in the case were as follows. In 2007, Bowstein Holdings Inc. loaned $18.1 million to 1336868 Alberta Ltd., which loan was secured by a first priority mortgage registered in the Alberta Land Titles Office (the “LTO”). CareVest Capital Inc. subsequently loaned money to 1336868, which loan was secured by two different mortgages, likewise registered in … Continue Reading

Vertical Parking, Elevated Parking or Car Stackers… Call it as You Want, This is an Incredible Space-Saver!

Posted in Land Use, Municipal, Zoning

You may have seen this while strolling down in the streets of New York City or Chicago, where a few elevated parking lots can be found, or while watching the 2011 movie Mission Impossible : Ghost Protocol, where a vertical parking structure is used as the set of a quite intense fist fight.

Vertical parking is a brilliant idea which allows a property owner to increase parking capacity through multiple levels using mechanical lifts and hydraulic systems. The practical applications are multiple : parking lot operators can turn small plots of land into profitable operations, residential and commercial developers … Continue Reading

Toronto’s Development Permit System: Reset TO

Posted in Land Use, Policy

On July 11, 2014, the City of Toronto amended its Official Plan policies to permit development permits to be used to regulate land use throughout the City. Through OPA 258, all of the City is now designated as a development permit area.

While local and single-tier municipalities in Ontario have been authorized to adopt the development permit system (or “DPS”) since 2007 [1], comparatively few have chosen to employ the instrument. Until this past summer, only the City of Brampton, the Towns of Ganonoque, Carleton Place, and the Township of Lake of Bays had taken steps to establish … Continue Reading

550 Meters: Proximity of Wind Turbine Projects to Residents Confirmed by the Divisional Court

Posted in Federal National Energy Board, Land Use, Residential

The approval of industrial wind turbine projects is often met with resistance from the communities in which the projects are to be built. Residents (or businesses) located in close proximity to project sites often challenge the location of a project on the basis that the turbines cause harm to human health or environment.

Dixon v. Director, Ministry of the Environment is an important case, particularly for those tracking renewable energy or large-scale rural land development projects in Ontario. Dixon is an appeal of three decisions of the Environmental Review Tribunal to approve three wind turbine projects in Bruce and … Continue Reading

A Bridge Over Deregulated Waters: The New Navigation Protection Act

Posted in Construction, Land Use, Municipal, Policy

On April 1, 2014, the Federal Navigation Protection Act, R.S.C. 1985, c. N-22 (the “New Act”) came into force, replacing the Navigable Waters Protection Act (the “Old Act”) and making notable changes to Canada’s regulation of waterways.  The legislative objective is to enable municipal authorities to manage local projects, like bridge construction, without the costs and delays often incurred in the course of the Federal approval process.  These amendments are likely to have implications across various industries, including construction, oil and gas, transportation, and telecommunication.

Highlights of the amendments include the following:

  1. The New Act
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Unlocking the Potential of First Nations Lands

Posted in Land Use

Opportunities are being created across Canada as First Nations take action to unlock the potential of their lands.

Historically, numerous impediments to the development of First Nations land have existed, many associated with restrictions imposed under the Indian Act (Canada), a situation made worse by the paternal role that act established for the federal government as owner and trustee of First Nations lands.

The result?  Among other things, much First Nations land has not come close to realizing its full economic potential.… Continue Reading

Hot Off the Press – Doing Business in Canada: Navigating Opportunities for Investment and Growth

Posted in Land Use, Policy

If your organization is currently thinking about establishing or acquiring a business in Canada, the newest edition of Doing Business in Canada, written by McCarthy Tétrault, will prove to be a valuable resource. The guide provides a broad overview of the legal considerations that non-residents should take into account to help ensure their success as they enter into a business venture in Canada. Each section offers timely information and insightful commentary on different areas of law.

The book includes a chapter on Canada’s real estate sector, with sections on:

  • land registration
  • environmental assessments
  • title opinions and title insurance
  • taxes
Continue Reading

The Second Opinion: Limitation Periods and Unjust Enrichment — Clarity and Complexity from the ONCA

Posted in Land Use

The following post by Anthony Alexander on the Canadian Appeals Monitor blog may be of interest to readers of this blog: Limitation Periods and Unjust Enrichment — Clarity and Complexity from the ONCA.

A recent ruling of the Ontario Court of Appeal, McConnell v. Huxtable, 2014 ONCA 86, provides useful clarification of two potentially complex questions — (1) The limitation period applicable to a claim for a constructive trust based on unjust enrichment, and (2) the sometimes confusing overlap between the Ontario Limitations Act, 2002 and the Ontario Real Property Limitations Act.

The appeal flowed from a … Continue Reading