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Supreme Court Affirms Purchase Money Resulting Trust Doctrine
The Supreme Court found no reason to depart from the longstanding purchase money resulting trust doctrine in favour of an approach based on unjust enrichment in Nishi v. Rascal Trucking Ltd., 2013 SCC 33, finding that it "provides certainty and predictability because it relies on a clear rule for determining who holds the beneficial interest in a property." While the law presumes that an unrelated person who advances purchase money intends to assume a beneficial interest in the property in proportion to that contribution, that presumption can be rebutted, said the court, by evidence that at the time of the contribution, the person making it intended to make a gift to the person taking title. While rebutting the presumption requires evidence of the intention of the person who advanced the funds at the time of the advance, after the fact evidence can be admitted so long as the trier of fact is careful to consider the possibility of self-serving changes in intention over time.
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A Fresh Take on Standard of Review: MBCA
In Manitoba v. Russell Inns Ltd. et al., 2013 MBCA 46, the Court of Appeal quashed an interim order of the Land Value Appraisal Commission requiring the province, as expropriating authority, to pay the full fees of the landowner's appraiser on a without prejudice basis, subject to review for reasonableness after the compensation issues had been resolved. After an in-depth review of the statutory regime the court concludes that nothing in the Act supports "an interpretation that the LVAC has the authority to make any interim orders, to determine the reasonableness of costs on an interim basis, or to order that the authority pay anything other than reasonable costs reasonably incurred." The court's fresh examination of the evolving law of standard of review analysis post-Dunsmuir, and its conclusion that the appropriate standard in this case was one of reasonableness, not correctness, make this decision a must-read.
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No Double Recovery in Farmland Expropriation: MBCA
In Roeland v. Manitoba, 2013 MBCA 37, another LVAC appeal, the court set aside an award of disturbance damages where the expropriated property had been valued as speculative farmland. The court's reading of s. 28(2) of the Act was that "if land is valued in a manner other than its present use and that value is higher than that of the present use, there can be no disturbance award." The court comments on standard of review in this case as well, noting that "(i)t is now well established that rare will be the case when a review of a decision from an administrative body will be anything else but on a standard of reasonableness."
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Court to Hear Housing Appeal
In Manitoba Housing v. Amyotte et al., 2013 MBCA 36, the court granted leave to appeal a decision of the Residential Tenancies Commission that the respondents (who were placed in a Manitoba Housing complex on an emergency basis following eviction from their reserve) "are still persons in need and that their occupation of the premises for over 15 years amounts to residing in temporary housing." The appeal will also address the Commission's interpretation of s.3 (1)(e) of The Residential Tenancies Act.
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Ratepayers Must be Treated Fairly: MBCA
In 4944284 Manitoba Ltd. v. Winnipeg (City) et al., 2013 MBCA 22, the court confirmed the earlier decision of the application judge that a real property owner was entitled to have the assessment of its apartment complex reduced for the year 2009 to reflect a reduction granted for the three previous years by the Municipal Board.
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Property Condition Statements and Fraudulent Misrepresentation: MBQB
A vendor who the court found deliberately misrepresented the condition of a rec room wall and heating system on the property condition statement was found liable for the damages which flowed from the fraudulent misrepresentation in Reeves v. Taylor, 2013 MBQB 125. The vendor was ordered to pay the purchaser's reasonable repair costs in the amount of $18,758.72, but the punitive damages claim failed.
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Legislative History Supports Liberal Interpretation of Contiguous Land Tax Exemption: MBQB
Looking beyond the clear words of s.24 of The Municipal Assessment Act, the court exempted the non-contiguous parking lot of Sister MacNamara School from taxation in Winnipeg School Division v. Winnipeg (Assessor), 2013 MBQB 91. In the court's view, the concern of those who amended the legislation in 1990 "was directed to the use of the land for public schools, rather than the location. The expansion of the allowable exemption to "a flat 10 acres" indicates that the word "extends" in s. 24 was not meant to restrict the exemption to contiguous land but to expand it to include contiguous land."
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Update on Proposed Legislation
The government introduced Bill 40, The Residential Tenancies Amendment Act, on May 1, 2013. The bill proposes amendments to the rent regulation system to "better protect tenants by focusing on creating greater safety and stability for renters while reducing paperwork and red tape for landlords" according to the news release. The explanatory note to the bill discusses the key changes.
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Notices and Directives
The Registrar-General of the Property Registry has issued two new notices in the last month:
- Acting Examiner of Surveys - announcing the appointment of Paul Burtnick as Acting Examiner of Surveys with the Property Registry.
In a recent communication, the co-chairs of the MBA's Real Property Law section advise that the Land Titles Office has confirmed that practitioners using the Land Titles Office form to be registered against one or more titles to land claiming security type interests in one or more of fixtures, crops and rentals no longer need to list any encumbrances, liens or interests affecting the relevant title or titles, or provide any evidence of compliance with The Manitoba Farm Lands Ownership Act.
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Recommended Reading
- Rescission for Mistake - this Slaw post discusses the recent UKSC decision in Pitt v. Holt and Futter v Futter, [2013] UKSC 26, which confirmed that courts cannot intervene to give relief from trustee decisions which have unintended consequences unless the trustees had breached their fiduciary duties.
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CPD Summer Replays
Brush up on your CPD this summer by attending any of the following video replays of these popular programs:
All video replays will take place from noon to 1:30 pm at the Law Society classroom and cost $30 plus GST each (lunch not included). Use the CPD Summer Replay Sign-up Form to register.
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