|
Respecting the Strict Rules of the Tax Sale Regime and the Meaning of s.45(4) of the RPA: MBCA
The policy issue at the root of the appeal in Thunderbird Holdings Ltd. v. Manitoba et al., 2013 MBCA 78, involves "balancing the interests of original owners and interests of tax purchasers in obtaining clear title to lands purchased through tax sales." (para.49) A divided appeal court reversed the lower court decision that the district registrar of the Winnipeg Land Titles office had the power to grant an extension of time to registered owners to redeem their property from tax sale proceedings pursuant to s. 45(4) of The Real Property Act. The court found that ss. 45(4)(a) and (b) must be read conjunctively, not disjunctively, meaning that the property owners no longer had a right to redeem long before the district registrar concluded that s.255(1) of the then City of Winnipeg Act obliged him to accept the registered owners' money and proceed with redemption. Although s.255 merits a broad interpretation to meet the policy objective of ensuring that property owners are given every reasonable opportunity to protect their equity,
(t)he right to redeem under s. 255(1) cannot override the very clear wording in s.45(2) of the RPA, the effect of which is that an original owner of property (worth more than $10,000) sold through a tax sale retains a right of redemption, but only until the expiry of the notice period set out in the notice issued by the district registrar pursuant to the RPA. ... To conclude otherwise would be to disregard the legislative objective of ensuring certainty, simplicity and expediency of the Torrens land registry system created under the RPA and the indefeasibility of the tax purchaser's title to the land. (para.77)
The court upheld the damage assessment of the judge, awarding Thunderbird only loss of equity and not loss of the increase in the fair market value of the property.
|
|
Unsuccessful Will Challenge Costs Applicant Not Estate: MBCA
The trial judge made no palpable or overriding error in upholding the validity of the 30-year-old will of a schizophrenic woman who left a million-plus estate to one sibling or his son and nothing to her 82 other relations, according to the Court of Appeal in Hoffman v. Heinrichs, 2013 MBCA 63. The court also upheld the judge's finding that the applicant (who argued suspicious circumstances, undue influence and lack of testamentary capacity) was not entitled to have his costs paid by the estate.
|
|
Municipal Council the Appropriate Forum for Challenges to Orders: MBCA
The Court of Appeal rejected a self-represented property owner's appeal of a restraining order authorizing the municipality to carry out remedial action under a clean-up order and enjoining him from interfering with the clean-up in The Rural Municipality of St. Clements v. Zucawich, 2013 MBCA 65. The court found that a challenge to the validity of a clean-up order was contrary to the doctrine of collateral attack, and therefore precluded. In considering the nature of collateral attack in light of the appeal tribunal's expertise, the court commented at para. 78:
...the issue of expertise is, ultimately, only one factor to be considered when determining the legislature's intention as to which forum should decide the question....the broad language of s. 244(2) of the (Municipal) Act and s. 9 of the By-law indicates that the legislation intended that all challenges to a municipal order would be dealt with expeditiously by allowing the council to decide whether the original order should be confirmed, varied, substituted or cancelled. Thus, even if the council were found to lack expertise with respect to legal questions, that would be largely irrelevant, given the legislature's clear intention as to the appropriate forum.
|
|
Court Underscores Importance of Carefully Drafting Option to Renew Clauses and Notices: MBCA
In 441 Main Inc. v. Silver Pawn Pictures Inc., 2013 MBCA 70, the landlord successfully appealed the lower court finding that the tenant had validly exercised its option to renew their commercial lease. "Simply put, the tenant's attempt to "engage in a dance" with the landlord with respect to the purchase of the building defeated its right to renew the lease," said the court at para. 49. By alleging in the option to renew that an undertaking to sell was given as an inducement to lease, the tenant was attempting to impose a new term or condition into the landlord and tenant relationship that did not exist under the lease. The effect of doing so, said the court, was to make the notice a counter offer, which the landlord expressly rejected. Since the notice was never retracted, it remained an impediment to the renewal of the lease, not the means by which it was exercised.
|
|
Minor Issues, Major Costs: MBQB
These recent QB cases illustrate how easily estates disputes can escalate and how costly they can be:
Bos et al. v. Bos, 2013 MBQB 198 - executors who acted as adversaries not fiduciaries, and who refused to accept reasonable legal advice, lost their appeal of the master's decision that they must personally pay their sister's legal costs on a solicitor and client basis, as well as their own legal fees in finalising the estate.
Re Bereskin Estate, 2013 MBQB 195 - the court granted the motion of four (charitable) beneficiaries to remove the primary beneficiary as executor of this contentious estate. Appointment of an independent trustee was necessary, said the court, given the complications of the estate (four wills had been executed and competency was in issue), and the fact that the executor had vigorously pursued his own interest in past disputes.
The Estate of Rudi Terhoch, 2013 MBQB 181 - a testator's attempt to avoid probate fees by transferring all his assets into joint names with only one of his two daughters turned what should have been a simple estate into a forensic accounting battle that resulted in a significant delay in concluding the estate and legal fees of almost $150,000.
Estate of Jeanne O'Brien, 2013 MBQB 180 - the animosity between the beneficiaries (three daughters of the deceased) and the executor (their aunt) "worked against any simplistic constructive and inexpensive resolution" of the issues in this estate. The court approved both the modest fees claimed by the executor and the fees for the solicitor and barrister work on the estate, and ordered that these accounts be paid from estate funds.
|
|
Update on Legislation
Bill 34, The Property Registry Statutes Amendment Act, and Bill 40, The Residential Tenancies Amendment Act, both received royal assent on September 13, 2013, and will come into effect on proclamation. The former amends The Real Property Act, The Personal Property Security Act and The Registry Act to allow services under those Acts to be provided by a designated service provider (see explanatory note for further details). The latter makes key changes to the rent regulation system, as described in the explanatory note.
|
|
Rent Increase Guideline Set for 2014
The 2014 provincial rent increase guideline has been set at 2.0 per cent effective January, 2014. Details of the new guideline and exceptions to it can be found in this notice and in Regulation 130/2013.
|
|
Recommended Reading
Defences to Enforcement of Real Property Mortgages - this paper by Ned Brown, recently posted on Pitblawg, discusses a PEI Court of Appeal decision concerning the viability of different defences in mortgage enforcement proceedings.
The September edition of Pulse, the CBA's Health Law section newsletter, includes an article on advance care planning, which describes the national framework to implement ACP in Canada and addresses criticisms and challenges to the process.
The Supreme Court Re-Affirms the Resulting Trust and Clarifies the Legal Meaning of a Gift in Nishi v. Rascal Trucking Ltd. - this article from The Court comments on the recent SCC decision concerning the doctrine of purchase money resulting trust.
Update: Lawyer Does Not Check Fax Machine and Costs Client $100,000 - Upheld by Court of Appeal - this Slaw post discusses the Ontario Court of Appeal decision which upheld a lower court ruling that a purchaser could not recover her $100,000 deposit because the agreement ought to have closed before the deadline but did not because the purchaser's lawyer missed the seller's fax confirming that title insurance was available.
Use industry innovations to increase client satisfaction - this Lawyers Weekly article discusses how lawyers can better promote the valuable role they play in today's streamlined real estate transaction.
|
|
Fall CPD: LSM
Register soon for these fall CPD programs:
Legal technology expert and lawyer Barron Henley is back with three new sessions:
Employee Engagement and Accountability: Build a High Performance Culture - this is the first program in the Leadership Skills series, designed to help lawyers improve their individual leadership style and enhance their performance as well as the performance of those around them. It takes place November 14, 2013, from 9:00 a.m. to 3:00 p.m. at the Law Society classroom. Presenters Judy Mathieson and Denise Zaporzan will introduce practical skills to help participants align culture with strategy to create a high performance mindset in the workplace. Register for more than one session in the series and save money.
|
|
Pitblado Lectures
The 2013 Isaac Pitblado Lectures, titled Human Rights Challenges and Achievements, will take place November 22-23, 2013, at the Fort Garry Hotel. Presenters will cover a variety of topical human rights issues including equality jurisprudence, the future of human rights tribunals and commissions, and how international human rights law impacts Manitoba practice. Register before October 11, 2013 to take advantage of the early bird discount.
|
|
MBA/CBA Programs
The MBA is offering the following programs this fall:
- Update on the new Estate Tariff - Justice Herbert Rempel and Robert Fabbri will discuss changes to the Estates Tariff rule at a lunch program to be held October 25, 2013 at the Law Society classroom.
- Dealing with Homestead Act matters in conveyancing - presenters Heather Dixon (a solicitor) and Les Kirchner (a barrister) will discuss how The Homesteads Act can affect real estate conveyancing at this Real Property Law session on October 30, 2013. The meeting will be held at the offices of Pitblado LLP starting at 5:00 p.m.
The CBA has scheduled these online programs, which are open to both members and non-members:
|
|
Upcoming STEP Programs
The Winnipeg branch of the Society of Trust and Estate Practitioners (STEP) is offering a full slate of educational sessions this year, open to members and non-members. Sessions for the upcoming year include: trustee investing in hard times, property rights under the FPA, US cross border issues, charitable giving strategies, and testamentary trusts. The next program, Powers of Attorney and Elder Financial Abuse, with presenter Cynthia Hiebert-Simkin, will be held October 22, 2013, from noon to 1:30 p.m. To register, or for details on how to become a member of STEP, check the website.
|
|
