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Feb
01
2024

Subterfuge

Posted in Lawyers' Issues

An owner of a property has rented it to a tenant; a purchaser submits an offer to purchase the property, but only with vacant possession so that the purchaser can occupy the property. The owner can deliver that vacant possession with ease, simply by serving on the tenant a notice terminating the tenancy on behalf of the purchaser. But is it that simple? Given the decision of the Ontario Court of Appeal in Elkins v. Van Wissen 2023 ONCA 789, probably not.

Boxes and furniture in an apartment packed to be moved.

Legislation

An owner cannot terminate a tenancy merely on a whim. The owner has to fit within one of the termination provisions of the Residential Tenancies Act (the “Act“) that allow a termination. One of these provisions is found in s. 49(1) of the Act. This section empowers an owner, on behalf of the purchaser, to give a tenant a notice terminating the tenancy if the purchaser “in good faith requires possession of the residential complex or the unit for the purpose of a residential occupation by the purchaser” or the purchaser’s spouse, parent, or child.

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Feb
01
2024

Joint Ownership

Posted in Collections

Can a judgment creditor seize the interest of a non-debtor joint tenant? This question was answered – again – by the Ontario Court of Appeal in a 2023 decision in Senthillmohan v. Senthillmohan. We say “again” because, to our way of thinking, the answer to this question was obvious and had been applied many times in the past.

Facts With a Twist

This case arose out of a family law dispute between separated spouses. Incidental to their dispute, a court granted an order directing a sale of their matrimonial home. Nine months later, in September 2021, a third-party creditor obtained a judgment against the husband in a civil action and filed a writ of seizure and sale. In October 2021, the spouses entered into an agreement of purchase and sale to sell the home. In November 2021, the wife obtained an order severing the joint tenancy of the matrimonial home. That order was silent as to when it took effect (i.e., was it retroactive?) and did not address the creditor’s claim. The creditor agreed to temporarily lift its writ to facilitate the sale, subject to the net proceeds of $925,818 being held in trust pending the disposition of the creditor’s claim against them.

Scrabble tiles spelling out the word share.

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