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Ancillary Claims

Posted on August 1, 2023 | Posted in Collections

The limitations period for claims dealing with land is 10 years; the ordinary limitations period is only two years. Can an otherwise tenable trust claim in land be defeated by a two-year limitation period because, before the claimant commenced the action, the land was sold? This issue was decided in Studley v. Studley, a 2022 decision of the Ontario Court of Appeal.

A hopscotch court on the ground with numbers from one to ten.


Husband and wife had separated and had been embroiled in litigation since 2015. Husband wanted to amend his pleadings to advance, for the first time, claims of constructive and resulting trusts in three properties that were purchased during the marriage, but sold before his motion to amend his pleadings.

The Real Property Limitations Act prevents an action to “recover any land” that is not brought within 10 years. Accordingly, if the RPLA were to apply, husband had to demonstrate that his action for a resulting or constructive trust was an action for the recovery of land. But what land? It had been sold.


In a previous case, the court had held that the RPLA 10-year limitation period applied if a claimant asserted an ownership interest in land. More importantly, the court had also held that an alternative claim for damages in respect of that same land was also protected. In effect, the claim for damages was sheltered under the claim for a trust in the land. This was an important conclusion because, in many cases, a court may find that a proprietary interest is not necessary; rather, a monetary award might be an adequate and appropriate remedy.

However, in the previous case, the land had not yet been sold and, accordingly, the claimant was not necessarily limited to damages, but still had the right to claim against the land itself.

In the Studley case, the land had been sold and the only issue was whether, if the land had been held in trust, the claimant should receive a monetary award to compensate him for his interest in the land.

The court agreed with the motions judge that husband’s claim was not “a thinly veiled attempt to dress up an equalization claim as an equitable trust claim;” an equalization claim was quite different from a trust claim.

The court noted that another previous case had already decided that, because a mortgage claim had a 10-year limitation period under the RPLA, so too would be a claim on the covenant for repayment of a mortgage amount – even if the mortgage security had already been sold.

Given these precedents, the court held that the sale of land cannot defeat an otherwise tenable trust claim in the land, one that would be sheltered under the RPLA. It noted that a contrary interpretation could incentivize strategic, covert sales designed to reduce the limitation period from 10 years to two years, extinguishing an otherwise viable claim.


The court allowed the amendment; husband’s claim for a monetary award, in lieu of a proprietary interest in land that had already been sold, could go forward.

This case does not just apply to family law disputes. It could apply equally well to a fraudulent conveyance action. For example, a fraudulent conveyance action is normally brought with the intent of having the land, which was alleged to have been fraudulently conveyed, put back into the name of the debtor who had conveyed the land to another person, the transferee. But what if the transferee had sold the land to an arm’s length purchaser for value before the creditor was able to tie it up by way of a certificate of pending litigation or obtain and register a judgment requiring the land to be reconveyed? In that case, an action for damages against the transferee would be appropriate and the 10-year limitation period would still apply.


Image courtesy of Wokandapix.

Jonathan Speigel


Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.


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