Purchasers Own Use (N12)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	1888
Page Categories:	Personal Use Application (LTB)
Citation:	Purchasers Own Use (N12), CLNP 1888, <https://rvt.link/6a>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2024/07/10

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Residential Tenancies Act, 2006, S.O. 2006, c. 17

2 (1) In this Act,

...

“residential complex”, except in Part V.1, means,

(a) a building or related group of buildings in which one or more rental units are located,

(b) a mobile home park or land lease community,

(c) a site that is a rental unit,

(d) a care home, and,

includes all common areas and services and facilities available for the use of its residents; (“ensemble d’habitation”)

“residential unit” means any living accommodation used or intended for use as residential premises, and “residential unit” includes,

(a) a site for a mobile home or on which there is a land lease home used or intended for use as a residential premises, and

(b) a room in a boarding house, rooming house or lodging house and a unit in a care home; (“habitation”)

...

49 (1) A landlord of a residential complex that contains no more than three residential units who has entered into an agreement of purchase and sale of the residential complex may, on behalf of the purchaser, give the tenant of a unit in the residential complex a notice terminating the tenancy, if the purchaser in good faith requires possession of the residential complex or the unit for the purpose of residential occupation by,

(a) the purchaser;

(b) the purchaser’s spouse;

(c) a child or parent of the purchaser or the purchaser’s spouse; or

(d) a person who provides or will provide care services to the purchaser, the purchaser’s spouse, or a child or parent of the purchaser or the purchaser’s spouse, if the person receiving the care services resides or will reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located. 2006, c. 17, s. 49 (1); 2021, c. 4, Sched. 11, s. 31 (1).

Same, condominium

(2) If a landlord who is an owner as defined in clause (a) or (b) of the definition of “owner” in subsection 1 (1) of the Condominium Act, 1998 owns a unit, as defined in subsection 1 (1) of that Act, that is a rental unit and has entered into an agreement of purchase and sale of the unit, the landlord may, on behalf of the purchaser, give the tenant of the unit a notice terminating the tenancy, if the purchaser in good faith requires possession of the unit for the purpose of residential occupation by,

(a) the purchaser;

(b) the purchaser’s spouse;

(c) a child or parent of the purchaser or the purchaser’s spouse; or

(d) a person who provides or will provide care services to the purchaser, the purchaser’s spouse, or a child or parent of the purchaser or the purchaser’s spouse, if the person receiving the care services resides or will reside in the building, related group of buildings, mobile home park or land lease community in which the rental unit is located. 2006, c. 17, s. 49 (2); 2021, c. 4, Sched. 11, s. 31 (1).

Condominium Act, 1998

1 (1) In this Act,

...

“owner” means,

(a) in relation to a corporation other than a leasehold condominium corporation or a common elements condominium corporation, a person who is shown as the owner of a freehold interest in a unit and its appurtenant common interest, according to the records of the land registry office in which the description of the corporation is registered, and includes a mortgagee in possession and a declarant with respect to any unit that the declarant has not transferred to another person,

(b) in relation to a leasehold condominium corporation, a person who is shown as the owner of the entire leasehold interest in a unit and its appurtenant common interest, according to the records of the land registry office in which the description of the corporation is registered, and includes a mortgagee in possession and a declarant with respect to any unit in which the declarant has not transferred the leasehold interest to another person but does not include a tenant of the owner, or

(c) in relation to a common elements condominium corporation, a person, including the declarant, who is shown as the owner of a common interest in the common elements and a freehold interest in the parcel of land to which the common interest is attached, as described in the declaration, according to the records of the land registry office in which the description of the corporation is registered; (“propriétaire”)

Ambrana Enterprises Inc. v Cabarel, 2023 ONLTB 38991

4. It is discovered during the hearing that Steve Senwasane also is a buyer during the transaction of Purchase and Sale.

(...)

17. Further, the Agreement of Purchase and Sale, Mr. Steve Senwasane has failed to sign in the appropriate sections of the agreement, as a buyer. Upon further examination Mr. Steve Senwasane does not initial in the appropriate areas as the buyer only the seller. He admitted this in his testimony under cross examination and redirect.

18. The Landlord failed to present any evidence that all signatures and initials are demonstrated to satisfy a proper Agreement of Purchase and Sale.

(...)

20. I find that Mr. Steve Senwasane is not at arm length to this transaction, he is very much involved in one or more capacities, this is evident during his testimony both in examination in-chief and cross examination. In fact, he has attempted to be a buyer and seller, with a vast interest to the Landlords claim.

Ashton Realty v. Moyes, 2015 ONSC 8046 (DC-3-15)

[1] This is an appeal to the Divisional Court from a Small Claims Court Judgment.

...

[14] Is a conditional agreement to purchase" an "agreement to purchase" within the Buyer Representation Agreement?

..

[15] Moyes argues that the conditional agreement to purchase was not a valid contract until the pet condition was satisfied and the pet condition was not satisfied until October 31, after the expiration of the Buyer Representation Agreement.

[16] Moyes relies in part on the case of Naccarato v. Boudry, 1980 CarswellOnt 2172, where the agreement of purchase and sale included a condition to secure financing from a third party.

[17] The court states at paragraph 40 . In addition, the conditional clause is, in effect a condition precedent to a binding agreement and until that condition has been fulfilled there is no binding contract of sale."

[18] Following Zhilka v. Turney, [1959] S.C.R. 578, and as explained more recently in Hilchie Wateron Condominiums Inc., 2012 NSCA 126, 2012 CarswellNS 952, a true condition precedent has three elements:

1) the term is a future uncertain event beyond the parties' control (i.e. the happening of the event is within a third party's control),

2) no party reserves the right to waive the condition,

3) and there can be no breach of contract should the event not occur.

[19] I find that the first elenent is satisfied. The decision to allow Moyes to keep two dogs in the condominium unit is an uncertain event. Further, it is a decision the Condominium Corporation controls, so the happening of the future event is beyond the parties' control.

[20] The third element also appears to be satisfied.

[21] With respect to the second element, the condition we are dealing with in Schedule A to the Agreement of Purchase and Sale reads as follows:

"This offer is conditional upon the Buyer receiving express permission, from the Condominium Corporation, to have two dogs. If the buyer cannot get this permission by November 7, 2013, then this offer shall be null and void and the buyers deposit shall be returned in full without production."

[22] Nothing in the agreement states that this condition was inserted for the benefit of the purchaser (Moyes) and could be waived by her at any time.

[23] The trial judge found the "condition could have been .. waived" but nowhere in his reasons does he state how he arrived at this conclusion.

[24] From a practical point of view, it is highly likely that if Moyes wanted to waive the condition, the seller would have consented.

[25] However the term at issue here does not expressly allow either party to waive the condition. In addition, Moyes did not waive the condition.

[26] Therefore, I find that the second element has also been satisfied and find that there was no contract until the "pet condition" was fulfilled on October 31, 2013.

[27] I therefore set aside the judgment of Deputy Judge Lannan dated January 12, 2015 and dismiss the Plaintiffs claim with costs.

[28] I also dismiss the cross-appeal of the Respondent without costs.