Tag: property

Curious Case: Smiths v. Cataraqui Cemetery Company (aka – a Plot to get a Plot)

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Here’s a somewhat spooky curious case about three brothers who sued a cemetery for the right to be buried there.

Background:

In 1869, brothers Joseph and Darius Smith purchased the rights to 4 plots at the Cataraqui Cemetary for the sum of $100.00. The purpose of these plots was to be the final resting place for them as well as their family for years to come.

In general, when a person wishes for their remains to be buried or cremated at a cemetery or interred, they purchase the rights to be laid in a plot of land, and not the land itself. Essentially, the person is purchasing the right to be interred in a specific area of the cemetery.

Throughout the years following this purchase, only a handful of Smith family members were buried on this plot, as several members chose to be buried elsewhere. This left a large amount of unused space to be used by future heirs of the Smith family.

Details:

Fast forward almost two centuries to 2013, when three brothers, Allan, Carmon, and Marvin Smith, sued the Cataraqui Cemetery for denying their request to be buried in their ancestor’s plot.

According to the current manager, the cemetery had been under different management when it allowed family members to be buried there without proof of being heirs of Joseph and Darius Smith. He states that just because family members were buried there throughout the years does not mean he will allow others to do so as well without first proving their lineage.

The issue here is that since 1869, over 2000 living heirs existed that would have be equally as entitled to a spot in the plot, so to speak.

Outcome:

The Court’s decision on the matter came down to several points:

  • The Court  looked at the Funeral, Burial and Cremation Services Act (the Act), which came into effect in July of 2012, and replaced the old Cemeteries Act. The Act states that only the interment rights holder has the right to be buried and to decide who is buried in the plots in question. Therefore, the Smith brothers (current) had to prove that they had such a right.
  • The Court found on their deed that Darius and Joseph Smith intended the plots to be handed down to their heirs in a broad manner including anyone in the lineage of either brother. Considering the obvious fact that they bought the rights to 64 plots, what did the cemetery believe they intended on doing with them?
  • The fact that the cemetery had previously permitted over 20 burials of members of the Smith family without proof that they were interment rights holder was also a factor in the decision.
  • Finally, the Court applied the law of estoppel to find that the cemetery’s silence and its acts in permitting other Smith burials without formal proof of interment rights prevents it from now insisting that the applicants prove such rights.

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Are you a Landlord or a Tenant looking for information? Check out this site

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I attended a Continuing Legal Education session this week on Real Property Law and one of the presenters was the newly named “Chief Residential Tenancies Officer.” I must admit that I had no idea that the Office of the Rentalsman had been recently renamed as the Residential Tenancies Tribunal. The website for this tribunal has lots of information that can be helpful if you are  a tenant or a residential landlord. What is especially helpful are the various forms and resources, which include Form 6 –  Standard Form Residential Lease. I highly recommend that both landlords and tenants spend some time navigating this site and taking advantage of the many resources contained within the site. Here is a link to the site: https://www.snb.ca/RTT-TLL/E/RTT-TLL_E.asp

 

 

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Curious Case: The Squires, The Fitzpatricks and…. a Coyote Head?

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Here’s a curious case I wrote about years ago on a personal blog. It’s strange enough to warrant repeating here.

Background: For 20 years, 60-year-old Bill Squires and 75-year-old Anna Squires maintained a close relationship with their neighbor, Mary Fitzpatrick. In 2006, however, Ms. Fitzpatrick passed away and her son, David, became the Squires’ new neighbor.

Details: Friction between the Squires and David began shortly after Ms. Fitzpatrick’s funeral. The Squires had lent photos of Ms. Fitzpatrick to David for display at the funeral and, despite multiple polite requests, the Squires’ photos were never returned. The neighbors’ relationship continued to deteriorate and when the parties disagreed over the care of a strip of grass between their properties, the feud – which could have once been classified as a neighborly dispute – escalated to passive-aggressive outbursts and death threats.

Particularly disconcerting was the morning of November 12, 2007, when the Squires stepped out of the front door of their home to find a dead coyote on the hood of their car. The Squires reported that, when they walked out and saw the horrifying scene, David appeared to wait patiently nearby in his own vehicle. When they looked at David, he drove away slowly, while displaying a satisfied grin on his face.

Outcome: Reportedly, the “first strain” (over the Squires’ photographs of Ms. Fitzpatrick) was amplified due to David’s already-existing feud with his sister, Shelley, over their mother’s estate. When the severity of their situation with David escalated, however, the Squires pressed charges.

The Squires reported the coyote incident to the police and provided video and audio recordings that captured David threatening the Squires. In response, David turned himself in (although he denied having anything to do with the dead coyote) and he was arrested for harassment.

When police officials lost the Squires’ video and audio recordings, the Crown decided not to proceed to trial and the charge against David was withdrawn. The Squires sold their home and moved on with their lives; meanwhile, David filed a civil suit against the Squires and his sister, Shelley, for “malicious prosecution and conspiracy”. Ironically, it was after David had started the new action and the Squires made a counter-claim that the Court finally heard the Squires’ case.

David’s original claims were dismissed and Judge Stinson of the Ontario Superior Court found that David was responsible for leaving the dead coyote on the Squires’ car and that he intentionally aspired to inflict mental distress on the Squires. The judge ordered David to pay the Squires over $166,000 in damages, a lifetime ban of contact with the Squires, additional costs to cover the Squires’ extensive legal fees, and additional funds to cover Shelley’s costs.

Curious about the Case? Check it out for yourself:

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5 tips for preparing for your first meeting with your lawyer about your will

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It’s difficult to think about passing away. Many people find it almost as difficult to plan for their eventual demise prior to their first meeting with their estate lawyer. Therefore, here are some useful tips (in no particular order) for preparing for your first meeting with your lawyer about your will:

1.Primary Executor:  Think about who you want to be the executor of your estate. For couples, each person usually chooses his or her spouse. However, if your spouse is struggling with dementia or poor health, it may be more prudent to name someone else as executor of your estate. This will be the person who is responsible for paying your liabilities and distributing your remaining estate assets according to your wishes. This is a very personal decision. Your executor is the “trustee” of your estate, which requires that person to act only in your estate’s best interests.

2.  Alternate Executor: Plan for an alternate executor, should your first choice predecease you or for some other reason become unwilling or unable to act. I often recommend someone who lives reasonably close to you, making it easier for that person to administer your estate.

3. Inventory: Prepare a basic list of your estate. In other words, think about “what is my stuff?” and write down your major assets, including your properties, most prized possessions, cash, banking information, RRSPs, etc. and have an estimated value of these properties. This process makes it easier for your executor to distribute your estate after your passing. This does not need to be (nor should it be) a detailed list of everything you own, but rather a basic outline of your most important assets. Oh, and don’t forget your debts!

4. Detailed Lists?: Most estate lawyers recommend that the will not be too detailed regarding every asset you own (i.e. my grandmother’s teacups to x, my collection of table and chairs to y). However, it is sometimes helpful to create a more detailed list or memo to leave with your will for your executor. This is not necessarily legally binding on your executor, but will certainly assist your executor in giving effect to your wishes

5. Communicate with your executor: It’s important to have a discussion with the person you plan on naming as your executor. I was once approached by an executor that expressed that he had no idea that he was named as his friend’s executor. Unfortunately, relationships can become strained; it can be awkward if the person you have chosen to be your executor has not seen you for many years and did not know that s/he was going to be named as your executor. There is nothing wrong with speaking with your executor in private and saying “I am thinking about naming you as my executor. Are you okay with this? Do you have any questions or concerns?”

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Curious Case of The Week: Warring Neighbours and a Manure Pile

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Background: In 2001, David and Joan Gallant bought a piece of property in Indian Mountain (Moncton area) from Lee and Shirley Murray. The property is located next-door to the Murrays themselves. The neighbors got along well until November, 2013.

Details: November, 2013 is when the Murrays reportedly dumped an enormous mountain of cow manure—so large, in fact, that at one point it could be spotted by Google Earth—directly beside (and partially on) the Gallants’ property, ending the friendly relationship between the neighbors. The Gallants claim to have asked, on multiple occasions, to have the Murrays remove the heavily odorous heap, only to have their requests ignored for nearly a year and to be met with additional passive-aggressive acts; for example, the couple also used a snow blower to blow snow and rocks onto the Gallants’ property on occasion and let their cattle loose to trample the Gallants’ lawn.

Outcome: In response to the unwelcomed gestures, the Gallants filed a lawsuit against the Murrays, claiming damages for having committed nuisance, trespass, and harassment. On January 19, 2017, Court of Queen’s Bench Justice, George Rideout, ruled in the Gallants’ favor, awarding $15,000 in damages, as well as ordering the Murrays to keep their animals off the Gallants’ property, to refrain from blowing snow, rocks, manure or anything else into their neighbors’ yard, and to keep manure piles 300 meters away from the Gallants’ home. The judge stated, “In my opinion, based on the evidence before the court, the manure was placed where it was for only one purpose, to make Mr. and Mrs. Gallant’s lives miserable.”

Now: The Murrays, unhappy with the verdict, have “vowed to appeal” the decision, but there is no sign of an official appeal to date.

Curious about the Case? See for yourself:

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5 tips for home buyers prior to closing!

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In the 1986 movie, the Money Pit, a young couple move into a home that is terribly dilapidated. While falling down stairways and leaking bathtubs in this movie are enjoyable for comedic value, no one enjoys these things when they happen to you!

A home is the single largest purchase most people will ever make. Therefore, it is important to take the time to investigate your purchase prior to closing and not be pressured by lawyers, real estate agents or family members. Also, you should be careful not to fall in love with a home (too much) prior to proper inspection. You may be excited about your new home, but if you choose to waive your inspection, miss defects, or close on an “as is where is basis,” disaster may follow. For example, in Anderson v. Lawrence, 2013 NBQB 21, Justice Morrison of the Court of Queen’s Bench of New Brunswick heard the home purchasers’ claim against the vendors’ for negligent and fraudulent misrepresentation. The purchasers suffered serious water damage in their basement and the ceilings in the main floor of the house caused by a leaky roof.

The purchasers had viewed the property prior to purchase and saw water in the basement and detected a musty smell, but were assured by the vendors and a real estate agent that the problems had been solved. There were also issues with the septic system. Finally, the purchasers received 17 acres of land rather than 34 acres, as the vendors represented.

The Court in Anderson, supra held that the vendors both negligently and fraudulently misrepresented the water leakage and the size of the land. As a result, the Court ordered the plaintiffs were entitled to $24,339.49 for costs of repairs and $13,070 for the value of the missing 17 acres of land in addition to interest and legal costs.

This case is a helpful lesson to purchasers of homes to be extremely critical before committing to a purchase. It’s easy to end up with your own version of a money pit! Here are some helpful tips to assist you with the purchase of your home:

1. Hire a licensed property inspector. The cost ranges from $200-$500, but will be worth every penny if your inspector finds issues that you may not be able to see with your own eyes;

2. Use checklists to evaluate the condition of the home. Here is a link to a helpful checklist that you may wish to use to evaluate the condition of the home. As stated in the checklist, it should not be relied upon nor be a replacement for a certified home inspection. We make no representations or warranties about the accuracy of the information either, but believe it is a helpful starting point;

3. Attend the inspection with your licensed inspector. Make sure you attend the home with your inspector and ask lots of questions;

4. Read the inspection report carefully and discuss with you inspector, legal counsel and real estate agent;

5. Research the inspector. Not all inspectors are created equally. Take the time to ask potential inspectors questions about  their experience, qualifications, costs, etc.

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7 Reasons You Should Make a Will (no matter how old you are)

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Sometimes the universe presents me with topics to write on. This was one of those weeks. Over the past week, I have spoken to 3 or 4 different people separately about the importance of doing a Last Will and Testament. During one conversation, a colleague and I pondered the reasons why so many people avoid doing their wills. My theory is people simply do not want to think about death and thinking about a will means they must think about death. It’s not a pleasant topic, I admit. But the fact of the matter is that we are all going to die! Yes, that is a little dramatic, but it is true. The old adage is that the only things that are certain in this life are: death and taxes. With that said, here are seven reasons why you should think about doing a will, no matter what your age:

7. Peace of mind: If you do your will now, you will be providing yourself with peace of mind, just by knowing that you have something written down in case you pass away. There are few things more tragic than seeing close family members upset after the loss of a loved one. Add to that the stresses of trying to figure out what documents are needed, funeral arrangements, what to do with property, etc. Having a will does not solve all of these problems, but it is the foundation for your total estate planning package and will alleviate some unnecessary stresses on your family.

6. Costs:  Similar to my comments in a previous article about why a Power of Attorney is important, doing a will now can save costs to you and your estate. If you pass away without a will, you are what’s called “intestate” and a statute called the Devolution of Estates Act (in New Brunswick) kicks in to guide the process your family must go through to have someone appointed to represent your estate (pay your bills, sell your property, gift certain properties to others). This process can be more costly in the long run than probating (proving) a will.

5. Guardianship for you children:  You could include a provision in your will to appoint a guardian or guardians for your children should something happen to you. Only you know your children and who you trust to watch over them the most. A will is an effective way of expressing your wishes for your children as well.

4. Protecting your business: Through the process of drafting a will, people often begin thinking about a succession planning for their business. This might include transitioning your business to a family member. Also, your lawyer and accountant can assist you in thinking about estate freezes and/or family trusts, which can maximize the tax potential of your transition.

3. Complexity:   People seem to build up the process of making a will in their minds into something greater than it really is. In most cases, making a will is not a complex process. You will have to attend your lawyer’s office one or two times (maybe more depending on complexity) and discuss your property, your family and your wishes. Then you will attend your lawyer’s office to sign your will. It is not that difficult, but I recently heard someone say that when she told her workmates that she was going to a lawyer’s office to make a will, one workmate asked: “oh, why, what is wrong with you?”

2. Family Fighting : We have all heard or experienced horror story scenarios with family members fighting over their parent’s properties. While a will cannot guarantee that your family will not be fighting over your property or money, it will certainly reduce the possibility of disagreements. It is more difficult for family members to contest your intentions when they are written clearly in “black and white” in your will.

1. Control: If you are like me, there are likely very few items that are important enough that they should be passed on to specific people. However, if something ever happens to me, I have some sentimental items that I would like certain people to have. It is difficult to ensure that your few important items are distributed as you wish without a will. A will is the best way to ensure that you maintain control over what little you have on this earth.

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Not all Title Insurance Policies are Created Equally: lender’s title policy vs. owner’s title policy

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You are buying your first home and you have signed so many documents your hand is getting sore. You likely have signed a mortgage, the mortgage covenants, discussed title to the property with your lawyer, arranged for fire insurance; maybe you talked about zoning requirements (depending on your plans for the property); arranged for your down payment on the home; Not to mention that you have been dealing with the logistics of moving—renting a van, picking up pizza and soft drinks to lure your friends in to helping you out; You have been so busy that you probably do not even remember the (likely very brief) conversation you had with your lawyer about title insurance. There can be serious consequences of not being aware of the difference between a Lender’s vs. and Owner’s title insurance policies. What is more concerning is the differences are not easily identified by title insurance companies and require a thorough reading by the counsel and the policy holder.

Here are some basic differences between the two types of title insurance policies:

1. Lender’s policy

A lender’s title insurance policy is usually required by your mortgage company when you purchase a home if you do not have a building location survey. Whereas a survey can  be thousands of dollars, a typical title insurance policy usually costs between $1-200 per policy. This makes title insurance an alluring option for home purchasers rather than spending thousands of dollars when you have already made the (likely) single biggest investment of your lifetime!

Here are some key facts about the lender’s policy:

  • Also known as “loan” policy
  • Lender requires lender’s policy before financing purchase;
  • Only covers the lender’s interests in the property;
  • Types of risks covered:
    • Fraud (signing wrong name on mortgage, etc.);
    • Legal fees in defence of title (ownership issues);
    • Issues regarding priority (other mortgages or judgements registered ahead of bank’s mortgage);
    • Gap coverage (if mortgage not registered on title for a period of time after closing);

2. Owner’s Policy

An owner’s title insurance policy can provide protection against the losses listed in the policy. Some examples could be:

  • someone else owns an interest in your title
  • existing liens against the title
  • violations of municipal zoning by-laws
  • encroachments onto an adjoining property (other than fences and boundary walls)
  • setback violations
  • realty tax arrears
  • outstanding municipal utility charges, provided such charges form a lien on title
  • existing work orders
  • lack of legal access to the property
  • unmarketability of the land due to adverse matters that would have been revealed by an up-to-date survey / RPR/ Building Location Certificate

3. Some helpful links

If the difference between the two types of title insurance policies is still not clear, here are some links that may assist you in further understanding the differences:

 

 

 

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You Can’t Always Get What You Want…and Other Sad Songs: Common Law Couples & Property Rights

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 Tough Questions

One of the topics that I discuss often with clients and prospective clients is property rights of common-law partners. There are many misconceptions and myths regarding this topic. For example, I often hear questions similar to the following:

– My partner and I have been together for two years; that means we are entitled to half of each other’s property, correct?

– My partner and I have been living together for 10 years. We purchased furniture together and most of our property was purchased after we started living together. We are each entitled to half of each other’s property, correct?

– My partner and I have been together for 6 months; is s/he entitled to half of my stuff?

The answer to many of these questions is “no, but….”. It’s understandable that these issues become confusing for the average person. The beginning of the confusion for most people starts with the Marital Property Act, SNB 2012, c.107, which defines “spouse” as a “married person”. Therefore, the division of property under the Marital Property Act (upon which the above questions are based) only applies to married people.

Kerr v. Baranow changes the landscape

In the now oft-cited case, Kerr v. Baranow, 2011 SCC 10, Justice Cromwell for the Supreme Court of Canada, noted at paragraph 1 that over a period of 30 years, courts have wrestled with property division for married couples, resulting in the various marital property acts enacted in the provinces in the late 1970s and 1980s. However, he notes that these acts only apply to married people. Regarding unmarried couples, Cromwell stated as follows:

For unmarried persons in domestic relationships in most common-law provinces, judge made law was and remains the only option. The main legal mechanisms available to parties and courts have been the resulting trust and an action in unjust enrichment. (Kerr, supra at para 1)

While common-law couples may not be able to turn to a provincial marital property statute for division of their property, the Supreme Court in Kerr, supra allows a division of property through unjust enrichment. If the claimant can prove the couple were engaged in a “joint family venture” and that he/she contributed to the joint family venture through work or funds contributed, then he/she may be able to use unjust enrichment to seek compensation for his/her contributions to the joint family venture.

Justice Cromwell notes at paragraph 31 in Kerr that “at the heart of the doctrine of unjust enrichment lies the notion of restoring a benefit which justice does not permit one to retain.” In other words, where a provincial marital property statute is not an avenue to compensation, but unjust enrichment may be.

Test for unjust enrichment

For recovery of the funds/services provided, the test for unjust enrichment requires the claimant to prove the following:

  1. The defendant has been enriched by the plaintiff (through the plaintiff’s contribution to the joint family venture);
  2. The plaintiff has suffered a corresponding deprivation (loss) due to the defendant’s enrichment;
  3. There is no juristic reason why the claim for unjust enrichment must fail and for the defendant to retain the benefit conferred by the plaintiff. At this step of the analysis, the plaintiff must exclude specific legal categories, which would provide reason for why the action in unjust enrichment must fail (gifts, statutory obligations, etc.). Secondly, this part of the analysis requires consideration of the reasonable expectations of the parties and public policy considerations of why recovery should be denied.

Finally, the Court notes that the remedy for unjust enrichment could include either a monetary award or proprietary award (return of property) but favours a monetary award if possible.

You Can’t Always Get What you Want!…and Other Sad Songs

Since 2011, Kerr v. Baranow has been cited several times by New Brunswick courts in dealing with property rights for common-law couples (for example, see paragraph 19 in Wills v. Kennedy, 2015 NBCA 31 (CanLII) for a list of cases citing Kerr v. Baranow). However, in Rollie Thomson, Lovers in a Dangerous Time’: Loose Ends After Kerr v. Baranow (Paper presented by Rollie Thomson at Canadian Bar Association, Midwinter 2014, February, 2014, Moncton, NB), Professor Thomson notes that many questions arise about Kerr’s application to specific circumstances: How do we quantify contributions? Does a property remedy through unjust enrichment apply to pre-marriage cohabitation in actual marriages? Does the analysis in Kerr affect spousal support payments?

Courts in New Brunswick have notably applied the unjust enrichment remedy unequally in different cases, making outcomes less predictable. In Mike Landry, “Breaking up is hard to do: common law partner denied share of ex’s pension” Telegraph-Journal (29 September 2016), the author refers to the recent (September 8, 2016) New Brunswick Court of Appeal case of Noel v. Butler, 2016 NBCA 49, wherein the Court denied Noel’s request for a portion of Butler’s pension because of lack of evidence that Noel specifically “contributed in any meaningful way to Butler’s ability to work as a teacher and accumulate pension benefits.”

After reflecting on Kerr v. Baranow, the answer to the questions above could now be: “possibly, if you can prove unjust enrichment based on the facts.” But absent legislative changes to clarify this area of the law, common law couples will remain “lovers in a dangerous time” because “breaking up is hard to do” and “you can’t always get what you want.”

Should you have any specific questions regarding your property rights in a common-law relationship, feel free to contact us.

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Why should you sign a Power of Attorney?

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A Power of Attorney is a legal document by which one person grants another the right to act on his/her behalf after the donor no longer has the capacity to make decisions. A Power of Attorney can be a useful estate planning tool, especially as we begin to  age and become more concerned about our capacity to make decisions. It can take two main forms: 1. Financial – allowing someone to make key financial decisions for you (pay bills, sell property, etc) and/or 2. Personal Care – allowing someone to make health care decisions on your behalf (medications, treatments, residential care arrangements). In honour of November being National Alzheimer’s disease awareness month in the United States, here are some additional reasons why you may wish to consider signing a Power of Attorney:

1. Costs – It is far more cost effective to sign a Power of Attorney while you have the capacity to do so than for your family members to apply to a court to be appointed as guardians of your estate (similar to Power of Attorney) (hundreds of dollars versus thousands of dollars);

2. Time – It is quicker and easier to sign a Power of Attorney (one or two meetings with your counsel vs. many months of meetings and waiting for your family to apply to a court if you do not have a power of attorney );

3. Flexibility – A Power of Attorney can be as flexible or specific as you wish. It is often used for specific purposes over a specified period of time, such as allowing someone to sign property deeds in your absence if you have moved away or are away on vacation when your home sells.

4. Control– The Alberta Law Reform Institute notes that Enduring Powers of Attorney allow people to plan for their incapacity by choosing who they wish to make their decisions:

An EPA (Enduring Power of Attorney) enables people to plan for their own incapacity, giving them the freedom to choose someone whom they feel is most likely to act in their best interests. This sense of control over one’s life after incapacity promotes self-determination and autonomy, and enhances personal dignity. It also helps ease some of the anxiety which people feel knowing they soon lose the ability to manage their own affairs.

– Alberta Law Reform Institute, Enduring Powers of Attorney (Report for Discussion No 7, 1990) at 19-21, cited in Ann Soden, Advising the Older Client (Markham: Lexis Nexis Canada, 2005) at pages 112-113.

As always, you should consult your lawyer for specific questions regarding whether a Power of Attorney is right for you, as there are risks to choosing the wrong person to act as your POA (see my post on theft by enduring Powers of Attorney here.)

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