Real Estate, Property, and Strata Disputes
The purchase and sale of real estate will likely be the largest transaction, or transactions in your life. When the other side fails to complete, or you discover that they misrepresented the condition of the property or failed to be truthful about undesirable features then your only remedy is typically proceeding through the Courts. Other forms of property disputes arise when you don’t qualify for a mortgage on a property and so title is taken in the name of a once-trusted family member that holds it for yourself as a nominee or bare trustee. When that family member then refuses to transfer the property to yourself when you are able to take over the mortgage then you have a classic and often seen case on your hands.
After moving into a property that is subject to the Strata Property Act, you may find that the strata council is unfairly targeting what may be seen as trivial violations of the strata by-laws with just your unit (and never the President’s for some odd reason). If the strata fails to make required repairs and preferences some owners or strata units over others, then you may have a remedy under the oppression provisions of the Strata Property Act.
For those living in unconventional forms of housing, such as manufactured home parks, co-operative housing, residential residency in a commercial space, or a float home, we have experience with all of those cases and the unique challenges that they bring in trying to enforce your rights as either a tenant or a landlord.
Some other types of cases involve issues surrounding property lines, encroachments and easements, and accounting remedies when property that is held by tenants-in-common must be sold under the Partition of Property Act. If title to a property is disputed it is possible to seek a judicial inquiry under the Land Title Inquiry Act though these proceedings are quite rare.
In cases where the sale or division of property is sought, invariably bank records related to payments made for the maintenance, upkeep, and improvement of the property will become relevant. You will typically need to account for expenses such as repairs, mortgage payments, utilities, strata fees, property taxes, and property transfer tax. It is not a particularly difficult task, but is time consuming and document heavy. Unfortunately banks typically only allow you to retrieve seven (7) years’ worth of records so it is important to act promptly so these records do not get lost or destroyed.
Often arrangements between family members or co-owners of property are recorded in a combination of text message, e-mails, and communications through social media. It is again important to be comprehensive and thorough if the true intentions or terms of an arrangement between family and friends will be challenged. Text messages typically do not carry over if you get a new SIM card or a new phone, so those should be screenshotted and backed up in a few different ways for safe keeping.
If you are having disputes with your strata it is important that any concerns get reduced to writing. Countless cases are lost because an aggrieved strata owner does not paper their file. If arrangements are made for you that technically run afoul of the by-laws, then it is important that those get recorded so later on you do not get into a he-said-she-said dispute that is difficult to determine who is being truthful.
Some property disputes realistically lack any meaningful limitation period. Others are subject to the general two year limitation period, and others may have an even shorter time period for lodging a dispute.
Property disputes are one of our favourite areas to practice in because it has meaningful, tangible, and sometimes permanent impacts on a person’s life. Also unlike some areas of law that may be fairly obscure and not intuitive, much of property law actually makes good practical sense. Property usually cannot be hidden or removed from B.C., making any judgment or decision made easily enforceable.
Our Real Estate Lawyers assist from initial demand all the way through trial. Depending on the nature of the dispute, the proceedings may be accomplished as a petition or a summary trial. This will save considerable expense in not having to call live witnesses and you have control over how the evidence is presented. In both summary trials and petitions, the evidence almost always come in just by affidavits. If there are contested facts that are material to the decision to be made the chambers judge may refer it to the trial list. The other benefit in both petition proceedings and summary trials is that a hearing date can be secured in approximately three months, whereas a conventional trial maybe scheduled 18 months to 2 years away.
Certain property disputes require injunctive relief and we have considerable experience with such matters. This allows the status quo to be maintained pending the resolution or determination of a case. An example of an injunction may be an order that the Strata Corporation cannot remove your trees even though they may at first instance violate the by-laws. Another example may be an Order requiring the net sale proceeds to be deposited into Court while the determination of true beneficial ownership is conducted.
A common form of injunctive relief that can be done relatively quickly is what is called a Certificate of Pending Litigation – or a CPL. This document is obtained at the same time as a proceeding is filed in Supreme Court and is registered against title. It alerts prospective financiers and purchasers that title to the property may change. It takes priority to all other charges and encumbrances filed after it – meaning if someone purchases the property when there is a CPL on title, then the transaction can be undone. It is extremely uncommon for a property with a CPL to actually be sold – the risk is too great for the buyer and no bank will allow their mortgage to be placed in second priority to the CPL.
If your property has had a CPL registered against it you have several options for removing it. There are really three ways to get it removed absent agreement from the other side. The first is an argument that the underlying claim cannot actually grant a remedy against property. Sometimes lawyers file CPLs to exert pressure on the other side, without actually thinking if their client’s claim can actually support a tracing order or other relief against the property itself. Damages are actually available if the CPL is filed with an ulterior motive – it may be classified as an abuse of process or even as the tort of slander of title.
The second option is an argument that the CPL is causing you undue hardship and inconvenience. This usually requires evidence of a need to re-finance or sell the property. The Court may order that you give security even if the CPL is causing you hardship. This is sometimes referred to as a section 256 application as the authority stems from section 256 of the Land Title Act.
The last option is an application under section 252 of the Land Title Act which is actually quite a bit easier. It provides an almost automatic right to cancel the CPL if there has been no movement on the underlying court file for a year.
Our Real Estate Lawyers also have a network of professionals, such as accountants, land appraisers, and commercial property valuators that we engage as needed to advance your case.
Some steps in a property dispute case can occur relatively quickly – such as a petition proceeding for oppression, an application to cancel a Certificate o Pending Litigation. Other property disputes will require a substantial amount of documentation to be compiled before the matter can be set for a summary trial.
Unlike personal injury cases where we usually only need a series of authorizations from you to get information from the CRA, your employer, and treating physicians, it will be far cheaper and faster if you are directly involved in obtaining all financial records and such other documents that may be necessary.
If there is a risk of the property being sold then we will work to promptly take steps to preserve it, either by way of the registration of a CPL or an injunction or similar order. If there is a risk that a co-owner will seize making payments towards the mortgage or other joint expenses we will take steps to force them to keep the status quo so you do not have a cash flow problem. Similarly, if a strata corporation is planning to take an irreversible action or there is a risk of other damage to your property we will swiftly move to obtain protective and injunctive orders, including a quia timet injunction – which is for harm that is only threatened and hasn’t occurred yet.
Certain steps in a property dispute case can quoted on a flat rate basis. This generally applies to cases where the facts are not in dispute or the scope of work is limited and known in advance – such as applications to apply to remove a CPL.
Like many other forms of litigation, the amount of work cannot be fairly estimated at the outset because the position and actions of the other side cannot be ascertained until much later in the day. Hourly rates are the most common way that we charge for these services, however in certain cases we can offer a blend of reduced hourly and contingency option. These cases generally require you to be advancing a claim as a Plaintiff for a sizeable portion of real property.
As almost all property and real estate cases are handled in Supreme Court if you are successful you are generally entitled to costs which would offset a noticeable portion of your legal fees. For strata disputes, you may or may not have a choice to bring your dispute in the Civil Resolution Tribunal, or in the Supreme Court of British Columbia. Both have advantages and disadvantages in terms of the rights of discovery, trial procedures, rights of appeal, and costs.
Contact us either at (604) 259-6200 or using the form below for assistance with Real Estate, Property, and Strata Disputes
The foregoing provides legal information and does not constitute legal advice. As an analogy, legal information are equivalent to learning the rules of chess, and legal advice is the tactics and strategy that goes into winning a game. Lawyers are trained to give valuable advice that is specific to you after learning about the details of your case. Readers are cautioned that they will rarely achieve the best outcome for their case without actual advice. A consultation is often the best next step to take.