From our office in Toronto, Ontario, we are able to provide efficient and result-oriented solutions with respect to the unique issues arising from cottage and recreational property disputes.
Failures to Close
Failures to complete an agreement of purchase and sale may be due to the Vendor or the Purchaser. Failures of the Purchaser are often attributable to the Purchaser’s inability to obtain financing that was anticipated from a mortgage or another property sale. In some instances, the Vendor may retain the deposit and claim damages for losses sustained from the failure to close.
Failures to close may also be due to the Vendor. Frequently, the Vendor’s failure to close is due to the Vendor’s inability to provide clean title to the property or to perform the necessary repairs prior to closing. In some instances, a Purchaser will seek to recover damages for any resultant loss, while in other cases the Purchaser may seek specific performance (including injunctive relief preventing the sale of the property to a third party).
See our discussion of the recent case of Carr v Rivet, 2019 ONSC 1546, where the Court analyzed specific performance in relation to the uniqueness of waterfront cottages.
Access to Cottages
Many cottages have their access through the property of another cottage owner. These access rights often relate to or arise from prescriptive easements and adverse possession. Often, cottage owners will dispute the presence or borders of access rights. In many instances, it is necessary to seek declarations or other injunctive relief from courts to resolve these disputes.
See our discussion of the recent case of Arcon Property Holdings Ltd. v Nelson, 2019 ONSC 2267, where the court dealt with prescriptive easements in a dispute between cottage owners.
Misrepresentations
Disputes often arise from misrepresentations made by Vendors, agents or solicitors. These misrepresentations may include statements about the state of the cottage, boundaries of the property, access to the cottage, and other issues.
In these instances, legal advice is necessary to determine the appropriate remedy available. In some instances, a Purchaser may be able to rescind the agreement, effectively reversing the agreement of purchase and sale. In other cases, a Purchaser may seek to recover damages arising from the discrepancy in value or other losses resulting from the misrepresentation.
Disclosure of Latent Defects
Many real estate purchases include a buyer’s right to inspect the property to be purchased. However, these inspections are not exhaustive, and may not reveal defects or problems with the property that are not readily visible. In some instances, buyers may seek representations and warranties that the property does not have certain defects that may be of concern to the buyer. These hidden problems (known as “latent defects”) may not be discovered until years after closing. In some cases, a Purchaser may be able to rescind the agreement, or seek to recover damages arising from the non-disclosure and/or concealment of the latent defect.
For further issues concerning cottages and recreational properties, please see our related practice area webpage on Cottage and Recreational Property Litigation.
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