Where that interest is in dispute, Vesting Orders of the Ontario Superior Court can often be obtained to declare or create an ownership interest, typically in land but frankly in any item capable of defined ownership or earmarks. Vesting Orders can lodge title to a block of shares that are privately held or in a publicly held company, the rights of ownership of a car, boat or plane. They are used where there are competing claims.
Anyone who has an interest in the property is summoned to Court to explain their position. Typically these are decided on the basis of an application. Written evidence including affidavits, surveys or any form of reliable evidence that can be of assistance to the Court. The Court has an equitable jurisdiction to do what is fair, just and right, and takes a practical, common-sense approach to cutting through the tangle of competing interests to impose order.
Our firm has helped clients in Ottawa obtain Orders in a variety of circumstances.
On one occasion, purchasers of a home discovered at the last minute that the claims against the property by way of mortgages and judgments exceeded the value that they had agreed to pay. No one would back down or agree to a sensible solution. Both the vendors and the purchasers still wanted the sale to go ahead, so they engaged us.
Just before the application hearing, the parties realized that the Court was likely to approve the sale, grant title to the property through a Vesting Order, and also order that the net proceeds from the sale (after paying the mortgage and what had to be paid to give good title to the purchasers), be paid into Court where the parties could argue priority or otherwise divide it pro rata.
The Vesting Order gave the purchasers title to the property. The competing interests preserved their rights, but now the subject of their quarrel was about money paid into Court rather than property. Best of all, the vendors and purchasers could more or less get on with their lives.
Vesting Orders are also handy where the process of taking property from Ontario’s Land Registry system to Land Titles has orphaned certain pieces of land or a right of way, long disused, and long treated as someone’s property, which requires correction to title. While you don’t use a Vesting Order if you know who owns the property, it is a powerful remedy of choice where something that has for years, and several transfers of ownership, been treated as part of another property, or where tracing ownership is either lengthy, expensive and problematic (e.g. are we sure we have included everybody?).
In bringing forward the Vesting Order, the Court will want to be satisfied that those who have a genuine interest in the property have been given notice. Where there are adjoining landowners it is a good idea to include them. Generally it is a good idea to provide for a delay of several months in order to make sure that anyone who wants to have a say, or at least look at the surveys and go out and see the properties, has a chance to do so.
Typically, we bring these Vesting Orders at the expense of the person who wants the property. Sometimes a vendor and purchase will both hire us and split the cost. Where it is simply clearing up title we normally ask for costs from anyone who opposes and really doesn’t have a reason to do so. Sometimes a farmer who has, years ago, used the right of way to gain access to a far field will come forward. However, if he or she hasn’t used the right of way in ten years, and even better, if it has been fenced off or, in some other way, access has been treated as not permitted, his or her claim will usually not be considered.
Aside from the general equitable jurisdiction of the court, a plethora of legislation may also be relevant to the specific circumstances of each case including, among others, sections under Ontario’s Land Titles Act, Surveys Act, Real Property Limitations Act, and Courts of Justice Act which provides in section 100 that “a Court may by order vest in any person an interest in real property that the court has authority to order to be disposed or conveyed.”
For assistance in evaluating whether a Vesting Order is appropriate, or an estimate of costs, time and risk, please contact Richard Nishimura (Extension 229) or Douglas Menzies (Extension 222) of our office at 613-722-1313. If a severance will be required, or there are more complicated title or Planning Act considerations, please contact Sabrina Herscovitch (Extension 204).
Menzies Lawyers is a multi-service Ottawa based litigation firm which can assist with a broad range of civil litigation matters. This blog article by Douglas Menzies is for informational purposes only and does not constitute legal advice.