“Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man.” – Abraham Lincoln.
For many the concept of litigation is a scary thing. It involves time, expense, and significant conflict. However, in some situations it can be relatively inexpensive, expedient, and pleasant. Sometimes, when a land title issue is discovered it is possible to repair the problem through litigation on an unopposed basis. Parties may be in court not because they disagree, but because they need the court to wield it’s might to fix a problem. Even if the matter is going to be contested there are processes available that allow matters to be heard on issues of real property rights that are speedier than the ordinary litigation stream.
While we have a comprehensive system for the registration of real property rights in Ontario unexpected title issues can still arise. The “old” method of describing property was often long and complicated, with the potential of human error. It is not unheard of to see an error or omission on an old, lengthy description, which could have a significant impact on ownership today. As a result, there can sometimes be issues with respects to what the proper boundaries of properties are, or sometimes who even owns an interest in land.
Fortunately, courts retain significant power to deal with interests in real property.
One method is by “rectifying” a deed that perhaps contained an error. By virtue of the Land Titles Act courts have the ability to order changes to the land titles registry (including to registered documents) if it is considered just.
Another method is by a “vesting order”. These are cases where the court orders that an interest in property vest with a person. A court cannot simply vest title simply because it is the easiest way to deal with a title issue. The ability to vest is the remedy, the court must have a proper legal foundation to get to the remedy first. This is often done through equitable principles, or the imposition of a constructive trust. Vesting orders may be more appropriate when multiple deeds contain issues or errors, and it’s not as simple as rectifying a single deed.
There are other times when litigation may be the necessary approach. For removal of old mortgages that should have been removed years ago, for dealing with encroachments, or easements that were inadvertently lost.
Litigation doesn’t always have to be scary. But of course it does help to have a lawyer at your side.
Matthew Harmes is an associate at the law firm of Cobb & Jones LLP. For more articles, visit the Library Page at www.cobbjones.ca