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Tag: common law

Realtors; learn how to save a deal when spouses are feuding and being uncooperative over the sale of a property!

This article applies to legally married couples and not those in common-law arrangements.  The long and the short of it is that IF both spouses are on title of the property [that means they are both registered owners in one capacity or another (commonly as Joint Tenants or even Tenants In Common)], then you will need them BOTH to sign the listing agreement, representation agreement, the offers in between, any other required Realtor documents/amendments, and the finally accepted Agreement of Purchase and Sale and its amendments.  So long as that is the case, the two FINAL documents you should ask their lawyer to produce while signing the listing agreement is, first an Un-revocable Direction to the lawyer (presuming he/she will be the one closing the deal) as to how the Proceeds of Sale are to be divided and that he/she is to be the closing lawyer.  This ensures that the two spouses cooperate and do not hold each-other hostage on the eve of closing threatening not to close unless one spouse gets what they want out of the deal.  It also ensures that the lawyer who holds this direction will be able to use it because he/she will be closing the deal.  Second, and at the same time ask the lawyer to also draft and provide a declaration that both spouses will be providing vacant possession on the day of closing before 4:00 pm.  This will help the scenario where one spouse is being

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Contract Law: Rescission Anyone?

When a client has an issue with a contract he/she most certainly looks to whether the issues caused any damages.  I would agree that this is an automatic first step in the conceptual process involved in creating a remedy to address a client’s needs.  But what about the case where you simply want the contract to be treated as a nullity and be restored to where you were before the contract was consummated.  In that situation you are asking either the other party to the contract or the court to rescind the contract.There are essentially two types of rescission albeit there is some overlap in respect of the grounds which would justify such rescission.  The first (i.e. common-law rescission) does not require court intervention.  This occurs where the contract on its face has a clause which makes it voidable at one of the party’s option.  So what do you do?  You carefully review the clause, and fulfil the operative steps required to “rescind” the contract.  Other than where the contract specifically provides for it, this “common law” rescission applies where an infant has entered into a contract which is not binding on him/her; fraud; and where a contract has been procured by duress.  Here, the party also has the right to seek other common law remedies.

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Resulting and Constructive Trusts: Damages and Vesting Orders

Damages and Vesting Orders in Lieu of Constructive TrustThe Ontario Superior Court of Justice in McLean v. Danicic et al. discussed an application by a common law wife for a declaration of a constructive trust over two properties owned by the respondent, who is the common law husband, because of unjust enrichment. The wife was awarded damages and vesting orders over the two properties so as to secure the debt, considering the respondents’ history of failing to comply with court orders and his strenuous efforts to defeat the applicant’s claim.The fighting couple, Traci McLean and Darko Danicic began a romantic relationship in the summer of 1998 and were living together by Christmas. Traci got an engagement ring from Darko and they were working intensely to renovate a property bought by Darko just before he met Traci.

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In this context, Madame Justice McKinley also dealt with the situation where a lease is absolutely assigned by the owner of land but the reversionary interest in the land is not transferred to the assignee. Though it is not clear how the owner of land could keep the reversionary interest while assigning absolutely the benefit and obligations under the lease to a third party, Madame Justice McKinley commented that if that was possible there would be no privity of estate between the assignee and the non-assigning party since the reversionary interest remained in the landlord. The point is that privity of estate can only apply between the parties who hold the estate or interest in the land, the fee simple and the leasehold estates. Further on, at page 336, Madame Justice McKinley stated:“To the extent that he may have inferred that an absolute assignment of leases would have created privity of estate between the lessor and the mortgagee, I would not agree, unless that absolute assignment amounted to an assignment of the lessor’s reversionary interest in the land.”Choses in Action

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A Discussion about the Assignment of Leases

As the Goodyear case considered in-depth assignments of rents and leases to determine the impact on the doctrine of privity, it is necessary to discuss the assignment of leases for several reasons.The court observed that a collateral assignment of the benefits of a contract as security for a mortgage did not result in the mortgagee assuming or becoming liable for any of the obligations under the contract. As the benefits of the contract are a chose in action, they are assigned to the lender for the sole purpose of enabling the lender to assert a right to receive the benefits through legal process. There could be no privity of contract between the non-assigning party to the contract and the assignee/lender because the obligations under the contract were not assumed by the lender.Reading the verdict, at page 329, Madame Justice McKinley states:“Although the assignment is specifically stated to ensure to the benefit of and be binding on successors and assignees of both the mortgagor and the mortgagee, that provision adds nothing to the rights and obligations of the immediate parties and cannot expand in any way the rights and obligations of their successors and assignees.”

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