Law Times

PAGE 12 FOCUS Toxic Real Estate Manual Practical coverage of the principles of liability connected with contaminated real estate This resource covers the fundamental principles of private and public liability connected with contaminated property and features pertinent case law in the area of vendor and purchaser transactions, landlord and tenant relations and secured financing. Combining environmental law with the technical and scientific aspects of site assessment, this guide keeps you informed on: • the legal dimensions of liability exposure including references to the current case law • the technical concepts employed in environmental audits and site assessments • sample clauses to insert into agreements • how to identify problems • the questions to ask vendors • the environmental searches that should be performed • disclosure and reporting requirements Other topics discussed include an updated contaminated site liability report, due diligence, environmental audits, decommissioning, real property transactions ... and more! It includes features such as appendices that contain tables of Environmental Public Law Statutes and government reports concerning contaminated sites and environmental quality criteria, as well as relevant sections of environmental statutes from all ten provinces and two territories. ORDER your copy today Looseleaf & binder • $107 • Releases invoiced separately 1-2/yr) P/C 0408030000 • ISBN 0-88804-172-1 June 15, 2009 • Law Times Easement rules pose some uncertainties BY DARYL-LYNN CARLSON For Law Times Th e amendments impact property easements that were introduced with little fanfare three years ago within a sweeping omnibus bill. Th e amendments reversed a decision in 2005 by the Ontario R Court of Appeal in a case called 1387881 Ontario Inc. v. Ramsay that upheld the long-time practice by lawyers to, during the sale of a parcel of land, preserve a landowner's access to an easement section of property with basic wording in the deed noting "sub- ject to" or "together with" to assert a client's right to the portion of land without formally registering it. "It basically upheld what was the current practice in Ontario," Frank Arnone, a partner in the commercial real estate group at Davies Ward Phillips & Vineberg LLP, says of the appeal court's decision. An easement is defi ned as a right of use of a portion of prop- erty owned by another party but is used by a neighbouring prop- erty owner. Th e neighbouring party assumes responsibility of the easement portion of property, which can be a driveway or facili- tates access to their home. Essentially, the appeal court validated thousands of easements For a 30-day, no-risk evaluation call: 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. COBURN_Toxic Real Estate (LT 1-4x3).indd 1 LT0615 across Ontario that were created more than 40 years ago. Arnone says the appeal court likely upheld the simplifi ed pro- cess while properties were being transferred from the Registry Act to the Land Titles Conversion Qualifi ed following the cre- ation of the Land Titles Act. "It was a good decision, good for property owners," says Ar- none. "Th e decision made sense from a practical perspective." Parties in the Ramsay matter sought leave to appeal to the Su- 6/10/09 9:58:31 AM preme Court of Canada but the high court declined to hear it. One year following the Ontario Court of Appeal's decision, the province gave royal assent to the Ministry of Government Services Consumer Protection and Service Modernization Act, which was an extensive omnibus bill that at the time was best known for its provisions to diminish land title fraud. Th e 2006 bill specifi ed that easements must be formally reg- istered as a notice of claim and offi cially fi led under the Registry Act to preserve access of the piece of property. Although the province notifi ed the bar of the legislative change in a bulletin, it only provided a protocol to permit the addition of easements into land parcels that were already converted into the LTCQ where such easements should have been brought forward during conversion but, for whatever reason, were not, Arnone says. As well and regrettably, the Bulletin 2007-02 Registry Act Amendments did not provide a reciprocal protocol to permit the deletion of easements from LTCQ parcels that were converted but because they had expired, should not have been, he says. For instance, he says, an easement under the Registry Act for which the 40-year notice period has already expired could be sub- ject to confl icting claims and ideally, should be deleted from the LTCQ although there is no provision to do so, he says. Also, prior to the 2006 amendments, there was a provision for WHAT A DEAL! TERANET'S CLOSURE® SERVICE* enables law firms to securely manage real estate closing funds online reducing the need for certified cheques, direct deposits and couriers. Now you can submit your documents for registration using the Teraview® software and manage the transfer of closing funds using the Closure service – all without leaving your office. For more information, visit www.closure.ca and register for free today. the late registration "at any time after the expiration of the notice period but before the registration of any confl icting claim," which made it easier to record the party utilizing the easement, he says. Arnone says he suspects there has been some confusion that has led to various government offi ces responsible for registering land parcels not uniformly applying the new legislation. "As a result, there might have been some inconsistencies in LTCQ titles in the province, with some refl ecting the Ministry's pre-Ramsay interpretation of the law, and some refl ecting the law as set forth by the Court of Appeal," he says. Yet the implications for property owners could be signifi cant. "It *The Closure service can only be used for real property closing transactions in the province of Ontario. Access to and use of the Closure service and Teraview software are subject to the terms and conditions, availability and pricing available at www.closure.ca and www.teraview.ca, all of which can be changed without notice. ©2007/9 Teranet is a registered trademark of Teranet Inc. and Closure is a registered trademark of Teranet Enterprises Inc. All rights reserved. could aff ect anyone in the province who's going through the regis- try," says Arnone. "For anyone in land titles, it's unclear whether it could aff ect them as [lawyers are] unclear as to whether retroactive amendments to the Registry Act will impact properties that are now under the Land Titles Act or is it now moot because it's already been converted or was it even converted correctly?" he queries. Not all lawyers are up to speed on the changes either, Arnone suggests. "It was kind of hidden" within the omnibus bill that included a volume of amendments enhancing consumer protec- tions ranging from expiration dates on gift cards to greater safety requirements for electrical products. "It's something lawyers should be aware of. When they're doing their title reviews, they should be cognizant of the eff ect of those amendments especially if they're dealing with a registry property and one that is subject to easements in some manner." Even though the legislation following 1387881 Ontario Inc. v. Ram- say is three years old, there have not yet been any court challenges. Arnone says however that it's highly possible that lawyers and Ontarians generally have not heard to the last of the issue. LT Untitled-4 1 www.lawtimesnews.com 6/8/09 3:15:08 PM eal estate lawyers are wondering how many Ontario prop- erty owners could be aff ected by legislative amendments regarding Part III of the Registry Act. 3880.CL.LawTimesAd06/09 Frederick Coburn

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