Law Times

Law times • OctOber 29, 2012 Estoppel ruling lets grandmother stay in home Forcing woman to leave would be 'unconscionable,' court rules FOCUS U BY MARG. BRUINEMAN For Law Times 94-year-old woman could re- main in her home. "This started from an estate case," says Lou Ciotoli of Zuber sing the doctrine of estoppel, a prom- ise was enough for a court to decide that a & Co. LLP. Mariannina Pulla had been her daughter, Guiseppina, and her son-in-law under which she would give them her house provided that living on her own when she came to an agreement with with them until she died. They sold their respective houses and moved into another home in Vaughan, Ont. But both the daughter and she could live her husband then passed away. The day before she died, the daughter transferred the prop- erty to her own daughter, Mary Spadafora, and her two sons, Frank and Tony Gabriele, as ten- ants in common. Pulla' applied to sell the property and divide the proceeds among the siblings so she could sever ties with her brothers. She had tried to come to an agreement with her brothers to purchase her in- terest, but the deal fell apart. "If there had been a clear-cut, s granddaughter then written document somewhere . . . then all of this could have been avoided, acted for Pulla. No such document existed. Pulla's agreement with her " says Ciotoli, who daughter and son-in-law that she could remain in the house to the end of her days was ver- bal. All of the family mem- bers, however, were familiar with the agreement. If the sale went ahead, Pulla would have to leave. The granddaughter told Pulla she could live with her in a new home, but Pulla wanted to remain in the house in Vaughan. Ciotoli says there was a lim- ited pool of arguments at his dis- posal. But he thought the rules of equity and the use of proprietary estoppel, which would essential- ly halt any attempt to remove the elderly woman from her home, fit the case. "We would like to believe that the equities were in our favour," he says. "How are you going to rec- oncile throwing her out of her home and say this is justice?" The court agreed and decided estoppel applies to protect Ms. Pulla' erty and restricts Mary's right " wrote Ontario Su- s residency in the prop- to immediate possession of the property, * The TitlePLUS® perior Court Justice Katherine Corrick. "It would be unconscionable Untitled-3 1 www.lawtimesnews.com policy is underwritten by Lawyers' Professional Indemnity Company (LAWPRO® ® Registered trademark of Lawyers' Professional Indemnity Company. 1-800-410-1013 12-10-22 10:01 AM ). for the house to be sold while Ms. Pulla re- sides in it pursuant to her agreement with Guiseppina and her husband. When Mary, Frank, and Tony were giſted the home by Guiseppina, they were in effect giſted a home that bore the burden of their parents' prom- ise to their grandmother. They had notice of the arrangement between their parents and grandmother. "They further allowed their grand- relying upon a promise made by a third party to do something, the law of equity prevents that third party from going back on the promise made. "Such a principle has wide application mother to reside in the home, pursuant to the agreement, for years. To now allow a sale that would effectively evict Ms. Pulla against her will would, in my view, be un- conscionable. toppel in estates cases as a potential avenue of legal recourse in situations like hers. Real estate lawyer Lisa Laredo sees the Pulla's situation highlights the use of es- " doctrine of estoppel as an example of an at- tempt by the courts to be fair. "Historically, the principles of equity have evolved to lessen the rigidities of the common law, "Equity is concerned with fairness. Where a person acts to his or her detriment " says Laredo. t 'Historically, the principles of equity have evolved to lessen the rigidities of the common law,' says Lisa Laredo. and is capable of application in many ar- eas. However, it has special application with respect to vulnerable people such as the aged." She adds: "It mattered not that the promise was verbal or that it was not re- flected in the transfer to the children be- cause all the relevant parties knew about the promise. "Many times, elderly people who are in full possession of their faculties enter into arrangements having an economic impact without the benefit of professional advice and without the benefit of full and proper documentation. "They may have been induced into promises made, whether written, oral, or implied, be carried out." such an arrangement by promises made. The law will inquire into such situations and, where appropriate, will insist that the LT es, telephone lines, cable television lines or ple, where the original mortgagee has assig nts for the supply of domestic utility or telep title of the mortgage and the right to receive h do not materially affect the present use of ements with publicly regulated utilities provid Keeping you central to the real estate transaction.* that allowing anything else to happen would be wrong. "The doctrine of proprietary titleplus.ca provided in this agreement and save and ex are complied with; you (b) any registered m t run with the land providing that such are c that the title to the property is good and free case, the discharge cannot be registered w good and free from all registered restrictions letter from the relevant municipality or regul cumbrances except as otherwise specifica adjacent properties, and any easements fo PAGE 13

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