Ontario Civil


Conveyance obligation did not constitute executory contract 


Conveyance obligation did not constitute executory contract 

Appellant condominium corporations were part of large condominium complex comprising dwelling units, recreational facilities and clubhouse, all developed by Blue Shores. Blue Shores gave purchasers disclosure statement providing for conveyance of clubhouse to appellants within 120 days after date Blue Shores no longer owned any lands within project (conveyance obligation). From outset, Blue Shores owned and operated clubhouse. Pursuant to easement and cost sharing agreement, each condominium corporation required to submit clubhouse membership fees collected from unit owners which Blue Shores used for its own purposes and refused to account. Although conveyance obligation had not yet been triggered, appellants registered notice of unregistered estate, right, interest or equity against title to clubhouse and applied for declaration that they owned clubhouse and that mortgage over it granted to respondent, Duca Financial Services, was void or subordinate to their interests. Application judge dismissed application. Appellants' appeal dismissed. Conveyance obligation did not constitute executory contract. One purpose of disclosure statement is to enable potential purchasers to have full understanding of rights and obligations but it does not, of itself, constitute enforceable contract. Disclosure statement expressly indicated that interest in clubhouse was not being conveyed. Since disclosure statement did not constitute executory contract, appellants did not have equitable interest in clubhouse and had no rights capable of registration under Land Titles Act. As owner, Blue Shores was entitled to mortgage the clubhouse. There was no prohibition and so long as Blue Shore could comply with terms of conveyance obligation, it was entitled to deal with clubhouse as it saw fit. In condominium documents, Blue Shores preserved for itself the right to operate clubhouse almost entirely free of constraint. In particular, Blue Shores had right to permit members of public, on user-fee basis, to use clubhouse and had no obligation to account to condominium corporation. Condominium Act, 1998, permits court to make order to rectify conduct that is or threatens to be oppressive or unconscionably prejudicial. Blue Shores did not breach this standard. It did not violate appellants' contractual or property rights nor did appellants demonstrate any unfair conduct that undermined their reasonable expectations. 
Simcoe Vacant Land Condominium Corp. No. 272 v. Blue Shores Developments Ltd. (May. 27, 2015, Ont. C.A., J. MacFarland J.A., H.S. LaForme J.A., and P. Lauwers J.A., File No. CA C58302) Decision at 237 A.C.W.S. (3d) 801 was affirmed.  256 A.C.W.S. (3d) 467.






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