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Condo Parking Spot Left Off Title Transfer: Court Rectifies it 20 Years Later

In 1997, a buyer entered into an Agreement of Purchase and Sale which covered both a residential condominium unit and its related parking spot. The deal closed and the condo corporation provided the buyer with the customary certificate attesting to his ostensible ownership of the parking spot. The buyer moved in and lived there for almost 20 years, duly paying the related property taxes and common area charges for the parking unit.

When the buyer started to consider selling his condo unit, he learned that – through the apparent inadvertence of all the lawyers involved at the time – he never received registered title to the parking spot; instead, title to the spot was still held by the original seller.

Despite diligent efforts to locate the seller, he could not be found. As such, the buyer went to court to obtain a declaration that he owned the parking spot that he thought he had purchased almost 20 years ago. The court considered the situation and found that this was a clear instance of inadvertence. However, it struggled to find the proper legal basis upon which to make the declaration sought. The fact that the buyer used the spot unchallenged for almost two decades was not determinative, since “adverse possession” was a concept no longer recognized under the Land Titles regime.

The court then reasoned that although legal title to the parking space was not properly transferred to the buyer at the time of the 1997 deal, the equitable title was, starting from the moment that he paid the purchase price in full. Under the signed written agreement, at that point the seller was obliged to transfer title upon payment; commencing on the closing date, the seller served as a “constructive trustee” of the title to the parking space, which he held for buyer’s legal benefit.

Despite the passage of almost two decades, by being the beneficiary of the constructive trust, it was determined that the buyer could enforce his equitable title to land, provided that he was not out of time under the relevant statutory limitation periods. On this issue, the court found that the limitation period was not an issue since, although the error took place almost 20 years ago, it was just discovered. Thus, the court granted the buyer the requested declaration as to his ownership of the parking spot and ordered the Land Registrar to register the transfer accordingly. See: Chopra v. Vincent, 2015 (ONSC).