Category Archives: Property

Legal comment, news and articles relating to recent important developments and Canadian court decisions relating to Property Law.

Terminating the Nuisance Commercial Tenant

It is possible to terminate a commercial tenancy on the basis that the tenant creates a nuisance – whether through sound, unsightliness, smells, or general lack of care for the premises – depending on the terms of the lease and the degree of misconduct. The situation is more difficult where the tenant has been punctual on its rent payments. Unilateral termination may in such cases be imprudent due to the uncertainty inherent in the face of disputed evidence. Wrongful termination of a viable business may give rise to a claim for damages by the tenant. The landlord may invoke the Court’s assistance, seeking an order terminating the lease or declaring it validly terminated. These are the practical issues that arise on two of our recent mandates.

Adverse Possession, Trespass, Conversion and Damages

Ron McCloskey has been acting as counsel in an ongoing trial that will continue in the spring of 2014 involving claims for damages that arose over damage caused to property by a neighbour who claimed to own the property and its fixtures such as retaining walls and fences and interlocking brick etc.  The defendant claimed actual ownership, and alternatively rights accruing through the doctrine of prior adverse possession even though the property was registered under the Land Titles Act.  In the further alternative, the defendant is putting the plaintiff to the strict proof of all damages incurred as a result of the remedial work that had to be undertaken to the property by the plaintiff, including taking full advantage of the doctrine of causation (which of course underlies all claims for damage) pursuant to which the plaintiff bears the burden to prove to the court that the loss damage as claimed was caused by the defendant and the amounts incurred to remedy the damage were reasonable — all of which makes for a time-consuming trial given the engineering fees, professional fees and contractors’ fees.

Nuisance and Trespass to Property

Ron recently represented a client on a matter involving nuisance and trespass to property.  There is a two part test to establishing private nuisance.  Nuisance is the substantial and unreasonable interference with the property by the defendant.  The plaintiff must first prove that the interference is substantial; then the plaintiff must prove that the interference is unreasonable in light of all the relevant circumstances.  The court balances the gravity of the harm against the utility of the defendant’s conduct.  The judge may consider the severity of the interference, the character of the neighbourhood, the sensitivity of the plaintiff to the harm caused, as well as the frequency and duration of the interference.  This is not an area of law that lends itself to a black and white analysis.  These matters become even more complex when assessing damages flowing from the unlawful nuisance and trespass.  The onus is on the plaintiff to establish this damage.  If the claim is for loss of productivity in a business, expert evidence will be required.  As in many areas of business litigation, the cost of proving damages at a trial may exceed the amount to be won.