Simon's Megalomaniacal Legal Resources

Real Property Limitations Act

The Real Property Limitations Act (RPLA) is a separate, antiquated limitations statute that deals with real estate litigation. Unlike most Ontario law the RPLA draws primarily on old English case law. There are relatively few modern Ontario cases.

. Beniuk v. Leamington (Municipality)

In Beniuk v. Leamington (Municipality) (Ont CA, 2020) the Court of Appeal upheld a motion judge's ruling that the RPLA did not apply to the case:

[42] Subsection 2(1)(a) of the Limitations Act provides that the Limitations Act does not apply to proceedings to which the RPLA applies. Section 4 of the RPLA provides for a ten-year limitation period for an action to recover land:

No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.

[43] When the elements that do not apply to this case are removed, s. 4 provides that “no person shall bring an action to recover any land, but within ten years after the time at which the right to bring any such action first accrued to the person bringing it.” The issue here is whether the appellants’ claim is an “action to recover land” within the meaning of the RPLA.

[44] The appellants point to the definition of “land” in s. 1 of the RPLA:

“land” includes messuages and all other hereditaments, whether corporeal or incorporeal, chattels and other personal property transmissible to heirs, money to be laid out in the purchase of land, and any share of the same hereditaments and properties or any of them, any estate of inheritance, or estate for any life or lives, or other estate transmissible to heirs, any possibility, right or title of entry or action, and any other interest capable of being inherited, whether the same estates, possibilities, rights, titles and interest or any of them, are in possession, reversion, remainder or contingency; [Emphasis added.]

[45] They rely on the term “messuages”, which refers to a dwelling house, its outbuildings, the area immediately surrounding the dwelling, and the adjacent land appropriate to its use: McConnell v. Huxtable, 2014 ONCA 86, 118 O.R. (3d) 561, at para. 14. The appellants also parse out and rely on the phrase “any…right…of…action”. Putting these pieces together, the appellants submit that an “action to recover land” includes an action to recover rights that run with the land, and that a cause of action for nuisance is tied to and arises out of the right to use and enjoy land without substantial interference. Accordingly, the appellants submit that a cause of action for nuisance is an incorporeal or intangible right that runs with the property and is captured by the definition of “land” in the RPLA. They point to a passage in Equitable Trust Co. v. 2062277 Ontario Inc., 2012 ONCA 235, 109 O.R. (3d) 561, where Perell J. (sitting on this court ad hoc) stated that the RPLA is intended to cover actions “affecting” land: Equitable Trust, at para. 28.

[46] I do not accept the appellants’ submission. There is no support in the jurisprudence that an action in nuisance or negligence for damages relating to real property is “an action to recover land” for the purposes of the RPLA. That land or real property is involved in an action does not mean that the RPLA applies: Harvey v. Talon International Inc., 2017 ONCA 267, 137 O.R. (3d) 184, at paras. 51-52. Typically, actions to recover land seek to assert property rights. And Perell J.’s remark from Equitable Trust that the RPLA covers actions “affecting” land has been commented on specifically by this court, and later by Perell J. himself, as a statement that should be interpreted narrowly and not out of the context of that case.

[47] In Equitable Trust, the plaintiff provided a mortgage loan to a corporate borrower in February 2005. The defendants personally guaranteed the loan. After default, the plaintiff issued a notice of sale under mortgage (in December 2007), and after the property was sold, sued the guarantors and others for the deficiency. The defendants moved for summary dismissal of the action, arguing that it was statute-barred under the Limitations Act. The plaintiff relied on s. 43(1) of the RPLA, which, among other things, provides for a ten-year limitation period for an action upon a covenant contained in an indenture of mortgage. The defendants argued that s. 43(1) did not apply because a covenant can only be given by a party to the mortgage. They asserted that a two-year limitation period applies to claims on guarantees. Perell J., writing for this court, disagreed and held that s. 43(1) of the RPLA applied. He explained, at paras. 28 and 30, that the RPLA applied because:

…[a] guarantee given in conjunction with a mortgage transaction affects real property law rights. Guarantors, if they have made payments toward the mortgage debt, need to be served in mortgage enforcement proceedings because they have an equity of redemption and an interest in the mortgaged property…

…

It is true that it may not always be easy to determine whether a particular guarantee, like the guarantee in [Bank of Nova Scotia v. Williamson, 2009 ONCA 754 97 O.R. (3d) 561] is subject to the Limitations Act, 2002 or, like the guarantee in the case at bar, is subject to the Real Property Limitations Act. However, it does not follow that that all guarantees should be treated the same way. It has been the case historically that guarantees associated with land transactions have different limitation periods from guarantees associated with contract claims. Moreover, as already noted, it is my view that the Legislature intended that all limitation periods affecting land be governed by the Real Property Limitations Act. [Emphasis added.]

[48] Perell J.’s comment that the RPLA applies to all limitation periods “affecting” land was thus only a response to the defendants’ argument that the Limitations Act applies to all claims relating to guarantees. This explains and places in context his observation that “it would cause much more confusion and uncertainty in the law, if the limitation period for enforcing the mortgage debt was different from the limitation period for enforcing guarantees of that debt”: Equitable Trust, at para. 31. Moreover, Perell J. was clearly not interpreting the phrase “action to recover land” in s. 4 of the RPLA, but rather “covenant contained in an indenture of mortgage” in s. 43(1). The appellants’ reliance on Equitable Trust is therefore misplaced.

[49] Subsequent case law interprets Perell J.’s comment from Equitable Trust narrowly. In Zabanah v. Capital Direct Lending Corp., 2014 ONSC 2219, 33 C.C.L.I. (5th) 14, aff’d 2014 ONCA 872, 123 O.R. (3d) 350, leave to appeal refused: 2015 CarswellOnt 7052 (S.C.C.), the defendant was a mortgage broker who had sold the plaintiff a mortgage that had been fraudulently obtained. The defendant asserted a limitation period defence to the plaintiff’s action for negligence, breach of contract, and breach of fiduciary duty. On the defendant’s summary judgment motion, the action was dismissed as statute-barred, with the court rejecting the plaintiff’s claim that the ten-year limitation period under the RPLA applied. The court concluded that the plaintiff’s claim for damages against the mortgage broker was not “upon a covenant contained in an indenture of mortgage” and was not a claim affecting land.[50] On appeal, this court highlighted, at para. 18, that a negligence claim involving real property is different from a claim to an interest in land:

We agree with the motion judge’s qualification regarding s. 43 of the RPLA, that “[t]o the extent that language could be read as encompassing every action in which a mortgage or piece of real estate is in any way involved, I do not believe that it accurately describes the present state of the law.” The motion judge’s statement at the end of para. 46 is unassailable, and makes all the difference: “Nothing that this court decides will affect any party’s relationship to the second mortgage or the property.” The appellant’s action, as against [the broker], is simply a negligence and contract claim, and is not a claim to an interest in land, as in [Equitable Trust]. [Emphasis added.]

[51] See also Metropolitan Toronto Condominium Corp. No. 1067 v. L. Chung Development Co., 2012 ONCA 845, at para. 7, where this court again emphasized that actions for damages are not encompassed by the RPLA; Toronto Standard Condominium Corp. No. 1487 v. Market Lofts Inc., 2015 ONSC 1067, 53 R.P.R. (5th) 67, at paras. 53-54, where Perell J. clarified, after citing his previous decision in Equitable Trust, that the incidental involvement of land or real property in an action does not mean that the RPLA applies; Conde v. Ripley, 2015 ONSC 3342, 57 R.P.R. (5th) 146, at paras. 41-44, and Stravino v. Buttinelli, 2015 ONSC 1768, 53 R.P.R. (5th) 275, at paras. 63-66, both of which considered whether an action under s. 2 of the Fraudulent Conveyances Act, R.S.O. 1990, c. F-29 counted as an “action to recover land” under s. 4 of the RPLA and reiterated that actions to recover land generally seek a property interest and involve property rights; Harvey, at para. 51, where this court considered the meaning of “money to be laid out in the purchase of land” and, in the course of doing so, emphasized the difference between claims for damages and claims covered by the RPLA; and finally, McConnell, where this court held that a constructive trust claim, based in unjust enrichment, was an action to recover land under s. 4 of the RPLA because it was a claim for a share in property.

[52] Accordingly, I conclude that s. 4 of the RPLA does not apply to the appellants’ civil action. The weight of authority is that an action in nuisance or negligence for damages, whether relating to real property or not, does not fit within the scope of s. 4. The motion judge did not err in concluding that the basic two-year limitation period under the Limitations Act applied.

. Gold v Chronas

In Gold v Chronas (Ont CA, 2015) the Court of Appeal engages in an extended, historical and very useful discussion of limitation provisions set out in the Registry Act, in the context of a claim for right-of-way across another owner's property.

It doesn't benefit from extracting selected quotes.

. Harvey v. Talon International Inc.

In Harvey v. Talon International Inc. (Ont CA, 2017) the Court of Appeal considered recovery of real estate deposits involving the Real Property Limitations Act (RPLA):

Issue 2: What is the Applicable Limitation Period?

The Parties’ Submissions

[38] Talon submits that Ms. Yim’s notice of application was issued nearly three years after her cause of action arose. Regardless of whether her communication to Talon was one of termination or one of rescission, Ms. Yim’s application was brought out of time. Talon submits that the Act is not one of the statutes listed in Schedule A to the Limitations Act, 2002, as retaining specific statutory limitation periods. Therefore, s. 4 of the Limitations Act, 2002 applies and Ms. Yim’s claim is statute-barred for being brought more than two years after the discovery of the claim.

[39] Ms. Yim argues that the application judge correctly held that her claim for rescission was one that fell within the provisions of the RPLA. The action was to recover her deposit – a claim for “money laid out in the purchase of land”, which is part of the definition of “land” within the RPLA. The claim therefore fell within the RPLA. Given the ten-year limitation period set out in s. 4 of the RPLA, the action was not statute-barred.

Applicable Legal Principles

[40] This is a matter of statutory interpretation. Statutory interpretation is governed by the approach described in Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87, and adopted by the Supreme Court of Canada in Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

Principles Applied

[41] Section 4 of the RPLA provides as follows:

No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.

[42] When those aspects of s. 4 of the RPLA that do not apply to this case are removed, it provides that:

No person shall bring an action to recover any land, but within ten years after the time at which the right to bring any such action first accrued to the person bringing it

[43] Thus, there are 3 requirements in s. 4: an “action”, to “recover” and what must be recovered is “land”.

[44] An action is defined in s. 1 of the RPLA to include “any civil proceeding”.

[45] “Recover” is defined in legal dictionaries as “gaining through a judgment or order”. This was the definition adopted for the use of “recover” in s. 4 in McConnell v. Huxtable, 2014 ONCA 86, 118 O.R. (3d) 561, at paras. 16-20, specifically, at para. 17, where this Court noted that the English Court of Appeal has held that the expression “to recover any land” in comparable legislation “is not limited to obtaining possession of the land, nor does it mean to regain something that the plaintiff had and lost. Rather, “recover” means to ‘obtain any land by judgment of the Court’”

[46] I agree with the application judge’s approach on this point. This is clearly an action to recover.

[47] The remaining question is whether what Ms. Yim seeks to recover – her deposit – is “land”. The definition of land in s. 1 of the RPLA is as follows:

“land” includes messuages and all other hereditaments, whether corporeal or incorporeal, chattels and other personal property transmissible to heirs, money to be laid out in the purchase of land, and any share of the same hereditaments and properties or any of them, any estate of inheritance, or estate for any life or lives, or other estate transmissible to heirs, any possibility, right or title of entry or action, and any other interest capable of being inherited, whether the same estates, possibilities, rights, titles and interest or any of them, are in possession, reversion, remainder or contingency;

[48] In my view, the application judge was also correct in concluding that an application for the return of the deposit was an action for the recovery of “land”; specifically the recovery of “money to be laid out in the purchase of land”.

[49] In coming to this conclusion, the application judge relied primarily upon McConnell. In that case, a former common-law spouse sought a constructive trust giving her joint ownership of the home she had once shared with her former spouse, with an alternative claim for damages based on unjust enrichment. Rosenberg J.A., at para. 38, explained his conclusion that the RPLA applied: “the respondent is making a claim for recovery of land in the sense that she seeks to obtain land by judgment of the court. That the claim might provide her with the alternative remedy of a monetary award does not take away from the fact that her claim is for a share of the property”.

[50] Here, the application judge reasoned as follows at para. 12 [Yim]:

Ms. Yim paid her deposit to secure an interest in land. She seeks to recover the money which represents that interest. I find that such an interest is more easily identified than a constructive trust interest (as in McConnell, supra), where the court must intervene and declare such an interest to exist based on certain legally accepted principles… The fact that the remedy is a monetary award should not preclude the court from finding that it is a recovery of land, as in McConnell, supra.

[51] In support of this conclusion, I note that several cases have clarified the relationship between claims for damages and claims covered by the RPLA. The Supreme Court in Canson Enterprises Ltd. v. Boughton & Co., 1991 CanLII 52 (SCC), [1991] 3 S.C.R. 534, defined damages as “a monetary payment for the invasion of a right at common law”. In Toronto Standard Condominium Corp. No. 1487 v. Market Lofts Inc., 2015 ONSC 1067, the plaintiff sought damages based off the defendant’s failure to meet its obligations under a Shared Services Agreement. Perell J., beginning at para. 49, noted that the fact that real property is incidentally involved in an action does not necessarily mean that the action is governed by the RPLA. Among the cases he cited was Metropolitan Toronto Condominium Corp. No. 1067 v. L. Chung Development Co., 2012 ONCA 845. In that case, this Court made the following comment, at para. 7:

Finally, we do not think that the [RPLA] applies to the case as framed by the appellant. In its Statement of Claim, the appellant frames its action as one for damages flowing from the respondents' negligence, breach of contract, conflict of interest, and breach of duty of care, fiduciary duty and statutory duty. None of these relates to the categories of actions encompassed by the [RPLA].

[52] Thus, had Ms. Yim’s claim been one primarily seeking damages, for example breach of contract, her application would be statute-barred. This would be true even if the claim for damages incidentally related to real property, specifically the condominium that was the subject of her APS. Claims for damages do not fit within the definition of “land” in the RPLA.

[53] However, Ms. Yim is not seeking damages. She advances a specific claim under a provision in the Act, a provision that only allows for the return of her deposit and interest, not damages. The Tax Court defined a deposit in Casa Blanca Homes Ltd. v. R., 2013 TCC 338, as “a pool of money retained until such time as it is applied in partial payment or forfeited”. As noted by the Alberta Court of Appeal in Lozcal Holdings Ltd. v. Brassos Development Ltd. (1980), 1980 ABCA 72 (CanLII), 111 D.L.R. (3d) 598, “a genuine deposit ordinarily has nothing to do with damages, except that credit must be given for the amount of the deposit in calculating damages”.

[54] This leads me to the consideration of “money to be laid out in the purchase of land”, a phrase on which there is scant jurisprudence. However, in my view an action for the return of a deposit fits comfortably within its plain meaning. Frankly, I struggle to understand what would fit within this phrase if not an action such as this.

[55] On the basis of the foregoing analysis, I conclude that Ms. Yim’s application is not statute-barred. This is also true of the amendment of her initial application to specifically claim statutory rescission. As her application is covered by s. 4 of the RPLA, the applicable limitation period is ten years. The application is an action, which is defined as any civil action. She seeks “recovery”, which has been defined as “gaining through a judgment or order”. And the recovery she seeks is of “land”; namely, her deposit, which is money laid out in the purchase of land.