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Property - Vendors and Purchasers Act (VPA). Ungar v. MOD Developments
In Ungar v. MOD Developments (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal from orders resulting from merged counter-applications, here arising from a commercial-residential APS purchase and renovation that had to be modified to comply with a municipal 's.111 Agreement' [under City of Toronto Act, 2006, s.111].
Here the court considered s.4(f) of the Vendors and Purchasers Act, which the appellant advanced incorrectly as entitling "the applicant to collect rent on the rental units until they are transferred to the respondents":[51] The appellant argues that the application judge erred in finding that the respondents are entitled to populate the rental units and collect rent before the rental units are legally transferred. I disagree.
[52] Again, this was an issue that is not explicitly addressed in the APSs. It was appropriate for the application judge to seek to discern the parties’ intentions based on the surrounding circumstances. It is evident that, at the time the parties entered into the APSs, they anticipated that the respondents would be fully in control of repopulating the rental units and collecting rents. I agree with the application judge’s reasoning and conclusion that the Section 111 Agreement, which only has the effect of changing the timing of the repopulation, should not affect the clear intention of the parties.
[53] I also agree with the application judge’s conclusion that the respondents are entitled to receipt of the rental units from the time they are rented out, even before title is legally transferred to the respondents.
[54] On appeal, the appellant renews its reliance on s. 4(f) of the Vendors and Purchasers Act, which provides that:4. Every contract for the sale and purchase of land shall, unless otherwise stipulated, be deemed to provide that,
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(f) the purchaser is entitled to possession or the receipt of rents and profits upon the closing of the transaction. [55] I agree with the application judge that the appellant’s reliance on this provision does not take into account the overall context of the transaction between the parties. Section 4(f) of the Vendors and Purchasers Act is not absolute. It is necessarily subject to the agreement reached between the parties.
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