In the fall of 2011, a couple of farmers ("D&S") asked an area landowner ("H") whether she would lease her farmland to them. After a couple of meetings, H agreed to lease the land for three years at a set rental amount. However, a few months later in April, 2012, on the day set by D&S to begin field operations on the rented land and a couple of days after D&S had provided H with a draft written lease, H blocked her driveway to prevent D&S from entering the land. The OPP was called; the parties discussed the situation and made several changes to the draft lease at H's request, and the lease was signed.
In December, 2012, according to D&S, H then unlawfully terminated the lease. D&S sued her for loss of profits that they would have earned had they been able to farm H's land during the two years remaining on the lease. In her defence, H pleaded that she had signed the lease (on the day in April, 2012 when the OPP attended at her property) under duress. In addition, H pleaded that D&S had breached the terms of the lease, which entitled her to terminate it. At trial, Justice Bale rejected both defences and awarded D&S damages of just over $64,000 for lost profits.
Justice Bale did not accept the plea of duress because the presence of the OPP at the property (although the officers were called by D&S) was for H's benefit as well; H had already agreed to the material terms of the lease even before the written agreement was made in April, 2012; the only changes made to the lease agreement that day were changes that were requested by H; H testified that she though she was only signing a one-year lease that day, which she could put up with, but that demonstrates that she was signing the lease voluntarily (and, in any event, the judge did not accept H's claim that she didn't know the lease was for three years); and, after signing the lease, H allowed D&S to go into possession of the farmland and carry out their farming operations.
H also argued that she was entitled to terminate the lease because D&S had failed to "Supply Application Rates of Fertilizer & chemicals by 3rd party." While D provided H with a handwritten note advising her of the fertilizer and chemicals applied, H claimed that she was entitled to some sort of formal document from the third party chemical suppliers. D&S said they couldn't provide that document since they received only a single invoice from their supplier for the several properties they farmed.
Justice Bale ruled that it didn't matter whether the information provided by D&S satisfied the contract or not, at least not in the determination of whether H had a right to terminate the contract. H would only be able to treat the contract as terminated if there was a fundamental breach of the contract. Failure to provide the fertilizer and chemical information in the form demanded by H would not constitute a fundamental breach of the contract (as would a failure to pay rent).
Read the decision at: Drew v Huskinson.
Storm
Showing posts with label lease. Show all posts
Showing posts with label lease. Show all posts
Wednesday, May 10, 2017
Monday, July 27, 2015
Rogers Communications loses cell tower lease over move to sub-lease space to a third party
A Nova Scotia forestry company leased land to Rogers Communications for a cell tower. The original 1988 lease was renewed several times and provided that renewals would be "upon the same terms and conditions" as the original lease. In 2012, Rogers asked for the lessor's consent to a "co-location" agreement where Rogers would sub-lease space on the tower to a third party.
Although no agreement was reached and no consent was given, Rogers went ahead with the co-location arrangement. The lessor sought a declaration from the Court that the lease was terminated as a result of Rogers' failure to obtain consent. The lessor also sought damages.
In court, there was a dispute between the parties over whether the lease had been renewed in 2012 for a further five-year term. Rogers argued that it had given notice as required by the lease to renew under the same terms and conditions and, therefore, it was entitled to the renewal of the lease (which would be more or less automatic as long as Rogers exercised its option to renew). The lessor, on the other hand, contended that Rogers' proposed renewal amounted to a counter-offer (which it rejected). The proposed renewal lease included the co-location arrangement and additional rent as compensation for the addition of a sub-tenant to the tower. Rogers took the position that it was its right to include the additional provisions in the renewal.
The Court determined that the lease had not been renewed and ordered Rogers to vacate the lands within 8 months of an order to be issued setting out the terms of the decision. Also, the lessor was awarded any rent not paid during the period after the lease had terminated.
The Court then proceeded to consider the lessor's request for damages for breach of contract, breach of duty of good faith and trespass. The Court ruled that Rogers did not have the right under the lease contract to allow a third party to sub-let or co-locate - the lease provided rights to Rogers to erect, maintain and operate its tower, but it did not allow it to host a third party's services. Also, the Court noted that Rogers had sought consent from the lessor to allow the co-location. The lessor was awarded the sum of $3,000 in rent for each year in which the third party co-located on the tower.
Read the decision at: Atlantic Star Forestry Ltd. v. Rogers Communications Inc.
Although no agreement was reached and no consent was given, Rogers went ahead with the co-location arrangement. The lessor sought a declaration from the Court that the lease was terminated as a result of Rogers' failure to obtain consent. The lessor also sought damages.
In court, there was a dispute between the parties over whether the lease had been renewed in 2012 for a further five-year term. Rogers argued that it had given notice as required by the lease to renew under the same terms and conditions and, therefore, it was entitled to the renewal of the lease (which would be more or less automatic as long as Rogers exercised its option to renew). The lessor, on the other hand, contended that Rogers' proposed renewal amounted to a counter-offer (which it rejected). The proposed renewal lease included the co-location arrangement and additional rent as compensation for the addition of a sub-tenant to the tower. Rogers took the position that it was its right to include the additional provisions in the renewal.
The Court determined that the lease had not been renewed and ordered Rogers to vacate the lands within 8 months of an order to be issued setting out the terms of the decision. Also, the lessor was awarded any rent not paid during the period after the lease had terminated.
The Court then proceeded to consider the lessor's request for damages for breach of contract, breach of duty of good faith and trespass. The Court ruled that Rogers did not have the right under the lease contract to allow a third party to sub-let or co-locate - the lease provided rights to Rogers to erect, maintain and operate its tower, but it did not allow it to host a third party's services. Also, the Court noted that Rogers had sought consent from the lessor to allow the co-location. The lessor was awarded the sum of $3,000 in rent for each year in which the third party co-located on the tower.
Read the decision at: Atlantic Star Forestry Ltd. v. Rogers Communications Inc.
Tuesday, July 7, 2015
No harm, no foul in gravel extraction lease case - Sask Court declines to terminate lease
In a Saskatchewan case decided last fall, the Court of Queen's Bench ruled that the tenant under a gravel extraction lease was not subject to termination of the lease for having missed a deadline to provide proof of insurance coverage. A common term in commercial leases is that the tenant or lessee must maintain liability insurance in a specified amount and must provide proof of insurance on a periodic basis, often annually.
The contract in question in this case demanded that the lessee have insurance in place and that it provide proof of the insurance on or before December 30 of each year of the contract, failing which the contract would terminate. In 2012, although the lessee had put the necessary insurance in place prior to December 30, 2012, an oversight resulted in a failure to provide proof of the insurance to the lessors until January 2, 2013. On December 30, 2012, the lessors instructed their solicitors to send a letter purporting to terminate the contract, and they refused to accept the proof of insurance when delivered to their home on January 2.
The lessors argued to the Court that there was a clear breach of the contract - proof of insurance was due by a certain deadline and that deadline was missed. The lessee argued that a breach of the contract required two joint failures - both a failure to have the insurance in place and a failure to deliver the proof of insurance. In its reasoning, the Court assumed (for the purposes of argument) that there was a breach and then turned to consider whether it should grant relief from penalty and forfeiture under the contract pursuant to its equitable power under Section 13 of The Queen's Bench Act: "The court may grant relief against penalties and forfeitures and, in granting that relief, may impose any terms with respect to costs, expenses, damages, compensation and any other issues that the court considers appropriate."
The Court found in favour of the lessee on all three prongs of the test for granting relief: 1) the conduct of the lessee was a mere oversight - there was no suggestion of bad faith, but only "clerical ineptitude"; 2) the breach caused no harm - the insurance was in place; and, 3) the lessee would lose its significant investment in the property while the lessors would suffer no damage (other than to have to continue with their contract with the lessee). On those bases, the Court granted summary judgment to the lessee and issued a permanent injunction against the lessors preventing them from terminating the gravel extraction lease by reason of the 2012 late delivery of proof of insurance.
Read the decision at: Elchuk v Gulansky.
The contract in question in this case demanded that the lessee have insurance in place and that it provide proof of the insurance on or before December 30 of each year of the contract, failing which the contract would terminate. In 2012, although the lessee had put the necessary insurance in place prior to December 30, 2012, an oversight resulted in a failure to provide proof of the insurance to the lessors until January 2, 2013. On December 30, 2012, the lessors instructed their solicitors to send a letter purporting to terminate the contract, and they refused to accept the proof of insurance when delivered to their home on January 2.
The lessors argued to the Court that there was a clear breach of the contract - proof of insurance was due by a certain deadline and that deadline was missed. The lessee argued that a breach of the contract required two joint failures - both a failure to have the insurance in place and a failure to deliver the proof of insurance. In its reasoning, the Court assumed (for the purposes of argument) that there was a breach and then turned to consider whether it should grant relief from penalty and forfeiture under the contract pursuant to its equitable power under Section 13 of The Queen's Bench Act: "The court may grant relief against penalties and forfeitures and, in granting that relief, may impose any terms with respect to costs, expenses, damages, compensation and any other issues that the court considers appropriate."
The Court found in favour of the lessee on all three prongs of the test for granting relief: 1) the conduct of the lessee was a mere oversight - there was no suggestion of bad faith, but only "clerical ineptitude"; 2) the breach caused no harm - the insurance was in place; and, 3) the lessee would lose its significant investment in the property while the lessors would suffer no damage (other than to have to continue with their contract with the lessee). On those bases, the Court granted summary judgment to the lessee and issued a permanent injunction against the lessors preventing them from terminating the gravel extraction lease by reason of the 2012 late delivery of proof of insurance.
Read the decision at: Elchuk v Gulansky.
Thursday, August 7, 2014
Small Claims Court dismisses farmer's claim for triticale crop lost after lease expires
The Plaintiff in this case planted soybeans in 2010 on the 30 acres he rented from the Defendant. After harvesting the soybeans that fall, the Plaintiff planted and fertilized a crop of triticale - a hybrid grain planted in the fall for harvest early the next summer. However, by 2011 the Defendant had decided to lease his land to a new tenant who was willing to pay higher rent to grow Napa cabbage. The Defendant authorized the new tenant to plough under the triticale crop.
Having lost the lease and his triticale crop, the Plaintiff sued the Defendant for $25,000 in damages, representing the loss of grain, straw, lost labour, seed and fertilizer. The Plaintiff based his claim on two arguments: 1) he had a lease for the property for 2011; and, 2) in the alternative, the doctrine of emblements entitled him to harvest his triticale crop after the 2010 lease expired. The Plaintiff also claimed that the Defendant was unjustly enriched by the ploughed under triticale.
The trial judge found that there was not a single instance in 2010 or 2011 in which the Defendant agreed to lease his land to the Plaintiff in 2011. There was, therefore, no lease for 2011. The judge then addressed the doctrine of emblements - "a right given by law to a person who has an estate of uncertain duration that unexpectedly comes to an end through no act or fault, to take growing crops which were sowed or planted". In the case of a farm lease, a tenant may have a right to harvest or to care for crops where they were planted prior the unexpected termination of the lease.
The right to emblements depends on "what is known or expected by the tenant at the time he sows his crops". In this case, the trial judge added that the expectation of the tenant must also be reasonable. He found that the Plaintiff, at the time he sowed the triticale in the fall of 2010, had only an expired or soon-to-be expired lease for 2010 and a hope that he would be able to outbid the competition for the land in 2011. The trial judge determined that this was not a reasonable expectation and dismissed the action.
Read the decision at: Vieraitis v Fitzgerald.
Having lost the lease and his triticale crop, the Plaintiff sued the Defendant for $25,000 in damages, representing the loss of grain, straw, lost labour, seed and fertilizer. The Plaintiff based his claim on two arguments: 1) he had a lease for the property for 2011; and, 2) in the alternative, the doctrine of emblements entitled him to harvest his triticale crop after the 2010 lease expired. The Plaintiff also claimed that the Defendant was unjustly enriched by the ploughed under triticale.
The trial judge found that there was not a single instance in 2010 or 2011 in which the Defendant agreed to lease his land to the Plaintiff in 2011. There was, therefore, no lease for 2011. The judge then addressed the doctrine of emblements - "a right given by law to a person who has an estate of uncertain duration that unexpectedly comes to an end through no act or fault, to take growing crops which were sowed or planted". In the case of a farm lease, a tenant may have a right to harvest or to care for crops where they were planted prior the unexpected termination of the lease.
The right to emblements depends on "what is known or expected by the tenant at the time he sows his crops". In this case, the trial judge added that the expectation of the tenant must also be reasonable. He found that the Plaintiff, at the time he sowed the triticale in the fall of 2010, had only an expired or soon-to-be expired lease for 2010 and a hope that he would be able to outbid the competition for the land in 2011. The trial judge determined that this was not a reasonable expectation and dismissed the action.
Read the decision at: Vieraitis v Fitzgerald.
Wednesday, December 11, 2013
Divisional Court comments on OEB approval of forms of landowner agreements
As part of its decisions to approve energy transmission projects, the Ontario Energy Board (OEB) approves the form of agreement to be offered to landowners affected by the approval. Recently, the Ontario Divisional Court decided an appeal of a decision to approve the construction of electricity transmission lines for a wind energy project in which the appellant argued that independent legal advice (ILA) clauses in the approved landowner agreements were "confusing, misleading and unfair".
The OEB may only approve a project where the applicant has satisfied the Board that it has offered or will offer to each landowner affected by the approved route, an agreement in a form approved by the Board.
The party that appealed the OEB decision was Conserve Our Rural Environment (CORE) Inc. It argued that the ILA clause in some of the 6 forms of land agreement to be approved was false and misleading because it gave the impression that the party requiring ILA was the tenant (the project proponent) rather than the landlord (the landowner). ILA was to be obtained by the tenant even though it was the tenant who had prepared the agreements.
The Divisional Court determined that the appeal was not on a question of law or jurisdiction, which was the only basis on which the appeal could be made. The OEB's authority to approve the form of contract is discretionary, and an arguably unreasonable exercise of discretion is not an error of law or jurisdiction. Therefore, the Court dismissed the appeal.
In the event that it was wrong in this determination, the Divisional Court also went on to decide the appeal as if a question of law or jurisdiction had been raised. It found that the applicable standard is one of reasonableness, and it found that the decision of the OEB was reasonable. The Court stated, "It is important to understand that what the Board approved was a form of agreement which is the subject of subsequent negotiation between the parties. It represents terms from which the party propounding the project may not unilaterally resile."
Read the decision at: Conserve Our Rural Environment v. Dufferin Wind Power Inc.
The OEB may only approve a project where the applicant has satisfied the Board that it has offered or will offer to each landowner affected by the approved route, an agreement in a form approved by the Board.
The party that appealed the OEB decision was Conserve Our Rural Environment (CORE) Inc. It argued that the ILA clause in some of the 6 forms of land agreement to be approved was false and misleading because it gave the impression that the party requiring ILA was the tenant (the project proponent) rather than the landlord (the landowner). ILA was to be obtained by the tenant even though it was the tenant who had prepared the agreements.
The Divisional Court determined that the appeal was not on a question of law or jurisdiction, which was the only basis on which the appeal could be made. The OEB's authority to approve the form of contract is discretionary, and an arguably unreasonable exercise of discretion is not an error of law or jurisdiction. Therefore, the Court dismissed the appeal.
In the event that it was wrong in this determination, the Divisional Court also went on to decide the appeal as if a question of law or jurisdiction had been raised. It found that the applicable standard is one of reasonableness, and it found that the decision of the OEB was reasonable. The Court stated, "It is important to understand that what the Board approved was a form of agreement which is the subject of subsequent negotiation between the parties. It represents terms from which the party propounding the project may not unilaterally resile."
Read the decision at: Conserve Our Rural Environment v. Dufferin Wind Power Inc.
Thursday, September 5, 2013
Court declines to require farmer to forfeit tractor over driving convictions
The Crown brought an application seeking forfeiture of a leased New Holland Tractor and Loader after the lessee was convicted of two counts of driving while disqualified under the Criminal Code. One of the offences occurred when the lessee was observed by the OPP operating the tractor in question on a roadway. The lessee was stopped for suspicion of alcohol consumption and because the OPP officer was aware that the lessee's driver's licence was subject to a prohibition order. The lessee failed a breathylzer test, but before he could be arrested, he ran into a nearby bush. He was ultimately caught.
At Court, all parties conceded that the tractor was "offence related property" and could be subject to forfeiture to the Crown as part of the penalty against the offender. The father of the lessee participated in the hearing on the basis that he held an interest in the tractor, having been a partner of the lessee in a farming operation and a contributor to the down payment on the lease. The leasing company also participated, but did not take a position on the assurance that its interest in the tractor would be protected by the Crown in the event of a forfeiture.
On review of the evidence, the Court determined that the forfeiture of the tractor would be disproportionate in relationship to the "offence related property". The Court said: "The item in question is an essential component of the operation of this family farm and is relied upon by [the offender's father] and his family in addition to the offender to perform all essential farming operations. Since the seizure of this equipment, this farming operation ... has sustained a serious economic detriment. A forfeiture of essential farming equipment will detrimentally affect, not just the offender, but the viability of this farm. I cannot agree that a punitive impact of forfeiture on a legitimate enterprise such as farming was the intention of Parliament as being necessary in the public interest."
The Court also found that the farm tractor and its operation in the offence has no logical connection to the offence of driving while disqualified.
The Application for Forfeiture was dismissed.
Read the decision at: R. v. Pendleton.
Wednesday, January 11, 2012
Ontario Court rules it can decide gas storage lease case
Justice Bryant of the Ontario Superior Court of Justice has ruled in favour a landowner in a gas storage related case, finding that the Court is in a position to determine issues related to leases. Recently, Ontario courts have ruled on the exclusive jurisdiction of the Ontario Energy Board over gas storage in Ontario. However, that exclusive jurisdiction only arises where there has been an order designating a gas storage area pursuant to the Ontario Energy Board Act.
In this particular case, Justice Bryant found that the Court retained its inherent jurisdiction to rule on the leases because no designation order had yet been made by the Ontario Energy Board. This decision is another in a growing line of decisions related to this matter. Originally, Tribute Resources had taken over oil and gas and gas storage leases on the lands of McKinley Farms Limited in Huron County. However, a previous ruling of the court, upheld on appeal, found that the gas storage lease terminated. The Court of Appeal did rule that the oil and gas lease remained effective. McKinley then signed a new gas storage agreement and oil and gas lease with a numbered company related to McKinley.
In 2011, the numbered company applied to the Superior Court for declarations that its gas storage lease permits the storage of gas beneath the McKinley lands and that Tribute has no right under its gas and oil lease (which was not declared void by the Court of Appeal) to store gas. Tribute then filed an application asking the Court to rule that it had no jurisdiction to decide the application by the numbered company and that the relief sought by the numbered company was within the exclusive jurisdiction of the Ontario Energy Board. This application, as reported above, was dismissed.
Read the decision at: Tribute Resources v. 2195002 Ont. Inc.
Wednesday, June 29, 2011
Court finds tenant who didn't pay rent cannot claim termination payments under leases
The brothers wanted to sell the land and terminated the leases. However, the Court ruled that Chamberlin had repudiated the agreements by failing to pay rent. It was determined that Chamberlin could not rely on the termination clauses in the agreements. The Court also dismissed a claim made by Chamberlin for input costs he had allegedly invested in the land, finding that there was no evidence produced that would allow an assessment of these costs to be made. The Court did, however, acknowledge that costs had been incurred and on that basis declined to award court costs against Chamberlin.
Read the decision at: Chamberlin v Larson.
Friday, October 15, 2010
How much should it cost to rent land located underneath power lines?
In 1997, The Manitoba Hydro-Electric Board (“Manitoba Hydro”) leased land beneath Manitoba Hydro transmission lines to Chuck Arnason Golf and Sports Ltd. (“Arnason”). The rent was set at $6,000 per year, subject to a rent review every five years based on a formula in the lease. In 2006, The Manitoba Housing and Renewal Corporation (“the MHRC”) announced it would expropriate Arnason’s lease, which it ultimately did in May 2009. In early 2008, relying on an appraisal of the MHRC, Manitoba Hydro raised Arnason’s rent, for the third five‑year period, tenfold to approximately $60,000 per year. Arnason said this was wrong and sought a declaration from the Manitoba Court of Queen's Bench regarding the interpretation of the renewal formula in the lease.
The renewal formula was as follows:
Following an in-depth analysis of the lease contract, the Court concluded that future rent was to be determined on the basis of the following assumptions:
Read the decision at: Chuck Arnason Golf and Sports Ltd. v. The Manitoba Hydro-Electric Board et al.
The renewal formula was as follows:
3. Future rental rates shall be established by means of the following formula: The Lessor shall determine the current market value of the leased land (as vacant) using standard appraisal practices of the Appraisal Institute of Canada. … [emphasis added]Arnason argued that the formula should be interpreted to be subject to Manitoba Hydro's continuing use and interest in the land for electrical distribution and transmission lines and communication lines. Manitoba Hydro and the MHRC countered that "as vacant" meant there should be no consideration of the use of the land by Manitoba Hydro (which would devalue the land for the lessee and result in a lower level of rent).
Following an in-depth analysis of the lease contract, the Court concluded that future rent was to be determined on the basis of the following assumptions:
(a) future rent is to be based on the current market value of the leased land;In other words, the Court agreed with Arnason that the "as vacant" value of the land must include consideration of Manitoba Hydro's ongoing use of the land. "As vacant" meant vacant of any improvements over and above the Manitoba Hydro improvements.
(b) the current market value shall take into account, or be subject to, the leased land being a “secondary use of the land”, always subject to the primary use of the leased land being Manitoba Hydro’s continuing operations and use as more fully described in the lease’s preamble;
(c) the current market value shall consider the leased land zoned as agricultural, or such other zoning that may be applicable considering Manitoba Hydro’s continuing operations and use as more fully described in the lease’s preamble; and
(d) other than Manitoba Hydro’s continuing operations and use as more fully described in the lease’s preamble, the leased land is vacant of any improvements.
Read the decision at: Chuck Arnason Golf and Sports Ltd. v. The Manitoba Hydro-Electric Board et al.
Monday, September 20, 2010
Court dismisses tenant farmer's $1.2 million claim over 108 ac. property
Timothy Ehler began renting a 108-acre farm property in Waterdown in 1992 from Salem Christian Mental Health Association Inc. At the end of August of this year, the Ontario Superior Court of Justice dismissed Elher's claim for:
In 2004, the Defendant advised Elher that it would need the property within a year and provided notice of termination as of December 31, 2005. Up to the time of trial, Elher had possession of the subject farm for about 18 years and, since about 1996 or 1997, the house had been a most comfortable, perhaps even elegant, residence for which he paid minimal rental of $700 per month. Elher volunteered the opinion that the parking rights for his trucking business alone on the Salem property had a market value of about $1,000 per month and the rental value of the property since 1996 is at least $3,000 per month, although admittedly the plaintiff himself created much of the value in the house. The highest value placed by the Elher's experts on the costs of improving the property incurred by Elher, after having received reimbursements of $400 a month pursuant to the work agreements, was $218,651.80.
The Court found that there was no agreement that Elher could remain in possession until the age of 65:
Read the decision at: Ehler v. Salem Christian Mental Health.
(a) a declaratory order that he “has the right to remain on the property (a 108 acre farm located at 562 Dundas Street East in Waterdown (the “Salem property”)) until he turns 65 years of age.”
(b) a complementary injunction “prohibiting the defendant from taking any steps to regain possession of the property until the plaintiff turns 65 years of age”; and
(c) in the alternative, damages in the amount of $1,200,000.00.Elher's position was that in 1992 the defendant’s representative, Reverend Dreise, assured Elher that he would be allowed to remain in possession of the subject property until he turned 65 years of age. Over the next seven years, the parties entered into two other leases, each for a period of two years and each with two two year renewal clauses. The last lease was signed in January 1999. The parties also entered into two additional work agreements, the last of which was also signed in January 1999. Notably, the last two leases included a provision whereby a sale of the property would trigger early termination of the lease.
In 2004, the Defendant advised Elher that it would need the property within a year and provided notice of termination as of December 31, 2005. Up to the time of trial, Elher had possession of the subject farm for about 18 years and, since about 1996 or 1997, the house had been a most comfortable, perhaps even elegant, residence for which he paid minimal rental of $700 per month. Elher volunteered the opinion that the parking rights for his trucking business alone on the Salem property had a market value of about $1,000 per month and the rental value of the property since 1996 is at least $3,000 per month, although admittedly the plaintiff himself created much of the value in the house. The highest value placed by the Elher's experts on the costs of improving the property incurred by Elher, after having received reimbursements of $400 a month pursuant to the work agreements, was $218,651.80.
The Court found that there was no agreement that Elher could remain in possession until the age of 65:
There is no credible evidence of any oral agreement allowing the plaintiff to remain in possession of the property until he turned 65 years of age. Apart from the lack of evidence, such an agreement would have been, from the point of view of the defendant, the height of irrationality. The defendant intended ultimately to develop the land, although there was some uncertainty about the date for beginning the development. There was no reason for Reverend Dreise to misrepresent that the zoning could not be changed until 2023, and I find as a fact that he did not do so.The Court also found that the Defendant had not been unjustly enriched by Elher's work on the property (which was compensated through various work agreements).
Read the decision at: Ehler v. Salem Christian Mental Health.
Wednesday, September 8, 2010
Saskatchewan tenant farmer claims for improvements to leased property
Arliegh Enge leased his neighbours' property near Margo, Saskatchewan from 2005 to 2008. In early November, 2008, the landowners named Hendrickson tendered the land for sale. There was said to be a right of first refusal for Enge, but his offer of $167,225.00 was not accepted. The land was eventually purchased for $201,000.00. Just prior to making his offer, Enge filed an interest registration against the property, claiming an interest as lessee to the land pursuant to a verbal lease agreement. The interest was in respect of unpaid expenses.
An action in the Provincial Court of Saskatchewan arose as a result of work done by Mr. Enge in the fall of 2007 and the fall of 2008. Mr. Enge claimed that the defendants, through Floyd Hendrickson, agreed to compensate him for the cost of this work, which he said improved the value of the land. The defendants denied any such agreement, other than for post-harvest spraying in 2008. The work performed on the land, in the fall of 2007, was: (1) ditching and (2) the burying of stones and the cleaning of a fence line. The work done in the fall of 2008 was: (1) post-harvest spraying; (2) heavy harrowing; (3) cultivating and (4) ditching. The defendants admitted that Floyd Hendrickson agreed to pay the plaintiff for the post-harvest spraying done in 2008, and as a result agreed to owing the plaintiff $6,285.00 for that spraying. That was, however, where any agreement between the parties ended.
When asked whether he had any discussions with Floyd Hendrickson about this work, Mr. Enge said that he spoke to Mr. Hendrickson off and on, and that Mr. Hendrickson didn’t object to the work being done, but Mr. Hendrickson didn’t want to pay for the work as he - only one of three owners of the land - was caught between a rock and a hard place. Mr. Enge said that Mr. Hendrickson told him to put a caveat against the land, and when it was sold, he would be looked after, in effect suggesting he would be compensated for the work at that point.
Floyd Hendrickson denied that there was any discussion of the plaintiff having a right of first refusal when the oral rental agreement was made in 2005. He said, in the fall of 2007, he noticed that Mr. Enge was taking out some bush on the fence line on the edge of this land. He said he was upset and asked Mr. Enge what he was doing, and made it clear that he had not told Mr. Enge to do this. Mr. Hendrickson claimed he said to Mr. Enge he should “leave it alone”.
In the Court's view, the evidence of Mr. Hendrickson was as believable as that of Mr. Enge. That meant it was as likely as not, as Mr. Hendrickson said, that: (1) he told Mr. Enge, in the fall of 2007 that he had not approved the cleaning of the fence line and burying of stones that Mr. Enge was engaged in on the land, (2) he told Mr. Enge in October of 2008 that the ditching Mr. Enge was about to do was “up to him” and there was no indication from Mr. Enge that he wanted compensation for any of the work, other than the spraying and (3) he at no other time agreed to compensate Mr. Enge for the ditching, heavy harrowing, cultivating or burying of stones and cleaning of the fence line.
In the end, the Court decided that there was not evidence on a balance of probabilities of an expressed or implied contract obligating the defendants to pay Enge for the work he did, other than for the spraying. Enge was, therefore, awarded $6,285 for the 2008 post-harvest spraying plus $100 in costs.
Read the decision at: A. and M. Enge Farms Ltd. v. Hendrickson.
An action in the Provincial Court of Saskatchewan arose as a result of work done by Mr. Enge in the fall of 2007 and the fall of 2008. Mr. Enge claimed that the defendants, through Floyd Hendrickson, agreed to compensate him for the cost of this work, which he said improved the value of the land. The defendants denied any such agreement, other than for post-harvest spraying in 2008. The work performed on the land, in the fall of 2007, was: (1) ditching and (2) the burying of stones and the cleaning of a fence line. The work done in the fall of 2008 was: (1) post-harvest spraying; (2) heavy harrowing; (3) cultivating and (4) ditching. The defendants admitted that Floyd Hendrickson agreed to pay the plaintiff for the post-harvest spraying done in 2008, and as a result agreed to owing the plaintiff $6,285.00 for that spraying. That was, however, where any agreement between the parties ended.
When asked whether he had any discussions with Floyd Hendrickson about this work, Mr. Enge said that he spoke to Mr. Hendrickson off and on, and that Mr. Hendrickson didn’t object to the work being done, but Mr. Hendrickson didn’t want to pay for the work as he - only one of three owners of the land - was caught between a rock and a hard place. Mr. Enge said that Mr. Hendrickson told him to put a caveat against the land, and when it was sold, he would be looked after, in effect suggesting he would be compensated for the work at that point.
Floyd Hendrickson denied that there was any discussion of the plaintiff having a right of first refusal when the oral rental agreement was made in 2005. He said, in the fall of 2007, he noticed that Mr. Enge was taking out some bush on the fence line on the edge of this land. He said he was upset and asked Mr. Enge what he was doing, and made it clear that he had not told Mr. Enge to do this. Mr. Hendrickson claimed he said to Mr. Enge he should “leave it alone”.
In the Court's view, the evidence of Mr. Hendrickson was as believable as that of Mr. Enge. That meant it was as likely as not, as Mr. Hendrickson said, that: (1) he told Mr. Enge, in the fall of 2007 that he had not approved the cleaning of the fence line and burying of stones that Mr. Enge was engaged in on the land, (2) he told Mr. Enge in October of 2008 that the ditching Mr. Enge was about to do was “up to him” and there was no indication from Mr. Enge that he wanted compensation for any of the work, other than the spraying and (3) he at no other time agreed to compensate Mr. Enge for the ditching, heavy harrowing, cultivating or burying of stones and cleaning of the fence line.
In the end, the Court decided that there was not evidence on a balance of probabilities of an expressed or implied contract obligating the defendants to pay Enge for the work he did, other than for the spraying. Enge was, therefore, awarded $6,285 for the 2008 post-harvest spraying plus $100 in costs.
Read the decision at: A. and M. Enge Farms Ltd. v. Hendrickson.
Subscribe to:
Posts (Atom)