Professional

In the early 1990s, title insurance was introduced to the Canadian real estate market, offering lenders, lawyers and homebuyers insurance against title defects, off-title building code infractions, mortgage and title fraud, as well as many property boundary defects that would otherwise have been revealed in an up-to-date land survey plan.

In doing so, title insurance made it possible for real estate transactions to close faster but with far less due diligence – it is no longer routine for the survey plan to be thoroughly examined prior to purchase to ascertain the property’s physical features – buildings, garages, sheds, fences, walls, decks, etc. – relative to the property’s boundary.

You may be king of your castle, but do you have sole dominion over your land? The answer is ‘no’ if your property is subject to easement rights that allow another party to use part of your land or access services that cross it.

For example, your neighbour may have the legal right to use a portion of your driveway to access their garage. Or a public utility may have buried services that affect where you can install a new backyard pool or even a patio or deck. Any easement that affects your land is something you need to know about before you agree to purchase the property.

A new development in Canadian common law will continue to play out in the business and legal worlds this year, with significant and far-reaching implications for all contractual agreements in Canada, including those that govern real estate transactions.

The Supreme Court of Canada (SCC) decision in the case of Bhasin v. Hrynew SCC 71 imposes a new duty of honest contractual performance and clarifies how the principle of good faith fits into contract law.