Planning board defers decision request for application on validation of title on property

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GORE BAY – The Manitoulin Planning Board (MPB) has deferred a decision on a request from a Manitoulin lawyer for an application for validation of title on a piece of property in Assiginack due to a long-standing errant transfer of property that his client would like to sell. The board is seeking advice from other planning boards and legal advice before making a final decision.

“This is an issue dealing with a piece of property that got lost in the shuffle and is causing heartache for a lot of people,” said Richard Stephens, MPB chair at a meeting last week. 

“If I may I would like to address two points that will take five minutes each, for the board to hear,” said lawyer Brad Allision, representing his client Rob Roy. “We are applying for an application for validation of title to correct a contravention to the Planning Act due to an errant transfer from Joe Chapman to Mr. Roy in 2003, that had been approved by the planning board. The purpose of the validation of title is basically a cure for being human, it is designed to be deployed when a mistake is made.”

Mr. Allison explained that there were three 100-acre parcels that had been transferred to Mr. Chapman, those being lots 18,19 and 20, concession three in the Township of Sheguiandah (which is actually in Assiginack). Mr. Chapman had wanted to sell lot 18 and needed consent approval from the MPB in order to do so. Mr. Chapman severed lot 18 and conveyed lot 18 to Mr. Roy in 2003. The latter thought he owned all of lot 18, however a title search discovered that Mr. Roy did not own a small 2.5 acres triangular parcel at the southwest corner of lot 18, which was owned by someone else. 

Mr. Allison said that in order to fix the paper title that Mr. Roy has to his property, so he can sell it, a correction needs to be made to the description on the transfer of land/deed. “The Bank of Montreal did not know of the error or the land registry (office, or the MPB).”  

“It turns out if you go back about 100 years this piece of property has been transferred from owner to owner, and no one knew of the error,” said Mr. Allison. Title on the property has not been owned by Mr. Chapman or the previous owners over the past 100 years, and the MPB endorsed the application by Mr. Chapman and the severance was granted. 

The validation of title certificate wipes out all the consequences of human error, and the consequences in law. “That way Rob Roy would have title on the property. Everyone gets what they should have, and everyone’s title will be okay. There would be no losers in all of this, and it would no longer bite anyone.” 

Board member Dave McDowell questioned whether the lack of a survey having been done has led to the issue. 

Board member Rob Brown said, “there has definitely been negligence in all of this, over 100 years.”  

“Why wouldn’t this property be surveyed, then there would be an identification number on the property that has some significance?” asked Mr. Brown. 

“The certificate removes the human error. It would not be taking away anything from anyone,” said Mr. Allison. “What it would do is allow Mr. Roy to sell the land.” 

Mr. Allison told the board Mr. Roy had contacted his insurance company and they agreed there is a problem. “The problem can be fixed with a validation of title being approved. There would be no victim if the validation is granted.” 

“I have a couple of problems with this,” said board member Doug Head. “I’m not sure we can actually do this. It would cost $5,000-6,000 to have a survey done and I would feel more comfortable if a proper survey was taken. If not, then this should be taken to a court of law to decide on.”

Mr. Brown said that he agreed with Mr. Head. “I feel there has to be a proper survey done on the property. It is not a simple matter; we can’t just take an eraser and make things right.”

Board member Ken Noland asked how this contravenes the Planning Act. He suggested a lot addition could be done.

 “I thought about a lot addition as well,” said Mr. Head. “But a survey needs to be completed to help correct all of this. The consent on title for the property was based on false information.” 

“I would need a survey done in my opinion,” said Mr. Head. “I’m not interested in granting you a validation, but it is up to the board to make this decision.”

As for the idea of a lot addition, “my client Mr. Roy has no title to the triangle of properties. He can’t do anything with it. He can’t sell the land.”

“If you are saying he has no title to the triangle piece of property, someone has title; how can that be recognized in a sale of property if it is on the wrong piece of property? This should be rectified and recognized, or someone is going to lose out,” said Mr. Brown. 

“I think I’m wasting my time with the board, thanks,” stated Mr. Allison.

“Two wrongs don’t make a right,” said Mr. Brown. He reiterated a survey needs to be completed, which will cost the property owner, but the owner would have correct title. 

“It all boils down to as Rob Brown, has said, there needs to be a survey done to get a proper lot description and title to the property,” said Mr. Head. 

Mr. Allison told the board he didn’t need its approval to correct the legal description of the property. However, approval of the board to fix the flawed consent was needed as well as approval for the validation certificate.

Chair Stephens asked MPB secretary-treasurer Theresa Carlisle to explain the application and provide her comments.

Ms. Carlisle told the board that Mr. Allison had applied for validation of title to correct an error in a transaction that he feels violated the Planning Act. He is seeking to correct a transfer/deed that has an incorrect legal description.

The MPB has authority through the province to approve applications for validation of title and to issue validation certificates under section 57 of the Planning Act when there has been a contravention/violation to section 50 of the Planning Act. 

There has always been two lots within lot 18, concession three, and two different owners. At no time, from the chain of title that Mr. Allison submitted were the two lots in the same ownership.

Ms. Carlisle told the board that in her attempt to understand what part of section 50 of the Planning Act (subdivision control) has been contravened/violated and what is to be validated by a validation certificate and prepare a report for the board, she had requested a written explanation from Mr. Allison explaining this. However, in a letter dated June 23 he said he could not respond to these requests. 

The secretary-treasurer had attached to the board agenda a copy of the application including the chain of title as well as nine letters of correspondence between Mr. Allison and herself and copies of sections 50 and 57 of the Planning Act.

Ms. Carlisle further explained that Sydney Troister, a real estate lawyer, has made presentations over the year at the Ontario Association of Committees of Adjustment and Consent Authorities conferences she has attended, and he has written a book on section 50 of the act. There is an entire section on validation of title. She indicated that it is unclear to her how the misdescription of Mr. Roy’s land is a contravention to section 50 of the act and how this can be corrected by a validation certificate.

The MPB passed a motion that a decision be deferred to allow time for the secretary-treasurer to seek advice from her colleagues and seek legal advice from a solicitor and to notify the land owners of the  triangular lot and the township of the application, and report back to the board.