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Home My WebLink AboutWD-54-89 c) r TOWN OF NEWCASTLE REPORT File # f / �. ��:�, .y ,��('• Res. # � By-Law # PEEPING: COUNCIL DATE: MAY 8, 1989 REPORT #: WD-54-89 FILE #: SUB,ECT: APPLICATION RECORD -' VENDOR'S AND PURCHASER'S ACT BEREND AND E. THERESA DEUZEMAN ROAD ALLOWANCE BETWEEN LOT 32 AND 33 CONCESSION 81 FORMER DARLINGTON TOWNSHIP TOWN OF NEWCASTLE RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report WD-54-89 be approved; and 2. THAT the 7bwn's solicitor advise the Supreme Court of Ontario that the Town has no interest in the lands which are the subject of the application and therefore the Town does not oppose the application; and 3. THAT Edward R. Marks, LL.B. , acting on behalf of the applicant, be advised of Council's decision; and 4. THAT the Town's Solicitor take whatever action is necessary. ------------------------------------------------------------_----_--_----------- REPORT 1. ATTACHMENTS No.l: Key Map No.2: Site Plan N0.3: Letter from David Sims, 'Town Solicitor ...2 REPORT NO.: WD-54-89 PAGE 2 ------------d----------------------------------------------------------------------w- 2. BACKGROUND 2.1 Public Works received a request from Edward Marks, Solicitor, Marks & Marks, to locate a by-law dedicating the west half of the south half of the road allowance between Tots 32 and 33, Concession 8, former Darlington Township (Attachment No.2) , to John McCulloch, Jr. 2.2 The conveyance is dated November 24, 1877. However, no by-law was registered on title and purchasers Zephina and Denys Medford requisitioned proof that a by-law had been passed closing up the road allowance pursuant to the Municipal Act and conveyed to the predecessor on title. We cannot locate a by-law dedicating the lands. 2.3 The information including a copy of the deed indicating conveyance was submitted to David Sims, the Town's Solicitor for review and legal opinion. 2.4 The Town's Solicitor recommended that the purchaser and the vendor could resolve the question of title by an application under the Vendors' and Purchaser's Act. This application was made and comes before the courts on Wednesday, May 10, 1989. 2.5 The 'Town's Solicitor will represent the Town, and with Council's approval, will advise that the Town has no interest in the lands in question. 3. REVIEW AND COMMENT 3.1 The Town's Solicitor and staff have reviewed the files and reference documents. There is no record of a by-law, however, the assessment plans indicate the road allowance has been divided. . . .3 REPORT NO.: WD-54-89 PAGE 3 -------------------------------------------------------------------------------- 3.2 The Solicitor reviewed the deed, indicating conveyance to John McCulloch, Jr., and commented that the deed appears to be regular on its face and bears the signature of the Reeve and the Corporate Seal. Since there is a presumption of regularity and since the present owners and his predecesors have paid realty taxes on the road allowance, all evidence indicates that the subject road allowance has been closed. 3.3 In accordance with the Town's Solicitor's recommendation, the application has been made and a hearing will be before the courts on Wednesday, May 10, 1989. 3.4 The documentary evidence to be used at the hearing of the application is an Affidavit of Edward R. Marks made in support of the Applicant's application. 4. OPINION 4.1 The Town's Solicitor has advised that the Town would be estopped from denying that the road allowance was properly stopped up and conveyed and that possessory title to the road allowance might be established. For these reasons, he advises there is no need for enactment of a new by-law to confirm the sale and production of a copy of the enabling by-law would only confirm the regularity of the deed itself. 5. CONCLUSIONS AND RECOMMENDATIONS 5.1 It is evident that this is the most expeditious and inexpensive method of clearing the cloud on title and I therefore recommend that Council authorize the Tbwn's Solicitor to advise the Court that the Town has no interest in the lands which are the subject of the application and that the Solicitor take whatever action is necessary to consent to the order and clear the cloud on title. 4 PAGE 4 ~ IDIP]IT 0U.: W}-54-89 ------------------_--------------------- ----------------------------- Respectfully submitted, Recommended for presentation to the Committee, | | Walter A. Evans? P. 8mQ^1 Lawrence ---��' 0t�inec, ° f �obIio �ozha Chief J�bmiu stratzve Director o ° / JCO*WJUE*Ilv May 5^ 1989 Attachments co: Mc. Edward R. Marko, LL.B. 16 Lloyd Street Oshawa, Ontario LIB 7Q8 i i NORTH LIMIT OF THE SOUTH HALF OF CONCESSION EIGHT I I i LOT 33 LOT 32 CON. 8 DARLINGTON SUBJECT SITE RO E IF CON. 7 ATTACHMENT NUJ A WD-54-39 .... . ..... wommi mid" SUBJECT SITE �RD. ........... ............... Wa ATTACHIENT NO .2 WDL54-39 ----L----------- i SIMS BRADY & MCMACKIN BARRISTERS SOLICITORS i i May 4 , 1989 Ms . J . C. O'Neill Administrative Assistant to the Director of Public Works Corporation of the Town of Newcastle 40 Temperance Street Bowmanville , Ontario L1C 3A6 Dear Ms . O'Neill : Re : Borek Sale to Medford R. R. # 1 Enniskillen S . Half Lot 33 , Concession 8 and W. Half of S. Half of Original Road Allowance between Lots 32 and 33 , Concession 8 , former Township of Darlington I have received a copy of the letter from Marks and Marks addressed to the Town' s solicitor through the Town' s offices . I understand from Nancy O' Flaherty that this has been drawn to your attention . I previously corresponded with you on February 21st, 1989 . Mr . Marks , on behalf of Mr . and Mrs . Deuzeman, has brought an application returnable April 19th, 1989 for a declaration that the Town has no interest in the south half of the original road allowance between Lots 32 and Lots 33 , Concession 8 in the former Township of Darlington. As noted in previous correspondence , the Township of Darlington in 1877 purportedly conveyed two, acres of. land being the west half of the south half of the original road allowance between Lots 32 and 33 in the 8th Concession of the former Township. However , the by-law closing the road allowance was not registered and cannot now be located . A purchaser of the property has requisitioned production of the enabling by-law or requests the Town to undertake a further road closing. I advised you that I did not think that further road closing was required because the deed appeared to be regular on its face and bore the signature ATTACHIENT NO ,3 VID-54-30 2 - SIMS BRADY&MCMACKIN of the Reeve and the corporate seal . The production of the enabling by-law would only confirm the regularity of the deed itself . I also indicated that there was a presumption of regularity and since the present owner and his predecessors have paid realty taxes on the road allowance all the evidence indicates that the subject road allowance has been closed . Moreover , your Town reference map indicate that the subject road allowance is treated differently than all other open road allowances which tends to confirm that it was closed. For the foregoing reasons , I concluded that the Town was estopped from denying that the road allowance was properly stopped up and conveyed in the first place . Moreover , although I did not thoroughly research the point, I expressed the opinion that the present owners have a possessory title to the road allowance in question. For all of these reasons , I did not believe that any action was required on the part of the Town. The present application is simply for an order requiring that the Town of Newcastle has no interest in the subject property. I recommend that the Town consent to an order if this will clear a title problem. However , before doing so I would like authorization from Council to proceed in this manner . I would ap reciate it if this matter could be taken before Counc 'ti. D.the earliest opportunity. Your , D id Sims :mrs