HomeMy WebLinkAboutWD-68-89 •a�' °"'" y, TOWN OF NEWCASTLE
-� REPORT /6 , -7
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MEETING: GENERAL PURPOSE AND ADMINISTRATION MEETING
DATE: JULY 17, 1989
REPORT #: WD-68-89 FILE #:
SUBJECT: UNNAMED STREETS - FREDERICK CUBITT PLAN (1856)
788213 ONTARIO INC. PURCHASE FROM KNAPP
PART LOT 7, BROKEN FRONT CONCESSION
FORMER DARLINGTON TOWNSHIP, TOWN OF NEWCASTLE
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and hdministration
Committee recommend to Council the following:
1. THAT Report WD-68-89 be approved;
2. THAT the Town's Solicitor advise any Court to which any application may
be made concerning ownership of or an interest in any roads laid out on
Cubitt's Plan (1856) that the 'Town claims no interest, therein;
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3. THAT William C. King , B.A.L.L.B, acting on behalf of the purchasers and
George Boychyn, Q.C., acting on behalf of the vendors, 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
No.3: Correspondence from David Sims, Zhwn Solicitor, dated June 6, 1989.
N0.4: Correspondence from O'Flynn, Weese & Tausendfreund
No.5: Correspondence from David Sims, Town Solicitor, dated July 10, 1989.
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' IDZlv}IT K0. : WI}-68-89 Ig\G8 2
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2. BACKGROUND
2.1 Public Works Staff met with the pozobaoec'o to resolve title to unopened,
unnamed streets shown on Frederick Cubitt'a Plan of Subdivision in
in Lot 7, D.F.C~ , registered in 1856.
2,2 The information was submitted to the Towo`s solicitor to determine if the
Town had claim to a 50 foot strip of land and a 30 foot strip of land
registered as road allowances and advise staff on the most expeditious
method of clearing title to the subject road allowances.
2^3 The Tnwo«a solicitor advised that an examination of the title to the
property revealed that, although the plan purports to be a plan of survey,
on lots were sold in aomon]auoe with the DIau and there appears to be no
evidence that the Town of Newcastle or its predecessor, the Township of
Darlington, has ever accepted the streets by by-law or through the
expenditure of any public funds. Accordingly there is no necessity for
a formal road closing in accordance with the Town's Policy (refer to
Attachment 0o.3) °
2.4 Solicitors for the purchaser were provided with a copy of Mr. Sim'a
cxnnoeote^ In response Public Works received a request from O`Flyoo,
weeoe 6 Tauaem]freuud stating that the municipality may make application
to a Judge at o County or District Court under Section 82 of the Registry
Ant R.S.O. 1980 (refer to Attachment N0.4) ' or that such application can
be mode by the owner's solicitor on behalf of the municipality by filing
Notice of Application together with an affidavit of an officer of the Town
stating that the lands had never been assumed by the Town by by-law and
that Council has passed o resolution approving the application. This
correspondence (Attachment 0o.4) was again referred to D. Sims, Tnmo
Solicitor, for comment.
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IDEIY}RT 0O. : V0D'68-89 PAGE 3
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2,5 The Tzvanna Solicitor considers an application to a District Court by the
municipality unnecessary (Attachment 00.5) and cemoomem]o that the
Parties (Vendor and Purchaser) resolve the quality of title by making
application under the Vendors and Pocobasezo Act, and that the
Municipality advise they have no interest or claim to the Imudo described
as unnamed streets in Cubitt's Plan (1856) .
3" REVIEW AND COMMENT
3^I The Solicitors for both Parties are anxious to close the deal on
the land transaction subject to the resolution of the matter of title
to the unnamed streets.
3^2 The Town's Solicitor advises that ouleaa there has been a deed conveying
the land using a description in accordance with the Plan of Subdivision
the plan is not binding. Tbecebzze' the Municipality did not
automatically become the owner of the streets and road allowances
on the plan. It was also noted that the land has been fenced and used
by the owner over the years.
3.3 Since Council is scheduled to be on vacation for the month of August,
and an application may be mode to the Court during this time' Staff is
seeking a OmouoiI resolution to authorize the Towu»a solicitor to proceed
to advise the Court the Towu has no interest or claim in the lands
in question and to take whatever action is necessary.
4. OPINION
4.1 In order for the Parties to resolve the question of title, and allow
the land transaction to proceed, the Town omat co-operate by
confirming it has no claim or interest in the Iamdo"
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REPORT N0° : V0}-58-89 PAGE 4
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4.2 The ]lovun`o solicitor has reviewed the matter thoroughly and based
on his advice, it is recommended that the solicitors for both Parties be
advised that if application is made under the Vendors and Purchasers Act,
the Town's solicitor will be authorized to advise the Courts when
application omnea before the Courts that the Towu claims no interest in
the subject Iardo°
5^ CONCLUSIONS AND RECOMMENDATIONS
5^I It is evident that this is the most expeditious method of clearing the
cloud on title and allowing the laud transaction to proceed. It is therefore
recommended that Council authorize the Town's Solicitor to advise any
Court that the Town claims no interest in the land described in Cubitt'a
Plan (I856) which are the subject of any application and that the Solicitor
take whatever action is ueoeaacy to consent to any order and clear
the cloud on title.
Respectfully submitted, Recommended for presentation
to the Committee,
/4�7
Walter A. Evans, P. Eng., Lawrem1e Kotoett,
Director of Public Works. Chief Administrative officer.
JC0*W&E*IIv
April 20' 1989
Attachments
co: O'FIyuu' Weeoe & Taooem]freuod
65 Bridge Street East
Belleville, Ontario
K80 IL8
Attention: Mc~ William C. King
8oyobyu & Bnyobyu
36-1/2 King Street East
Oshawa, Ontario
LID l82
Attention: K8c. George Bnyobyu, Q.C.
1027
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IGHWAY No
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SERVrCE i�
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ATTACHIIENT NO .1
ROAD WD-68-80
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LOT 7
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BASELINE ROAD
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LOT 8 LOT 7 LOT 6
B. F.
546 —52-6- 3 —252
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DIMENSIONS ARE IN FEET WD-63-30
029'
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[CROSS REFERENCED
SIms BRADY & MCMACKIN FILE:
BARRISTERS SOLICITORS
June 6 , 1989
Mr . Walter Evans
Director of Public Works
Corporation of the Town of Newcastle
40 Temperance Street
Bowmanville , Ontario
L1C 3A6
Dear Mr . Evans :
RE: Marks purchase from Knapp
Cubitt' s Plan, Part Lot 7
Broken Front Conession
Former Township of Darlington
Our File : 40068 .MRS , 92
You have asked my opinion as to the Town' s interest in a
road ( 3XOfeet ) and a street ( 50 feet ) shown on a plan by
Frederick Cubitt which was filed in the Registry Office for
the County of Durham in 1856 . The plan purports to be a
plan of subdivision of part of Lot 7 in the Broken Front
Concession of the former Township of Darlington. I enclose
a copy of the plan in question .
We have examined the title to the property and it appears
that, although the plan purports to be a plan of survey, no
lots were sold in accordance with the plan. There appears
to be no evidence that the Town of Newcastle or its
predecessor , the Township of Darlington, has ever accepted
the street by by-law or through the expenditure of any i
public funds . The public has never had access to or used
the street . I also understand that the property has been
completely fenced and occupied by the owners of the land
from time to time .
Unless there has been a deed conveying the land using a
description in accordance with the plan of subdivision, the
plan is not binding . Therefore , the Municipality did not
automatically become the owner of the streets and road
allowances on the plan .
Since the streets have in fact not been opened and no
public monies have been expended thereon, I am of the
opinion that the Town of Newcastle has no interest in the
ATTACIVENT NO ,3
WD-na-39
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117 King Street,Box 358,Whitby,Ontario,L1 N 5S4 Telephone 668-7704
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SIMS BRADY&MCMACKIN
street. Accordingly, there is no necessity for a formal
road closing in accordance with the Town' s policy.
However , by the same token, it is my opinion that the Town
cannot assert a claim for compensation for the street . !
If you ha e any questions please do not hesitte to contact
me .
Your r ly, ,
Da -d D. Sims
:mrs
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TELEPHONE (613) 966-5222
TELECOPIER (613) 966-8036
O'FLYNN, WEESE & TAUSENDFREUND
BARRISTERS AND SOLICITORS
STEPHEN A.WEESE.B.Sc LL.B. WOLFRAM U.TAUSENDFREUND,B.A.,LL.B. 65 BRIDGE STREET EAST
KATHRYN E.BURNS,B.A.tHONS.), LLB. WILLIAM W.WALKER, B.A.,LL.B. BELLEVILLE, ONTARIO
WENDY B.MALCOLM. B.A.LLB. WILLIAM C.KING, B.A.,LL.B.
K8N 1L8
JOHN D. O'FLYNN (1889-1966)
July S , 1989
DELIVERED BY COURIER
Public Works Department
Corporation of the Town of Newcastle
40 Temperance Street
Bowmanville , Ontario
L1C 3A6
Attention : Ms. Jan O ' Neil
Dear Sirs/Madam:
Re : 788213 Ontario Inc . Purchase from Knapp
Part Lot 7 , Broken Front Concession, Newcastle
Regional Municipality of Durham
We are the solicitors for the Purchaser in the above-noted
transaction .
Further to the letter of Sims , Brady & McMackin of June 6 , 1989 to
you and our subsequent telephone conversation on June 29 , 1989 , it
is our opinion that in order to confirm and clarify ownership of the
road allowance as set out on the Cubitt ' s Plan of Subdivision an
application pursuant to Section 82 Registry Act R. S .O. 1980 must be
made . Section 82 provides that the council of a municipality may
apply to a Judge at a County or District court , to make orders and
directions for cancelling , register plans and/or closing all roads
shown on such plans . We are enclosing a copy of that Section for
your review.
It is our experience that such application can be made by the
owner ' s solicitors on behalf of the Municipal Corporation by filing
Notice of Application together with Affidavit of an Officer of the
Town stating among other things that the lands had never been
assumed by the Town by by-law or otherwise and that council has
passed a resolution approving the application. The filing of
Col.isents from the adjacent land owners is also required . A by-law
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ATTACHMENT N0 .4
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-2 WD-68-89
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Public Works Department
Att ' n: Ms . Jan O ' Neil
Page 2
July 5 , 1989
approving the subsequent conveyance of the lands in the deed from
the Town would then be appropriate .
Enclosed is a copy of the form of Affidavit which will be required .
You will note from the form of Affidavit that to be attached thereto
would be a certified copy of the resolution approving the closure of
the lands pursuant to the provisions of the Registry Act and the
conveyance to the adjacent land owners . Also enclosed is a form of
by-law authorizing the subsequent conveyance of the property
required for registration purposes.
If you have any questions or comments with respect to the foregoing
please contact the undersigned at your convenience .
Yours very truly ,
O' FLYNN , WEESE & eINDF ND
Per .
WILLIAM C. KING
^mlp
Encl .
#M0332 : 1
p . c . Messrs . Sims , Brady & McMackin
Att ' n : David Sims , Esq .
Messrs . Boychyn & Boychyn
Att ' n : George Boychyn, Esq .
Mr . Paul Marks
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Sec. 7 (2)
Sec. 82 (1) (e)
to which the REGISTRY
compiled plan, (2) The land registrar shall thereupon enter hap. 445 1171
I ma), be regis. the abstract index in which the subdivision is entered er the instrument in nit, er
lots designated in the affidavit red under the lan; ear
abstract index of the land before its subdivision.
and no entry shall be made in the
.re an abstract or C. 409, s. 84; 1979, c• 94
s 47 (1) R.S.O. 1970,
• assistance of a
-ector, engage a 81•"(1) Where
170, c. 409,s. 81 in a registered a Parcel of land has been included when
by the owner of plan Of subdivision that was not sign registered
described parcel and the geed Plan not
being In a registered deed Parcel is subsequentlysigned re
do not form g wrthm the plan the °r other conveyance becomes
reets or such grantee of the plan is as binding inding
him as if the Parcel and all persons g upon the
hall be taken parcel. Plan had been signed b claiming under
S. 81 (S). y the owner of the j
(2) Subsection (1) does not affect the rights of a mortgagee
r of a lot or whose mortgage was registered
registrar, when conveyance before the gager wing
M abstract of all mentioned in subsection deed or other
R.S.O. 11970, c. 409, s. 8S. (1)
rater the same in � was registered.
iediately preced- 82•--(1) The council of
to a judge of the any municipality pality ma apply or district in which is county district court of they a county or
1y of the lots not bein situate the whole, county district
plan, g less than one-half, of the lands included in any Ind e to
d so to do by the judge has or any Part mane order
P and the power to make orders and directions,
in abstract of all
the registration (a) for the
1979 c. s.on hearing of the application
notice as the judge may direct; upon such
r
(b) to cancel
merit referring or suspend in whole
registered plan; or in part any
ed unless an r
registered in t i
r objects to the (c) to close, divert or
alter any or all highways,
roads, streets
it refers to an either or lanes show
trument unless temporarily n on any such plan
suspension of they or permanently or pending
registrar to the plan; g the i
the same land
c. 409, s. 83; (d) to provide that the lands or an
thereof shown on any part or
or pending such plan shall thereafters
Of the g such suspension or until further order
not conform judge, be known
executed and original township nd described by designations P °r other registration numbers or��uld, in the p or d such other to the registration of an
convenient to ` ) such lan
>cription, the as to the judge may her numbers or descriptions
y seem convenient; ptions
f•fidavit in the
"n• (r) to impose such terms and conditions as t
judge may seem proper; o the
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SIMS BRADY & MCMACKIN
BARRISTERS SOLICITORS
July 10 , 1989
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Public Works Department
Corporation of the Town of
Newcastle
40 Temperance Street
Bowmanville , Ontario
L1C 3A6
Attention: Mrs . J . O'Neil
Dear Sirs :
RE : 788213 Ontario Inc . purchase from Knapp
Part Lot 7 , Broken Front Concession, Newcastle
Our File No . 40068
You have asked for my comments on Mr . King' s letter dated
July 5, 1989 .
While it is true that the council of a municipality may apply
to a District Court judge to cancel or suspend the registered
plans of subdivisions and in doing so to close all highways
shown therein, I consider that such an application
unnecessary.
Until the matter was first raised between the solicitors
representing the owner and the prospective purchaser , the
Town was unaware of Cubitt' s plan registered in 1856 . The
plan never became effective because no lots were sold in
accordance with the plan .
The point in dispute is whether the Town has an interest in
the road way on the original plan . As I indicated in my
letter to you dated June 6 , 1989 , 1 consider that the Town
never had any interest in the road in question .
The dispute whether the parties is related to the quality of
the title to the property and this dispute can be
ATTACKMENT NO, 5
1035 WD-63-39
117 King Street, Box 358,Whitby,Ontario,L1 N 5S4 Telephone 668-7704
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resolved upon a summary application under the Vendors and
Purchasers Act . The initiative for such proceedings is the
parties ' and not the Town' s . The Town can be served as a
party having an interest in the property at which point , the
court can be advised that the Town claims no interest to the
road way. This seems to me a far more expeditious and
economical method of resolving this matter without the
necessity of the municipality undertaking the responsibility
of making an application under s . 82 of the Registry Act .
Since Council will be taking its summer break , I recommend
that Council give staff authority to advise the court in
response to any application that the Town claims no interest
in the road way should the matter arise during the holidays.
I hope hat the forgoing has been of assistance to you. If
you have any questions , please do not hesitate to call .
Yours ly,
DAVID J . D. SIMS
DJDS ;mak
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