By Carly Harris
A certificate of pending litigation (“CPL”) is a useful tool used by parties when there is a dispute involving real property. It provides notice to the public, registered against title to property, that interest or title to a specified piece of land is subject to a court dispute. A CPL prevents dealings with the land until the litigation is resolved or the CPL is discharged. This ensures that the land in dispute will not be disposed of while the litigation is ongoing.
A CPL must be issued by a court and cannot be removed without a further court order or written consent from the party who registered it.
When to Seek a CPL
Section 103(1) of the Courts of Justice Act allows a plaintiff to obtain a CPL and register it against the title to land where a proceeding has been commenced in which an interest in land is in question. The threshold question is whether there is a triable issue as to such interest. This is not a high threshold to meet.
The court must exercise its discretion in equity and consider all relevant matters between the parties in determining whether a CPL should be granted. Each case is determined on its own facts.
Motions to obtain a CPL can be brought in a variety of matters such as those involving claims of constructive trusts, resulting trusts, fraudulent conveyances, and specific performance involving land.
How to Obtain a CPL
- Include the claim for a CPL in the originating process as a form of relief.
An originating process is a document that commences a proceeding. Examples include a Statement of Claim, Notice of Action, and Notice of Application. The originating process must contain an accurate and complete description of the land that is sufficient for registration.
Failing to include a claim for a CPL in the originating process is fatal to a motion for a CPL unless the originating process is later amended.
A motion must be brought after the originating process has been filed. The motion should be supported by an affidavit that sets out the facts that demonstrate an interest in the land in question. It can be brought either with or without notice to the parties of the action.
If the motion is brought without notice, full disclosure of all material facts must be disclosed to the court. Failure to do so can later result in an order discharging the CPL.
If a party registers a CPL on title where no reasonable claim to an interest in land exists, that party may be liable for any damages sustained by the owner of the property as a result of the CPL. Therefore, it is important that lawyers take this into consideration when determining whether a CPL should be obtained.
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