B.C. court rules on real estate dispute stretching back to 1960s transaction

The building in question, located on St. Georges Street in Port Moody, near the city's downtown, was built in 1954, according to BC Assessment. Its assessed value as of July 1, 2023, was more than $1.9 million. (bcassessment.ca)

A dispute over a real estate transaction that began more than 60 years ago has been resolved in B.C. Supreme Court.

In a decision delivered orally on March 12 and posted online this week, Justice David A. Crerar ruled that the full purchase price for a four-unit apartment building in Port Moody had been paid, and that the property should be transferred to its new owner.

The building in question, located on St. Georges Street in Port Moody, near the city's downtown, was built in 1954, according to BC Assessment. Its assessed value as of July 1, 2023, was more than $1.9 million. 

The purchase

In 1961, according to the court decision, owner George May sold the property to Olive Clitheroe "through an agreement for sale of land."

Under the agreement, which was registered on the title of the property, May would remain the building's owner until the full purchase price was paid. That price was $18,700, with $3,500 paid up front and the rest – plus interest – paid in $100 monthly installments until Nov. 16, 1976.

Adjusted for inflation, the original purchase price equates to just $189,143.95 in 2024 dollars.

According to Crerar's decision, the agreement called for the purchaser to be responsible for "paying all taxes and utilities for the property, and for keeping the property insured." The purchaser was also entitled to collect rent on the building's apartments.

In 1966, Clitheroe sold her rights to the property to Jim Montalbetti, who paid her an assignment fee and took over the payments on the original price.

Montalbetti later assigned the agreement again in 1971, this time to his family company Gooder Holdings (1968) Ltd.

Each of these assignments was registered against the property's title, the court decision indicates.

Meanwhile, George May – who was still the owner listed on the title – transferred the property to his wife Elsie May.

George May died in 1975 and Elsie May died in 1999.

Gooder brought its claim against Lolita Alsina, in her capacity as the executor of Elsie May's will. The company claimed that it had made all of the payments under the agreement as of 1987, but the title was never registered in its name.

It filed its lawsuit in July 2023, more than 30 years after the final payment, a delay it told the court was likely "an oversight."

For her part, Alsina argued that Gooder never took any steps to complete the transfer of the property because it knew it had failed to make all of the payments required under the initial agreement, and that the building should continue to be owned by Elsie May's estate.

$835.93 unaccounted for

Central to Alsina's argument was the imperfect evidence Gooder brought before the court in support of its claim.

Crerar acknowledged this in his introduction to the decision.

"In this application, the court must solve a historical mystery based on unusual facts, with limited evidence from documents and witnesses," the decision reads.

Ultimately, the judge concluded that the available evidence was sufficient for him to conclude that Gooder had likely completed the purchase as intended.

In reaching this conclusion, he noted that records provided by the company showed "a compelling long-term pattern of compliance with the monthly payments, albeit with a gap in payments and a gap in evidence."

That gap fell between 1973 and 1976, according to the decision, with records outside those dates stretching as far back as 1966.

The judge found "a regular pattern of $100.30 payments regularly made on the 16th of each month, consistent with the agreement," as well as some larger payments "from time to time."

"All but $835.93 of the amount owed is supported by contemporaneous records of payments," the decision reads. "Despite those gaps, and despite the fact that the payments are completed by 1987 rather than the anticipated 1976, the payments eventually pick up again, and continue until 1987."

Crerar also noted that, throughout the more than five decades since the purchase agreement was assigned to Gooder, the company has – in all meaningful ways – acted as the building's owner.

The company collected rent and paid all the property's expenses, as required under the agreement. It also maintained the property and acted as the owner in ways not specified in the agreement, according to the decision.

"In December 1979, a mudslide caused damage to the bottom two apartment units on the property," the decision reads.

"The province settled with Gooder, rather than with Mrs. May, paying $33,411. The settlement document is signed by Edward Donnelly. It confirms that Gooder owned the property, and stated that the sole encumbrance was that of 'Mrs. May, Royal Bank of Canada.'"

Alsina argued that – by completing its payments in 1987, rather than in 1976 as required under the agreement – Gooder had breached the agreement. However, Crerar found that there was no evidence that Elsie May had ever attempted to demand payment or to void the agreement because of this delay.

Delayed payments do not automatically result in default, the judge noted.

He also dismissed Alsina's assertion Gooder's delay in bringing the court case was a deliberate attempt to shape the outcome in its favour.

"The respondent essentially accuses the petitioner of tactically lying in the weeds and only bringing this proceeding after the death of Mrs. May and possibly other relevant parties and witnesses, and the destruction and loss of documents," the decision reads.

"There is no basis for this urged inference. It would be bizarre for the company to stop the monthly payments with only $835.93 owing (the unaccounted amount). The monthly payments were far from onerous: $100 a month. Gooder was receiving an income stream in the form of rents that exceeded this amount owed. There is no evidence of any inability on the part of Gooder to pay the monthly amounts, and it would be surprising if it could not. Gooder has existed for at least 56 years, and survives as a company to this day."

Accordingly, Crerar granted Gooder's application for a declaration that it had completed its obligations under the right to purchase agreement and an order that the property be conveyed to it.