As cottage season grows closer, people fortunate enough to have a family cottage are likely planning their vacations and imagining themselves by the water on a hot day. In the best situations, family cottages can be shared by extended members of a family and passed down through generations. However, in some situations, cottages that are left to family members may become subject to litigation as future generations disagree over the use or maintenance of the cottage. In a recent decision from the Ontario Superior Court of Justice, two siblings who shared a cottage found themselves before the court after the brother revoked his sister’s family’s access.

Aunt puts nephew in charge of the cottage

The cottage at the centre of the dispute was originally owned by the parties’ aunt. She never married and has no children of her own. She is presently incapable of managing her own affairs and lives in a long-term care facility.

As a result of the aunt’s health, the nephew currently holds title to the cottage, though only in trust for the aunt. He is also the sole beneficiary of her estate.

The nephew stated that it was the aunt’s hope that the cottage would be enjoyed by extended family for generations and years to come. He says the aunt also expressed that she wanted the niece to have some ownership of the property.

As a result of these conversations, in 2007 the nephew transferred the property into his name and his sister’s name as tenants in common.

Cottage falls into disrepair before renovations

By 2007 the cottage had fallen into disrepair. The aunt did not have the funds to maintain it, and the siblings agreed that something had to be done about the state of the property. The cottage was extensively renovated from 2009 to 2014, with the nephew contributing about $15,000 and the niece contributing at least $75,000 (though she claims it was closer to $135,000). The renovations included an additional, smaller cottage on the property, closer to the water than the main cottage. The brother’s family had been using the smaller cottage, while the sister used the larger one.

Transfer of cottage title is revoked

The Public Guardian and Trustee started to become concerned about the nephew’s management of the aunt’s affairs in 2015. Proceedings followed, which included the nephew being told that his transfer of title to his sister and himself as tenants in common was invalid. As a result, he resumed sole ownership of the property in trust for the aunt.

In 2020 the nephew decided he no longer wanted to share the cottage with his sister and her family. He said it was because of alleged misuse of the property. He changed the locks, installed security camera, and told his sister she could no longer visit the cottage.

Niece seeks interim access to the cottage

The niece was understandably upset about her brother’s actions, and asked the court to grant her a certificate of pending litigation. She planned to argue that her contributions to the cottage created a resulting trust. She also sought an interim injunction providing her with access to the cottage while the matter waits to make its way to court.

In deciding to award interim access, the court noted that the remedy being sought by the niece was joint ownership of the cottage, and that he claims advanced have merit.

Contact the experienced estate litigation lawyer at NULaw in Toronto to learn how we can protect your interests and achieve the best possible resolution of your estate dispute. Contact us online or at 416-481-5604 to book a consultation today.

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