J. 2000 SKQB 53 Q.B. A.D. 1999 No. 806 J.C. S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: LUIZ FERNANDO KAPRONCZAI and ELSA SAN DIEGO o/a SAN DIEGO CARE HOME and GEORGE DAVID JABOUR and VICTORIA ANN JABOUR RESPONDENTS Tyler Bond for Luiz Fernando Kapronczai Elsa San Diego and George David Jabour and Victoria Ann Jabour on their own behalf. JUDGMENT ARMSTRONG J. February 4, 2000 [1] This is an appeal from a decision in the Provincial Court on a Small Claim. It involves the question of whether something that is affixed to the realty is fixture that passes with title to the realty. [2] In this case, respondents (third parties at trial), George David Jabour and Victoria Ann Jabour (the "Jabours"),acquired title to house property and caused to be affixed to the property firmly bolted by use of anchor bolts in concrete slab poured for that purpose wheelchair lift loaned to the Jabours by the Saskatchewan Abilities Council (the "Abilities Council") for use of their disabled foster child. [3] The Jabours sold to Tania Kapronczai ("Tania") then wife of the defendant, Luiz Fernando Kapronczai ("Kapronczai"). Tania also had disabled child. The title was transferred to both Tania and Kapronczai. Neither Tania nor Kapronczai made arrangements with the Abilities Council but simply took title to the house property with the wheelchair lift attached to the concrete pad and operated by electric power from the house. [4] Then two years later Tania and Kapronczai sold the property to the respondent, Elsa San Diego ("San Diego"). The vendors advertised the property as being good revenue care home wheelchair accessible. When selling the property, the vendors made no mention to the purchaser, the respondent San Diego, about ownership of the wheelchair lift. [5] few months after San Diego acquired the house property, the wheelchair lift ceased to operate. San Diego was told to get in touch with the Abilities Council the name of which was displayed on the wheelchair lift and did so. The Abilities Council said that the wheelchair lift belonged to it. The Abilities Council apparently loans chair lifts such as this to families who have disabled member. The Abilities Council wanted the wheelchair lift back but San Diego negotiated purchase of the lift at a depreciated value for a total of $2,769.29 for which she sued Tania and Kapronczai and for which she got judgment. [6] Kapronczai joined the Jabours as third parties claiming over against them for the claim made by San Diego. [7] Tania did not appear at the trial in Small Claims Court. Neither has Tania appealed the decision. At trial, the defendant, Kapronczai, claimed not to have known that the wheelchair lift belonged to the Abilities Council and to never have been informed of such. The Jabours testified that Tania had been told about the Abilities Council's ownership of the wheelchair lift. The trial judge did not accept Kapronczai's denial that he and Tania knew that the wheelchair lift was not part of the realty or was owned by the Abilities Council. There was evidence on which the trial judge could find as he did. [8] As between the Jabours and the Abilities Council, the wheelchair lift never became part of the realty notwithstanding how it was affixed to the realty. It was not the intention of either party that it become part of the realty and the intention of the parties is a prime factor in determining whether something affixed to the realty becomes a part of the realty. Furthermore, although it was not a finding of the trial judge the manner of attaching the wheelchair lift, i.e. only to the concrete slab, arguably showed an intention that it not be permanent and a part of the property. [9] Kapronczai, relies on s. 237(2) of The Land Titles Act, R.S.S. 1978, c. L-5, and says that even if he did know that the wheelchair lift belonged to the Abilities Council there was nothing on the title indicating the Abilities Council had any interest in the land in question. [10] The Land Titles Act (the "Act") section in question reads: 237(2) person contracting or dealing with or taking or proposing to take transfer, mortgage, encumbrance, lease or other interest from an owner is not, except in the case of fraud by that person: (a) bound or concerned, for the purpose of obtaining priority over trust or other interest that is not registered by instrument or is not caveated, to inquire into or ascertain the circumstances in or the consideration for which the owner or any previous owner of the interest acquired the interest or to see to the application of the purchase money or any part of the purchase money; or (b) affected by the notice, direct, implied or constructive, of any trust or other interest in the land that is not registered or caveated, any rule of law or equity to the contrary notwithstanding. [Emphasis added] [11] This section of the Act protects purchaser of realty against an unregistered interest in that realty. "Interest" is defined in s. 237(1)(a) as "any estate or interest in land". It is not intended to protect the purchaser of realty to which something is affixed that is not intended, to the knowledge of the purchaser, to be part of the realty. The Abilities Council did not have an interest in the realty that it needed to protect by notice on the title, or risk losing it, at least as against Tania and Kapronczai who had knowledge of the facts according to the trial judge. [12] The defendants purported to sell that which was not theirs to sell which, in my view, gives San Diego claim for damages to which they were found entitled by the Provincial Court Judge. And the Provincial Court Judge at the same time dismissed the claim against the third party, the Jabours, on the facts as found by the Provincial Court Judge. [13] In the circumstances, the appeal is dismissed both as it affects the plaintiff and the third party.
An appeal from Provincial Court on a Small Claim. The Jabours, the third parties who acquired title to the house, firmly bolted a wheelchair lift loaned to them by the Abilities Council by anchor bolts in a concrete slab. The Jabours sold to the Kapronczais who in turn sold the property 2 years later to the respondent, San Diego, but made no mention about ownership of the wheelchair lift. The lift ceased to operate and San Diego contacted the Abilities Council which claimed ownership to the lift. San Diego was awarded judgment for the depreciated value against Kapronczai who joined the Jabours as third parties claiming over against them for the San Diego claim. HELD: The appeal was dismissed against the plaintiff and the third party. 1)The wheelchair lift never became part of the realty notwithstanding how it was affixed. It was not the intention of either party that it become part of the realty. The intention of the parties is a prime factor in determining whether something is affixed to and becomes part of the realty. 2)The manner of attaching the lift only to the concrete slab arguably showed an intention that it not be permanent and part of the property.  3)Section 237(2) of the Land Titles Act protects a purchaser of realty against an unregistered interest in that realty. Interest is defined in s.237(1)(a)as any estate or interest in land. It is not intended to protect the purchaser of realty to which something is affixed that is not intended to the knowledge of the purchaser to be part of the realty. The defendants purported to sell that which was not theirs giving a claim for damages. The Provincial Court judge dismissed the claim against the third party, the Jabours, on the facts.