Servello v. Servello: The Importance of Clean Hands
In the recent decision of Servello v. Servello,1 Justice Koke was asked to deal with competing claims by a mother and son. The mother, Rosina had eight children with her husband, Carmelo. They had immigrated from Italy in the 1950, and after years of hard work, had built their own home in North Bay. After Carmelo died in 2006, their son Antonio took Rosina to the registry office and title to the property was transferred to Antonio’s name alone. Shortly thereafter, Antonio returned to the registry office and transferred title to his mother and himself as joint tenants.
Rosina only came to realize that the home had been transferred to her and Antonio with the right of survivorship some three years later. Her English is limited and she had believed that the document she had signed had been to ensure that Antonio would look after her in her old age.
Although Antonio admitted that it had not been the parties’ intention to create a right of survivorship in Rosina’s home he refused to restore full title to his mother. He also in the meantime, took over the use of the entire workshop on the property, refusing to grant Rosina access to it, even though it was on her property.
Rosina brought a claim seeking that the transfers of the property to Antonio alone and to Antonio and herself as joint tenants be set aside. She argued that Antonio had obtained title through undue influence, that she had not received independent legal advice, and that had not understood the nature of the document she had signed such that the doctrines of non est factum and mistake applied to the transfers.
In response, Antonio made his own claims for a legal or equitable interest in the property, or title to a severed portion of the property. He based his claims on the grounds of unjust enrichment, proprietary trust and constructive trust. Antonio had invested money and put significant labour into the expansion of a workshop on the property, and had helped his parents attempt to sever the property, and purchase a neighbouring plot, and sought relief on that basis.
Reviewing the two transfers, Justice Koke agreed that they should be set aside on the basis that non est factum and mistake applied in the circumstances, such that the transfers were null and void. Justice Koke also noted that based on the facts where Rosina, then a grieving widow who has limited English was taken to the registry office by her son who benefitted from the transaction, this was a “textbook case” of the exercise of undue influence by an adult child over an older parent. The judge noted further that Rosina should have received independent legal advice. Thus, the two transfers were set aside.
Justice Koke then proceeded to consider Antonio’s claims in detail. Reviewing the facts, Koke J gave significant credence to Antonio’s claims and after reviewing the figures, held that Antonio’s contribution was valued at approximately $68,000.00. Justice Koke found that the facts supported Antonio’s claims of unjust enrichment and proprietary estoppel.
But Antonio’s claims stopped there. Justice Koke found that the clean hands doctrine prevented Antonio from receiving any entitlement. He noted various wrongs committed by Antonio, including secretly taking his mother to the registry office, preventing his mother or others from accessing the workshop and then refusing to transfer the property back to Rosina. The fact that Antonio held on to the property in order to maintain leverage, despite the fact that it caused his elderly mother significant grief was the “most egregious” wrong, according to Justice Koke. All of those wrongs, however precluded Antonio from receiving the equitable relief he would otherwise have been entitled to. As Justice Koke wrote: “A court of equity will not reward bad behaviour.”
The transfers were set aside, Rosina was awarded exclusive possession of the entire property including the workshop and Antonio was required to leave by the end of 2014.
Antonio’s claims, otherwise justifiable, were ultimately defeated by his actions and attempts to secure his own improper advantage.
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[1] 2014 CarswellOnt 12095, 2014 ONSC 5035
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Written by: WEL Partners
Posted on: October 17, 2014
Categories: Commentary
In the recent decision of Servello v. Servello,1 Justice Koke was asked to deal with competing claims by a mother and son. The mother, Rosina had eight children with her husband, Carmelo. They had immigrated from Italy in the 1950, and after years of hard work, had built their own home in North Bay. After Carmelo died in 2006, their son Antonio took Rosina to the registry office and title to the property was transferred to Antonio’s name alone. Shortly thereafter, Antonio returned to the registry office and transferred title to his mother and himself as joint tenants.
Rosina only came to realize that the home had been transferred to her and Antonio with the right of survivorship some three years later. Her English is limited and she had believed that the document she had signed had been to ensure that Antonio would look after her in her old age.
Although Antonio admitted that it had not been the parties’ intention to create a right of survivorship in Rosina’s home he refused to restore full title to his mother. He also in the meantime, took over the use of the entire workshop on the property, refusing to grant Rosina access to it, even though it was on her property.
Rosina brought a claim seeking that the transfers of the property to Antonio alone and to Antonio and herself as joint tenants be set aside. She argued that Antonio had obtained title through undue influence, that she had not received independent legal advice, and that had not understood the nature of the document she had signed such that the doctrines of non est factum and mistake applied to the transfers.
In response, Antonio made his own claims for a legal or equitable interest in the property, or title to a severed portion of the property. He based his claims on the grounds of unjust enrichment, proprietary trust and constructive trust. Antonio had invested money and put significant labour into the expansion of a workshop on the property, and had helped his parents attempt to sever the property, and purchase a neighbouring plot, and sought relief on that basis.
Reviewing the two transfers, Justice Koke agreed that they should be set aside on the basis that non est factum and mistake applied in the circumstances, such that the transfers were null and void. Justice Koke also noted that based on the facts where Rosina, then a grieving widow who has limited English was taken to the registry office by her son who benefitted from the transaction, this was a “textbook case” of the exercise of undue influence by an adult child over an older parent. The judge noted further that Rosina should have received independent legal advice. Thus, the two transfers were set aside.
Justice Koke then proceeded to consider Antonio’s claims in detail. Reviewing the facts, Koke J gave significant credence to Antonio’s claims and after reviewing the figures, held that Antonio’s contribution was valued at approximately $68,000.00. Justice Koke found that the facts supported Antonio’s claims of unjust enrichment and proprietary estoppel.
But Antonio’s claims stopped there. Justice Koke found that the clean hands doctrine prevented Antonio from receiving any entitlement. He noted various wrongs committed by Antonio, including secretly taking his mother to the registry office, preventing his mother or others from accessing the workshop and then refusing to transfer the property back to Rosina. The fact that Antonio held on to the property in order to maintain leverage, despite the fact that it caused his elderly mother significant grief was the “most egregious” wrong, according to Justice Koke. All of those wrongs, however precluded Antonio from receiving the equitable relief he would otherwise have been entitled to. As Justice Koke wrote: “A court of equity will not reward bad behaviour.”
The transfers were set aside, Rosina was awarded exclusive possession of the entire property including the workshop and Antonio was required to leave by the end of 2014.
Antonio’s claims, otherwise justifiable, were ultimately defeated by his actions and attempts to secure his own improper advantage.
—
[1] 2014 CarswellOnt 12095, 2014 ONSC 5035
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