A B.C. senior who has spent more than $3.4 million on the construction of a home on the Sunshine Coast has been granted an injunction against the former co-owners of the property, who have contributed only $115,000 to the project.
Maria Sandberg Jones and the two men she bought the property with in May 2020 – Leslie Thomson and Andrew Press – are involved in ongoing claims and counterclaims against each other in B.C. Supreme Court.
While the litigation is still ongoing, Justice Anita Chan granted Jones an injunction earlier this month that requires Thomson and Press to vacate the property, which will allow Jones to sell it and recover some of her investment.
The ownership arrangement
According to Chan’s decision, which was issued Jan. 10 and posted online this week, Jones is the sole registered owner of the property.
When the trio first purchased the land in Gibsons, this was not the case. Initially, Jones was registered as owning an undivided one-quarter interest in the property, with 1251078 B.C. Ltd. – a numbered company controlled by Thomson and Press – owning the rest.
The plan was to construct a home on the property that would have a separate suite for Jones, then 74 years old, to reside in as she aged. Her portion of the house was slated to take up one-third of its footprint, with the remainder – where Thomson and Press would live – taking up the other two-thirds.
Jones became the sole owner in November 2021, when the parties were seeking a construction loan. While the two sides dispute the exact circumstances that led to Jones acquiring the full property, the court decision indicates Thomson and Press had bad credit, and the bank was more willing to advance funds to Jones.
Thomson and Press have been living in a trailer on the property since July 2021, and the court decision suggests they have several storage containers of belongings on the property as well.
Chan’s decision indicates that Jones has resorted to using her retirement savings and borrowing money from friends to ensure the construction loan continues to be repaid. Thomson and Press have not contributed regularly to a joint account set up for the project since January 2023, and before that were contributing significantly less than Jones claims they agreed to pay.
“To date, Ms. Jones has spent approximately $3.47 million on the purchase of the property and the construction of the home,” Chan’s decision reads.
“Mr. Thomson and Mr. Press have paid approximately $115,000.”
While the defendants claim Jones knew from the start that she would be footing the bill for construction, with Thomson and Press paying her back over time, Jones’ lawsuit accuses the two men of misrepresenting their financial ability to purchase the property and construct the home with her.
Jones’ claim and the defendants’ counterclaim remain to be decided. Chan’s decision dealt with an application from Jones for an interlocutory injunction that would prohibit Thomson and Press from trespassing on the property and prevent them from interfering with completion of construction on the home.
“Ms. Jones can no longer afford to live in the home once it is complete,” Chan’s decision reads. “She needs to sell it, before she defaults on the RBC construction loan. She has been advised by a realtor that to list it now, while Mr. Thomson and Mr. Press are still living on the property, would not be conducive to achieving the best price.”
‘She needs to sell’
Courts employ a three-part test when determining whether to grant an injunction. To be successful, the party requesting the injunction must first show that they have a “strong prima facie” case, otherwise known as a strong likelihood that they will ultimately be successful in their overall claim.
If a strong prima facie case is established, the judge must determine that an injunction is necessary to prevent irreparable harm to the party seeking it.
Finally, if there is a strong prima facie case and a likelihood of irreparable harm in the absence of an injunction, the judge must determine whether the “balance of convenience” is in favour of granting an injunction.
In this case, Chan concluded that all three parts of the test were met.
According to the decision, the defendants claim that Jones acquired sole ownership of the property with an oral agreement to hold two-thirds of it in trust for Thomson and Press. Jones disputes that any such agreement exists.
Chan described the question of the existence of the trust as “the critical issue to be determined at trial” in the case. However, the judge concluded that even if such a trust exists, “the evidence is strong” that the defendants have breached its terms.
“Upon a preliminary review of the case, I am satisfied that there is a strong likelihood on the law and the evidence presented that, at trial, the plaintiff will be ultimately successful in proving the allegations set out in the notice of civil claim,” the decision reads.
Regarding the prospect of irreparable harm, Chan noted that it’s unlikely that the defendants would be able to pay a significant amount of money in damages to Jones if she is ultimately successful in her case.
At the same time, Chan found, it’s possible that Jones will not be able to recover her full investment in the property even if she’s able to sell it.
“There is evidence that the plaintiff has already suffered monetary damages that cannot be cured,” the decision reads. “The defendants obtained an appraisal for the property in October 2023 which put the appraised value at $2.85 million. The evidence is the plaintiff has put in approximately $3.47 million.”
The judge noted that Jones’ current expenses are about $2,000 more per month than her income, and “she needs to sell the property as soon as possible to cut her losses.”
“The plaintiff has shown irreparable harm if the injunction is not granted,” the decision reads.
Finally, Chan concluded the balance of convenience favoured granting the injunction.
While the defendants argued that the property is their “dream home,” and granting the injunction would extinguish their hopes of ever living in it, Chan was unconvinced.
“With respect, I do not find the defendants’ arguments persuasive,” the decision reads. “It is unclear to me why the defendants cannot purchase the property from the plaintiff if they have the funds to do so.”
More important than preserving Press and Thomson’s access to the property while the litigation proceeds, Chan determined, is the plaintiff’s need to be rid of the unsustainable expenses the property is causing her.
“If the injunction is not granted, the plaintiff continues to suffer from the stress and anxiety of the mounting costs, and when she is no longer able to make the monthly payments on the RBC construction loan, the property will be foreclosed,” the decision reads.
“The plaintiff will receive less from any foreclosure sale. If the plaintiff is eventually successful on this action, based on the evidence, she will not be able to collect any damages from the defendants.”
Certificate of pending litigation
In addition to granting the injunction, Chan ordered that a certificate of pending litigation the defendants placed on the property’s title should be cancelled, provided that Jones posts a $115,000 security to effect such a cancellation.
The $115,000 figure represents the defendants’ contributions to the property to date, and can be paid with the proceeds from the sale.