Olson v. Miller

Olson v. Miller

Foreclosure petition dismissed because equity and conduct of parties (Hieberts' payments to protect their security) precluded foreclosure; joint ownership found impractical so court ordered partition and sale by transferring 95% to the Hieberts and 5% to Nykes, directed the Hieberts to pay out the existing mortgage...

Source-derived case information.

Citation
2017 BCSC 2465
Parties
Petitioner; Respondent: Douglas James Olson; Petitioner; Respondent: Alan Roger Hiebert; Petitioner; Respondent: Beverley Dawn Hiebert; Petitioner; Respondent: Benjamin Frank Denner; Petitioner; Respondent: Amanda Chantelle Hiebert; Respondent; Petitioner: Barbara Joyce Miller
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
23 November 2017
Procedural Posture
Partition and Sale Petition; Foreclosure Petition / Trial (oral Reasons for Judgment)
Outcome
Foreclosure petition dismissed; partition and sale ordered with transfer of 95% of the lands to the Hieberts and 5% to Robert Nykes; detailed financial adjustments and payment schedules ordered.
Legal Topics
Partition and Sale, Foreclosure, Title and Ownership Disputes, Mortgage Refinancing, Accounting for Rents, Relief From Forfeiture
Source Language
english
Property Law Real Property Equity Mortgage Law Partition and Sale Foreclosure Title and Ownership Disputes Mortgage Refinancing +2 more

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Parties

Douglas James Olson

Petitioner; Respondent

Alan Roger Hiebert

Petitioner; Respondent

Beverley Dawn Hiebert

Petitioner; Respondent

Benjamin Frank Denner

Petitioner; Respondent

Amanda Chantelle Hiebert

Petitioner; Respondent

Barbara Joyce Miller

Respondent; Petitioner

Procedural Posture

Partition and Sale Petition; Foreclosure Petition / Trial (oral Reasons for Judgment)

Legal Issues

  1. 1 Whether foreclosure should be granted on the $47,500 mortgage
  2. 2 Whether continued joint ownership is practical and partition and sale is appropriate
  3. 3 Proper allocation of mortgage liability after informal transfers and refinancings

Ratio Decidendi

Foreclosure petition dismissed because equity and conduct of parties (Hieberts' payments to protect their security) precluded foreclosure; joint ownership found impractical so court ordered partition and sale by transferring 95% to the Hieberts and 5% to Nykes, directed the Hieberts to pay out the existing mortgage (approx. $250,000) and to pay adjusted amounts to Miller with specified timelines and a promissory note, and imposed ancillary obligations (clearing lot, possession, interim payment regime).

Court Disposition

Foreclosure petition dismissed; partition and sale ordered with transfer of 95% of the lands to the Hieberts and 5% to Robert Nykes; detailed financial adjustments and payment schedules ordered.

Orders

  • Foreclosure petition dismissed; each party to bear own costs
  • Transfer of the acreage and lot to be completed within 90 days with 95% to the Hieberts and 5% to Robert Nykes