Home theft by title fraud, defamation for false claim of sexual abuse on Facebook, child support and bankruptcy
This week on Legally Speaking with Michael Mulligan:
Land title fraud can result in the loss of your home. Efforts to fraudulently impersonate property owners have increased along with the use of remote transactions.
With property, other than real estate, if someone steals something and then sells it to an innocent third party, the original owner of the property stills owns it. The legal concept is the namo dat rule. The thief doesn’t own the stolen item and so can’t sell what they don’t own.
If the stolen property is located, it would be returned to the original owner, and the innocent third party purchaser would need to locate and sue the thief to get their money back.
In British Columbia, the rules are different with respect to real estate.
Real estate is treated differently to permit greater certainty of ownership and in order to make transactions easier.
If you applied the namo dat rule to real estate, a purchaser would need to be concerned about all of the previous transactions involving the property to determine if the person selling it was actually the legal owner and able to transfer the property to them. This could involve attempting to verify many previous transactions because if any of them was improper, the current “owner” might not own anything at all.
In BC, we have a Torrens system for land titles. This involves the concept of indefeasible title. If someone is the registered owner of real property, they own it and this can’t be revoked or made void, absent very limited circumstances.
If, however, a fraudster is able to impersonate a property owner and is successful in having a property sold to an innocent third party, the new purchaser becomes the owner. In this circumstance, the original owner, who was impersonated, would be compensated from a special fund. They would not, however, get their property back.
Over the past ten years, there have been two people who were compensated as a result of their property being stolen in this way.
Also discussed on the show is a recent case involving a BC woman making false claims on Facebook, and in instant messages, that another woman had engaged in child sexual abuse.
In order to be liable for defamation, the plaintiff needs to establish that:
1) The impugned words were defamatory in that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
2) That the words referred to the plaintiff; and
3) That the words were published; i.e. communicated to at least one person other than the plaintiff.
In the case discussed, all three of these requirements were met. The wrongly accused woman was awarded $20,000 in general damages, and an additional $10,000 in aggravated damages because the woman posting the false accusations continued to do so after receiving a cease-and-desist letter from the plaintiff’s lawyer.
The judge hearing the case also issued a permanent injunction to stop posting the false claims.
Finally, on the show, a high-conflict family court case results in a 12-day trial over various issues and a $34,481 costs award against an ex-wife. The ex-wife then declares bankruptcy, which would avoid her needing to pay the costs award.
The ex-husband was ordered to pay retroactive child support, in the amount of $19,475.
The ex-husband tried, unsuccessfully, to have the judge apportion all of the costs award to the issue of child support, because child support, and costs awards relating to it, are not eliminated by bankruptcy.
Follow this link for a transcript of the show and links to the cases discussed.