Executive summary: key legal and evidentiary issues

• MLP Holdings Inc. and Wallace Parsons applied to vacate a lis pendens filed by 94827 Newfoundland and Labrador Ltd. on four properties they own at 24–30 Carol Crescent in the Town of Paradise following a failed purchase and sale arrangement.

• A procedural question arose as to whether the lis pendens was properly coincident with the Statement of Claim, given the notice was registered on November 26, 2025, while the Statement of Claim was issued on January 7, 2026.

• Central to the dispute was whether the properties possessed sufficient uniqueness — owing to their Insulated Concrete Form construction and eligibility for the CMHC MLI Select program — to support a claim for specific performance over monetary damages.

• The defendants argued the properties were not unique because any property containing five or more units could qualify for MLI Select, and similar units could be reproduced within a timeframe of six to eight months.

• Financial hardship was alleged by MLP and Parsons, who carried a short-term mortgage of $1,084,640 with monthly interest of $11,741.23 on the vacant and unsold buildings, were owed in excess of $260,000.00 with interest accumulating daily, and owed additional payments to various subtrades and suppliers.

• Justice Browne declined the application to vacate, finding 94827 had established a prima facie case for specific performance and that the defendants had not discharged their burden of establishing that the properties were not unique nor that there was a case for undue hardship at this point in time.

Background of the dispute

94827 Newfoundland and Labrador Ltd. ("94827") entered into a Purchase and Sale Agreement ("the Agreement") with MLP Holdings Inc. and Wallace Parsons ("MLP and Parsons") to acquire four residential properties located at 24, 26, 28, and 30 Carol Crescent in the Jonathan Park Subdivision within the Town of Paradise, Newfoundland and Labrador. The properties were constructed using Insulated Concrete Form ("ICF"), a construction technique that highlights energy efficiency and soundproofing. The properties were advertised as "perfect for rental income" and constituted a cluster of eight residential units. 94827 entered into the Agreement specifically for the purpose of renting them to tenants and availing of the CMHC Mortgage Loan Insurance Select ("MLI Select") program. MLI Select is a federal insurance program offered by Canadian Mortgage and Housing Corporation ("CMHC") to incentivize the construction of affordable, accessible and energy-efficient rental housing. Under the MLI Select program, 94827 stood to obtain a fifty-year mortgage at five percent because the project met the requirement of a minimum project size of five residential units on a single parcel of land under common ownership.

The failed transaction and registration of the lis pendens

The sale ultimately fell through due to a dispute regarding extras, additions and alterations leading to an adjusted purchase price. The original Agreement of Purchase and Sale contemplated a garage on one side and apartment on the other. The Appendix to the Agreement indicated that 94827 wished to modify the unit to have two apartments with wheelchair accessibility. These changes ended up costing MLP more money because the basement floors had been poured, the walls constructed and electricity started. However, following 94827's energy audit, it decided that it did not need both apartments to be accessible anymore because it had accumulated enough MLI Select points without it. MLP incurred additional costs to reverse the walk-in shower, electrical and plumbing, and argued that 94827 was solely responsible for the delays in closing and that it had declined to purchase the properties even at a discounted price. Following the breakdown of the transaction, 94827 registered a Notice of Lis Pendens on title to the properties on November 26, 2025. On November 27, 2025, 94827 advised MLP and Parsons that the Notice of Lis Pendens had been registered. The Statement of Claim was issued on January 7, 2026, seeking specific performance of the Agreement.

The application to vacate the lis pendens

MLP and Parsons brought an interlocutory application before Justice Peter N. Browne of the Supreme Court of Newfoundland and Labrador to vacate the lis pendens. They advanced three main arguments. First, on a procedural basis, they argued that 94827 had not properly perfected the lis pendens because it did not issue it contemporaneously with the Statement of Claim. Second, they argued the properties were not unique, as any property that contains five units or more is eligible to apply for the CMHC MLI Select program, and the ICF construction does not make the properties uniquely eligible — rather, it helps with obtaining points due to energy efficiency, but the same level of efficiency could be achieved by constructing an R2000 home, or by using other optional features or construction methods. They pointed to the developer's plans for future phases of the Jonathan Park Subdivision, noting that there are numerous opportunities in Phase 3 — where there are at least 140 lots — that could be eligible for the CMHC MLI Select program. Third, they claimed undue hardship, citing a short-term mortgage of $1,084,640 with a closing date of July 25, 2025, carrying monthly interest of $11,741.23. Because the completed buildings were vacant and unsold, they attracted increased insurance costs. MLP was owed in excess of $260,000.00 with interest accumulating daily, and additional payments were owed to various subtrades and suppliers.

The court's analysis on procedural coincidence

On the procedural issue, Justice Browne considered the case law requiring that a lis pendens and the commencement of litigation be "coincident." Drawing on the Court of Appeal's decision in Paro Enterprises Limited v. Murphy, which confirmed that what is required for effect at law is that the lis pendens and cause of action coincide, regardless of which of the two may be first in time, the Court found that the filings were slightly over one month apart and involved different law firms at different points in time to perfect the claim. Justice Browne concluded that they were coincident, such that any presumption against their validity was eliminated. The Notice of Lis Pendens could not be vacated on this basis.

Assessment of uniqueness and specific performance

Turning to the substantive question of whether specific performance was available to 94827, the Court applied the framework set out in Semelhago v. Paramadevan, which held that specific performance should not be ordered absent evidence that the property is unique to the extent that its substitute would not be readily available, or absent a fair, real and substantial justification for the claim. The Court considered the three-factor analysis from Lucas v. 1858793 Ontario Inc. (Howard Park), which examines: (a) a property's physical attributes; (b) the purchaser's subjective interests; and (c) the circumstances of the underlying transaction. The affidavit evidence of Bruce Jarvis, a director with 94827, and Bryan Robbins, a licenced real estate agent retained by 94827 to purchase the properties, supported the position that the properties were unique and unlikely to be replaceable because there are no duplicate properties available in Newfoundland and Labrador at this time. While the Court acknowledged that Phases 2 and 3 will also contain exact or comparable properties that will meet the MLI Select criteria — and according to MLP and Parsons' own evidence, this could occur as early as six to eight months — it held that the Court's analysis should be temporal in nature, focusing on the nature of the properties in the timeframe from the date of filing of the lis pendens to the date of the hearing of the application. As of January 29, 2026, the properties had a quality that made them particularly suitable for the purpose for which they were intended when 94827 signed the Agreement, and no other substitutes were available in the market. Justice Browne concluded that 94827 would not be able to purchase property of equivalent design and value in Newfoundland and Labrador due to their currently unique qualities.

Hardship claim and the ruling

On the hardship issue, the Court noted that a claim of hardship by a defendant is not determinative when deciding whether to vacate a Notice of Lis Pendens, but where hardship is claimed a court will scrutinize the claim of uniqueness more closely. Justice Browne accepted 94827's observation that MLP and Parsons had led no evidence to refute the uniqueness and irreplaceability of the properties. The Court further noted that MLP and Parsons had created their circumstance, and elected to take on risk, by listing the properties and entering into agreements of purchase and sale with third parties. The Court found that while there was evidence of hardship to MLP and Parsons, it did not rise to the level of displacing the presumption of uniqueness that currently existed. To presume, at this point in time, that the only remedy appropriate for 94827's claim was monetary damages would not better serve justice between the parties, though the Court acknowledged this reasoning may very well change in the very near future. The application by MLP and Parsons to vacate the lis pendens was dismissed. Costs will be costs in the cause on a Column III basis. Justice Browne additionally indicated that, should the parties consider the option of placing security and the method of securing it, he would be prepared to hear from counsel on this issue. No specific monetary amount was awarded or ordered at this stage, as the decision was an interlocutory ruling preserving the lis pendens pending trial on the merits of the specific performance claim.