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The Lay of the Land

DEVELOPMENTS IN CANADIAN REAL PROPERTY LAW

Does a Lease Created From an Option to Lease Enjoy the Same Priority as the Option?

Posted in Land Use
Julianne Gu

In large infrastructure projects where multiple parcels of land are required to build the project, project developers will often enter into options to lease with land owners rather than entering into leases in order to enjoy flexibility and to permit time to engage in suitability studies. The developers are frequently advised to register the option to lease on title so as to give notice of its right to the land.  However, the period between the registration of the option and the ultimate execution of the lease (if a developer decides to exercise the option) could last years, and it is not unusual for intervening encumbrances, including mortgages, to be registered on title during that time.   Assuming the option to lease was validly registered on title, developers are left with the question as to whether or not a lease resulting from the exercise of such option to lease would have priority over subsequent encumbrances by virtue of the priority of the option itself. –> Read More

Operating Cost Statements – How Much Information is Enough?

Posted in Commercial, Litigation
Bram Costin

Operating Costs – they are discussed endlessly during the lease negotiations and then often become the most contentious ongoing issue between landlord and tenant.

The almost universal practice is that at the beginning of each year landlord estimates operating costs and tenant pays in instalments based on that estimate.  Shortly after the end of the year the landlord delivers a statement of operating costs for the past year which may be certified or audited depending on the provisions of the lease. –> Read More

What does the duty of good faith REALLY mean?

Posted in Commercial, Policy
Danny McMullen

Since the Supreme Court decision in Bhasin v Hrynew[1], which firmly established a duty of good faith in contractual relations, the exact contours of that duty have been a fairly open question. In a recent Ontario Superior Court case, 2336574 Ontario Inc. v 1559586 Ontario Inc.[2], the court examined what that duty looks like in a one-off real estate transaction between sophisticated commercial parties. –> Read More

The Real Estate Council of B.C. Under Review – the Independent Advisory Group report marks the end of self-regulation

Posted in Policy
Scott SmytheMadeleine Hawkins

On June 29, 2016, Christy Clark announced that the real estate industry’s days of self-regulation are coming to an end. –> Read More

Stringent Non-Compliance Penalties under B.C.’s new Property Transfer Tax Regime

Posted in Policy, Residential
Jordanna CytrynbaumKate Macdonald

On Monday, July 25, 2016, the government of British Columbia announced that foreigners who buy residential property in the Vancouver area will have to pay an extra 15% on top of the current property transfer tax. This additional tax will apply to all buyers who are not Canadian citizens or permanent residents, including corporations that are not registered in Canada or are controlled by foreigners.  The tax is expected to come into effect on Tuesday, August 2, 2016. –> Read More

Usury Update from Québec Court

Posted in Policy
D. James Papadimitriou

It is now settled law that application fees and similar charges are considered when calculating interest for purposes of offences under Canada’s criminal code but a recent Québec case provides some interesting guidance as to the civil consequences of such a finding. –> Read More

Disruptive Technologies and Real Estate Pricing

Posted in Construction, Technology
Michael Nienhuis

You don’t need a degree in urban land economics to know that real estate prices generally increase with elevation, or to understand why, since most of us appreciate a great view.

But this hasn’t always been the case. In ancient Rome, for example, the poor tended to live on the upper floors of apartment buildings where views were best but it was a long walk up and the risk of perishing in a fire was much higher. –> Read More

Supreme Court of Canada decides that substance trumps form in the application of the Section 8 Interest Act prohibition on higher default interest to an incentive rate mortgage

Posted in Commercial, Policy, Residential
Ben Leith

In Krayzel Corp. v. Equitable Trust Co., 2016 SCC 18 (“Krayzel”), the Supreme Court of Canada held that an interest rate increase that was structured as a lower rate in the absence of default infringed Section 8 of the Interest Act (Canada). In its analysis, the majority decision looked at whether mortgage loan that offered a lower rate of interest where there was no default is in substance the same as imposing a higher interest rate after a default. It ultimately found that framing the higher rate of interest as part of an incentive to avoid a default could not save a loan from the Interest Act prohibition. –> Read More

Building up BC – Building Act

Posted in Construction, Municipal
Joy Ren

The British Columbia Government has started to bring into force some of the key provisions of its new Building Act.

The Act, which was passed by the legislature in the early half of 2015, is intended to provide greater consistency in the building and construction industry, and to modernize and streamline the building regulatory system. –> Read More