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The Lay of the Land

DEVELOPMENTS IN CANADIAN REAL PROPERTY LAW

The Iona Decision (National) – Supreme Court of Canada dismissal bolsters priority of builders’ lien trust

Posted in Construction, Land Use
Aidan CameronBryan WestAllyson Hopkins

On April 14, 2016, the priority of statutory trust protections afforded to subcontractors and suppliers under Alberta’s lien legislation was strengthened: the Supreme Court of Canada dismissed an appeal in Iona Contractors Ltd. v. Guarantee Company of North America, 2015 ABCA 240, thereby bolstering the priority of the trust even in the face of a bankrupt general contractor. –> Read More

Vancouver to Enact Empty Home Tax

Posted in Policy, Residential
Jordanna CytrynbaumKate Macdonald

Late last week, the City of Vancouver announced details of its plans to tax vacant residential properties, which plans are part of its efforts to address the low rental vacancy rate and high cost of renting in the City. –> Read More

How long is the builders’ lien registration period for drilling and/or servicing a well or well site on an oil sands project? Spoiler Alert – it’s 90 Days!

Posted in Construction, Land Use, Litigation
Bryan West

In the recent decision of Davidson Well Drilling Limited (Re), 2016 ABQB 416 (“Davidson”) the Court of Queen’s Bench of Alberta held that the 90-day lien period to register a lien against an “oil or gas well” or “oil or gas well site” applies to drilling on oil sands mines. The Court also concluded that the costs of trucking equipment away from a project site after it is completed may, in certain circumstances, be properly included in a builders’ lien. –> Read More

Residential and Industrial Use – Never the Twain Shall Meet?

Posted in Land Use, Residential
Michael Nienhuis

I had the privilege (some would say misfortune) of growing up in a family business. I spent a lot of time after school and during summers in the shop and in spray booths, on crane trucks and on ladders, using all sorts of equipment and tools and generally taking in all the sights and sounds and smells (some noxious I’m sure) of a small sign manufacturing company.

–> Read More

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