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The Lay of the Land

DEVELOPMENTS IN CANADIAN REAL PROPERTY LAW

Strata Wind-Up and Sale Process: A Practical Overview

Posted in Construction, Residential
Connor Bildfell

Introduction

As reported in a previous blog post, the B.C. Strata Property Act[1] was recently amended to make it easier for strata corporations to wind themselves up. As of July 2016, 80% approval now suffices, provided the resolution is subsequently confirmed by the B.C. Supreme Court.

The relaxed threshold for passing a wind-up resolution has opened up a valuable opportunity – for both strata owners and developers alike – to market aging strata complexes for redevelopment. Yet, to seize this opportunity, strata councils, strata owners, and developers must ensure that the wind-up and sale process satisfies the essential legal requirements in order to be successful. –> Read More

Is Property Transfer Tax Reform on the Horizon?

Posted in Commercial, Property Tax Assessment, Residential
Madeleine HawkinsLeisa Hickey

The Property Transfer Tax Act (British Columbia) could soon be amended to impose property transfer tax (“PTT”) on beneficial transfers of real estate.  The NDP-Green Party Coalition Government budget, scheduled for release this month, is expected to focus on the real estate market and PTT reform may be on the agenda.  –> Read More

Court Confirmation of Strata Wind-Up Resolutions – The Experience So Far in B.C.

Posted in Policy, Residential
Connor Bildfell

 

Introduction

Before July 2016, in order to wind-up a strata corporation voluntarily through a liquidator in B.C., unanimous approval of the strata owners was generally required. The unanimity requirement made strata wind-ups a rare event, and consequently it was exceedingly difficult for owners to sell a strata complex in its entirety for redevelopment. In an influential 2015 report, the B.C. Law Institute (“BCLI”) identified some of the problems with the unanimity requirement: –> Read More

BCCA Considers What Constitutes a “Habitable Area” in Determining Strata Unit Entitlements

Posted in Policy
Connor Bildfell

Introduction

 

The allocation of a strata corporation’s expenses among owners can create friction, especially when the method of calculation is seen by some owners to be unfair, inconsistent, or inequitable. This is precisely the scenario that arose in Barrett v. The Owners, Strata Plan LMS3265,[1] a case in which the B.C. Court of Appeal considered what constitutes a “habitable area” in determining unit entitlements, as well as the law on inaccurate schedules of unit entitlement. –> Read More

BCSC Considers the Organizing Principle of Good Faith in the Context of Lawyer’s Approval Clauses

Posted in Litigation
Connor Bildfell

Introduction

In 2014, the Supreme Court of Canada in Bhasin v. Hrynew[1] formally recognized the “organizing principle of good faith” in Canadian contract law. Since then, many Canadian courts have had occasion to interpret and apply this principle in the context of real estate transactions. A recent decision of the B.C. Supreme Court, Zhang v. Amaral-Gurgel,[2] adds to this line of authority, offering insight into the application of the principle of good faith in the context of lawyer’s approval clauses. –> Read More

Be Careful What You Sign — It May Come Back to Haunt You: Estoppel Certificates and their Effect

Posted in Policy
Bram Costin

Tenants are routinely requested by landlords to execute estoppel certificates in favour of purchasers or lenders as to the status of their leases. Most tenants ensure there are no ongoing performance defaults (such as a failure to repair) or monies owing by the landlord (such as for year-end adjustments).  How many tenants review their lease carefully before signing? –> Read More

BCSC Declines to Confirm Strata Wind-Up Resolution for the First Time

Posted in Policy
Connor Bildfell

Introduction

In July 2016, the Strata Property Act (British Columbia) (the “Act”) was amended in order to make it easier for strata corporations[1] to voluntarily wind themselves up using a liquidator.[2] Previously, a resolution initiating the wind-up process and appointing a liquidator required unanimous approval from the owners. Unanimous approval was, not surprisingly, rarely achieved. To address this issue, the Act was amended to provide that a resolution receiving 80% approval would suffice, provided a court subsequently confirms the resolution. In The Owners, Strata Plan VR 1966, 2017 BCSC 1661, the B.C. Supreme Court declined, for the first time, to confirm a wind-up resolution. As the decision illustrates, court confirmation in this context will not be forthcoming in the face of certain defects in the resolution. Indeed, even where a strata corporation actually wants to “wind up in court”, it may not succeed in doing so where its wind-up resolution was flawed in fundamental respects. –> Read More

Tripartite Agreements – Three is Company

Posted in Policy
D. James Papadimitriou

Direct agreements or tripartite agreements are often an important feature of financings involving ground leases or single tenants, as well as in project finance. –> Read More

The Anti-Avoidance Blues: Does a Foreigner’s Title Nominee Share Purchase Constitute an “Avoidance Transaction”?

Posted in Property Tax Assessment
Craig Shirreff

On August 2, 2016, the Province of British Columbia enacted amendments to the Property Transfer Tax Act (British Columbia) (the “Act”) which introduced a new 15% property transfer tax (colloquially referred to as the “foreign buyer tax”).  This tax currently applies when a foreign national or foreign corporation purchases residential property situated in the GVRD.  The amendments also include a new anti-avoidance rule applicable to the foreign buyer tax only.  This rule has yet to be considered by a Court, but on its face it may affect the ability of a foreign national or foreign corporation to safely avail itself of a routine feature in many purchase and sale transactions in British Columbia: the purchase of a title nominee’s shares. –> Read More

Commercial Condo Purchaser Tips

Posted in Commercial, Residential
D. James Papadimitriou

With the continued exponential growth in mixed use developments which often take the form of separate components subject to condo declarations and in many cases multiple condo declarations as between the residential and commercial components, buyers and mortgage lenders will consider additional factors during their due diligence and as part of future management of the various components. –> Read More