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The Lay of the Land

DEVELOPMENTS IN CANADIAN REAL PROPERTY LAW

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

Sale Lease Back Musings

Posted in Commercial
D. James Papadimitriou

As many companies, particularly r‎etailers, seek to monetize assets or at least leverage valuable real estate assets, we are witnessing increased popularity of sale leaseback transactions. –> Read More

How the Forfeited Corporate Property Act, 2015 Affects Ontario Corporations and Not-for-profit Corporations

Posted in Land Use, Policy
Shanon GrauerElaine BuzzellNicole Rumble

On December 10, 2016, the Forfeited Corporate Property Act, 2015 (the “FCPA”) came into force in Ontario. This statute addresses what happens to property that is not distributed by an Ontario corporation prior to its dissolution.  It also amends the Business Corporations Act (Ontario) (the “OBCA”) and the Corporations Act (Ontario) (the “OCA”) to include a requirement for corporations to maintain a register of ownership interests in land in Ontario. Corresponding amendments were also made to the Not-for-Profit Corporations Act (Ontario) (the “ONCA”), which has not yet come into force. –> Read More

Licences and Easements – A Distinction with a Big Difference

Posted in Municipal, Residential
Bram Costin

Licenses and easements are not the same thing! Depending on the rights you wish to convey, there is an important distinction between the two, which was recently highlighted in an Ontario Court of Appeal case.[1]  The Court was faced with a neighbouring property owners’ fight concerning a waterline.  –> Read More

Introduction to the Fair Housing Plan: Ontario

Posted in Policy, Residential
Christine Wong

Ontario has introduced the Fair Housing Plan which includes some measures that will have an immediate effect such as a rent control expansion, a new standardized lease and a new 15 percent Non-Resident Speculation Tax should the legislation be passed. –> Read More