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The Lay of the Land DEVELOPMENTS IN CANADIAN REAL PROPERTY LAW

Author Archives / Michael Nienhuis

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Residential and Industrial Use – Never the Twain Shall Meet?

Posted in Land Use, Residential

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.… Continue Reading

Disruptive Technologies and Real Estate Pricing

Posted in Construction, Technology

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.… Continue Reading

Housing Affordability and Human Happiness

Posted in Land Use, Residential

Some interesting things are emerging from the froth and churn being generated by the housing affordability crisis on Canada’s left coast.

For the first and probably last time since the dawn of civilization, on June 24th a public rally is being held to demand more economic and demographic data by those who want to know whether foreign buyers, vacant homes, speculation, geography or other factors are responsible.… Continue Reading

More on Covenants to Insure

Posted in Municipal, Policy

In a recent blog entry, Covenants to Insure, we summarized the protection afforded when a party (the “beneficiary”) obtains a contractual promise from its counter-party (the “covenanter”) to obtain insurance against specified risks.

In short, the obligation to obtain insurance, known as a “covenant to insure”, operates to prevent the covenanter from successfully suing the beneficiary for losses within scope of the risks that were to be insured against, even if such losses are the result of the beneficiary’s own negligence or breach of contract.… Continue Reading

Saving America’s Malls

Posted in Commercial

Earlier this year CNN published photographer Seph Lawless’s sad montage of photos depicting the demise of America’s malls in the video “Are America’s malls dying?”.

Just in time to spread some holiday cheer, on December 17 CNN published a rebuttal in the form of a CNNMoney Report entitled “Saving America’s malls from the brink of death”, in which writer Kathryn Vasel maintains, à la Mark Twain, that reports of the death of the American mall may have been slightly exaggerated.

Quoting DJ Busch of Green Street Advisors, Vasel says that in the aggregate, America’s malls are … Continue Reading

Covenants to Insure

Posted in Municipal

In most commercial leases, the landlord and tenant obligate themselves to obtain policies of insurance against certain risks.  This often includes, for the landlord, property insurance for the building and boiler equipment, liability and property policies for the landlord’s operations in the building, and coverage for loss of rental income, and, for the tenant, commercial general liability insurance, insurance for its property within the premises, and business interruption insurance.

Such obligations to obtain insurance are usually referred to as “covenants to insure”.  But what is their legal effect?  

In short, a covenant to insure precludes the party obligating itself to … Continue Reading

Unlocking the Potential of First Nations Lands

Posted in Land Use

Opportunities are being created across Canada as First Nations take action to unlock the potential of their lands.

Historically, numerous impediments to the development of First Nations land have existed, many associated with restrictions imposed under the Indian Act (Canada), a situation made worse by the paternal role that act established for the federal government as owner and trustee of First Nations lands.

The result?  Among other things, much First Nations land has not come close to realizing its full economic potential.… Continue Reading

Dealing with Non-Resident Companies

Posted in Litigation, Municipal

In a topsy-turvy world, the relative strength and stability of Canada’s economy continues to attract foreign investment, including our commercial and residential real estate sectors.

Since it may not always be advantageous for foreign companies to incorporate a Canadian entity, Canadian businesses are more likely today than ever to have dealings with non-resident companies, whether as buyers, sellers, landlords, tenants or financiers.

Transacting with a foreign company raises a host of issues that need to be thought about. To illustrate just one, consider a situation where a Canadian landlord wants to enforce a covenant in a lease – say a … Continue Reading

Playing Fair (or not) when Determining Fair Market Value

Posted in Commercial, Litigation

When parties are unable to establish the future value of property in an agreement – for example, options to purchase or lease renewal options – they typically agree that the transaction will be based on the property’s fair market value (“FMV”) at the time, then set out a process for determining FMV should they fail to see eye-to-eye on what’s “fair” when the time comes.

Such provisions, which range from simple to very complex, often involve appraisal of the property by an accredited real estate appraiser – in other words, someone who will be neutral and knows what he or … Continue Reading