Header graphic for print
The Lay of the Land DEVELOPMENTS IN CANADIAN REAL PROPERTY LAW

Category Archives: Commercial

Subscribe to Commercial RSS Feed

Commercial Condo Purchaser Tips

Posted in Commercial, Residential

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.… Continue Reading

Should I Challenge My Property Tax Assessment?

Posted in Commercial, Municipal, Property Tax Assessment, Residential

Ontario property owners are receiving notices of assessment this year that will serve as a basis for tax collections in 2017 through 2020. Values are set by the Municipal Property Assessment Corporation (“MPAC”) based on estimated January 1, 2016 market values. Municipalities will then use these assessments to determine your property taxes payable.… Continue Reading

New Québec Transfer Duty Regulations

Posted in Commercial, Policy, Residential

The Quebec government has deposited new regulations to give effect to measures ann‎ounced in the March budget.

Among the clarifications are confirming that exemptions for inter corporate transfers are based on 90 per cent issued shares and not voting shares, a trigger on change of control within 24 months of an exempt transfer, clarifying that options to purchase shares are captured within the anti-avoidance provisions as well as clarifying that amalgamations are exempt transfers.… Continue Reading

Bhasin Two Years On: The Impact of Bhasin v. Hrynew on the Practice of Canadian Commercial Real Estate Law

Posted in Commercial

Edited and approved by Ben Leith

In 2014, the Supreme Court of Canada in Bhasin v. Hrynew (“Bhasin”) established good faith contractual performance as a general organizing principle of the common law of contract and created a specific duty of honesty in contractual performance – ultimately, imposing a stand-alone duty of good faith. Despite Justice Cromwell’s repeated assertions that the judgement in Bhasin was an incremental step in the common law, Canadian legal scholars and prominent Canadian law firms dubbed it a “landmark” decision that would transform the manner in which business parties performed their contractual obligations.… Continue Reading

In distinguishing Iona, the Court of Queen’s Bench of Alberta confirms the sanctity of the Torrens registration system in determining priority interests even in the face of a statutory trust

Posted in Commercial, Construction, Land Use

In the recent decision of 1864684 Alberta Ltd. v 1693737 Alberta Inc., 2016 ABQB 371, the Court of Queen’s Bench of Alberta held that purchasers claiming a statutory trust pursuant to section 14(3) of the Condominium Property Act, RSA 2000 c C-22 (“Condo Act”) were subject to the same registration requirements, and priority regime, as other creditors under the Land Titles Act, RSA 2000 c L-4 (“Land Act”).… Continue Reading

Is a Developer Liable for A Buyer’s Losses from Changes in the Market? A BC Court Says No

Posted in Commercial, Litigation

Where there has been a misrepresentation by a developer in a real estate transaction, who is responsible for the losses suffered solely as a result of a change in market conditions? On September 15, 2016, in The Owners, Strata Plan LMS 3851 v. Homer Street Development Limited Partnership, 2016 BCCA 371, the BC Court of Appeal held that for a statutory misrepresentation under the Real Estate Act, a developer is not liable to compensate an investor for losses suffered as a result of external causes, such as changes in the market, which do not result from the inaccuracy … Continue Reading

Operating Cost Statements – How Much Information is Enough?

Posted in Commercial, Litigation

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. … Continue Reading

What does the duty of good faith REALLY mean?

Posted in Commercial, Policy

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.… Continue Reading

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

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 … Continue Reading

Calculating Damages for False Estoppel

Posted in Commercial, Policy

The Quebec Court of Appeal in Meyerco Enterpresis Ltd. v. Kinmont Canada Inc. (2016 QCCA 89) has recently partially overturned a lower court ruling that awarded damages for a false estoppel signed by a tenant based on application of a cap rate paid by the buyer and addressee of the estoppel instead applying general principals of ‎damages including mitigation.… Continue Reading

“Occupancy Permit” and “Certificate of Occupancy”: what they are and what the difference is

Posted in Commercial, Construction, Policy, Residential, Zoning

As a municipal and planning lawyer in Ontario I am often asked by real estate counsel what an “Occupancy Permit” or “Certificate of Occupancy” is, whether they are the same thing, and how they work. This is a general short answer to those questions for quick reference.… Continue Reading

Property Transfer Tax Fairness?

Posted in Commercial, Policy

In our previous post of February 29 (co-authored by Conrad Rego and Patrick Beechinor) we discussed the implications of the increase in B.C. property transfer tax from 2% to 3% on that portion of a property’s value which exceeds $2 million. We also noted that effective in the Spring, the names and addresses of all beneficiaries of bare trustees are to be disclosed by the transferee upon transfer to any bare trustee.  Though no reason was given by the Province for the requirement for beneficiary disclosure, industry participants have surmised that the disclosure may be a precursor for collecting property … Continue Reading

Good-Bye nominee share sales in Quebec

Posted in Commercial, Policy, Residential

In its March 17 budget the Quebec government brought in a series of measures reforming legislation governing transfer duties.  Of particular interest is the introduction of the requirement to disclose off title transfers and the imposition of transfer duties on same.  The legislation was drafted so to previously refer to registration as the trigger for taxation.… Continue Reading

Crowdfunding

Posted in Commercial, Policy, Residential

Raising capital in the real estate context, whether through large-scale investment or by smaller, more focused means, can be an intricate, time-consuming and expensive process. Developers and others raising capital need to be mindful of various considerations when operating in this arena, depending on whether their investors are pension funds, private investment vehicles or individual investors.… Continue Reading

Landlord ignored and on the line: Clients inclined to buy online

Posted in Commercial, Policy, Technology

Building owners that lease their property using a turnover rent (or “percentage rent”) structure to retailers are facing an important challenge relative to capturing revenue from online sales.

Turnover rent lease arrangements entail a base rent payment to which is added a percentage of a tenant’s sales, or the higher amount between a base rent and a sales percentage. This structure allows landlords and tenants to share in a business’ risks and rewards. In Canada, there is no legislation or formal guidelines regarding the calculation or inclusion of online sales with regards to the computation of a turnover rent structure.… Continue Reading

B.C. Budget: Commercial Real Estate Implications

Posted in Commercial, Policy

On February 16, 2016, B.C. Finance Minister Mike De Jong delivered the B.C. budget for the 2016/2017 fiscal year starting April 1.

Many commentators have surmised that Premier Christy Clark responded to intense public pressure to address the perception that Metro Vancouver has a housing affordability crisis, with a budget that offers a tax break on the acquisition of new homes and the commitment to start collecting data on foreign buyers. However, little has been written on the implications of the budget on commercial real estate transactions in B.C.… Continue Reading

Mixed-Use Development: A Balancing Act

Posted in Commercial, Construction, Residential

Mixed-use developments are steadily increasing. The main challenge remains ensuring enhanced residential occupants’ experience, with a good tenant mix, while proceeding with the developer’s overall project.  Lawyers working in multi-use development will need to foresee and take into account all of the different interests at play, and provide for flexibility for the long-term development vision of their clients, yet ensuring stability and balanced rights for commercial tenants and residential co-owners.… Continue Reading

Seizing Your Tenant’s Property – The Landlord’s Remedy Of Distress

Posted in Commercial, Policy, Residential

One of the most difficult and common problems faced by a landlord is a tenant who is unable or unwilling to pay rent. Under s. 104 of the Alberta Civil Enforcement Act, a landlord may seize the personal property of a residential or commercial tenant in order to secure the landlord’s claim for unpaid rent under the lease (although seizure is typically much more effective in a commercial context). This is called the landlord’s “right of distress.”… Continue Reading

Integrity in Real Estate

Posted in Commercial, Policy

In response to various scandals and as part of a continued global anti-corruption effort, the Canadian federal government responded with a new set of rules around integrity in procurement practices as well as sanctions for breach including termination of supply agreements and banishment. … Continue Reading