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The Lay of the Land DEVELOPMENTS IN CANADIAN REAL PROPERTY LAW

Category Archives: Construction

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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

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

Posted in Construction, Land Use

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.… Continue Reading

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

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.… 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

Building up BC – Building Act

Posted in Construction, Municipal

The British Columbia Government has started to bring into force some of the key provisions of its new Building Act.

The Act, which was passed by the legislature in the early half of 2015, is intended to provide greater consistency in the building and construction industry, and to modernize and streamline the building regulatory system.… 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

Beware of the Residential Invasion!

Posted in Construction, Land Use, Municipal, Residential, Zoning

It must tell something about the age we live in, but TV shows and movies dealing with zombies have been all over the place for a couple of years now. However, as a real estate lawyer representing large industrial corporations, there is something I fear more than an invasion of undead people on the lookout for fresh brains: the urban sprawl!  And more specifically, the residential invasion of industrial areas caused by the urban sprawl.… 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

The Builders’ Lien Trust – A Separate Statutory Right

Posted in Construction, Policy

On September 18, 2015, in Stuart Olson Construction Ltd. v Structal Heavy Steel, the Supreme Court of Canada held that builders liens and statutory trusts are separate remedies that exist independently of one another and may be pursued concurrently by a subcontractor pursuant to the terms of the Manitoba Builders Lien Act.1 One effect of this decision is that a lien bond posted to discharge a lien will not discharge a contractor’s trust obligations. Structal has application to all other jurisdictions that employ the concept of a builders’ lien trust, including Alberta, Ontario and British Columbia.… Continue Reading

The BC Legislature Takes a Crack at Solving the Problem of Aging Strata Properties

Posted in Commercial, Construction, Policy, Residential

On October 8, 2015, the BC Legislative Assembly introduced a Bill that could significantly expedite the redevelopment of aging strata properties in the Province. Bill-40 includes proposed amendments to a variety of statutes, including the Residential Tenancy Act, the Petroleum and Natural Gas Act, and the Oil and Gas Activities Act.  For developers, strata lot owners and strata corporations, however, the most significant aspect of the Bill concerns the Strata Property Act, and the voting threshold that must be met in in order to dissolve a strata corporation.… Continue Reading

Proposed amendment to Builders Lien Act expected to be controversial

Posted in Commercial, Construction, Land Use, Policy

On May 5th 2015, Members’ Bill M 216 received first reading in the BC Legislative Assembly. The proposed Builders Lien Notice to Owners Act would amend the Builders Lien Act to impose two new preconditions on a party’s right to file a claim of lien: (1) service of a detailed written notice on the land owner of the lien claimant’s intention to file a claim of lien, and (2) proof that the owner has been served.… Continue Reading

Lenders and Execution Creditors Take Note! The Importance of Searching for Writs of Execution on Loan Advances & Providing Actual Notice of Same

Posted in Construction, Policy

Lenders advancing funds in stages or draws to a mortgagor should pay particular attention to searching for execution judgments against the mortgagor prior to advancing such funds. This is particularly common in construction loans whereby lenders will be making a series of advances over time.   Once a lender has registered its mortgage prior to the initial advance to ensure its priority on title, this is not necessarily the end of the matter. On subsequent advances, while it is important to search title to the property to determine if there are any registrations of concern, such as construction liens, it is … Continue Reading

Can a Developer Limit its Liability for Construction Defects?

Posted in Construction, Litigation

Lawyers representing strata lot purchasers in British Columbia have, to date, made considerable hay by emphasizing that the Real Estate Development Marketing Act (British Columbia) is “consumer protection” legislation to be interpreted in favour of purchasers. The bias in favour of the consumer has arguably lost some of its lustre in the past year or so (see, for example, the decision in Woo v. Onni, discussed here), but there is still concern that, when in doubt, the courts will invoke the consumer protection nature of the legislation to justify a decision in favour of the proverbial “little guy”, … Continue Reading

Next Dance at the Retail Prom: Outlet Malls

Posted in Commercial, Construction

Like the uncertain and seemingly interminable pause after the first dance at senior prom, the Canadian retail landscape is in a state of flux, with the landlords and retailers clasped in each other’s hands anxiously awaiting the next dance. Retailers are contending with new foreign entrants and the bifurcation of consumer preference, especially in the fashion sector, towards luxury retail and value retail, leaving mid-market retailers lonely hearts in the cold dark night. … Continue Reading

Breaking the Mould – BC Introduces New Building Act

Posted in Construction, Policy

The Province of British Columbia recently introduced the new Building Act (Bill 3 – 2015) on February 12, 2015, which according to the Province’s newsroom, aims at modernizing the building regulatory system in British Columbia.

The proposed act seeks to:

  1. give the Province overriding authority to define standards regarding building activities such as the construction, repair and demolition of buildings to ensure that building requirements are consistent across British Columbia. By centralizing the regulation of building activities under the Province’s direction, the goal is to streamline the regulatory process to reduce costs and improve efficiency in British Columbia’s
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Action Plan: Protecting Heritage Homes in the City of Vancouver

Posted in Construction, Policy, Residential

In response to significant public pressure to stem the tide of heritage and character home demolition, the City of Vancouver’s review and update of its Heritage Conservation Program is underway and due to conclude in late 2015.

The Heritage Action Plan was approved by Vancouver City Council in December 2013. It contains 14 recommendations to better protect heritage buildings and character homes in the City, and to promote the recycling and reuse of materials from demolished buildings:

  1. Clarify direction on conditional and discretionary zoning to improve protection for those properties identified in the Vancouver Heritage Register.
  2. Simplify and streamline rezoning,
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A Bridge Over Deregulated Waters: The New Navigation Protection Act

Posted in Construction, Land Use, Municipal, Policy

On April 1, 2014, the Federal Navigation Protection Act, R.S.C. 1985, c. N-22 (the “New Act”) came into force, replacing the Navigable Waters Protection Act (the “Old Act”) and making notable changes to Canada’s regulation of waterways.  The legislative objective is to enable municipal authorities to manage local projects, like bridge construction, without the costs and delays often incurred in the course of the Federal approval process.  These amendments are likely to have implications across various industries, including construction, oil and gas, transportation, and telecommunication.

Highlights of the amendments include the following:

  1. The New Act
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