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Category Archives: Policy

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

Posted in Policy

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.… Continue Reading

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

Posted in Policy

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?… Continue Reading

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

Posted in Policy

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 … Continue Reading

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

Posted in Land Use, Policy

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.… 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

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

Stringent Non-Compliance Penalties under B.C.’s new Property Transfer Tax Regime

Posted in Policy, Residential

On Monday, July 25, 2016, the government of British Columbia announced that foreigners who buy residential property in the Vancouver area will have to pay an extra 15% on top of the current property transfer tax. This additional tax will apply to all buyers who are not Canadian citizens or permanent residents, including corporations that are not registered in Canada or are controlled by foreigners.  The tax is expected to come into effect on Tuesday, August 2, 2016.… Continue Reading

Usury Update from Québec Court

Posted in Policy

It is now settled law that application fees and similar charges are considered when calculating interest for purposes of offences under Canada’s criminal code but a recent Québec case provides some interesting guidance as to the civil consequences of such a finding.… 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

B.C. Government Shines a Light on Shadow-Flippers with New Regulations

Posted in Policy

Shadow-flipping has been the subject of intense media attention over the past few months, and there has been increasing pressure on the B.C. government to address the issue.  The government responded on May 9, 2016 by unveiling new regulations aimed at combatting the practice.  The regulations, issued pursuant to the Real Estate Services Act, come into effect today.

What is shadow-flipping?

Shadow-flipping a property involves the assignment of a purchase contract by a purchaser to a third party for a fee, often on multiple occasions and for increasingly higher fees.  There is, of course, nothing wrong with entering into … 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