Real Estate Advice: A dozen things NOT TO DO before you buy a home!

The market has slowed down so you have some breathing space to shop for a home without a half a dozen people waiting behind you to offer over the asking price with no due diligence conditions.

However, the government has recently imposed “stress tests” for mortgage approval thereby making it more difficult to qualify for a mortgage.

In addition, some “experts” are predicting that prices will soften in the foreseeable future, although such predictions are wrong almost as often as they are right.

So if you can pass the stress test and have the cajones to buy when few others are (as Warren Buffett says, “Be fearful when others are greedy, but be greedy when others are fearful”), then your first stop is to get your financing in order.

To figure out your price range, talk to a mortgage broker or banker to get pre-approved for financing.

But before you even do that, AVOID THESE DOZEN “NO-NO’S” according to senior mortgage advisor, Karen Gibbard:

DON’T:

  1. Buy a car;
  2. Change jobs;
  3. Change banks;
  4. Open new credit facilities;
  5. Move your money around;
  6. Make a large deposit to your bank account;
  7. Buy anything new on credit;
  8. Authorize anyone to make credit bureau enquiries;
  9. Guarantee or co-sign anyone else’s mortgage or other debt;
  10. Stretch the truth on your mortgage application;
  11. Spend the money you were going to use for closing costs;
  12. Overextend yourself –even if you qualify for it;

Buying a home is a stress test in and of itself, but there’s no need in making it worse than it has to be by doing things that the banks don’t like.

 

pazder law corporation logo

 

 

© 2018

https://www.pazderlaw.com

604-682-1509

Offices in Vancouver and White Rock

DISCLAIMER:  The foregoing is not legal advice.  It is for information purposes only. When undertaking a financially significant transaction such as a sale or purchase of real estate it is always recommended that you obtain professional advice to assist you to make the best decision. If you don’t know a good realtor, mortgage broker or banker, we can help you with that selection as well.

Ask a Vancouver real estate lawyer: is Canada’s real estate market ACTUALLY about to crash?

vancouver canada english bay purple sunset

Is Canada’s real estate market at extreme risk or out of danger?

Doug Porter, the chief economist at BMO opines in the above article that the worst is behind us and the “soft landing” that was hoped for has in fact materialized.

Forecasting and analytics company, Oxford Economics Group on the other hand still ranks Canada as the third riskiest real estate market in the world (“Our set of cross-country risk indicators points to housing market dangers being especially acute in Sweden, Australia, Canada and Hong Kong.”)

The BC Real Estate Association predicts a 12% growth in home sales next year, however the Canadian Real Estate Association is more pessimistic, predicting (“The market is held back by unprecedented decreases in sales activity in British Columbia, and weak (but stronger than expected) sales activity in Ontario. Both provinces are forecasted to see double digit declines by the end of the year.”)

Who is right?

Flip a coin –you will be about as accurate as the experts.

An interesting article from The Smithsonian entitled, “Why Experts are Almost Always Wrong” points out that expert predictions on everything from political events to technology trends to stock picking are only marginally better than random chance.

“In field after field, when it came to centrally important skills—stockbrokers recommending stocks, parole officers predicting recidivism, college admissions officials judging applicants—people with lots of experience were no better at their jobs than those with very little experience.”

So, getting back to our central question, is now the right time to buy a house in the Lower Mainland?

In our view, it is always the right time to buy a house in Metro Vancouver, notwithstanding the vagaries of interest rates, the provincial economy, the ineptitude of the current federal and BC governments, world energy prices, climate change, pipeline protests and the many other variables that can have an effect on real estate.

Metro Vancouver is one of the most desirable places to live in the world and tens of thousands of people are still moving here every year. That trend does not seem to be abating.

At the present time, the real estate market has slowed down, prices have come off their peak somewhat and inventory has increased.

Arguably, it’s now a buyer’s market, with even a few detached homes in Vancouver dipping below the $1M mark.

That means that a buyer can make an offer containing the normal due diligence conditions without having to bid against other buyers who are prepared to pay over the asking price with no conditions (as has been the norm for the past few years).

Unless one is a land speculator, a real estate buyer should be prepared to hold a property for five to ten years, in which case market fluctuations should have been ironed out and probably the home will have appreciated in value (although not necessarily at the blistering rate of the last ten years).

Is there still a risk that the prices could go down and stay down?  Of course, but what financial decision does not have any risk?

For instance, the decision NOT to buy also carries a risk.

Buyers who chose to rent for the last ten years have been literally priced out of the market –and rents have become sky high as well!  In retrospect, that decision proved to be a very risky one indeed.

While the past is not a reliable indicator of the future, the graph below shows that over the last forty years in Greater Vancouver, the general trend has been for prices to increase and when they have declined, that correction has not lasted long.

Greater Vancouver Residential Real Estate Sales 1977 to 2017 graph

No one –certainly not the “experts,” can predict when the present market slowdown will end (or whether prices will continue to decline further).

Given that fact, if you have the financial wherewithal to buy and are prepared to hold the property for five to ten years, then your chances of a financial loss would seem to be slim and your chances of a gain likely.

In this highly desirable part of the world this old real estate bromide still seems apropos:

“Don’t wait to buy real estate.  Buy real estate and wait.” (Will Rogers)

pazder law corporation logo

 

 

© 2018

https://www.pazderlaw.com

604-682-1509

Offices in Vancouver and White Rock

DISCLAIMER:  The foregoing is not legal advice.  It is for information purposes only. When undertaking a financially significant transaction such as a sale or purchase of real estate it is always recommended that you obtain professional advice to assist you to make the best decision. If you don’t know a good realtor, mortgage broker or banker, we can help you with that selection as well.

Foreign Money, BC Real Estate Prices and Line Dancing

news-reporter-commenting on-people-line-dancing

* this is a brief commentary on the recent Georgia Straight article “Josh Gordon: Vancouverites don’t need “re-education” about foreign ownership and housing affordability”:

Sometimes what is painfully obvious to the general populace is lost on the politicians, mainstream media, academics and others who may have also succumbed to the intellectually bankrupt concept of political correctness which ignores facts, rational arguments and eschews debate.

For 15 years foreign money has been allowed to destabilize Metro Vancouver real estate prices with the full encouragement and support of the then BC Liberals (as funded by the development industry).

The result has been to make much of the real estate in the Lower Mainland and other parts of BC unaffordable to local residents.

Long before this happened in BC, the most desirable major cities in the G-20 like New York, London, Paris, San Francisco, LA, Sydney and others all experienced this phenomenon.

None of these cities by the way, could ever “build their way to affordability” as the local development industry here suggests as the solution.

BC residents have been complaining about this for well over a decade, but to no avail.

Unfortunately long after the horses have left the proverbial barn, making housing affordable again, a popular slogan of all politicians running in local elections as of late, is about as likely to happen as “bringing back line dancing”.

Protecting condo buyers

canadian-lawyer-mag-front-page 

Kenneth Pazder was recently interviewed by Canadian Lawyer Mag on the topic of condo buyers’ protection. Here is the full article:

A series of condo cancellations and failures across the country have pre-construction investors crying foul. And while there are some protections in the ever-evolving condominium legislation, the rules vary from province to province and they don’t always apply to the principle investment and any lost interest or opportunities.

The number of condo buyers continues to increase, resulting in more Canadians living in condos — 13.3 per cent of households live in a condominium unit, according to Statistics Canada’s 2016 census figures. With the increased interest and construction of condo projects, there is concern that purchase and sale agreements for units not yet built place a great deal of risk upon the purchaser.

It is a lament Toronto condo lawyer Denise Lash has heard repeatedly. In Ontario, the principal is protected and returned to the purchaser in the event of a failure, but there are no other remedies. “That is the concern that I’ve had expressed by many people. And people have come to me for advice and I say: ‘Sorry, there’s nothing you can do.’ And they say: ‘Now to get into the market, it’s a whole other thing. I’ve lost the appreciation in value.’ And that’s where they’re at a loss. And I don’t think that’s going to change.”

 

While the condo investor waits for their condo to be built, the market can continue to climb beyond the price the purchasers had secured. Even with the deposit returned, they’ve lost any appreciation or interest the money used for the deposit might have gleaned had it been invested elsewhere when the project doesn’t materialize. It’s been enough of a concern for Ontario’s Condo Owners Association to argue for the establishment of an insurance program for appreciation lost when a condo project fails or is cancelled.

The purchase and sale agreement of a condo unit in Ontario typically includes a condition that the development achieves a certain threshold of sales within a certain period. Failure to reach those goals gives the developer the right to pull out of the project, says Barrie, Ont. real estate lawyer Andrew Ain of Ain Whitehead LLP, who represents both developers and purchasers.

But developers are required to register under Tarion, Ontario’s new home warranty corporation, which has a protection plan for deposits. And the deposits the builder receives must go to an escrow agent or the builder’s lawyer to be put into trusts, which the builder can only access when they satisfy the Tarion requirements.

While there are levels of protection in place for the purchaser of a pre-construction condo in Ontario, only a deposit of up to $20,000 is protected — although Ain anticipates that will increase.

Tarion went under the microscope last year, resulting in 37 recommendations presented by Douglas Cunningham, former associate chief justice of the Ontario Superior Court of Justice. Among the recommendations is increased regulation for developers and builders and sufficient protection for the consumer. That could include developing a record of builders who have had problems and perhaps preventing them from building in the future.

There are similar insurance programs across the country, including the Alberta New Home Warranty Program and the Atlantic Home Warranty Program. But no such program exists in Quebec, leaving purchasers to search for private insurance for their deposits.

Given that consumer protection legislation doesn’t apply to real estate purchase and sale transactions, there are limited protections for Quebec condo investors who don’t get insurance for their investment, says Jonathan Franklin, a real estate and commercial litigation lawyer with Franklin & Franklin Attorneys in Montreal.

The deposit can go to a notary in trust, but purchasers sometimes write their cheques directly to the developer to go toward construction costs. “It’s not regulated and it should be, like residential leases are regulated,” he says. “The real estate brokers have an excellent contract, which everybody uses on offers to purchase a building.”

Unless the contract specifically states that the deposit will be returned if the development isn’t completed within a window of time, investors and their money could be held in limbo or lost if a development is repeatedly delayed or when there is no activity on the project, he says.

Franklin sees benefit in the implementation of a common purchase and sale contract like those used by real estate brokers for pre-existing buildings. Vancouver real estate lawyer Kenneth Pazder agrees such an approach would help to level the playing field for purchasers in British Columbia as well.

While British Columbia does have protections in place for deposits, there are concerns in that often-hyper-inflated housing market that there are no further protections. A purchaser waiting for a condo after several years has lost the interest they might have achieved elsewhere and perhaps the opportunity to purchase again has vanished because of the ever-increasing housing values.

Contracts for purchase and sale of pre-construction condos, Pazder says, are heavily weighted in favour of the developer and shifts the risks to the purchaser. One of those risks is when the builder extends the closing dates when life goes on for the purchaser who may, in that period, have lost their job, become sick, divorced or subject to higher interest rates, impacting the viability of the condo purchase.

The test for further remedies beyond the return of a deposit has yet to be heard by a court, he says. “The buyers are not united … it’s very unlikely one person is going to take the developer to court and challenge this.” Developers also generally create a new company for each individual project, and if that project fails, the likelihood is that it has no money with which to pay damages.

Pazder thinks standard-form contracts would help to divide the risk more equally between the builder and the purchaser and he’s made that suggestion to the last two provincial governments. But it’s an idea he feels is unlikely to gain traction given the construction industry’s large contribution to the country’s GDP and the relatively low incidence of condo failures and bankruptcies in B.C.

A big problem with pre-construction projects is delays. Time schedules are rarely met, although provinces generally legislate limitations on extensions that developers are allowed. Extended delays can be cause for concern for the buyer for fear that the project will never be completed or that the final timelines extend beyond their moving plans, which may have involved the sale of their previous home.

In Nova Scotia, builders can extend closing by 360 days. “We did have people who were looking to get out of their agreements to purchase their units. The Nova Scotia legislation gives developers basically a full year of extensions without having to get the permission of the purchasers,” says Lauren Randall, an associate lawyer in the BoyneClarke LLP real estate practice in Dartmouth. “They’re selling units long before there is a product. I’ve never been involved in one that has actually closed when it was originally expected to close.”

She tells clients that they can ask for their money back when a project is delayed but the developer has no obligation to provide any remedies. If the project is delayed beyond the 360 days allowed, purchasers have the right to demand their deposits be returned, but they are unlikely to get any interest or other compensation.

Roberto Noce, a partner at Miller Thomson LLP in Edmonton and a specialist in condo law, says condo law is relatively new in Canada. “In fact, Alberta was the first province in Canada to adopt condo legislation in 1966,” he says, adding that Canada’s first condominium plan was registered in Edmonton.

But it wasn’t until Jan. 1 this year that Alberta’s condo laws were amended to provide greater clarity to developers in terms of their expectations and provide protections for buyers, ensuring their deposits are held in trust by a lawyer and returned in the event of a default by the builder.

“Today, I would say to a potential buyer that your money and position are much safer today than they were last year,” Noce says. But even with the deposit returned, the buyer loses out on any appreciation or interest their investment may have earned during the time they were waiting for the condominium to be built.

Noce says buyers are often swayed by the emotional attachment to the purchase and don’t always look at it objectively. The result is that they could end up signing contracts that provide them with few protections. Important factors often overlooked at the time of purchase are a certain move-in date and any remedies the builder might offer if that’s delayed.

And although the developer retains the right to cancel development if a certain threshold of sales isn’t achieved by a certain date, the contract could possibly include damages that can flow to a purchaser in the event of a cancellation.

“People have the freedom to contract,” but the market demand could dictate the buyer’s bargaining power, Noce says. “The chances of you having any clout to suggest any changes are on the low end.”

Visit Canadian lawyer Mag for more topical information about Canadian law and legal culture.

A Guide to Land Assembly in BC (2019)

houses arial view

What is a “land assembly”?

A land assembly is simply the joining of adjacent lands to make a larger parcel. This is normally done so that the larger parcel can accommodate the building of more living units (be they houses, townhouses, low rise or high rise condominiums). Selling as part of a land assembly usually means that the vendor will get a much higher price than he or she would on a one off sale to an individual buyer.

A realtor knocks on your door and says that he or she is representing a buyer or developer who is interested in purchasing your property as part of a land assembly.

What should you do?

– Find out as much as you can from the realtor about the assembly including who is behind it (i.e. developer, city hall, school board or other government authority or other), how much land is being assembled, what is going to be built on the property (i.e. townhouses, low rise, high rise or other), what is permitted by the current Community Plan for your neighborhood, who else has signed a sale agreement in your area for this assembly, the time frame for the development, whether the realtor wants to represent you or the buyer (dual agency where the realtor represents both the buyer and the seller is now forbidden in BC except in unusual circumstances). Link.

– Ask the realtor to leave copies of all documentation with you for your review including marketing materials, listing agreement and proposed contract.

– Before you sign any listing agreement or contract of purchase, take it you your lawyer for review. Don’t ask the lawyer to “have a peak at the documents” because you don’t want to spend much money. These are complex documents and the lawyer has to take the time to read and understand them in order to properly advise you. I have had clients who have inadvertently signed two year listing agreements for land assemblies, assuming that they could cancel them if the realtor was not performing to their satisfaction. Unfortunately that is NOT the case. In a recent scenario, a school board presented an offer to a client of mine which had an open ended subject removal date (meaning that it would have tied my client’s property up indefinitely). The offer was drafted by a large Vancouver law firm, so one would have to assume that was not a drafting error. Unscrupulous developers, realtors or others often seek to hide unreasonable clauses in the fine print. Don’t assume that you can void a contract because you didn’t read it before signing (you will have an uphill battle in court on that front). Don’t rely on the buyer’s realtor or other third party to explain it to you, in place of your actually reading it or having your lawyer review it and explain it to you.

– THE DEVELOPER’S GOAL: is to tie up your property for as long as possible without paying you anything unless the proposed development goes ahead. The carrot which is dangled in front of you is the potential to get a lot more money for your home than its normal market value. The developer accomplishes this slight-of-hand by the use of “subject conditions,” which are terms which make the contract binding on him only when they are removed.

Typical subject conditions are:
• A certain number of neighborhood owners signing on;
• Satisfactory Phase I environmental site assessment;
• Satisfactory Feasibility Study;
• Other due diligence searches and investigations such as title review, soil sampling, site assessment etc.

– Often it can take a half a year or more to complete these matters. In the meantime, your property is effectively tied up. It can’t be sold to someone else and it’s unlikely that you would want to renovate or upgrade it with the possibility of a sale on the horizon. On occasion, the developer will want an Option registered on your property as well.

– THE SELLER’S GOAL: is to have your property under contract for as short a time as possible and to get some non-refundable compensation from the developer if the property is going to be tied up for more than three or four months. Options cost money and there is no reason to grant one to a developer and not get paid something if the sale never materializes. I have had clients who have had their property tied up for eighteen months only to have the development cancelled at the last minute. In such a case, keeping $20,000 or more for your trouble makes the situation somewhat more palatable. Beware the Listing Agreement also. These are very complex, one sided standard agreements drafted by the real estate board’s lawyers. Once they are signed, unless modified by you or your lawyer first, they can lock a seller into a long term relationship with the listing realtor –again effectively tying up your home without compensation.

Other considerations are:

– Payment of the deposit on the subject removal date. That deposit should be minimally 5-10% of the ultimate purchase price, non-refundable and preferably, released to the seller forthwith upon subject removal. If not, it’s held in the real estate brokerage’s or developer’s lawyer’s trust account. Stipulate that it be held in an interest bearing account and that the interest accrues to you if the completion date is more than three or four months down the road. If the deposit is to be held in trust, add a clause requiring the developer’s brokerage or lawyer to release the deposit to you or your lawyer forthwith, if the developer fails to close on the completion date (otherwise, you may have to go to court to get it, as the Real Estate Services Act requires either mutual consent or a court order to have a deposit released. Link.

– Rent back. Often, the development may not be built for a year or more after the completion date. In such case the house may be livable during that period and the seller should negotiate for free rent for a year or more, while he or she finds somewhere else to live. Make sure that there is a sub-lease clause so that if the seller finds another property to buy or rent that he can sublease the property to someone else and keep the rent as part of his remuneration.

– VIP or Friends & Relatives status on developer’s other projects. If the developer is a large one like BOSA, Polygon, Pinnacle, West Bank, Onni, etc., you may be able to obtain preferred status on their other developments, if you see something in their other offerings which is appealing.

– Capital gains and other tax implications. Even before your lawyer reviews the documents, a call to your accountant is in order to understand what the tax implications are of your possible sale. In the case of a single family dwelling on a normal sized lot which has been used for residential purposes, it is almost certainly a non-taxable transaction. However if the property was an acre or two and/or used for commercial activities there may be capital gains or GST consequences. In real estate, all surprises are bad as a rule, so it’s best to find out in advance.

– What is out there for you to acquire? Ask your own realtor to advise you about what you could buy for the suggested sale price in the area that you want to re-purchase in. Often people are shocked to find out just how little they can buy for a million dollars these days (particularly if they bought a long time ago for a hundred thousand dollars or less!)

– Never make a rushed decision. Developers and realtors are always pushing for a signature NOW. Take your time and assess the situation in consultation with your lawyer, accountant and your own realtor. In most instances, it’s the land assembler that is coming to you, not the other way around, so you are in the driver’s seat as long as you don’t give in to fear or greed.

Conclusion

Land assemblies are here to stay. With 40-50,000 people moving to the Lower Mainland yearly and every politician and his dog in favor of increasing density (although how that is either “green” or “sustainable” is a mystery to me), it’s wise to at least be aware of the basics if you find someone knocking on your door to buy your property for this purpose.

The corollary of a land assembly for condominium owners of older, low rise buildings is the “strata dissolution” scenario which we have dealt with in a previous blog “Help, my strata wants to sell the building out from under me!

If you have any questions, or want to share your land assembly story we would love to hear from you! Feel free to contact Kenneth Pazder or Melissa Valana at 604-682-1509.

PAZDER LAW CORPORATION © 2018

Disclaimer: The foregoing is not intended as legal advice. It is presented for information purposes only. Always consult legal counsel before signing a land assembly contract or listing agreement for same.

Vancouver Real Estate : Prices Begin to Lower (August 2018)

This August, sales in the Lower Mainland are continuing to drop to their lowest level this year. As Buyers are being less active in today’s market, we are finally seeing the impact of this inactivity on prices as prices for all housing types in the Lower Mainland begin to edge down.

Condition free offers are becoming a thing of the past, as Buyers have less competition and are afforded more time in making informed decisions. If you are waiting for the market to simmer down to jump in, now might be a good time!

Greater Vancouver

In August, sales were down 6.8% from July of this year, but down 36.6% from August 2017. There were 3,881 New Listings, an 8.6% decrease from August 2017 and down 18.6% from July of this year.

Benchmark prices:

Single Family Detached: $1,561,000, down 3.1% from August 2017 and down 2.8% from May of this year.
Apartments: $695,500, up 10.3% from August 2017, and down 1.6% from May of this year.

Fraser Valley

In August, sales in the Fraser Valley were down 38.5% from August 2017 and down 10.5% from July of this year. There were 2,575 New Listings, an 11.8% decrease from July 2018 and a 2.2% decrease from August 2017.

Benchmark prices:

Single Family Detached: $1,008,700, down 0.9% from July 2018 and up 2.9% from August 2017.  Apartments: $443,200, down 1.6% from July 2018 and up 26.9% from Aug 2017.

Chilliwack & District

In August, sales were down 35.8% from August of last year. There were 432 New Listings. The total number of listings reached 1,404, a 36.3% increase from August 2017. Most of the units sold in July were in the price range of $350,000 to $599,000.

Want to Buy or Sell your property or looking to refinance and have questions? Feel free to call us 24/7.

#1460-800 W Pender Street,
Vancouver, BC V6C 2V6
Tel: (604) 682-1509 Fax: (604) 682-3196
Email: plc@pazderlaw.com

FLIPPING YOUR PRE-SALE CONTRACT: What You Need to Know

As housing prices continue to rise, once again pre-sale strata units have become all the rage. In our previous blog, we alerted our readers to some of the risks that are associated with purchasing a property that has not been built, but what about the risks in assigning interests in those pre-sale condos?

An assignment occurs when the purchaser transfers their rights in the purchase contract to someone else before the completion date.

For clarity it is best to define the parties as they are used in legal practice:

Assignor:      is the original purchaser. The assignor is the person(s) assigning his/her interest in the contract.

Assignee:     is the new purchaser. The assignee is the person(s) who is being assigned the interest in the contract. The assignee is the person(s) who will ultimately be purchasing the property.

Developer:     is the Company who is building the new development.
Assigning, or as it has been more commonly called “flipping,” pre-sale units before completion continues to be a common occurrence in Vancouver despite the provincial government’s disingenuous attempts at reducing such transactions.

Is My Contract Assignable?

Most Developer’s purchase contracts in BC do allow for assignments subject to certain qualifications:
•    Written consent of the Developer;
•    Payment of an “assignment fee” to the Developer [which can range as high as 2%-3% of the original purchase price];
•    Usage of the Developer’s form of assignment (which makes the Assignor liable to complete the purchaser if the Assignee fails to do so);
•    The assignment usually cannot occur until all the original units in the development are sold (so as to preclude the Developer competing with his previous buyer).

Typically, the Developer will not withhold their consent so long as all these conditions are met and the Developer approves all materials used to market and list the unit.

As a side note, last year the BC government caused the standard BC Real Estate Contract for sales between individuals to contain a NO ASSIGNMENT clause (despite the fact that virtually no one assigns such contracts), but it refrained from doing so with pre-sale contracts which are routinely assigned!

Assignors

Typically, Assignors have only one thing on their mind when making an assignment, namely “how much profit will I make by flipping the property?”

With a completion date a year or more down the road, an Assignor usually stands to make a tidy profit in an escalating market –often a 100%-200% increase on their original deposit (courtesy of the concept of “leverage.”)

Needless to say, leverage cuts both ways and in a declining market like 2007-8, it was not uncommon to see the Assignor’s full deposit wiped out and a further contribution to the Assignee to “take the unit off of his hands.”
Once Assignors assign their interest, they can breathe a sigh of relief that they have no more obligations towards purchasing the property, right?

Wrong!

The Developer in consenting to the assignment, invariably does not release the Assignor from his or her original obligation to complete the purchase (if the Assignee fails to do so).

Developers prefer to be able to sue both the Assignor and the Assignee. However, if the Assignor finds themselves in the position of having to complete the contract, he or she will still have a remedy against the Assignee.
When flipping a property, Assignors should know that their obligations are not released until the day the Assignee completes and not a moment before.

Assignees

As an Assignee you should understand what the Assignment Amount is. Typically the Assignment Amount consists of:
•    Reimbursement of Deposits Paid to the Developer by the Assignor
•    Balance of the Assignment Amount
•    Assignment Amount [ i + ii ]
•    Total purchase price [ ii   +   original contract price ]

The Balance of the Assignment amount is sometimes referred to as the “Lift”. The Lift is what the Assignor is getting paid to assign the contract to the Assignee. When property values continue to rise, the Lift is typically a positive number. However, the Lift can be a negative number as well, such as in 2008 when properties were decreasing in value rather than increasing. Furthermore, in a market where properties are decreasing in value, the Assignor may run the risk of not getting the full deposit or any of it reimbursed in order for the total purchase price to be brought in line with the current market value of the property.

The Assignee in accepting the assignment, is taking on all the risks the Assignor had in buying a presale unit. This includes the risk that the pre-sale contract might never be completed or may be completed later and at a higher price that the Assignee will likely have to pay if he/she wants to complete. Also, depending on when the Lift was paid to the Assignor, any Lift or assignment fee may not be recovered.  The Assignee is also taking over the contract as is. There is no renegotiating the look or layout of the unit or price of the unit. The effect of the Assignment, is that the Assignee is standing in the shoes of the Assignor.

Accordingly, while the deposit can be reimbursed to the Assignor when the Developer agrees to the assignment, the Lift should only be paid when the Assignee completes the purchase.

Further Considerations:

There are many other issues to consider apart from the assignment price.

Residency of Assignor

If the Assignor is not a Canadian resident, then a holdback must be made by the Assignee under S.116 of the Income Tax Act.

GST may be payable by the Assignor, in which case the Assignee’s lawyer must hold it back and pay it, as the rules concerning payment of GST are reversed when dealing with a non-resident.

GST, if applicable should be payable on the Lift only, but we are in the midst of a file where Canada Revenue Agency is taking the position that it should be payable on the whole assignment amount.

GST

GST is typically paid on the original purchase price and often, on the assignment amount. The assignment amount usually includes GST. However, make sure you read the contract to make sure if that is in fact the case. With large transactions such as a home purchase it is always wise to get the opinion of a tax specialist or an accountant.

Property Transfer Tax

The Assignee is required to pay Property Transfer Tax on the original contract price plus the Lift rather than on the purchase price of the property.
The unexpected result may be that the original purchase price fell under the Property Transfer Tax threshold for “first time buyers” or “newly built construction” but with the Lift added, the Assignee may no longer qualify for these exemptions based on the higher fair market value.

An additional consideration if the Assignor is a non-resident, is the “anti-avoidance” provisions of the Property Transfer Tax Act which can result in very substantial fines if the PTT branch audits the assignment transaction and determines that it was made primarily to avoid the Foreign Buyers Tax.

Benefits

But with all of these risks there are some benefits in assigning a pre-sale contract. Let’s face it, sometimes life happens and it just doesn’t make sense for you to buy the property anymore. Assigning a contract enables the Assignor to realize the gain on the property without having to buy it (thus avoiding GST and PST on the purchase price) and getting his or her deposit back long before the completions date.

The moral of the Story

Assignment contracts are very complex.

We always recommend obtaining legal advice prior to entering into the contract so you are aware of the associated risks, tax consequences and the timing of the release of funds in advance.

Pre-sale assignments may delve into many fields: real estate law, GST, PTT, capital gains and Income Tax.

Trying to navigate that landscape on your own is not a good idea.

 

 

2018 (C) Pazder Law Corporation

Feel free to call us if you are buying or selling a pre-sale contract.

Kenneth Pazder (604) 682-1509 ext. 245

Melissa Valana (604) 682-1509 ext. 258

DISCLAIMER:  The foregoing is not legal advice.  It is presented for information purposes only. Always obtain professional advice before embarking on an assignment of a complex agreement like a pre-sale contract.

Vancouver Real Estate: Will Prices Ever Go Lower? (July 2018)

This July, sales in Greater Vancouver reached their lowest point for the month since the year 2000!

Even though inventory levels are continuing to grow, demand continues to be impacted by the skyrocketing prices and interest rates. In this slow market, Buyers are afforded more opportunity to explore their options in a more relaxed environment. However, it’s clear that Buyers are not taking action and instead have opted for a wait and see approach. The $64,000 question is when sellers will jump!

Greater Vancouver

In July, sales were down 14.6% from June of this year, but down 30.1% from July 2017. There were 4,770 New Listings, a 9.2% decrease from July 2017 and down 9.6% from June of this year.

Benchmark prices:

Single Family Detached: $1,588,400, down 1.5% from July 2017 and down 0.6% from June of this year. Apartments: $700,500, up 13.6% from July 2017, and down 0.5% from June of this year.

Fraser Valley

In July, sales in the Fraser Valley were down 33.4% from July 2017 and down 11.2% from June of this year. There were 2,921 New Listings, a 7.0% decrease from June 2018 and a 11.5% decrease from July 2017.

Benchmark prices:

Single Family Detached: $1,017,400, down 0.1% from June 2018 and up 5.3% from July 2017. Apartments: $450,400, up 0.7% from June 2018 and up 32.0% from July 2017.

Chilliwack & District

In July, sales were down 33.2% from July of last year. There were 459 New Listings. The total number of listings reached 1,390, a 31.2% increase from July 2017. Most of the units sold in July were in the price range of $350,000 to $599,000.

This is a real estate driven economy top to bottom – and it’s hard to see that changing. Don’t wait to buy; buy and wait!

 

Police investigating pre-sale development; condo buyers out hundreds of thousands

‘In court reports… they’d found some of the [pre-sale] units were pre-sold more than once – and as many as four times in some cases.’

How risky is buying a pre-sale condo?

‘Future homebuyers considering a pre-sale property might be surprised to find out what’s in the fine print.

They’re drawn in by glitzy showrooms that allow them to choose their unit and finishes, and many sign contracts without really understanding them.’

“People don’t read the last 10-15 pages. They just look at the first page, the price, how many parking spaces I get, is there GST on it? And that’s it,” said real estate lawyer Kenneth Pazder.

Full CTV News article: here.

 

 

Vancouver Real Estate : Where are All the Buyers? (June 2018)

aerial view homes suburb

This summer, an important party seems to be missing from the real estate market…the Buyer. Increasing interest rates and stricter mortgage requirements seem to be having an impact as Buyers are much less active in today’s market.

Sales across Greater Vancouver, Fraser Valley and Chilliwack are continuing to decline. BUT NOTE THAT SO FAR, THE PRICES CONTINUE TO RISE.

Greater Vancouver

In June, sales were down 14.4% from May of this year, but down 37.7% from June 2017. There were 5,279 New Listings, a 7.7% decrease from June 2017 and down 17.2% from May of this year.

Benchmark prices:
Single Family Detached: $1,598,200, up 0.7% from June 2017 and down 0.6% from May of this year.
Apartments: $704,200, up 17.2% from June 2017, and up 0.4% from May of this year.

Fraser Valley

In June, sales in the Fraser Valley were down 43.2% from June 2017 and down 17.4% from May of this year. There were 3,140 New Listings, a 20.8% decrease from May 2018 and a 15.3% decrease from June 2017.

Benchmark prices:
Single Family Detached: $1,018,900, down 0.2% from May 2018 and up 9.0% from June 2017. Apartments: $453,500, up 0.1% from May 2018 and up 39.4% from June 2017.

Chilliwack & District

In June, sales were down 40.0% from June of last year. There were 526 New Listings, an increase of 11.6% from June 2017. Most of the units sold in June were in the price range of $450,000 to $700,000.

Want to Buy or Sell your property or looking to refinance and have questions? Feel free to call us 24/7.

#1460-800 W Pender Street,
Vancouver, BC V6C 2V6
Tel: (604) 682-1509 Fax: (604) 682-3196
Email: plc@pazderlaw.com