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

Help! My Strata Wants to Sell My Building From Under Me

In cities like Vancouver where the mantra is eco-density (which is actually an oxymoron as there is nothing ecologically friendly or sustainable about increasing density), every property developer and his dog is seeking out older three or four story strata complexes for redevelopment.

A strata council may believe the best decision is to dissolve the strata corporation especially if:

  1. the strata complex is on its last legs;
  2. the future cost of repairs and capital upgrades may no longer make economic sense;
  3. the owners don’t have the financial wherewithal to finance the costs and upgrades; or
  4. the neighbourhood is being redeveloped pursuant to a new “community plan” which is encouraging redevelopment.

However for anxious strata property owners caught in this predicament there are two very important things to be aware of:

Strata councils CANNOT unilaterally make any decisions regarding the dissolution of the strata corporation.

Strata councils CANNOT “sell the building” nor bind the individual owners of the strata units in the building to sell their units to a developer.

Prior to 2017, a unanimous vote of the existing strata property owners was required to allow the strata council to dissolve a strata corporation.

Last year the BC government changed that threshold to 80% of the strata property owners, doubtless as a concession to property developers who have donated tens of thousands of dollars to the liberal party of BC year after year.

As a result, a plethora of realtors and developers have been let loose on unsuspecting strata property owners in older buildings seeking to purchase their units, often one by one with a view to reaching that threshold.

Once the developer has 80% of the units it is pretty much game over for the remaining owners as it can effectively wind up the strata corporation on its own accord, regardless of the wishes of the remaining owners.

What then should the owners of an older, low rise building do?

The first and foremost thing is to be proactive.  Don’t wait until a developer or realtor is knocking on doors to solicit sales in your building.

STEP 1    Organize your owners.  It is easy to break a stick, but difficult to break a bundle of sticks. Get the bundle in place right away.

STEP 2   Set up a Facebook page or website specific to the building so that all the owners can freely communicate with each other.  Unfortunately in many cases when the strata council gets involved, it tends to both restrict and horde new information and then release it to the owners on a redacted basis as it sees fit.  Strata council members may also be in a conflict of interest when they are offered extra incentives by developers to “make the deal happen.” Collectively the complex belongs to all the owners, so every owner should have full, unrestricted access to all available information.

STEP 3   Call a meeting of all of the owners to discuss your options.  Find out who wants to sell and who does not. Develop a protocol for dealing with realtors and developers who attempt to solicit individual owners.

STEP 4   If there is significant interest in selling by a majority of the owners OR its evident that the community plan for the neighborhood is being changed to encourage much higher density, then get some expert legal and marketing advice (How does “winding up the strata” work?  Are there other sale options, like selling 80% or more of the individual units to a developer at the same time? How do you find an interested property developer? How do you know how much to ask for our units? How do you find a good property appraiser? Can one law firm represent everyone?  Should the same sale formula apply to everyone (i.e. 2X or 3X tax assessment value)? Should everyone get the same amount of “free rent,” to allow them to find other accommodation? What does a comparable unit cost “out in the market?”)

These are but a few of the questions to be asked and answered BEFORE anyone agrees to anything.

STEP 5   Get a real estate lawyer, an experienced realtor and an appraiser to attend an owner meeting to discuss the foregoing and answer other questions for the owners.

STEP 6   Have an appraisal done on the building based on what can be built in its place (the appraiser can obtain this information from city hall).  When a property developer presents an offer and proffers am appraisal in support you will have something to compare it to.

STEP 7   Get a consensus on the procedure to market the building and whether the preferred route is to wind up or to sell off the individual units as a group and then engage a realtor or other marketing representative to market the developers for proposals.

STEP 8   When a proposal or offer comes in, call a meeting to discuss it with all the owners and negotiate your best deal.  In my view, it’s best if every owner is treated identically, that is the same sales formula applies to each unit and each owner gets the same amount of free rent or other incentives (such as first dibs on a unit in the new building).

STEP 9    Sell the units directly to the developer concurrently and disburse the proceeds.  If you can get a developer to buy 80% or more of the units in one coordinated sale, that will maximize the value for all of the owners and save you the expense and stress of having to make a court application to dissolve the strata corporation.

Needless to say if there is little or no interest in selling the complex, the protocol should be to have all offers go to a specified owner, the strata’s legal representative or other agent for a firm rejection.

If an acceptable offer comes in to purchase the whole complex (as opposed to purchasing individual units) then the strata corporation must be wound up. In such case the following procedure must be followed:

Notice of General Meeting to Consider Windup Resolution

At least 4 weeks’ notice must be given of a general meeting that includes a resolution to wind up the strata corporation.

Who must be given notice?

Notice must be given to every owner regardless of whether notice must also be sent to their tenant or mortgagee. Notice must also be given to every mortgagee who has given the strata corporation a mortgagee request, and every tenant who has been assigned their landlord’s right to vote. Notice must be given to these individuals regardless of whether a person has previously waived their right to receive notification.

Voting

Effective July 28, 2016, approving a strata wind up resolution requires an 80% vote of approval FROM ALL STRATA OWNERS NOT A QUORUM VOTE of those owners present at the meeting. Previously, passing a wind up resolution required unanimous approval, however, the BC government changed this to 80% to make it easier for strata corporations to wind up.

Voting to wind up the strata corporation is an important matter, thus all owners are eligible to vote despite any provisions in the bylaws making a strata owner ineligible to vote (i.e. if owner has unpaid strata fees).

The termination resolution will authorize termination of the strata plan, authorize the strata corporation to apply to the Supreme Court for termination orders and a vesting order authorizing the cancellations of the strata plan and winding up of the strata corporation; approve expenditures (funding for the lawyer, liquidator, liquidator’s legal representation, fees and commissions); and may also address miscellaneous matters like move out timelines or rent-free periods.

Court Supervision

If the resolution to wind up the strata corporation is passed, then for strata corporations that have more than 5 units, the strata corporation must then apply to the BC Supreme Court for an order confirming the winding up resolution. This must be done within 60 days after the resolution is passed.  If the strata corporation has less than 5 units no application to court is necessary.

The application to court gives strata owners extra protection. The court in confirming a resolution to wind up the strata corporation must consider: (a) the best interest of the owners, (b) the probability and extent, if winding up resolution is confirmed or not confirmed, of the significant unfairness to one or more owners or holders of registered charges and (c) the significant confusion and uncertainty in the affairs of the strata corporation or of their owners.

There are many reasons why owners may oppose the winding up of the strata corporation, including: proximity of amenities, pets, safety of the neighbourhood, money put into renovations, health issues and proximity to medical facilities, strong ties to neighbours and neighbourhood, or their unit was purchased as a life home and they have no intention of selling.

However, despite the protection of court supervision, if the resolution has been passed, the Court will typically not interfere with winding up and confirm the resolution. If you are part of the minority who opposed the resolution, the court may not be the place to rest your hopes as there has been only one instance where a winding up resolution was not confirmed. In The Owners, Strata Plan VR 1966, 2017 BCSC 1661 (“Bel-Ayre”) the court did not confirm a winding resolution because of a technicality that the value estimates of the interest schedule which were an essential term was omitted.

The court has acknowledged that the debate on whether to wind up or not can be heated, passions tend to run high and usually the minority do not feel like they have been adequately heard (Strata Plan NWS837 (Re) 2018 BCSC 564).

However, the court tends to reiterate the words of the Honorable Madam Justice Loo:

“Just because members of the minority were intimidated to speak up and voice their concerns does not mean the majority of the process was significantly unfair. Property rights as a home should not be given greater emphasis in face of 80% or more owners who want to take advantage of the increased profits to be made as a result of redevelopment or rezoning.”

Language Barriers

Living in Vancouver, there are many families that don’t speak English. However, with regards to the process for strata dissolution not speaking/reading English may be an issue. In Strata Plan NWS837 (Re) 2018 BCSC 564, some owners made an application  to court stating that since some of the information materials were in English only, and many of the owners only speak Cantonese, this rendered the dissolution process significantly unfair as not everything was translated.

The court was not persuaded by this argument. The Court found that it would place too much of a burden on Council to discover what each owner’s main language was and to make sure all the information was translated into the many different languages.

Conversion/ Interest Schedules

A conversion or an interest schedule must be approved and attached to the resolution. If a liquidator is to be appointed an interest schedule must be attached to the resolution, otherwise a conversion schedule is required. The Conversion/Interest Schedule must meet the requirements as to form and content.

The Schedule must:

  • State whether or not the Strata Corporation holds lands in its name
  • Identify the land by legal description sufficient to allow the registrar at the land title’s office to identify it in the records of the strata plan
  • List the name and postal address of each owner and registered charge holder
  • List all registered interests in land at the time of the resolution and as they will exist if the registrar grants an order in shares calculated according to the following formula:

Most recent assessed value of an owners’ strata lot

Most recent assessed value of all the strata lots in the

Strata plan, excluding any strata lots held by or on behalf of

The strata corporation

  • If there is no assessed value for the owner’s strata lot or for any strata lot in the strata plan, an appraised value that has been determined by an independent appraiser and that is approved by a resolution passed by a ¾ vote at an annual or special general meeting may be used in place of the assessed value for the above formula.

If a liquidator is appointed and an interest schedule is required, the interest schedule will have all the above information contained in the conversion schedule and in addition will have the name, postal address and interest of each creditor of the strata corporation who is not a holder of a registered charge against the land.

Submitting an Application to the Land Title Office

To cancel a strata plan the strata corporation must submit the following documents to the Land Title Office:

  • The conversion schedule,
  • A reference plan that shows the land shown on the strata plan and the land held in the name of or on behalf of the strata corporation not shown on the strata plan,
  • If the strata corporation has more than 5 units:
    • A Certificate of Strata Corporation stating that the winding up resolution has passed and the strata corporation has no debts other than the debts held by holders of registered charges
    • a copy of the court order
  • If the Strata corporation has fewer than 5 units and does not obtain a court order:
    • The written consent of all holders of registered charges,
    • a Form E Certificate of Strata Corporation confirming the winding up resolution has passed and the strata corporation has no debts other than the debts held by persons who have consented in writing to the winding up of the strata corporation
  • Any other document required by the registrar to resolve the priority interests of any registered charges against the land shown on the strata plan or to transfer title.

Registrar Order

If the registrar is satisfied, the registrar may order that the strata plan is cancelled. Once the order is made, the registrar must file the order, register indefeasible titles to the land referred to in the order and give each owner and registered charge holder shown on the conversion schedule a copy of the order.

When the order is filed, the strata corporation is dissolved. The owners are then tenants in common of the land and the personal property of the strata corporation is held in shares equal to the owners’ shares of the land set out in the conversion schedule.

THE MORAL OF THE STORY

DON’T WAIT FOR EVENTS TO CATCH YOU BY SURPRISE IF YOU LIVE IN AN OLDER, THREE OR FOUR STOREY BUILDING.

Whether you organize a mass sale to an interested buyer or seek a court order approving the dissolution of the strata and approving a sale to a developer, your best chance of getting the optimal result for all the owners is to organize early and act collectively.

This phenomenon is not going away anytime soon in BC, so forewarned is forearmed.

pazder law house strata sale

© 2018 Pazder Law Corporation

Call Kenneth Pazder or Melissa Valana at 604-682-1509 if you have further questions.

DISCLAIMER:  The foregoing is not legal advice.  It is presented for information purposes only. The sale or dissolution of one’s strata complex is important one which merits professional legal and marketing advice well in advance of making such a decision.

Changes to the Residential Tenancy Act in British Columbia – the good, the bad and the ugly!

for-rent-sign

Within the last six months the BC Government has made some significant changes to the Residential Tenancy Act (“RTA”) which will impact future and existing tenancy agreements –effectively making the legislation retroactive.

Retroactive legislation is NEVER advisable.  People make business and financial decisions every day on the basis of the existing legal and regulatory framework.  Changes to the law are inevitable, but normally they are prospective, meaning that they take effect on a go forward basis and leave existing contracts and other legal relationships alone.

The BC Government is ostensibly attempting to increase protection for tenants at the expense of limiting the freedom to contract by landlords.  Is that a good thing?

Here are the most significant changes –you be the judge!

Vacate Clauses in Fixed Term Tenancy Agreements

For many years the prescribed RTA form of residential rental agreement contained a section allowing for the use of fixed term leases which either 1) terminated at the end date or 2) turned into month to month tenancies at the end date.  The landlord and the tenant would agree to either option at the outset of the lease by checking the appropriate box on the lease.

There were pros and cons to this section.

On the con side, some landlords used the termination clause to avoid the annual rental increase limit prescribed by the Residential Tenancy Branch (“RTB”) by terminating the fixed term lease and then entering into a new lease with the former tenant or a new tenant at the market rent (which often had risen faster than the prescribed allowable rental increase).

On the pro side, landlords also used the vacate clauses in fixed term agreements to get rid of unsatisfactory tenants who were frequently late with rent payments, who did not keep the rental property in good condition or who were not abiding by the strata by-laws.

As usual, the NDP government decided that the tenants’ rights trumped the landlords’ and effective December 11, 2017, limits were imposed on landlords’ ability to terminate a fixed term rental agreement when the term expired.

The new provisions in the RTA now prohibit landlords from terminating fixed term tenancy agreements when they expire except when:  1) a tenancy agreement is a sublease agreement or 2) the landlord or a close family member of the landlord intends, in good faith at the time of entering into the tenancy agreement, to occupy the rental unit at the end of the term or 3) the tenant has abandoned the premises or 4) the tenancy is frustrated or 5) the Director of the RTB decides or 6) the landlord and tenant agree to terminate the lease.

Except in these limited circumstances (or the parties agree to another fixed term lease), the tenancy will automatically continue as a month-to-month tenancy under the same terms as the original agreement or until either party serves notice on the other or both parties agree to end the tenancy.

These new rules are RETROACTIVE! They will apply to both new and existing tenancy agreements!

For existing fixed term tenancy agreements, tenants will not be required to vacate at the end of the term unless the landlord meets the specific circumstances described above. If both parties agree to end the tenancy its necessary that they a mutual agreement to end the tenancy.

If you are a landlord who wants to rely on a vacate clause, you will need to first advise your tenant and try to obtain their consent to end the tenancy at the end of the term. If your tenant does not agree to end the tenancy, you must apply for an order of possession through the Residential Tenancy Branch where you must meet the specific circumstances described above to enforce the vacate clause.

Rental Increases

The BC Government has also made changes with regards to rental increases between fixed term tenancy agreements with the same tenant. Effective December 11, 2017, a landlord must now give a tenant 3 full months’ notice of a rental increase. Landlords are not to impose a rental increase for at least 12 months from when the rent was first payable or from when the rent was last increased.

A landlord may impose a rental increase that is no greater than the Percentage Amount calculated at the inflation rate + 2%.

Furthermore, landlords are now prohibited from applying for an additional rent increase on the basis that the rent is significantly lower than other similar rental units in the same geographic area.

Investigations and Administrative Penalties

The BC Government has also changed the RTA in attempts to strengthen the ability of the Residential Tenancy Branch to investigate and levy administrative penalties. The Residential Tenancy Branch (“the Branch”) may conduct investigations to ensure compliance with the RTA and its regulations regardless of whether there is an application for dispute resolution in relation to the matter.

A monetary penalty, not exceeding $5,000, may be imposed if the Branch is satisfied that on a balance of probabilities the person has contravened a provision of the RTA or its regulations or failed to comply with a decision or order.

The Branch will give the person an opportunity to be heard and consider: the gravity and magnitude of the contravention; previous enforcement actions for contraventions of a similar nature; the extent of harm to others resulting from the contravention; whether the contravention was deliberate, repeated or continuous; economic benefits derived by the person from the contravention; and the person’s effort to correct the contravention.

If the contravention or failure occurs over more than one day or continues for more than one day, separate penalties not exceeding $5,000 may be imposed for each day the contravention or failure continues. An administrative penalty imposed is a debt due to the government. Failure to pay may result in a filing of a certificate in court. The certificate has the same force and effect as if it were a judgment of the court.

Demolition, Renovation or Repair

Effective May 17, 2018, the BC Government is now requiring all landlords to give 4 months’ notice to end a tenancy for demolition, renovation or repair, or conversion. Tenants have 30 days to dispute such notice.

A landlord (or purchaser) must compensate a tenant 12 months’ rent if a landlord ends a tenancy under s. 49 of the RTA (Landlord’s use of the Property) and the landlord (or purchaser) does not take steps to accomplish the stated purpose for ending the tenancy within a reasonable time period after the effective date of the notice or use the unit for that stated purpose for at least 6 months beginning a reasonable period after the effective date of the notice.

A tenant has a right of first refusal to enter into a new tenancy agreement if the rental complex has 5 or more rental units. Although not yet evident in the RTA or on the RTB’s website, we are advised by the RTB staff that the rent on the suite will be set by the landlord, presumably based on the market rent, not the prescribed rental increase. This gives tenants a greater ability to re-rent after renovation or repair, but depending on the increase they may no longer have the financial ability to do so.

If a tenant exercises a right of first refusal and the landlord does not give the tenant both 45 days’ notice of availability or a tenancy agreement to sign, the landlord must compensate the tenant an amount equal to 12 months rent.

Conclusion

If you are a landlord, these rights may seem like an unwarranted intrusion on your freedom to contract.  Contrary to the government’s belief, all landlords are not wealthy individuals or large corporations with deep pockets. As the purchase price of strata properties has risen almost 40% in the past 2 years in the Lower Mainland, a landlord has to charge a high rent to cover his or her expenses including the mortgage, strata fees, insurance, property taxes, repairs and special strata levies where applicable.  Regulating a landlord’s ability to charge the market rental is a serious restriction on the landlord’s property rights.

On the other hand, if you are a tenant struggling to keep up with the sky high rents you may welcome these changes as being long overdue, as BC residents’ salaries are not keeping up with either rental rates or property values.

Questions? Contact us?

How these changes will impact residential tenancies in BC is yet to be determined. If you have any questions, or want to share your 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. When entering into residential contracts it is advisable to contact legal counsel (or the RTB has a telephone help line with staff who are prepared to answer questions regarding the RTA).

Inventory in the Lower Mainland reaches the highest it’s been in the last two years

living room pazderlaw

Buyers Take Your Pick

This summer, buyers are getting more of a selection to choose from. Prices and sales may be gradually increasing month to month but in comparison to last year the real estate market is slowing down. Sales throughout Metro-Vancouver, Chilliwack and the Fraser Valley are starting to increase as we head into the busy season, but the demand is much lower than last year.

Greater Vancouver

In May, sales were up 9.8% from April of this year, but down 35.1% from May 2017. There were 6,375 New Listings, a 5.5% increase from May 2017 and up 9.5% from April of this year.

Benchmark prices:
Single Family Detached: $1,608,000, up 2.4% from May 2017 and up 0.1% from April of this year. Apartments: $701,700, up 20.2% from May 2017, and up 0.1% from April of this year.

Fraser Valley

In May, sales in the Fraser Valley were down 35.1% from May 2017. There were 3,965 New Listings, a 15.6% increase from April 2018 and a 6.8% increase from May 2017. Fraser Valley is experiencing the most inventory they’ve had since 2015!

Benchmark prices:
Single Family Detached: $1,020,800, up 1.1% from April 2018 and up 11.6% from May 2017. Apartments: $452,900, up 1.2% from April 2018 and up 42.4% from May 2017.

Chilliwack & District

In May, sales were down 36.6% from May of last year. There were 715 New Listings, an increase of 18% from May 2017. Most of the units sold in May were in the price range of $400,000 to $700,000.

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

So far we have closed over 30,000 purchase and sales in BC!