Western Canada Business Litigation Blog

Category Archives: Real Estate

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Collapsing Real Estate Transactions: “Specific Performance” Revisited

Posted in Real Estate
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Frequent readers of this blog may recall a post from October 2012, in which we wrote about a Supreme Court of Canada decision that some believed, at the time, would result in the “death knell” for the remedy of specific performance in Canada at least in respect of commercial real estate transactions.  Since then, many courts have indeed grappled… Continue Reading

“Additional Rent” and a Tenant’s “Proportionate Share”

Posted in Real Estate
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Most commercial leases contain terms that require tenants to pay additional rent. Additional rent is usually a share of the costs and charges incurred to operate the property. These costs can include municipal taxes, insurance premiums, repair and maintenance costs and common area utility charges. In any given year, these charges change and fluctuate.  Landlords… Continue Reading

The Difference a Day Can Make: When a Strata Council pulls out the Rules

Posted in Real Estate
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Governing and managing a strata property can be messy and difficult.  Strata owners are generally a disparate group with little in common beyond ownership in the strata.  From among this group, a strata council must be elected, usually all volunteers who, to one degree or another, are reluctant participants and untrained in strata governance.  Yet,… Continue Reading

A Fixture or a Chattel: The $4.2 Million Question

Posted in Commercial, Real Estate
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Likely because the application of the law is uncertain, commercial leases generally have detailed clauses dealing with the question of when a piece of equipment or an improvement installed in a premises becomes a fixture or remains a chattel.  The answer matters as fixtures, in law, are considered to be part of the land and,… Continue Reading

How to Remove a Restrictive Covenant

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It seemed like a good idea at the time. However, as time passes, things change and having a restrictive covenant on title to property can become a big problem. Restrictive covenants are charges registered on title to land that restrict the use and enjoyment of that land in some way.  They can prohibit activities on… Continue Reading

How should a Strata deal with the Owner from Hell? – The Final Chapter!

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In several earlier posts I discussed a B.C. Supreme Court decision involving problem strata owners who had, for years, defied efforts by the strata council to moderate their poor conduct.  The court ordered the sale of the strata unit as the only practical means to bring an end to what was described as “outrageous conduct.”  The… Continue Reading

Can You Smell a Fundamental Breach? Commercial Tenancy and Quiet Enjoyment

Posted in Commercial, Real Estate
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What happens if you lease a commercial retail space only to find, after several months of operation, that there is a pervasive and unpleasant smell in the place?  Customers are complaining.  Your employees are feeling ill.  Your inventory might be getting damaged.  The source of the smell cannot be found.  Is this your problem or… Continue Reading

Was That A Gift? Or Does Someone Else Own My Land?

Posted in Real Estate
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Many readers would be surprised to know that where you purchase real property with money provided from a third party there is a presumption that you are purchasing that property, or interest in that property, on behalf of the third person.  This is called the doctrine of “purchase money resulting trust”.  Until recently, there was… Continue Reading

How should a Strata Deal with the Owner from Hell? – Part 3

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In my January 2012 and July 2012 blog posts, I discussed the ongoing saga of the Jordisons, arguably the epitome of strata owners from hell.  For a period of years, the Jordisons continually behaved in an obnoxious and outlandish manner towards their neighbors.  To try to stop them, the strata council levied fines totaling over $20,000 for their… Continue Reading

Is it a Fixture or is it a Chattel?

Posted in Commercial, Real Estate
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Landlords, tenants and law students all wrestle over what it means for something to be a fixture as opposed to a chattel.  It matters to landlords because, at the end of a tenancy, fixtures can become their property and enhance the land value.  It matters to tenants because they risk losing valuable assets installed on… Continue Reading

Infrastructure Construction v. Private Enjoyment of Land – the Supreme Court of Canada Weighs In

Posted in Construction, Real Estate
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On March 7, 2013, the Supreme Court of Canada issued an important decision regarding the obligation of public authorities to compensate private landowners in circumstances where public infrastructure construction has interfered with the private use and enjoyment of land.  In doing so, the Court ruled that a court must weigh the overriding public good occasioned… Continue Reading

BC Ferries Wins Property Assessment Appeal Board Decision

Posted in Commercial, Real Estate
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On Monday October 29, 2012 the B.C. Property Assessment Appeal Board released an important decision reducing the assessed value for property tax of the upland land and improvements at the Horseshoe Bay Ferry Terminal to a nominal value.  BC Ferries occupies the Province-owned property both under a long-term lease restricting the property use to ferry… Continue Reading

Supreme Court of Canada Releases Decision on Commercial Real Estate Development: Specific Performance vs. Damages and Mitigation – The Latest Word

Posted in Real Estate
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The Supreme Court of Canada released its decision today in Southcott Estates Inc. v. Toronto Catholic District School Board, 2012 SCC 51 which addressed a number of thorny issues relevant to commercial real estate disputes including whether a Plaintiff must mitigate its damages where it has made a claim for specific performance of a real… Continue Reading

B.C. Supreme Court Rejects Certification of Proposed REDMA Class Action

Posted in Class Actions, Construction, Real Estate
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In June 2012, my colleague, Craig Ferris wrote about the B.C. Court of Appeal decision in 229 Burrard Residential Limited Partnership v. Essolat where the Court endorsed a strict application of the terms of the B.C. Real Estate Development Marketing Act (“REDMA”).  There, the Court set aside a pre-construction sales contract and ordered the return… Continue Reading

How Should a Strata Deal with the Owner from Hell? – Part 2

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In an earlier blog I discussed a B.C. Supreme Court decision involving problem strata owners who had, for years, defied efforts by the strata council to moderate their outrageous conduct.  The case was significant because the court ordered the strata unit sold as the only reasonable means of addressing the problems created by its owners. … Continue Reading

The Ground Shifts Again – B.C. Court of Appeal strictly applies REDMA in favour of a Non-Completing Purchaser

Posted in Real Estate
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On August 26, 2011, I blogged on the British Columbia Supreme Court decision in 229 Burrard Residential Limited Partnership v Essolat  (“299”).  299 was seen as levelling the ground for disputes under the Real Estate Development Marketing Act  (British Columbia) (“REDMA”).  This decision increased the likelihood that developers would be able to enforce pre-construction contracts entered into with purchasers… Continue Reading

REDMA Update – Early Completion of Condominium Does Not Allow Rescission

Posted in Real Estate
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Last summer, I blogged on the ever expanding body of jurisprudence arising from purchasers of “pre-built” condominiums attempting to use their rescission rights provided under the Real Estate Development Marketing Act (British Columbia) (“REDMA”) to avoid completing their condominium purchases.  In particular, my blog related to the more developer friendly decision in Sharbern Holding Inc…. Continue Reading

Am I Required to Complete my Real Estate Purchase? (a.k.a. the Mystifying World of Conditions Precedent)

Posted in Real Estate
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Agreements to purchase real estate are generally negotiated between real estate agents without the benefit of legal advice.  This can often lead to vagueness when “special” terms are added to the standard form agreements of purchase and sale. A case in point is the recent decision of the British Columbia Court of Appeal in Peier… Continue Reading

How should a Strata Deal with the Owner from Hell?

Posted in Real Estate
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As any strata owner knows, an obstreperous unit owner can make everyone else’s life hell.  Keith Fraser, in a recent article in The Province reported on a B.C. Supreme Court ruling ordering problem strata owners to sell their unit as a result of their outrageous conduct.  The decision is interesting for two reasons.  First, it encourages… Continue Reading

Developers Beware – Strict Compliance with Closing Procedures Required by the BC Court of Appeal

Posted in Construction, Real Estate
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I previously wrote on the legal issues faced by developers of residential condominium projects in British Columbia relating to the Real Estate Marketing Development Act (“REDMA”). The focus on REDMA compliance must not, however, distract a developer from focusing on more basic contractual compliance which can also create enforceability issues.  A case in point is a… Continue Reading

Are the Courts in B.C. Levelling the Ground? Recent decisions under REDMA

Posted in Real Estate
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The sale of condominiums in British Columbia is a big business.  The financing for the development of these condominiums is often dependant on the successful marketing and sale of the condominium units prior to construction.  These marketing and sale activities are governed by the Real Estate Development Marketing Act (British Columbia) (“REDMA”) which, among other things,… Continue Reading