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Category Archives: Real Estate

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New Real Estate Tax Leads to Collapsed Deals

Posted in Real Estate
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The provincial government’s new 15 per cent tax on foreign purchasers of residential property is the talk of the town in Metro Vancouver.  While many local residents have spent the last several days debating about the likely effect of the tax, others are already facing the consequences as buyers respond to the tax by failing… Continue Reading

Disclosure Obligations in Residential Real Estate Transactions

Posted in Civil Litigation, Real Estate
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The residential real estate market in the Lower Mainland is incredibly active. Prices continue to rise by significant amounts in a matter of weeks, sometimes days. Stories abound of bidding wars and sales without subject clauses. Out of anxiety or excitement, purchasers sometimes forgo viewing the property or having an inspection done. What happens when… Continue Reading

BCCA Confirms That “Buyer Beware” Still Rules the Day in Real Estate Transactions – Why Property Disclosure Statements Don’t Tell the Whole Story

Posted in Real Estate
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In a recent B.C. Court of Appeal decision, the court was asked to revisit the age old question of whether vendors of real property in British Columbia can still rely on the doctrine of caveat emptor or ‘buyer beware’ to avoid certain types of claims made by disgruntled purchasers.  In short, the court ultimately recognized… Continue Reading

One Remedy or More? The Supreme Court of Canada Clarifies Contractors’ Rights Under Builders’ Lien Legislation

Posted in Construction, Real Estate
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On September 18, 2015, the Supreme Court of Canada issued its reasons in Stuart Olson Dominion Construction Ltd. v. Structal Heavy Steel, 2015 SCC 43.  Although the judgment concerned the interpretation of the Manitoba Builders’ Lien Act, it has implications for owners, contractors and others in the construction industry across Canada, including remedies available to… Continue Reading

How Solid is Your Rent Guarantee?

Posted in Real Estate
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A recent case from the BC Supreme Court has highlighted yet again that a guarantee or indemnity of a lease (here now referred to as an “Indemnity”) does not necessarily assure payment to a landlord following a default by a tenant.  The terms of the Indemnity must be carefully scrutinized and examined to determine if… Continue Reading

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

Posted in Real Estate
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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!

Posted in Real Estate
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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

Posted in Real Estate
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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

Posted in Real Estate
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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