Archive for the ‘Real Estate Legal Articles’ Category

Need to know about: Serving Notices During Tenancy

Tuesday, December 1st, 2020

Serving Notices During Tenancy

BC Columbia

Need to know about Land Owner Transparency Act

Wednesday, November 18th, 2020

Land Owner Transparency Act

Tony Spagnuolo

Need to know about Land Owner Transparency Act

Wednesday, November 18th, 2020

Land Owner Transparency Act

Tony Spagnuolo


Re: Land Owner Transparency Act


Good morning,


You are about to hear a lot more about the Land Owner Transparency Act (“LOTA”) and the Land Owner Transparency Register (“LOTR”) between now and Dec. 1, 2020. 


LOTR is a registry of interests in land (shareholders, beneficial interest owner of a trust, partners in a partnership), which registry will be a searchable and public database.  Whenever an interest in land is registered or created a transparency declaration must be filed so as to declare whether or not the transferee is a reporting body.  Reporting bodies include corporations, a trustee of a trust or a partner of a relevant partnership.  If the Buyer is a reporting body, it must disclose the following for each interest holder: 


• Full name, date of birth, SIN, tax number, location of principal residence and last known address;


• Date on which one became or ceased to be an interest holder and the nature of the individuals interest in the reporting body;


• Canadian citizen or PR of Canada, or neither. 


For most of our clients, who purchase properties in their personal names, this will not be an issue.  For any clients who wish to purchase in the name of a company, trust or partnership, this will add time and cost to their purchase.  If you have any such clients over the first week or two of December make sure they are aware of this. 


As of now this will begin on Nov. 30, 2020, so expect a flood of information to your inbox the next few weeks.  We will do our best to keep you informed as well.   Both Dick Chan and I are attending a course on Thursday, and once we receive further relevant information we may do a video or two.


That’s it for now, no doubt more to follow shortly. 


Tony Spagnuolo, Barrister & Solicitor

Spagnuolo & Company Lawyers

#300-906 Roderick Avenue

Coquitlam, BC V3K 1R1

Direct Phone: 604-777-7406

Fax: 604-527-8976

Home Buyers’ Plan for First-Time Buyers: Withdraw Up to $35,000 Tax-Free From Your RRSPs

Thursday, May 28th, 2020

How the Home Buyers’ Plan (HBP) Works


Home Buyers’ Plan

The First Time Home Buyers’ Plan allows qualified first-time buyers to withdraw up to $35,000 tax-free from their RRSPs, to purchase or build a home. If a couple is buying together, and both are qualified first-time buyers, they can withdraw $35,000 each for a total of $70,000.


To be eligible for the First Time Home Buyers’ Plan (HBP), you must:

  • Be a Canadian resident
  • Be considered a first-time homebuyer
  • Not have owned a home within the past four years
  • Not have lived in a home that your spouse owned within the past four years, if you are now buying together
  • Sign a written agreement to buy or build a home
  • Intend on living in the home within one year of buying or building it
  • Not own the home for more than 30 days before making the withdrawal
  • Close the sale before October 1 of the year after you made the withdrawal

Buyers with special needs or who are purchasing homes that are more accessible for an individual with special needs, and/or who are eligible for the Disability Tax Credit, may also be eligible to use the HBP, even if the other eligibility requirements are not met.

Withdrawing from your RRSP

When you find a home you want to buy, you put in an Offer to Purchase (with any conditions you want—a home inspection and/or time to confirm your financing being the most common). Once the seller agrees, you finalize the Agreement of Purchase and Sale (APS) and book your home inspector. At the same time, you can fill out Form T1036, take it to the financial institution that holds your RRSPs, and withdraw the amount you need for your down payment, once you have a firm and binding APS.

To withdraw funds from your RRSPs, using the First Time Home Buyers’ Plan, you must print a copy of Form T1036. Fill out Section 1 yourself then bring the form to the financial institution that holds your RRSPs, so they can fill in Section 2 and make your withdrawal.

Once the withdrawal has been made, your financial institution will send you a T4RSP form, which confirms how much you withdrew. You’ll need to reference this form in the income tax return for the year you made your withdrawal.

Repaying your Home Buyers’ Plan

Because the Home Buyers’ Plan is considered a loan, it must be repaid. You have to repay at least 1/15 of the amount you borrowed each year. Repayment begins the second year after your withdrawal, and the full amount must be paid off within 15 years of that date. For example, if you withdrew funds in 2019, your first year of repayment will be 2021.

If a condition is not met, after you have made the withdrawal, you will have to claim the amount as income on your personal income taxes and you will pay tax on it. If you’ve already submitted an assessment for the year you made the withdrawal, you will be required to submit a reassessment.

Zoocasa © 2007–2020

Should a deposit be part of the damages award?

Friday, April 17th, 2020

Legal question about buyer failing to close

Shaneka Shaw Taylor & Eugenia Bashura

When a buyer fails to close a real estate transaction and the seller is awarded damages, should the seller credit the deposit to the damages award or should the seller be allowed to keep it in addition to the award? The Court of Appeal dealt with this question in the Azzarello v. Shawqi decision.

The sellers, Mark and Eliza Azzarello, listed their home for sale in March 2017 for $1,398,000 during a very “hot” real estate market in the Greater Toronto Area. Ahmed Sabri Shawqi, the buyer, offered them $1,555,000. The Azzarellos accepted this offer and Shawqi paid a $75,000 deposit. Afterwards, the Azzarellos agreed to buy a new home near Hamilton. They took out a bridge loan to complete that purchase as well as to conduct some renovations on the new home.

On the date set for closing, after receiving several extensions, Shawqi failed to close. The Azzarellos relisted the property and ultimately sold it for $1,280,000. The Azzarellos commenced an action against Shawqi for breach of the Agreement of Purchase and Sale (APS). This action was decided summarily (without a full trial) on a summary judgment motion. The motion judge awarded the Azzarellos $308,688.31 in damages, which consisted of the difference in price ($275,000) and the consequential losses incurred by the Azzarellos (cost of the staging, legal fees, carrying costs of the property and interest on the line of credit).

Importantly, the motion judge also allowed the Azzarellos to keep the deposit and not credit it to the damages award. In other words, the Azzarellos were awarded the total damages of $308,688.31 plus they kept the $75,000 deposit. Shawqi appealed.

The Court of Appeal found that the motion judge erred by holding that the deposit be forfeited and not credited to the Azzarellos’ damages.

The Court of Appeal started the discussion by outlining settled law on what happened to deposits under various circumstances:

  • If a real estate transaction was completed according to the terms of the APS, unless the parties contracted otherwise in the APS, the deposit would be credited to the purchase price;
  • If the sellers breached the APS, the deposit would be returned to the buyers; and
  • If the buyers beached the APS but the sellers suffered no loss, the buyers would forfeit the deposit, without proof of any damage suffered. If the buyers wanted to, they could ask a court for relief against the forfeiture of the deposit.

The circumstances of this case were that the buyer, Shawqi, breached the APS and the sellers, the Azzarellos, suffered a loss entitling them to damages. The law on this issue was not well settled.

The Court of Appeal held that the purpose of the deposit was to compensate the Azzarellos for the lost opportunity in having taken the property off the market as well as the loss in bargaining power resulting from the Azzarellos having revealed to the market the price at which they had been willing to sell. Thus, the Azzarellos were entitled to keep the deposit. The question was whether they were entitled to keep the deposit in addition to their damages award.

The Court of Appeal reviewed the standard terms of the APS signed by the parties and found that the only term mentioning the deposit was the provision stating that the deposit would be credited to the purchase price on completion of the transaction. From this, it could be inferred that the parties intended the deposit would be applied as a credit to the payment obligation owed by Shawqi to the Azzarellos, whether the transaction failed or not. Since Shawqi had already paid the Azzarellos $75,000 as the deposit, the Azzarellos had to credit this amount towards their total damages award of $308,688.31 so that in the end Shawqi owed the Azzarellos a total of $233,688.31.

Due to the standard wording used in the APS, the Azzarellos were not entitled to “double recover” by keeping the deposit in addition to their damages award.

© 1989-2020 REM Real Estate Magazine

Winding up a Strata corporation – legal precedent

Thursday, December 19th, 2019

Strata Termination Update

Mike Mangan

A year ago in Legally Speaking No. 509, I described two Supreme Court of British Columbia cases that addressed whether a strata corporation must first pass an 80% vote (sometimes called a “winding-up resolution”) before strata council may list the whole complex for sale with a brokerage or enter a contract to sell the entire development to a buyer. The British Columbia Court of Appeal has now confirmed that there is no such requirement.1 The eligible voters may decide by majority vote to authorize strata council to list the complex with a brokerage and later contract to sell the project to a purchaser, subject to the owners passing a winding-up resolution and meeting all other pre-requisites. Background   While reasons for terminating a strata development vary, two grounds are especially common. First, as a strata complex ages, it may need so much remedial work that it makes more sense to sell the project to a developer for redevelopment. Alternatively, if a strata project is located in an area rezoned for higher density development, the owners may prefer to profit by selling the property to a developer, who will maximize its potential. The Strata Property Act creates three termination methods. In the first two methods, owners choose to terminate by passing an 80% vote to approve a winding-up resolution, either to terminate without a liquidator (called a “Division 1 wind up”) or with one (a “Division 2 wind up”). An 80% vote is a vote in favour of a resolution by at least 80% of the votes of all of the eligible voters.2 In most cases, after passing the 80% vote, the strata corporation must then ask the Supreme Court of British Columbia to confirm the winding-up resolution, giving any dissenting owner the opportunity to further object. In the third method (a “Division 3 wind up”), the Court orders the strata to terminate, typically because the strata corporation is too dysfunctional to continue; there is no winding-up resolution.3 Each termination method results in winding up the strata corporation and cancelling the strata plan. The relevant land is ultimately sold, and any personal property formerly belonging to the strata corporation converted to cash. Everyone who was formerly the owner of a strata lot will receive their proportionate share of the sale proceeds, after deducting any amounts due to the owner’s respective mortgage lenders or other secured creditors. Case Law In Buckerfield v. Strata Plan VR 92, some REALTORS® initially asked strata council about selling the entire 41 unit complex.4 Strata council then organized a presentation to explain the termination process to the owners. In an informal poll, a majority of owners voted to hire a real estate brokerage to market the complex to developers for redevelopment, all subject to later passing a winding-up resolution. When strata council announced its plan to retain a brokerage on this basis, several dissenting owners sued the strata corporation in the Supreme Court of British Columbia. The dissenters apparently asked for a declaration that the strata corporation must first pass an 80% vote and appoint a liquidator, who would then be the only person with authority to list the complex for sale. Alternatively, the dissenters claimed that the eligible voters must first pass a 3/4 vote before strata council can retain a brokerage to solicit offers on the building. The Supreme Court disagreed, dismissing the dissenters’ objections and refusing to require an 80% vote, or a 3/4 vote, to engage a brokerage. On appeal, the British Columbia Court of Appeal observed that the Strata Property Act does not expressly impose any requirement for an 80% vote before listing a strata complex for sale. Nor does the Act imply any such requirement. The Court of Appeal confirmed that a strata corporation may decide by majority vote at a general meeting to engage a brokerage to list the whole development for sale, so long as the listing contract, and presumably any subsequent contract of purchase and sale, is subject to the owners later passing an 80% vote to wind up the strata corporation and cancel the strata plan and, where required, confirmation by the Supreme Court of British Columbia. There is no requirement to first have a liquidator in place to list the complex with a brokerage. The termination of a strata development is a complex legal event. If a strata council approaches a REALTOR® to list the whole complex in a strata termination, the REALTOR® should warn strata council to retain a strata lawyer as soon as possible to guide the strata corporation through the procedure. Any REALTOR® interested in listing a strata development for termination will also profit by learning more about the process. Read the Buckerfield case above, or any or all of these other recent termination cases below:

Copyright © 2019 British Columbia Real Estate Association

Are you being taken advantage of?

Sunday, September 22nd, 2019

Mortgage Broker News

IT MIGHT surprise you to learn that some of the top earners in this industry, who make up a large part of their own mortgage brokerage’s volume, have been losing thousands of dollars each year in otherwise earned commissions.

Over my career, I have learned that commission splits are genuinely dependent on what mortgage brokerages want to disclose to their agents about what lenders pay them. As an agent, you might receive correspondence directly from the lender about what they are paying you on each completed mortgage transaction. What lenders often don’t advertise to agents is any other commissions they are paying the brokerage on the same deal.

Back-end commission models, and even some types of volume bonuses, don’t get paid to every agent. As a result, the commission split an agent thinks he or she has in place could be completely inaccurate.

For example, a well-known lender pays most brokerages 70 basis points on a specific mortgage transaction. However, most brokerages I’ve looked into only advertise the lender paying 50 basis points. Since the agents have no idea that the brokerage is earning an additional 20 basis points off the same deal, they think their split is right. However, the agent is earning less money than they think.

If the agent has a 90/10 split, for example, and believes their brokerage is getting 50 basis points only, then on a $500,000 mortgage, that 90/10 split is really a 79/21. The brokerage made an additional $900 (or 20 basis points) off the same deal, and they didn’t tell the agent.

It’s my understanding that the ‘total commission’ a brokerage receives gets negotiated by way of a split, but the definition of ‘total commission’ is a grey area – especially if agents don’t know about any other deals their brokerage has set up with the lenders independently. It’s becoming necessary for agents to take the time to probe more deeply into their commission splits and ask their brokerages about any other side deals they may have negotiated with lenders that could prevent them from earning more.

Marketing fees are another pet peeve of mine, mainly because they are a rip-off. Why do brokerages impose a marketing fee that includes a generic website and a crappy CRM system that most agents don’t use? Even if it did offer a hint of value, why is it mandatory? Could it be that it’s just another revenue stream that makes the brokerage millions at the expense of the agent?

When it comes to websites, anyone who has a fully functioning site will tell you that ranking higher in Google search engines and retaining business from the web always entails some search engine optimization, branding and marketing. None of the brokerages that charge monthly fees for websites offer any service remotely close to this. What they offer is discount web hosting and an illusion that the agent is getting a slice of value in exchange for their mandatory monthly payment. There is no upkeep, no maintenance, no effort. That’s what you get when you have a brandless website – and beware, that’s what you could be communicating to potential clients.

Mortgage origination is becoming automated, and big banks are spending millions on their web presence. No mortgage professional can afford to have a less than fantastic website. Could their money be better spent elsewhere? Yes.

Customer relationship management systems – another justification for the monthly marketing fee – often go unused for the same reason as the generic website. Services such as Salesforce require constant upkeep, customization and personal branding. No CRM program included with a mandatory monthly fee could compete. Monthly marketing fees are a hoax because they masquerade as a value-add to help agents get business, but in reality, they are empty shells for agents and treasures for brokerages.

It’s easy to not pay attention to everything going on around us, especially when we are busy closing deals and trying to retain new business, but we must look closely at every dollar spent. A small oversight can cost us big money.

Copyright © 2020 Key Media

Legal issues to consider when buying a cottage

Tuesday, July 16th, 2019

Torontonians moving to rural areas for housing

Natalka Falcomer

Maybe it’s the new flight service by Porter Airlines to Muskoka or maybe it’s the smog that’s prompting Torontonians to move from the hustle and bustle of the city to set up a life in cottage country. Or maybe (and more likely) it’s the cost of a home in the city.

Some Torontonians are opting out of the market to find greener (literally) pastures in the rural parts of Ontario. The math makes sense even if you decide to buy in rural Ontario and rent in Toronto. How? Homes, and therefore mortgages, outside of our urban centres are significantly cheaper than the urban core.  As an article reported in Toronto Life, if you Airbnb your cottage when you’re caught in the city, you will more than cover your mortgage and your Toronto rent.

There are, however, some caveats and critical legal and practical issues that may affect your decision.

Short-term rentals:

If you plan to put your cottage on Airbnb, be aware of noise regulations and open fire rules and your neighbours, who may not be pleased with short-term renters partying throughout the summer months. Especially if they’re out there to relax. Zoning restrictions, and not just noise by-laws, may also be in store for parts of cottage country. And don’t forget that your insurance will be sky high because you’re not living in the cottage and because you’re renting it out.


Some other things to consider: many banks will only permit financing if the cottage has a furnace, a heated water line from the lake during winter months and a foundation in the ground and not on cinder blocks. Also, as further described below, ensure that the roads are maintained all year and that the property has a proper septic system and clean drinking water. If not, your lender may back out at the last minute. One wonders also wonders about the impact of insurance on homes near the water due to the flooding in Muskoka … stay tuned!


Easements and rights of way are deceptively complex legal concepts and often the cause of litigation between neighbours. The point of most easements or rights of way is to ensure that adjacent properties are accessible or that views are protected. Sometimes these easements are noted on title, while in other cases they’re granted by legislation or arise out of implication. Often when there’s nothing in writing or on title, neighbours will litigate over whether or not such access rights exist. As such, if you intend on buying a cottage that needs access to its neighbouring property or if you want to protect a view, don’t assume these rights are protected. Confirm if these rights are registered on title. If not, you may be exposing yourself to unhappy neighbours or a lawsuit.

Unregistered hydro easements:

Unregistered hydro easements can be highly problematic because they permit the hydro authorities to cut through your land and prohibit you from building on the hydro easement. Case law and Hydro One’s policy requires homeowners to be financially responsible for the maintenance of wires and poles found on or near their property. To complicate matters further, such hydro easements are not found on title! You must contact the appropriate hydro authority to determine such easements.

Waterfront improvements:

Never operate under the assumption that the existing cottage or dock on a property is in line with bylaw mandates. Take, for example, a dock. The provincial Public Lands Act and federal Fisheries Act will apply if the construction of a dock impacts both the shoreline waters and fish habitat. This means that the construction of a dock may require not only municipal approval, but also federal and provincial approvals and permits. Ensure that these permits are in place before you purchase any oasis.

Property insurance:

Proximity to a fire hall can impact the rate charged for fire insurance. Typically, insurance companies focus on whether the structure is within five miles of a responding fire hall. In certain locales, insurers may not provide coverage, given lack of adequate fire protection. Get this information before an offer goes in.

Seasonal zoning:

While you may want to escape to your cottage year-round, it doesn’t mean that this is an option. Some rural residential properties are zoned “seasonal”, which means roadways are not maintained during the winter. Apart from no access during certain seasons, you may also be on the hook to provide and pay for maintenance. Seasonal zoning means that the municipality may not provide emergency services in the wintertime, which is cause for concern if you have elderly visitors or grandchildren.

Water supply:

If the water supply for the cottage is municipally provided, you’re in luck. Unlike most cottages that are supplied by well water, you don’t have to be concerned with potability. This is because there is no reliable potability certificate for well water, or water drawn from lakes or a cistern.

Wells supplying multiple properties may be subject to the Ontario Clean Water Act, and easements for pipes from neighbouring wells (if registered) may violate the Ontario Planning Act. As always, request applicable certificates and obtain warranties from the seller that the water supply is in accordance with all federal, provincial and local regulations.


Septic systems require approval by the municipality or the Ministry of Natural Resources. Ask the sellers for such documentation. If you plan to make any additions to the cottage that affect the septic system, you are likely required to get additional approval to satisfy regulatory requirements. If you plan to rebuild and expand the cottage you plan to buy, ensure that such growth is permissible.

© 2019 REM Real Estate Magazine


Thursday, April 18th, 2019

Legally Speaking 513 (April 2019)

Chris Johnston B.A., LL.B.

Seller’s agents must be certain that they are dealing with the person with authority to list and sell the property. Confirming the identity and the authority of your clients may seem simple. However, in the global society today with complex deals, complicated ownerships of property and challenging deals, the pitfalls may be expanding.

Examples of situations that may result in claims or complaints against licensees include:

  • a person acting on behalf of the seller does not have a proper power of attorney to execute documents for the absent seller;
  • a licensee who has been authorized in writing to sign on behalf of the seller does not execute the contract properly (i.e. signs in the name of the seller rather than in the licensee’s own name, as agent for the seller);
  • a licensee fails to do a title search and is not dealing with the seller on title;
  • a licensee acts for a company without ensuring that she has proper authority from the corporate directors; or
  • a licensee takes instructions from an unauthorized representative of the seller such as a friend, family member or business partner without the knowledge or requisite written authority of the seller.

Predictably, these scenarios can lead to situations where the seller refuses to close and is sued by the buyer for failing to complete. In a rising market, the buyer seeks damages for any difference in value of the property, costs and expenses thrown away, specific performance and/or related damages, interests and legal costs. The licensee may be named as a party to the lawsuit with allegations of negligence for failing to ensure the contract was being signed by the proper party or for misrepresenting that they had the authority of the seller to list the property and to accept an offer of purchase and sale for a property.

In a recent decision1 of the British Columbia Supreme Court, a licensee faced this type of allegation when he was not aware that he was receiving instructions from someone other than the person on title. Although the Court found a binding contract at the end of the day and the claims against the licensee were dismissed, the stresses and expenses of a trial that lasted more than 50 days would have been extensive. The best ways to avoid such a kerfuffle include the following:

  1. When listing a property, always conduct a full title search. Know who your client is!
  2. On any listing involving a corporation, be certain to have a company search done and ask for the articles of incorporation and proof of who the officers and directors are with authority to authorize a transaction, perhaps with a Director’s Resolution.
  3. Where the seller may be absent physically or have health issues and wishes to give a power of attorney to another person, recommend your client get legal advice to ensure the form of power of attorney being used is valid and acceptable for filing with the Land Titles office and that it has not expired and/or been revoked.
  4. Consider using DocuSign or other software for secure electronic signatures with proper written consents in place for absent parties to a deal, rather than signing for them.
  5. If asked to sign for a party, be sure that the request is in writing, is genuine, and that the licensee signs in the name of the seller rather than in the licensee’s own name, and as agent for the seller.
  6. Never witness a signature that you did not actually witness.
  7. Don’t be lulled into believing that a family member has authority to make decisions for the person on title. Make sure you are getting instructions from the owner of the property and if it is someone else, that they have been granted the proper authority from the seller to sign on their behalf.

Licensees are expected to draft legally enforceable contracts and the starting point should always be to ensure that you know who owns the property and that you are dealing with the person with proper authority. An ounce of prevention is worth a pound of cure.

5 ways to protect yourself and your clients

Thursday, January 31st, 2019

Protect yourself and your clients – know the laws

Mark Weisleder

I have been practicing law for over 35 years, but it seems I learn something new every day. Laws change and you need to be up to date in order to practice in a manner that protects both agents and clients. Here are five tips to assist you with what I hope will be a successful 2019.

1. Get everything in writing:

Whenever I assist a real estate agent with a claim made against them by a client, or from the regulator, a common request is to see all the signed documents –

especially written instructions from a buyer or seller whenever you are asked to make any changes on a listing, presentation of offers in a bidding war or the agreement of purchase and sale. Do yourself a favour this year to always document instructions you receive from a client, whether by a signed agreement, email or text, to make sure there is always a written record of every action you are taking, especially when prior instructions are being changed.

2. Rent control:

In Ontario, as a result of changes made on Nov.15, 2018, every new rental unit created on or after that date is no longer subject to rent controls. This means the landlord will be able to increase the rent more than the government increase in 12 months. If you act for a tenant in a new unit, you may want to consider adding a provision to the lease making it clear that any future increase will not be more than a specific amount, say five per cent, to protect your tenant.

3. Non-resident sellers:

If a seller is a non-resident, 25 per cent of the entire purchase price needs to be held back until the seller satisfies their income tax obligations relating to the sale. In some cases, this 25 per cent holdback can result in there not being sufficient funds available on closing to pay the mortgage on the property and the real estate commission. This is one of the reasons to always do the FINTRAC identification as soon as possible. By asking for a driver’s licence, you can usually determine right away that the seller will be here for closing. When the seller signing the agreement is out of the country, make sure you ask about residency as soon as possible.

4. Be extra careful with assignments:

I expect there to be more assignment deals this year, especially if buyers who purchased two to three years ago are now having difficulty closing. Make sure to make the deal conditional on lawyer approval as there are HST and other issues relating to when the original deposits and the profit are to be made payable. Also, you need to be careful to make sure that your own commission on any assignment agreement is paid as soon as the builder consents to the deal, or else you may have to wait an extra year before you get paid.

5. Get everyone to sign the buyer representation agreement:

Too many times I have seen situations where, for example, one spouse signs the buyer representation agreement and then the other spouse or an adult child goes out and buys a property, to try and avoid paying the agent their commission. Or they buy in a company name to try and hide their identity.

Make sure you always get everyone to sign your agreement, even if it means going more than once to sign, especially if one of the spouses is out of town.

© 2017 REM Real Estate Magazine