PLTC Practice Material - Law Society of British Columbia

1 CAUTION The Professional Legal Training Course (PLTC) provides the Practice Material to users as an aid to developing entry-level competence, with the understanding that neither the contributors nor PLTC are providing legal or other professional advice. Practice Material users must exercise their professional judgment about the accuracy, utilit y and applicabilit y of the Material . In addit io n, the users must refer to the relevant legislation, case law, administrative guidelines, rules, and other primary sources. Forms and precedents are provided throughout the Practice Material . The users also must consider carefully their applicability to the client s circumstances and their consistency with the client s instructions . The Law Society of British Columbia and PLTC can accept no responsibility for any errors or omissions in the Practice Material and expressly disclaim such responsibility. A requirement for admission to the bar of British Columbia , the Professional Legal Training Course is supported by grants from the Law Society of British Columbia and the Law Foundation of British Columbia .

2 2022 The Law Society of British Columbia . See > Terms of use. Professional Legal Training Course 2022 Practice Material Real Estate Recent Contributors: Dick Chan Tyler Galbraith Tony Magre Greg Umbach Edward L. Wilson The Land Title and Survey Authority of BC Practice Material Editors: Susan MacFarlane, Katie McConchie September 2022 REAL ESTATE CONTENTS LAND OWNERSHIP, RIGHTS AND INTERESTS [ ] Introduction to These Materials 1 [ ] Statutes Governing Land Ownership in British Columbia 1 1. Land Title Act 1 2. Land Act 2 3. Strata Property Act 2 4. Land Owner Transparency Act 3 [ ] Other Statutes and Rules Relevant to Ownership 4 1. Property Law Act 4 2. Family Law Act 4 3. Fraudulent Conveyance Act, Fraudulent Preference Act, and the BC Code 5 [ ] Indigenous Land Claims and Interests in Reserve Lands 5 1. Background to Indigenous Land Claims 6 2. Indian Act and Indian Land Registry 7 3. First Nations Land Management Act 8 4. Self-Governing Band-Adopted Registry System 8 5.

3 Fee Simple by Treaty 9 [ ] Further Reading 10 1. Practice Manuals 10 2. Texts 10 PURCHASE AGREEMENTS [ ] The Purchase Contract 11 1. Nature and Origin of the Purchase Contract 11 2. Initial Review of the Purchase Contract 11 [ ] Is the Purchase Contract Binding? 12 1. Offer and Acceptance 12 2. Amendments 12 3. Certainty on Essential Terms 12 [ ] The Main Elements of the Contract of Purchase and Sale 16 1. Description of Parties 16 2. Description of Property 17 3. Price 17 4. Deposit 18 5. Completion Date 18 6. Possession Date 18 7. Adjustment Date 19 8. Included Items and Viewed 19 9. Title Free and Clear 19 10. Closing Procedure 20 11. Completion 21 12. Costs 23 Real Estate(ii) and Warranties24 Information24 on Assignment of Contract24 Disclosure25 Estate Commission25 Page25 [ ] Property Disclosure Statement25 27 APPENDIX--NOT AVAILABLE IN ONLINE VERSION Appendix 1 Contract of Purchase and Sale CONVEYANCING Practice [ ] Role of the Lawyer35 s Lawyer35 s Lawyer36 [ ] Role of Non-lawyers36 [ ] Receiving instructions From the Buyer37 [ ] Conflict of Interest39 41 42 APPENDICES--NOT AVAILABLE IN ONLINE VERSION Appendix 2 Sample Conflict Letter (Buyer)Appendix 3 Sample Conflict Letter (Lender) SEARCHES [ ] Searching for Titles, Documents and Plans From the Land Title Office43 the Legal Description43 the Title43 Particulars of Charges (If Requested)

4 44 Plans44 Title Office Search Checklist44 [ ] Index Searches45 [ ] Strata Title Searches46 [ ] Real Property Taxes46 [ ] Corporate Searches46 [ ] Encumbrances47 Rights of Way and Statutory Covenants47 of Pending Litigation47 [ ] Investigating Title48 Title48 Lien Act48 Real Estate(iii) Management Act48 Tenure Act49 Law Act50 Conservation Act50 Act50 (Spouse Protection) Act50 Title Act51 Owner Transparency Act51 Transfer Form Act51 Property Security Act51 of Attorney Act52 Law Act52 Municipality of Whistler Act52 Other Statutes53 [ ] Site Registry55 [ ] Transactions Involving Indigenous Peoples Lands55 57 58 60 APPENDICES--NOT AVAILABLE IN ONLINE VERSION Appendix 4 Easement Appendix 5 Statutory Right of Way Appendix 6 Restrictive Covenants STEPS AND DOCUMENTS IN A CONVEYANCE [ ] Duties of the Buyer s Lawyer61 [ ] Steps in a Residential Conveyance61 Contact61 Interview61 Search62 From Interview and Title Search62 Preparation63 Before Closing64 Procedures64 Title Office Electronic Filing65 Procedures68 [ ] Witnessing and Executing Documents68 [ ] Form A Freehold Transfer68 [ ] Property Transfer Tax Return69 Transfer Tax69 Property Transfer Tax69 of the Tax70 and Filing the Property Transfer Tax Return70 [ ] Land Owner Transparency Registry Filings70 [ ] Form C General Instrument71 [ ]

5 Survey Certificate71 Real Estate(iv) [ ] Goods and Services Tax71 Is Taxable71 and Warranties72 Collects the Tax72 Certificates73 [ ] In/Out Analysis74 [ ] Holdbacks for Non-Resident Sellers74 [ ] Loss Prevention Summary75 Instructions75 Deficiencies76 [ ] Introduction to Statements of Adjustments77 [ ] Purpose of Statements of Adjustments77 [ ] The Number of Statements78 [ ] Methodology for Statements of Adjustments78 Who Paid and Who Owes78 Statements78 Adjustments79 [ ] Notes to Statements of Adjustments83 [ ] Initial/Interim Report to Client84 Instructions84 Opinion84 of Instructions85 [ ] Interim Report Letter Checklist86 [ ] Insurance87 [ ] Undertakings87 Undertakings87 Is an Undertaking?87 Undertakings89 Practical Rules for Undertakings89 in Real Estate Transactions90 92 98 99 100 APPENDICES--NOT AVAILABLE IN ONLINE VERSION Appendix 7 Canadian Bar Association (BC Branch) Real Property Section Standard Undertakings Appendix 8 Canadian Bar Association (BC Branch) What Constitutes Diligent and Commercially Reasonable Efforts Appendix 9 Sample Survey Certificate Appendix 10 Sample State of Title Certificate Real Estate(v) Appendix 11 Vancouver Real Property Section Resolutions 102 Appendix 12 Adjusting the Home Owner Grant 102 REMEDIES [ ] Risk of Failed Transactions103 [ ] The solicitor as Witness103 [ ] Relevant Legal Principles103 of the Purchase Agreement103 of Time104 Precedent (Subject Clauses)105 Breach106 [ ] Remedies of Seller and Buyer106 Election.

6 Affirm or Disaffirm106 s Remedies107 s Remedies108 [ ] Tender as an Evidentiary Tool109 109 110 110 111 111 112 APPENDICES--NOT AVAILABLE IN ONLINE VERSION Appendix 13 Sample Letter to Buyer: Failure to Close Appendix 14 Sample Letters to Buyer: Anticipatory Breach Appendix 15 Sample Part 1 Notice of Civil Claim for Seller: Claiming Specific Performance or Damages Appendix 16 Sample Part 2 Notice of Civil Claim for Seller:Claiming Specific Performance or Damages Appendix 17 Sample Part 1 Notice of Civil Claim for Buyer:Claiming Specific Performance or Damages Appendix 18 Sample Part 1 Notice of Civil Claim for Buyer: Recover Deposit MORTGAGES AND RIGHTS TO PURCHASE [ ] Mortgage as a Contract and Security113 Aspect of a Mortgage113 and Security Aspect of a Mortgage113 Under the Land Title Act (Division 5)114 [ ] Conflicts114 [ ] Capacity of Borrowers114 Act114 of Trustees or Personal Representatives114 Property Act115 of Attorney Act115 Guardian Legislation115 Considerations115 [ ] Capacity of Corporate Borrowers115 Real Estate(vi) Columbia Companies116 Companies in British Columbia116 Business Corporations Act116 [ ] Corporate Procedures116 [ ] Restrictions on Lenders116 Loan-to-Value Ratio116 to Prohibited Individuals116 of Non-Compliance on Security Doctrine of Illegality117 [ ] Checklists117 [ ] instructions (Commitment Letter)

7 117 [ ] Searches118 Title Office118 Searches118 and Bylaw Compliance118 Enquiries118 [ ] Report to Client118 [ ] Survey119 [ ] Insurance119 Mortgage Clause119 Cost Endorsement120 [ ] Registration and Advances120 [ ] Clearing Title121 [ ] Final Steps122 [ ] Problems, Pitfalls, New Developments and Disclosure Requirements122 Act, s. 6122 Act, s. 8122 Act, s. 10122 and Novation123 Code124 Brokers Act124 Act124 Law Act125 Practices and Consumer Protection Act125 of Statutory Liens125 [ ] Modifications of Mortgages126 [ ] Builders Liens126 [ ] Acting for a Second Mortgage Lender126 [ ] Mortgage of a Strata Lot127 Title Search127 Disclosure Statement127 Property Certificates127 of Management Agreement127 Certificate127 Certificate Not Required127 Real Estate(vii) [ ] Mortgage of a Lease128 [ ] Mortgage of a Mortgage128 [ ] Equitable Mortgages128 [ ] Special Considerations Relating to Right to Purchase128 [ ] Mortgages of Right to Purchase128 of Buyer s Interest128 of Seller s Interest129 [ ] Mortgage Remedies129 on the Personal Covenant129 for Foreclosure (Supreme Court Civil Rule 21-7)

8 130 Sale130 Power of Sale130 [ ] Title Insurance130 [ ] Residential Mortgage instructions , Obligations on Solicitors and Opinions131 and Opinions Generally131 and Use135 THE BUILDERS LIEN ACT [ ] A Basic Overview137 [ ] Lien Claimants and Lien Rights Section 2137 Improvement137 of Lien Claimants138 [ ] Completing the Claim of Lien Form139 [ ] Filing the Claim of Lien Section 15140 [ ] Limitations for Filing Claims of Lien Section 20140 of Completion141 [ ] Wrongful Filing141 [ ] Who Is an Owner142 Lender142 2. Purchaser142 3. Tenant142 [ ] Payment to Discharge Liens143 [ ] Holdback Section 4143 [ ] Holdback Account144 Requirements144 2. Holdback Period144 Real Estate(viii) [ ] Trust Section 10145 [ ] Priorities Affecting Lien Claimants145 Claimant and a Mortgagee145 2. Lien Claimant and an Execution Creditor146 Lien Claimants146 Claimant and a Receiver147 5. Lien Claimant and Crown Agencies147 [ ] Enforcing the Lien147 Registry147 2.

9 Commencing the Action147 3. The Defendants147 [ ] Limitation Periods and Notice to Commence Action148 [ ] Judgment148 149 150 151 BUILDERS LIEN APPENDICES--NOT AVAILABLE IN ONLINE VERSION Builders Lien Appendix 1 Form 2 Notice of Certification of Completion Builders Lien Appendix 2 Form 3 Certification of Completion Builders Lien Appendix 3 Form 5 Claim of Lien Builders Lien Appendix 4 Section 4 Holdback Owner/Developer 153 Real Estate 1 Chapter 1 Land Ownership, Rights and Interests1 [ ] Introduction to These Materials These chapters in Practice Material : Real Estate focus on two aspects of real estate: the first is ownership inter-ests, including rights and obligations; and the second is buying and selling real property. This first chapter addresses ownership interests and rights. It canvasses statutory rights and Aboriginal rights, and rights in strata property. At the end of this chapter is a list of resources for further study.

10 Subsequent chapters look at the steps and documents in transferring land and the remedies when something goes wrong. The final chapter addresses builder s liens. Throughout these chapters there are several appendices with examples of documents and of language that should be used in preparing particular kinds of forms or claims. [ ] Statutes Governing Land Ownership in British Columbia Real estate law involves a large body of common law and a great deal of legislation, including many regula-tions. It is difficult for any person to be familiar with more than a small part of this body of knowledge. It is perhaps most useful to be aware of the breadth and spe-cialized nature of the field and the many resources avail-able. (See for a list of resources.) 1. La nd Title Act In British Columbia , the Land Title Act (the Act ) is the key statute for conveyancing transactions. Some of the more significant provisions of the Act will be touched on briefly here.