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An important lesson for buying real estate assets | RENX – Real Estate News EXchange

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A recent decision from British Columbia’s highest court highlights the importance of heeding the wording of a sale agreement and retaining a lawyer who can handle the job, especially when it comes to buying regulated real estate.

In Sutter Hill Management Corporation v. Mpire Capital Corporation, the purchase and sale of a specialized property went sideways after the buyer’s lawyer determined he lacked the expertise to complete a regulatory aspect of the transaction. The resulting delay frustrated the sale and the buyer, in turn, ended up losing a substantial deposit.

The purchase-and-sale agreement

In January 2016, Mpire Capital Corporation (the buyer) entered into an agreement of purchase and sale (the APS) to buy a care home from Sutter Hill Management Corporation and Sweet Investments Ltd. (the sellers) for $14,125,000. After the APS was executed, the buyer paid a $300,000 deposit toward the purchase price.

The APS was amended in July 2017 to include a term stating the buyer was required to “use commercially reasonable best efforts” to acquire all of the necessary licenses and approvals from the Fraser Health Authority (the FHA) “as soon as possible”. The closing date for the transaction was deemed to be 30 days after the date on which the buyer obtained regulatory approvals and the transfer of licenses from the FHA.

After the amendment was executed, the buyer took steps to obtain regulatory approvals in the following months. On Nov. 8, 2017, the FHA sent the buyer a number of draft agreements which had to be executed as part of the approval process.

A few weeks later, the buyer’s lawyer advised the sellers he lacked the expertise to advise the buyer on the FHA agreements and he withdrew on Nov. 20, 2017. The buyer retained a different lawyer on Nov. 24, 2017.

On Nov. 27, 2017, the sellers delivered a notice of default to the buyer, which stated the buyer breached the APS for failing to use its “best efforts” to obtain FHA approval, as agreed. The notice of default stated the buyer had taken too long to return the agreements to the FHA and a deadline of Dec. 12, 2017 was given to cure the default.

By Dec. 14, 2017, the buyer had not yet returned the agreements to the FHA. The sellers therefore stated the APS was at an end and took the position that the buyer’s deposit was forfeited as a result.

The sellers then commenced a court application seeking to retain the deposit.

Court decision overturned on appeal

The application judge at the British Columbia Supreme Court did not agree with the sellers.

The judge reasoned that, since the buyer retained a new lawyer on Nov. 24, 2017 to review the FHA agreements, there “simply was not sufficient time” for the new lawyer “to immediately engage in the process”. It was therefore held to be “commercially reasonable” for the buyer to wait for its new lawyer to give advice on the agreements and the buyer was not held to be responsible for the resulting delay.

The sellers appealed the decision and argued the application judge was wrong in holding that the buyer had in fact made “commercially reasonable best efforts” to get FHA approval in a timely manner. The British Columbia Court of Appeal agreed with the sellers in this regard.

The court held that, in order to determine what was meant by the words “commercially reasonable best efforts” and “as soon as possible”, the agreement as a whole and the surrounding circumstances had to be considered. It was noted the lower court made the mistake of examining this issue in too narrow of a context.

The appellate court stated that, in agreeing to obtain FHA approval “as soon as possible”, and using “commercially reasonable best efforts” to do so, the buyer was obligated to “do everything it reasonably could to obtain the necessary approvals as soon as possible, excepting only steps as would be commercially unreasonable”.

As such, it was noted the amount of time it took for the FHA to grant approval was not relevant, as it could not take any steps until the agreements were returned to it. By not returning the FHA agreements in a timely manner, the buyer was the one who was responsible for delaying the process, as it could not explain why it had not taken any concrete steps between the time the agreements were received and the delivery of the notice of default.

It was also held the buyer’s need to retain another lawyer did not excuse it from completing the transaction in a timely manner.

The decision of the application judge was therefore reversed and the deposit was ordered to be paid over to the sellers in full.

The implications for buyers and sellers

Both buyers and sellers would be wise to pay close attention to this decision and its potential implications.

Phrases like “commercially reasonable best efforts” don’t have a clear meaning and will always come down to the specific context of the transaction. However, when entering into an agreement with that (or similar) wording, buyers should always be able to prove they are moving as quickly as they can to complete the transaction and they should also be able to explain any delays.

Also, perhaps more importantly, it is essential for buyers to retain a lawyer with the necessary expertise for complicated real estate deals. This especially holds true in matters like this case, which involve the purchase of specialized assets and related regulatory hurdles.

If a lawyer finds themselves out of their depth, it could end up compromising the deal.

Are there any topics you would like to me to cover in The Property Law Hub?  If so, please feel free to email me at any time [email protected].

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Here are some facts about British Columbia’s housing market

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Housing affordability is a key issue in the provincial election campaign in British Columbia, particularly in major centres.

Here are some statistics about housing in B.C. from the Canada Mortgage and Housing Corporation’s 2024 Rental Market Report, issued in January, and the B.C. Real Estate Association’s August 2024 report.

Average residential home price in B.C.: $938,500

Average price in greater Vancouver (2024 year to date): $1,304,438

Average price in greater Victoria (2024 year to date): $979,103

Average price in the Okanagan (2024 year to date): $748,015

Average two-bedroom purpose-built rental in Vancouver: $2,181

Average two-bedroom purpose-built rental in Victoria: $1,839

Average two-bedroom purpose-built rental in Canada: $1,359

Rental vacancy rate in Vancouver: 0.9 per cent

How much more do new renters in Vancouver pay compared with renters who have occupied their home for at least a year: 27 per cent

This report by The Canadian Press was first published Oct. 17, 2024.

The Canadian Press. All rights reserved.

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B.C. voters face atmospheric river with heavy rain, high winds on election day

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VANCOUVER – Voters along the south coast of British Columbia who have not cast their ballots yet will have to contend with heavy rain and high winds from an incoming atmospheric river weather system on election day.

Environment Canada says the weather system will bring prolonged heavy rain to Metro Vancouver, the Sunshine Coast, Fraser Valley, Howe Sound, Whistler and Vancouver Island starting Friday.

The agency says strong winds with gusts up to 80 kilometres an hour will also develop on Saturday — the day thousands are expected to go to the polls across B.C. — in parts of Vancouver Island and Metro Vancouver.

Wednesday was the last day for advance voting, which started on Oct. 10.

More than 180,000 voters cast their votes Wednesday — the most ever on an advance voting day in B.C., beating the record set just days earlier on Oct. 10 of more than 170,000 votes.

Environment Canada says voters in the area of the atmospheric river can expect around 70 millimetres of precipitation generally and up to 100 millimetres along the coastal mountains, while parts of Vancouver Island could see as much as 200 millimetres of rainfall for the weekend.

An atmospheric river system in November 2021 created severe flooding and landslides that at one point severed most rail links between Vancouver’s port and the rest of Canada while inundating communities in the Fraser Valley and B.C. Interior.

This report by The Canadian Press was first published Oct. 17, 2024.

The Canadian Press. All rights reserved.

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No shortage when it comes to B.C. housing policies, as Eby, Rustad offer clear choice

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British Columbia voters face no shortage of policies when it comes to tackling the province’s housing woes in the run-up to Saturday’s election, with a clear choice for the next government’s approach.

David Eby’s New Democrats say the housing market on its own will not deliver the homes people need, while B.C. Conservative Leader John Rustad saysgovernment is part of the problem and B.C. needs to “unleash” the potential of the private sector.

But Andy Yan, director of the City Program at Simon Fraser University, said the “punchline” was that neither would have a hand in regulating interest rates, the “giant X-factor” in housing affordability.

“The one policy that controls it all just happens to be a policy that the province, whoever wins, has absolutely no control over,” said Yan, who made a name for himself scrutinizing B.C.’s chronic affordability problems.

Some metrics have shown those problems easing, with Eby pointing to what he said was a seven per cent drop in rent prices in Vancouver.

But Statistics Canada says 2021 census data shows that 25.5 per cent of B.C. households were paying at least 30 per cent of their income on shelter costs, the worst for any province or territory.

Yan said government had “access to a few levers” aimed at boosting housing affordability, and Eby has been pulling several.

Yet a host of other factors are at play, rates in particular, Yan said.

“This is what makes housing so frustrating, right? It takes time. It takes decades through which solutions and policies play out,” Yan said.

Rustad, meanwhile, is running on a “deregulation” platform.

He has pledged to scrap key NDP housing initiatives, including the speculation and vacancy tax, restrictions on short-term rentals,and legislation aimed at boosting small-scale density in single-family neighbourhoods.

Green Leader Sonia Furstenau, meanwhile, says “commodification” of housing by large investors is a major factor driving up costs, and her party would prioritize people most vulnerable in the housing market.

Yan said it was too soon to fully assess the impact of the NDP government’s housing measures, but there was a risk housing challenges could get worse if certain safeguards were removed, such as policies that preserve existing rental homes.

If interest rates were to drop, spurring a surge of redevelopment, Yan said the new homes with higher rents could wipe the older, cheaper units off the map.

“There is this element of change and redevelopment that needs to occur as a city grows, yet the loss of that stock is part of really, the ongoing challenges,” Yan said.

Given the external forces buffeting the housing market, Yan said the question before voters this month was more about “narrative” than numbers.

“Who do you believe will deliver a better tomorrow?”

Yan said the market has limits, and governments play an important role in providing safeguards for those most vulnerable.

The market “won’t by itself deal with their housing needs,” Yan said, especially given what he described as B.C.’s “30-year deficit of non-market housing.”

IS HOUSING THE ‘GOVERNMENT’S JOB’?

Craig Jones, associate director of the Housing Research Collaborative at the University of British Columbia, echoed Yan, saying people are in “housing distress” and in urgent need of help in the form of social or non-market housing.

“The amount of housing that it’s going to take through straight-up supply to arrive at affordability, it’s more than the system can actually produce,” he said.

Among the three leaders, Yan said it was Furstenau who had focused on the role of the “financialization” of housing, or large investors using housing for profit.

“It really squeezes renters,” he said of the trend. “It captures those units that would ordinarily become affordable and moves (them) into an investment product.”

The Greens’ platform includes a pledge to advocate for federal legislation banning the sale of residential units toreal estate investment trusts, known as REITs.

The party has also proposed a two per cent tax on homes valued at $3 million or higher, while committing $1.5 billion to build 26,000 non-market units each year.

Eby’s NDP government has enacted a suite of policies aimed at speeding up the development and availability of middle-income housing and affordable rentals.

They include the Rental Protection Fund, which Jones described as a “cutting-edge” policy. The $500-million fund enables non-profit organizations to purchase and manage existing rental buildings with the goal of preserving their affordability.

Another flagship NDP housing initiative, dubbed BC Builds, uses $2 billion in government financingto offer low-interest loans for the development of rental buildings on low-cost, underutilized land. Under the program, operators must offer at least 20 per cent of their units at 20 per cent below the market value.

Ravi Kahlon, the NDP candidate for Delta North who serves as Eby’s housing minister,said BC Builds was designed to navigate “huge headwinds” in housing development, including high interest rates, global inflation and the cost of land.

Boosting supply is one piece of the larger housing puzzle, Kahlon said in an interview before the start of the election campaign.

“We also need governments to invest and … come up with innovative programs to be able to get more affordability than the market can deliver,” he said.

The NDP is also pledging to help more middle-class, first-time buyers into the housing market with a plan to finance 40 per cent of the price on certain projects, with the money repayable as a loan and carrying an interest rate of 1.5 per cent. The government’s contribution would have to be repaid upon resale, plus 40 per cent of any increase in value.

The Canadian Press reached out several times requesting a housing-focused interview with Rustad or another Conservative representative, but received no followup.

At a press conference officially launching the Conservatives’ campaign, Rustad said Eby “seems to think that (housing) is government’s job.”

A key element of the Conservatives’ housing plans is a provincial tax exemption dubbed the “Rustad Rebate.” It would start in 2026 with residents able to deduct up to $1,500 per month for rent and mortgage costs, increasing to $3,000 in 2029.

Rustad also wants Ottawa to reintroduce a 1970s federal program that offered tax incentives to spur multi-unit residential building construction.

“It’s critical to bring that back and get the rental stock that we need built,” Rustad said of the so-called MURB program during the recent televised leaders’ debate.

Rustad also wants to axe B.C.’s speculation and vacancy tax, which Eby says has added 20,000 units to the long-term rental market, and repeal rules restricting short-term rentals on platforms such as Airbnb and Vrbo to an operator’s principal residence or one secondary suite.

“(First) of all it was foreigners, and then it was speculators, and then it was vacant properties, and then it was Airbnbs, instead of pointing at the real problem, which is government, and government is getting in the way,” Rustad said during the televised leaders’ debate.

Rustad has also promised to speed up approvals for rezoning and development applications, and to step in if a city fails to meet the six-month target.

Eby’s approach to clearing zoning and regulatory hurdles includes legislation passed last fall that requires municipalities with more than 5,000 residents to allow small-scale, multi-unit housing on lots previously zoned for single family homes.

The New Democrats have also recently announced a series of free, standardized building designs and a plan to fast-track prefabricated homes in the province.

A statement from B.C.’s Housing Ministry said more than 90 per cent of 188 local governments had adopted the New Democrats’ small-scale, multi-unit housing legislation as of last month, while 21 had received extensions allowing more time.

Rustad has pledged to repeal that law too, describing Eby’s approach as “authoritarian.”

The Greens are meanwhile pledging to spend $650 million in annual infrastructure funding for communities, increase subsidies for elderly renters, and bring in vacancy control measures to prevent landlords from drastically raising rents for new tenants.

Yan likened the Oct. 19 election to a “referendum about the course that David Eby has set” for housing, with Rustad “offering a completely different direction.”

Regardless of which party and leader emerges victorious, Yan said B.C.’s next government will be working against the clock, as well as cost pressures.

Yan said failing to deliver affordable homes for everyone, particularly people living on B.C. streets and young, working families, came at a cost to the whole province.

“It diminishes us as a society, but then also as an economy.”

This report by The Canadian Press was first published Oct. 17, 2024.

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