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Tag: agreements

REAL ESTATE LAW UPDATE: Is a Condominium Corporation Obligated to Buy the Superintendant’s Unit?

Coincidentally, the day I read the Ontario Court of Appeal’s decision in Lexington on the Green Inc. v. Toronto Standard Condominium Corporation No. 1930, (2010 ONCA 751)[Hereinafter  “Lexington”) was the same day that I reviewed a client’s status certificate from the same Condominium  Corporation so it was extra interesting to review this case.Under the Ontario Condominium Act, 1998 S.O. 1998 (Hereinafter the “Act”), within ten days of the condominium  Developer registering the condominium declaration and description, the Developer (also known as the Declarant) has to appoint an interim board of directors (the “Board”) to manage the newly created condominium corporation (Section 42(1) of the Act), until such time that the Declarant no longer owns a majority of the condominium units.  Once the Declarant ceases to own a majority of the units, within 21 days the appointed Board must call a first meeting of the unit owners to elect a new board (section 43(1)).  The Court in Lexington considered Section 112 of the Act, which permits for a newly appointed board of directors to terminate agreements (such as property management and other service agreements) which the appointed interim board has entered into.  The purpose is to discourage and prevent any “sweetheart deals” impropriety between the Developers’s appointed Board and condominium goods and service providers who could very well be subsidiaries of the Developer.

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REAL ESTATE LAW UPDATE: Can the Court Refuse a Remedy Under the Partition Act?

In a past article, it was discussed that under the Partition Act R.S.O. 1990 (the “Act”) one has a prima facie right to partition or sell a co-owned property in which they have legal and or an equitable interest in.  The presumption is in favour of a partition rather than a sale, however, a sale can be ordered if partition is impossible and if a sale is more advantageous to the parties.  The courts cannot refuse a partition or sale as long as the intent of compelling such is not vexatious, oppressive or malicious.  A recent case from the Ontario Court of Appeal examined what constitutes oppressive conduct in relation to when the remedy available under the Act may be denied.Garfella Apartments Inc. v. Chouduri et. Al. 2010 ONSC 3414 (“Garfella”) is an interesting case in that it deals with an apartment building with a peculiar ownership arrangement.  In Ontario, most apartment buildings are owned by a company (or perhaps several companies) and each unit is rented to tenants.   Another common form of apartment building ownership is a condominium whereby every apartment unit is completely owned by a person(s) and the condominium corporation would manage the entire building but the building is not owned by a

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Real Estate law: Can You Refuse to Close if Your Condominium Square Footage is Less Than You Bargained For?

In real estate law, representations are very important elements to any agreement of purchase and sale.  Typically the party selling the property will represent things such as the size of the land, the size of the dwelling, that the chattels and fixtures included in the purchase price are free and clear of encumbrances and in working order, etc.  In law, a representation is defined as a statement of past or present fact without the statement necessarily also being a promise, although the law has recognized that a representation can be both a promise and a representation.  While the topic of representations in contracts is extremely comprehensive, 756289 Ontario Limited et al. v. Milan Harminc, (1998) CarswellOnt 1577, 98 G.T.C. 6206 (“Harminc”) is one example of where a representation affected a real estate transactions with respect to the representation of square footage.Harminc is a case wherein a buyer purchased a commercial condominium property from a builder.  The buyer refused to close and the builder sued the buyer for breach of contract and sought damages.  While the defendant buyer advanced a number of arguments for his defence, the case turned on whether the builder misrepresented to the buyer the square footage of the property and if so, whether that misrepresentation was material enough to entitle the buyer to rescind the contract and refuse to close.

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Real Estate Law: Goods and Services Tax/Harmonized Sales Tax (GST/HST)

In the OREA standard form agreement (“OREA Agreement”), there is a blank space provided where it should be indicated whether taxes are “included in” or “in addition to” the purchase price. Generally in residential resale transactions, this space is completed with “included in”, but it is essential to be correct because even though a used-residential property is not subject to HST, if the property is commercial or has a commercial component, it would be subject to the tax.The problem often arises with commercial properties because sometimes the agreements are prepared on the wrong OREA form and the section for HST is overlooked as a formality.  As stated above, commercial properties and even mixed residential/commercial (although only the commercial part would be subject) are subject to the tax.   A commercial property can be a storefront, an office building, a condominium office or store, etc.  There are ways to off-set the HST payable by the purchaser however it is extremely important to be clear that the purchaser and seller are aware of the tax consequences and therefore understand whether the purchase price is “included in” or “in addition to”.  Having regard to this, if there is any doubt, advice should be sought from professionals with specific knowledge such as lawyers or accountants.

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Real Estate Law: Closing a Real Estate Transaction

Choosing a closing date The closing date can be whenever the parties agree upon, however selecting a closing date on a weekend or statutory holiday will prevent your transaction from being registered because the land registry offices and the electronic registration system are unavailable.  If parties so choose to close on those days, alternative arrangements such as closing in escrow can be made with caution.  Other days such as the last day of the month or Fridays are typically very busy for real estate transactions for various reasons such as having the weekend to move in and concluding payment cycles.  Therefore, if possible, avoiding those days may be prudent especially if someone is planning on selling and buying on the same day.

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ASSIGNMENTS: Assigning your Contract to someone else!

Under a contract, the assignment of rights is the complete transfer of the rights to receive the benefits available to one of the parties to that contract. Say, party X makes a contract with Party Y to sell his bicycle to him for $100. Party X can later assign the benefits of the contract or the right to be paid $100 to party Z. Here, party X is the assignor/obligee, party Y is an obligor, and party Z is the assignee. This assignment

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WHAT IS CONSIDERED A CONTRACT: Offer and Acceptance

According to law, a contract is a legally recognized agreement enforceable in court and/or by binding arbitration. In other words, it is a deal comprised of promises with a solution for resolving any breach. If an offer capable of immediate acceptance is reciprocated with an exactly similar acceptance, it is generally agreed that an agreement has been reached. It follows from the above that the sides (could be more

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CONSTRUCTION LIEN: Basics

Basically, a construction lien is a remedy available for someone who improves someone else’s property by way of supplying materials and or labour.  If that person is owed monies for their product and or service, he/she may have a right to securitize his interest in the property that was improved until he/she is paid what they are owed.

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THE BASICS OF A COMMERCIAL LEASE

The global economic recession unavoidably affected the commercial leasing market in Canada. This has caused landlords and tenants to think over their respective bargaining positions when engaging into a commercial lease negotiation. Thus, the approach of negotiating and drafting a commercial lease will inevitably take into consideration the current economic reality of the business world.

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Competition Bureau and the Canadian Real Estate Associations (“CREA”): More Private Deals on the Horizon?

Recently the Canadian Competition Bureau requested that CREA open up the Canadian real estate market by making the Multiple Listing Service (“MLS”) open to the public and thus allowing for greater public access to market properties.CREA sets the real estate industry’s standards and practices, including setting commissions  of five percent (5%) of a home’s total sale price,

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