lawyers Archives - Levy Zavet Law

Professional Corporations: What are they and how are they different from any other corporation?

Prior to the end of 2001, professionals could not incorporate their practices except as allowed by the laws that regulated their specific profession (all compliant professional corporations prior to the enactment of the present governing regime were grandfathered in). Today, regulated professionals are able to incorporate their practices. Thanks to Bill 152 – Balanced Budgets for Brighter Futures Act, and Bill 45 – Responsible Choices for Growth and Accountability Act, professionals can capitalize on many of the same tax and non-tax advantages enjoyed by other incorporated self-employed individuals.However, unlike other incorporated self-employed individuals who are unregulated professionals, personal professional liability will not be limited through incorporation. The shareholders of a professional corporation are restricted to licensed members of the same regulated profession, and depending on the profession, their immediate family members. For those applicable professions, family members who are not licensed under the same regulated profession are restricted to participating only as non-controlling or non-voting shareholders. The

CONDOMINIUM LAW: Too Many Loud Parties in Your Condominium Building?

Recently a Client who owned a condominium unit in a condominium building, came into my office and complained that he was being a target of an unjust campaign by members of his condominium corporation’s (“Corporation) board of directors (the “Board”) to drive him out of the condominium building. The Corporation alleged that, amongst other things, the Client was lighting fireworks off of his balcony on holidays, having loud parties at all hours of the night, and allowing guests to run rampant all over the condominium building. The Client admitted that on the occasion he would host small parties and get togethers but denied the Corporation’s version of his alleged activities. Initially, the Corporation began issuing letters through the property manager demanding that the client cease the alleged activity on every occurrence in which he would have visitors to his unit. The client attempted to address the matter with the Corporation by asking for proof of the alleged conduct and for a meeting with the complainants to discuss their issues directly with him. His attempts fell on deaf ears and the relationship between the Client and the Board deteriorated.The final straw came when the Client received a letter from the Corporation’s solicitor threatening legal action and charging him legal fees for the said letter as they were entitled to under the condominium’s declaration and rules. The Client was furious because he felt that the Board

CONDOMINIUM LAW: 10 Day Cooling Off Period and Giving Proper Notice of Rescission

The condominium market in Toronto is and has been hot over the past few years for a variety of reasons such a seeming stable Canadian economy, foreign investment, growth in Toronto’s financial services industry, low interest rates and lack of supply in desirable neighbourhoods. Condominium Developers market new projects as sexy investments, and for the most part, over the last many years, Purchasers in desirable projects have seen a return on their investment either through rent or resale. Condominiums are out selling any other type of dwelling in Toronto and Toronto is North America’s leader in new condominium project starts. During a hot condominium market, it is easy for Purchasers looking to invest for themselves, their children or as an income property, to rush into a deal and a project without knowing all the pertinent facts. Therefore It was good thinking by the government of the day to provide statutory rescission rights under the Ontario Condominium Act, 1998 (the “Act”) . This article will briefly examine the rescission rights under the Act and discuss the proper methods of delivering the Purchaser’s intention to rescind if they do not wish to proceed with purchasing a condominium unit.

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.

Property Tax in Ontario: A Primer

One of the most contentious issues in real estate and property is how real property taxes are assessed and charged to the property owner, of course, it is only contentious when one’s property taxes are assessed at a higher rate than it should be.In Ontario, the Municipal Property Assessment Corporation (MPAC) is a non-profit corporation created by legislation and is governed mainly by the Assessment Act R.S.O. 1990, although it also governed by other legislation such as the Assessment Review Board Act R.S.O. 1990, and the Municipal Property Assessment Corporation Act, 1997. MPAC’s main duty is to evaluate properties in Ontario in order to assess their tax liability and to classify them for tax purposes as either residential, commercial, industrial, farm, etc. MPAC looks at many factors when assessing a property but most importantly the following: Sales of comparable properties; location; lot dimensions; living area; age of the property; and quality of construction. Other factors may include such things as improvements to the property and unique and key features of the property. Properties belonging to or being used as churches, cemeteries, public education, public hospitals, some non-profit organizations, conservation lands, and lands owned by governments are exempt from property tax.

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.

Contract Law: Rescission Anyone?

When a client has an issue with a contract he/she most certainly looks to whether the issues caused any damages. I would agree that this is an automatic first step in the conceptual process involved in creating a remedy to address a client’s needs. But what about the case where you simply want the contract to be treated as a nullity and be restored to where you were before the contract was consummated. In that situation you are asking either the other party to the contract or the court to rescind the contract.There are essentially two types of rescission albeit there is some overlap in respect of the grounds which would justify such rescission. The first (i.e. common-law rescission) does not require court intervention. This occurs where the contract on its face has a clause which makes it voidable at one of the party’s option. So what do you do? You carefully review the clause, and fulfil the operative steps required to “rescind” the contract. Other than where the contract specifically provides for it, this “common law” rescission applies where an infant has entered into a contract which is not binding on him/her; fraud; and where a contract has been procured by duress. Here, the party also has the right to seek other common law remedies.

Real Estate Law: Choosing a Real Estate Lawyer and Understanding Fees

Often clients will shop around for legal services as if they were a commodity and not a service and therefore the lowest price is the only consideration in their decision. Like almost any good or service, you often get what you pay for!When looking for a real estate lawyer, one should always ask the following questions:1) Am I going to be communicating with my lawyer directly or strictly his support staff?2) How often or timely will my Lawyer address my questions or concerns?3) Will my Lawyer properly search the history of title to my property, including searching abutting lands, in addition to off-title inquiries?4) Will my Lawyer order a property tax certificate or rely on title insurance? Leaving me as the new owner to chase any shortfalls from my insurer.

Real Estate Law: Provisions in the Agreement of Purchase and Sale: Time for Searches, Future Use, Title, Schedules

Time for searchesBefore closing a real estate transaction, a real estate lawyer will need time to search title, executions and make off-title searches or inquiries. The title search date in the OREA Agreement sets out the date in which a lawyer has time to do the searches and request that the Vendor’s lawyer rectify any on title or off-title deficiencies. Should the contract fail to provide a specific time period for submitting requisitions, there a statutory date set in Section 4 of the Vendors and Purchasers Act which prescribes a 30-day period from the date of the contract. It is important to give lawyers on both sides enough time to make and reply to requisitions because if there is a matter that cannot be resolved such as a lien that cannot be satisfied, the contract can be terminated or delayed. Sometimes, lawyers will disagree as to whether the requisition is a valid one and whether failure to satisfy the requisition can terminate or delay a deal. In these cases, there is recourse under the Vendors and Purchasers Act.

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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