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Assignment Of Contract Of Purchase And Sale In BC: What You Need To Know

• January 12, 2020

Navigating the real estate landscape can be tricky, particularly when it comes to understanding the complexities of  assignments and contracts of purchase and sale  in BC. With  presale homes  on a surge, many buyers are opting for “Assignment Of Contract,” a potentially profitable strategy where  rights and obligations shift  from one buyer to another before closing.

This article will delve into every aspect – benefits, restrictions,  tax implications , risk assessment – empowering you with essential knowledge that could optimize your real estate ventures.

Ready to unlock the secrets? Let’s dive in!

Key Takeaways

• Assignment of contract  in real estate refers to the  transfer of a buyer’s rights and obligations  under an Agreement of Purchase and Sale to another buyer before closing on the property, offering flexibility and  potential profits .
• Assignments are  legal transactions  in British Columbia but may require developer approval depending on contractual stipulations. Shadow flipping, however, has seen restrictions put forth to maintain market integrity.
• The advantages of assignments include potential profits for the current buyer, avoidance of additional expenses like builder’s closing costs and property transfer tax, and flexibility for buyers who want to switch their focus without losing their initial investment.
• Potential restrictions when selling assignments can include specific terms from developers requiring approval or marketing limitations. Associated fees with an assignment can include assignment fees, legal fees, builder’s consent fee, GST/HST payments to original builders or first purchasers.
• Real Estate Assignments: What Buyers and Sellers Need to Know
• Assignment Properties for Sale
• Contract Of Purchase And Sale In BC, Canada
• Understanding Restrictive Covenants
• How do I Protect My Home Sale from Shadow Flipping?
• Understanding the Possession Date for Homebuyers

Understanding Assignment of Contract and Purchase and Sale BC

An assignment of contract in real estate refers to the transfer of a buyer’s rights and obligations of the Agreement of Purchase and Sale to another buyer before closing on the property.

What is an assignment?

An assignment, in the spectrum of real estate, refers to the  transfer or handing over of rights and obligations  under an  Agreement of Purchase and Sale  from one buyer (the assignor) to another prospective buyer (the assignee) before the finalization or closing on a property.

This process offers flexibility as it allows for the transactional roles in a contract to be reassigned. Notably, assignments are more commonly observed when dealing with presale homes that have extended closure periods, spanning up to five years.

While resale properties also encounter assignments, they remain less frequent compared to their presale counterparts due mainly to specific conditions outlined within their Contract of Purchase and Sale.

Why do assignments occur?

Assignments typically transpire in real estate transactions when a buyer decides to transfer their rights and obligations under the  Contract of Purchase and Sale BC  to another party.

This phenomenon is particularly prevalent within the realm of  presale condos  in regions such as Lower Mainland, where closing periods can span several years. The process becomes advantageous when market value increases significantly before the completion of the property, empowering the current buyer or assignor to delegate it for  resale profits .

The reasons behind assignments are diverse and often hinge on shifts in financial or personal situations. For instance, a sudden onset of financial difficulties might compel a buyer to assign their contract rather than face default and potential legal consequences.

Alternatively, this strategy can also prove beneficial if the project encounters delays or if there’s an unexpected elevation in property appreciation rates. It’s important to note that while assignments are  legal and governed by agreements  like Agreement of Purchase and Sale, they may require developer’s approval depending upon contractual stipulations.

Are assignments legal?

Yes,  assignments of contract  are indeed legal transactions within the real estate realm. In British Columbia, especially in hotspots such as  Vancouver and North Vancouver real estate markets , they represent an often-utilized strategy for both presale condos and resale homes.

The key lies in the details of the original  Contract of Purchase and Sale BC . This essential document governs whether or not a  property can be reassigned by the buyer  (also known as “Assignor”) to another party (the “Assignee”).

Importantly though, it’s worth noting that while these types of contracts are generally assignable unless explicitly forbidden,  shadow flipping  – a practice where properties are repeatedly resold prior to occupancy – has seen  restrictions put forth by Real Estate Council of BC  to maintain market integrity.

So, while assigning is permissible by law, understanding its nuances requires  expert guidance from reputed groups like Oakwyn Realty Ltd or experienced agents such as Anthony Riglietti PREC .

The Advantages of Assignments

The advantages of assignments include benefits for both the current buyer assigning the contract and the new buyer.

Benefits for the current buyer assigning the contract

• The current buyer can  transfer the rights and obligations  of the contract to another buyer before closing on the property.
• Assigning the contract allows the current buyer to  potentially profit from any increase in the property’s value  between the time of purchase and completion.
• By assigning the contract, the current buyer can  avoid paying builder’s closing costs , which can add significant expenses to the overall purchase.
• Assigning the contract also allows the current buyer to  avoid paying property transfer tax , saving them additional money during the transaction.
• The current buyer may need to assign the contract due to changes in their financial or personal situation, allowing them to exit the agreement without penalties or repercussions.
• Assigning a contract can be a convenient solution if a buyer is no  longer interested in completing the purchase  but does not want to lose their deposit.
• Assignments provide flexibility for buyers who have discovered a more desirable property and want to switch their focus without losing out on their initial investment.

Benefits for the new buyer

• Opportunity to purchase a property at a potentially  lower price compared to other listings  on the market.
• Possibility of  making finishing selections  depending on when the assignment takes place.
• Potential to put a lower down payment on the property by utilizing the deposits made by the original buyer.
• Ability to  avoid property transfer tax  if the original purchase agreement is under $750,000.
• Opportunity to purchase a property with potential appreciation in value before completion.
• Access to pre  – built or presale homes that may not be available through traditional resale listings.
• Avoidance of carrying costs associated with listing and selling agent a completed property.
• Potential eligibility for GST/HST new housing rebate   and provincial new housing rebate as an individual buyer, if meeting the eligibility conditions.

Potential Restrictions and Fees

4. Potential Restrictions and Fees.

– Selling assignments may come with certain restrictions, depending on the terms of the original contract or developer’s approval.

– There might be associated fees when selling an assignment, such as legal fees or Realtor commissions.

Restrictions when selling assignments

When selling assignments, there can be various restrictions that buyers need to be aware of. Developers often have  specific terms and conditions  regarding the  assignment process , which may require their approval before the assignment can proceed.

Additionally, there might be  marketing restrictions  in place, limiting how the assignment can be advertised and even restricting it from being listed on the Multiple Listing Service (MLS).

Some developers also impose  sales restrictions , such as limiting the number of units that can be assigned at a given time. These restrictions are put in place to ensure control over their development projects and to  maintain market stability .

Associated fees with an assignment

Assigning a real estate contract in BC comes with associated fees that both the original buyer (assignor) and the new buyer (assignee) have to consider.

Remember, the fees associated with an assignment of contract can vary. Always seek professional advice to understand the potential costs involved in real estate contract assignments.

Tax Implications and Risks of Assignments

Assignments of contracts can have tax implications and associated risks. The assignor may need to consider potential tax obligations arising from the assignment, such as income tax or Goods and Services Tax (GST).

Additionally, there are risks involved in assignments, including market value fluctuations and potential financial difficulties for the assignee if they are unable to complete the purchase.

It is crucial for parties involved in an assignment to assess these factors before proceeding.

Potential tax implications

Potential tax implications can arise when dealing with  assignments of contract s and  purchase and sale agreements  in British Columbia. It’s important for both the assignor (current buyer) and the assignee (new buyer) to understand these implications before proceeding with an assignment.

One consideration is the eligibility for a GST/HST new housing rebate or  provincial new housing rebate . If the original purchase was not subject to GST/HST, the assignor may be ineligible for a rebate.

However, if the assignee meets certain conditions, they may still be eligible for these rebates. Another factor is that both the  original builder  and first purchaser may charge GST/HST to the assignee, potentially impacting their  overall costs .

Risks involved in assignments

There are several risks involved in assignments of contracts, particularly when it comes to real estate. One significant risk is the  potential for tax implications . Any profit made from an assignment is  subject to income tax , which can significantly impact the overall financial outcome of the transaction.

It’s crucial for both assignors and assignees to carefully consider these tax implications and consult with experts to ensure compliance with relevant regulations.

Another risk is associated with  market value fluctuations . Assignors may face challenges if the market value of the property declines between the original purchase agreement and the assignment sale.

This could result in a lower selling price or even financial losses for the assignor. On the other hand, assignees need to be  cautious about purchasing assignments in a declining market  as they may not experience property appreciation or may struggle financially if their circumstances change.

Navigating through these risks requires careful evaluation of one’s financial and personal situation, as well as seeking advice from experienced agents or professionals who specialize in real estate transactions involving assignments of contracts.

The Process of Selling an Assignment of Contract

To sell an assignment of contract, the current buyer (assignor) must find a new buyer (assignee) interested in taking over the contract. The assignor and assignee will negotiate the terms of the assignment agreement, including any associated fees or considerations.

Once both parties agree, they will formalize the assignment by signing an Assignment Agreement, which transfers rights and obligations to the assignee. The original contract’s provisions and any restrictions on assignments must be followed throughout this process.

How to sell an assignment of contract

Selling an assignment of contract can be a great opportunity to benefit from the appreciation of a property without actually completing the purchase. Here is a step-by-step guide on how to sell an assignment of contract:

• Find potential buyers : Begin by marketing the assignment to potential buyers who may be interested in taking over the contract. This can be done through various channels such as real estate websites, social media, or contacting local  real estate agent s.
• Determine the  assignment fee : Calculate an appropriate assignment fee that reflects the value of the property and any additional costs incurred during the process. Consider factors such as market value, developer’s terms and conditions, and any potential fees or taxes that may arise.
• Consult with a realtor : Seek advice from an experienced real estate agent who specializes in assignments. They can provide guidance on setting the right price, navigating legal requirements, and connecting with interested buyers.
• Prequalify potential buyers : Before finalizing a deal, ensure that potential buyers are financially capable of taking over the contract. Conduct buyer consultations to assess their suitability and commitment to completing the purchase.
• Negotiate terms : Once you have identified interested parties, negotiate the terms and conditions of the  assignment agreement . This includes details such as  closing dates , deposit amounts, and any special considerations that need to be addressed.
• Draft an assignment agreement : Prepare a legally binding agreement that outlines all relevant details of the assignment transaction. Include information about parties involved (assignor and assignee), property address, purchase price, closing date, and any additional terms agreed upon.
• Obtain  necessary approvals : If required by the original contract or developer/seller’s approval is needed for assignments, make sure to obtain these approvals before proceeding further with the sale.
• Complete documentation : Ensure all necessary paperwork is completed accurately and submitted in a timely manner. This may include  disclosure statements , consent forms from relevant parties (e.g., builder or developer), and any other documents required by local regulations.
• Transfer the contract : Once all documentation is in order, transfer the rights and obligations of the original contract to the new buyer through an assignment agreement. This legally transfers ownership from the assignor to the assignee.
• Close the sale : Finally, coordinate with all parties involved, including lawyers, real estate agents, and any relevant authorities to ensure a smooth closing of the assignment sale. Make sure that all necessary funds are transferred, and legal obligations are met.

Why buy an assignment?

Buying an assignment can be a smart move for several reasons. First, buyers may get a  better price compared to other properties  on the market, especially if the original purchase agreement was secured at a lower price.

Additionally, purchasing an assignment allows buyers to  potentially avoid paying property transfer tax  if the original agreement is under $750,000. Moreover, buying an assignment gives buyers the  opportunity to acquire a property that has already appreciated in value  before completion, allowing them to benefit from potential future appreciation.

It’s also worth noting that assignments offer  more flexibility and shorter closing periods compared to presale homes . So for those looking for quicker access to their new home or investment property without having to wait for completion, buying an assignment can be advantageous.

1. What is a contract of purchase and sale?

A contract of purchase and sale is a legal agreement between a buyer and a seller outlining the terms and conditions of a property sale.

2. What is an assignment of contract?

An assignment of contract refers to the act of transferring one’s rights and obligations under a contract to another party.

3. What is an assignee?

An assignee is a party to whom the rights and obligations of a contract are assigned or transferred.

4. How does the assignment of a contract of purchase and sale work in British Columbia?

In British Columbia, the assignment of a contract of purchase and sale allows the original buyer (assignor) to transfer their interest in the property to a new buyer (assignee) before the completion date.

5. What is a purchase price?

A purchase price refers to the amount of money agreed upon by the buyer and seller for the purchase of the property.

6. What is a stratum?

A stratum refers to a specific level or portion of a multi-level condominium building.

7. Are there any specific regulations regarding assignment of pre-sale contracts?

Yes, the British Columbia Real Estate Association (BCREA) and the Real Estate Council of BC have specific regulations and guidelines regarding the assignment of pre-sale contracts in BC.

8. Should I seek legal advice before assigning a contract of purchase and sale?

It is highly recommended to seek legal advice before proceeding with the assignment of a contract of purchase and sale to ensure you understand your rights and obligations.

9. What is shadow flipping?

Shadow flipping refers to the practice of assigning a contract multiple times with increasing prices before the completion date, often resulting in significant profit for the assignor.

10. What are the rights and obligations of the assignor and assignee in an assignment of contract of purchase and sale?

The rights and obligations of the assignor and assignee may vary based on the terms and conditions agreed upon in the assignment agreement. It is important to clearly define these rights and obligations in the contract.

In conclusion,  understanding the process  and  benefits of assignment of contract  and purchase and sale in BC is crucial for anyone involved in real estate transactions. Assignments offer advantages to both the current buyer and the new buyer, but they also come with  potential restrictions ,  fees ,  tax implications , and  risks .

Sources: https://www.canada.ca/en/revenue-agency/services/forms-publications/publications/gi-120/assignment-a-purchase-sale-agreement-a-new-house-condominium-unit.html

Ready to turn your real estate dreams into reality? Contact Richard Morrison, Vancouver’s top realtor with 20+ years of experience. As a Medallion Club member and RE/MAX Hall of Fame award winning agent, he’s the expert you need on your side. Whether buying, selling, or investing, Richard’s personalized approach and deep market insights ensure a successful transaction. Reach out to Richard today at (778) 900-2235 and make your real estate journey seamless and rewarding.

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Assignment of Contract and Purchase and Sale BC 

What you need to know about assigning properties.

Written By: Mariko Baerg, REALTOR of Bridgewell Real Estate Group If you’re looking for a realtor to help you assign a property, call me today ! 

There have been a number of pre-sale condos popping up in the Lower Mainland, and rezoning is happening in a number of places to allow for new residential buildings.

This blog will teach you what an assignment of contract of purchase and sale is and how it works.

With so many presale developments popping up, it’s important that you know your options with your presale and how to handle them safely.

To make this as easy as possible, we’ve written this blog in a question answer format for understanding an assignment of contract in real estate.

Assignment of Contract and Purchase of Sale BC: What is an assignment?

An assignment of contract in real estate is a transaction of a home in which the buyer of the property “assigns” or transfers their rights and obligations of the Agreement of Purchase and Sale previously agreed to another buyer before the original buyer closes on the property. In this case, because completion has not occurred, they are not the legal owner for the property yet, thus they require consent from either the seller or the developer(often times the developer).

This can occur in both resale and presale homes; however, assignments are most commonly found in presales where there is a longer closing, often 5 years away.

When can I assign a home? Are there any restrictions?

You will have to refer back to the original contract of purchase and sale to determine whether or not you are able to assign the home. Some terms you may encounter, specifically for presales, are:

• The developer or seller’s approval
• Resale profits must be split with the seller unless otherwise agreed to in the contract
• Marketing can be very tricky. MLS (multiple listing service) restrictions for online marketing may be prohibited, many developers do not allow the advertising and sale of assignments until the building is sold out.
• A time frame when you cannot assign the contract
• An assignment fee to be paid to the developer in the presale scenario, usually 2-5% of the sale price.

Why do assignments occur?

Assignments often occur when a presale has appreciated significantly in value prior to completion. The current buyer would like to take the appreciation (often called a “lift”) while it’s up, and assign it to another buyer.

Are assignments legal?

Yes. Real estate contracts are assignable under the law unless the contract expressly forbids it.

In the past – “Shadow Flipping”:

It used to be the case where buyers could “shadow flip” in residential sales, and did not require the sellers approval in order to assign the property prior to completion. This was a huge issue in residential real estate sales in 2015 particularly, and was subject to scrutiny by the public and news broadcasters.

The Real Estate Council of BC has since required that an assignment needs to be approved by the seller and profit be split equally between the current buyer and the seller once assigned. The contract of purchase and sale for resale residential properties has also been updated to avoid “shadow flipping” and assignments without the sellers knowledge. The restriction of assigning properties for profit only applies to resale, and presale can still be assigned at the discretion of the developer.

Assignments now occur in residential resale real estate more-so in some kind of emergency from the buyer, where they are unable to complete for whatever reason like a loss of employment, death, or critical illness. In resale, assignment of contract for profit is less common now than it used to be.

What are the advantages of an assignment for the current buyer assigning the contract?

• The assignor (current buyer) can most likely avoid the builder’s closing costs and property transfer tax associated with the subject property;
• The assignor may not have to pay the additional taxes (i.e GST) rebate back to the Builder if they intended to occupy the property.
• The seller/assignor avoids the carrying costs (mortgage, maintenance fees, taxes, etc.) for the time between listing the property and selling a property that is already completed.

What are the advantages of an assignment for the new buyer?

• The assignee (new buyer) may receive a better price than other current properties on the market. This will also depend on the current buyer’s motivation to sell;
• The assignee will receive a brand-new home and may also have the opportunity to make finishing selections, such as the kitchen or bathroom colour scheme, depending on when the assignment takes place;
• The assignee may be able to avoid Property Transfer Tax if the original Agreement of Purchase and Sale is under $750,000;
• The assignee may be able to take advantage of the deposits of the original buyer and be able to put less of a down payment on a property than he would otherwise have been able to.

Are there any restrictions involved with assignments when selling?

Yes, there are a number of restrictions that the developer can put in to the contract that make assigning a home more difficult. The most common restrictions are:

• Marketing/MLS restrictions  – Your realtor may not be able to advertise on the MLS, so it’s important that you hire someone with a history in presales and a great network
• Sales restrictions  – The developer will often put restrictions on the number of units that can be assigned at a time, as well as restrictions such as not being able to assign until the building is 100% sold. Refer to the contract for details on restrictions.

Fees associated with an assignment?

If this is a resale home that you are assigning, you will most likely have to split the profits of the assignment with the seller unless otherwise agreed to. Typically there are extra legal fees and there is an assignment fee to the builder if it is a presale assignment.

As previously mentioned, most assignments have the new buyer taking full responsibility for the contract; however, it may be the case where the new buyer and the original buyer have agreed to split some adjustment costs.

You’ll be listing the property, so you will also have to take in to account realtor commissions when assessing your net profits on an assignment.

Are there tax implications on assignments?

If you are unsure about the tax implications, it is always best to speak to an accountant to determine an estimate on what you may incur.

In general though, any profit from the assignment of a property that goes to the current buyer, after having been split out to the seller if previously agreed upon, is subject to tax as part of your income. With regards to property transfer tax, and any goods and services tax on the property, this is typically paid by the new buyer as they are responsible for taking over the contract of purchase and sale in its entirety, unless otherwise agreed upon.

Are there risks involved?

It is very important to make sure that the new buyer is willing and able to take on the assignment as well as all terms and conditions of the contract of purchase and sale. If the assignee, the new buyer, does not follow through with the completion on the sale, the responsibility to close usually defaults back to the original buyer, the assignor.

——

If you are thinking about assigning a property, make sure to talk to a realtor first to determine whether or not you will make a profit. They’ll need to take a look at your original contract, and also assess the current market to determine an estimate of the market value of the subject property.

There is no guarantee that there will be profit associated, in fact there may be a loss in a declining market. Your realtor will have to factor in all costs associated, such as fees and commissions, in order for you to make the best decision.

If you’re thinking about assigning your contract, give us a call today to see what’s right for you: 604-765-0376 . Prefer text? 604-319-0200 or email [email protected] to start a conversation.

Make the home buying process straight-forward from the start. Talk to one of our realtors today.

Get in touch with a realtor.

Want to talk right now? Give us a call  604-765-0376 or text 604-319-0200 .

Do you want to assign a home ? 

With Bridgewell’s buyer systems and plans we’re determined to find the right home for you efficiently & effectively all while providing you the guidance and education that you need. Whether it’s presale or resale, investment or to live in, we’ve got you covered.

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“Cooling-Off Period” for Residential Real Estate Sales and Purchases

By Douglas Conolly & Zahra Tahsili

As of January 3, 2023, homebuyers in British Columbia can cancel a contract to purchase a residential property by serving written notice of the rescission on the seller within three business days (the “Rescission Period”) following the signing of the contract under the Home Buyer Rescission Period Regulation (“HBRP Regulation”), B.C. Reg. 175/2022 and the Property Law Amendment Act (“ PLA ”), S.B.C. 2022, c. 12 ( Bill 12 ), (collectively, the “ HBRP Legislation”) .    

A hypothetical example can better illustrate the HBRP Legislation .

• A seller offered to sell his residential property to a buyer for $1,500,000 on Monday, March 6, 2023 (the “Offer Date”) in the standard form Contract of Purchase and Sale (“CPS”) of BC Real Estate Association (“BCREA”). The offer was open for acceptance until 12:01 pm on Wednesday, March 8, 2023.
• The buyer accepted the offer at 11.00 am on March 8, 2023 (the “Acceptance Date”).
• The CPS contains a subject removal clause for the sole benefit of the buyer. The CPS is subject to the satisfaction of making a mortgage available to the buyer on or before March 20, 2023.
• The buyer is considering cancelling the CPS as he found a better option in the market. However, the purchase price of the second property is around $1,800,000, and the buyer may not have sufficient funds to complete the purchase of that property. The buyer requested the lending institution increase the mortgage, but the lending institution will inform the buyer about approving the mortgage increase no sooner than March 15.

Rescission Period

The homebuyer’s Rescission Period, also known as the “Cooling-Off Period”, cannot be waived by either the seller or buyer. 1 During the Cooling-Off Period, homebuyers can legally withdraw from the purchase without justification and for any reason.

The Rescission Period is three business days, beginning the next day after the final acceptance of an offer to sell a residential property is signed. 2 Business days are Monday through Friday and do not include Saturdays, Sundays or holidays. To calculate the Rescission Period, “holidays” are those days defined in Section 29 of the Interpretation Act , [RSBC 1996] CHAPTER 238. This list differs from the “statutory holidays” list commonly used for employment purposes.

In our scenario, the rescission date is Monday, March 13, 2023. It should be noted that the Rescission Period does not begin after subject removal. So even if the CPS contains the subject removal clause until March 20, the buyer is entitled to cancel the CPS until 11:59:59 p.m. on March 13.

Rescission Fee

Suppose a homebuyer wants to exercise their rescission right. In that case, they must pay the seller a rescission fee as a financial penalty equal to 0.25 percent of the purchase price set out in the contract as soon as possible. Where a buyer has made a deposit held in a brokerage trust account, the 0.25% rescission fee must be paid directly to the seller from the deposit, with the remainder of the deposit returned to the buyer. 3

If the buyer in our scenario decides to cancel the CPS during the Cooling-Off Period, he must pay $3,750 as a penalty as follows:

($1,500,000 x 0.0025 = $3,750)

Buyer and seller cannot agree to a higher or lower recission fee. 4 If there are counteroffers back and forth between the buyer and seller that change the price, then the rescission fee is calculated based on the last agreed purchase price.

Rescission Notice

The buyer must serve a rescission notice on the seller by registered mail, fax or email to the seller’s contact details in the CPS. The notice must include the following:

• The address, the parcel identifier (PID) or a description of the property;
• The name, and the signature or electronic signature, of the buyer;
• The name of each seller who is a party to the CPS; and
• The date that the right of rescission is being exercised. 5

Residential Real Property

HBRP Legislation defines residential real property which includes as follows:

• a detached or semi-detach house;
• a townhouse;
• an apartment in a duplex or other multi-unit dwelling;
• a residential strata lot designed or intended to be used primarily as a residence;
• a manufactured home that is affixed to the land;
• a cooperative interest, which is a right of use or occupation of a dwelling by a corporation or entity. 6

However, the following types of residential real property are exempt from the right of rescission:

• residential real property that is located on leased land;
• a leasehold interest in residential real property;
• residential real property that is sold at auction, under a court order or under the supervision of a court. 7

The right of rescission also does not apply to any purchase and sale where Section 21 of the Real Estate Development Marketing Act , [SBC 2004] CHAPTER 41 would apply. 8 Essentially, if a purchaser of a pre-sale development unit is provided with a disclosure statement, they would not be able to rescind a CPS using the homebuyer’s Cooling-Off Period, as they are offered other rescission rights, which is seven days rescission right from signing the pre-sale contract.

Moreover, float homes and manufactured homes on leased pads used as residences are not subject to the HBRP Legislation.

The Effects of Contract’s Assignment on Rescission Right

In our scenario, since the buyer should wait until March 15 to see if his request to increase the loan amount is approved, he is considering assigning the CPS to his company, believing the rescission period may restart from the date of assignment. Now the question is whether the CPS’s assignment restarts the Rescission Period. The answer is no. If the buyer (the “Assignor”) transfers his rights and benefits under the CPS to his company (the “Assignee”) based on a contract (the “Assignment Contract”), the Assignee does not have a new right of rescission under the Assignment Contract.

Non-Inclusion of HBRP Disclosure Provisions in CPS

As of January 3, 2023, BCREA’s standard CPS forms were updated and now contain the new HBRP disclosure provisions. If contracting parties use the older BCREA’s standard CPS or non-standard CPS, which does not have HBRP disclosure provisions, such an issue does not affect the validity of CPS. In other words, the HBRP disclosure provisions cannot be contracted out, and they apply even if they are not in the CPS.

1 Section 7 of the HBRP Regulation.

2 Section 42(1) of PLA and Section 4 of the HBRP Regulation.

3 Section 6 of the HBRP Regulation.

4 Source: BC Financial Services Authority: https://www.bcfsa.ca/industry-resources/real-estate-professional-resources/knowledge-base/frequently-asked-questions/home-buyer-rescission-period-frequently-asked-questions

5 Section 5 of the HBRP Regulation.

6 Section 2 of the HBRP Regulation.

7 Section 3 of the HBRP Legislation .

8 Section 42(2) of PLA .

Have a legal inquiry? Contact our Dispute Resolution & Litigation lawyers or Real Estate solicitors

At McQuarrie, our litigation team has a proven track record for ‘getting it right’ through careful preparation, analysis, and strategic execution.

For trusted litigation or real estate advice, contact our Dispute Resolution & Litigation lawyers or Real Estate solicitors by asking for Amy Salak, paralegal, at 604.580.7066. No matter how complex the issue, McQuarrie is here to help.

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‘Shadow Flipping’ and New Regulations for the BC Real Estate Industry

In the world of real estate, ‘shadow flipping’ is the practice of a purchaser entering into a contract with a vendor to buy real estate and then selling and assigning that contract to another purchaser for a higher price before the contractual closing date. The profit is kept by the purchaser and shared by the people who arranged the deal; this sometimes includes realtors who may induce the original vendor to sell their property to the purchaser (who may be working with the realtor) for a lower price knowing that the property is worth more and that the purchaser can turn around and sell the property to another purchaser for more than the original vendor received. Although this particular use of assignment is objectionable, assignment is in general a legitimate and legal business practice. A real estate contract is generally assignable by common law unless it is expressly forbidden by the contract. Section 36 of the  Law and Equity Act  provides that there is no requirement that the vendor consent to the assignment provided that the purchaser gives the vendor written notice of the assignment.

Changes to the Regulation of the Real Estate Industry in BC

Due in part to the problems of ‘shadow flipping’ and concerns over consumer protection and public confidence in the regulation and practices of licensed realtors in BC, the Real Estate Council of BC (RECBC) created the Independent Advisory Group (IAG) to review how the RECBC manages realtor misconduct. On February 9, 2016 the IAG was formed to bring together private and public sector experts to review the conduct requirements established for realtors and examine if those requirements are sufficient and are being effectively administered. A report from the IAG was released on June 28, 2016 which recommends “important changes to the regulatory regime to improve public protection, including greater transparency for consumers, higher penalties, improved reporting of [realtor] misconduct, governance changes, and improved public accessibility to the regulator”. Based on this report, Premier Christy Clark announced on June 29, 2016 that the real estate industry will no longer be allowed to regulate itself. Since 2005 the RECBC has been a self-regulating body mostly controlled by realtors overseeing discipline, licensing, and regulation of the BC real estate industry.  When the province’s new changes come into effect, there will be a dedicated Superintendent of Real Estate who will take over these duties.

New Regulations under the  Real Estate Services Act

In addition to the changes announced June 2016, Premier Clark also announced earlier on March 18, 2016 that BC would introduce new rules to require real estate vendors to consent to any assignment of real estate contracts and require that any profits from the assignment of real estate contracts go to the vendor. The rules are to prevent the situation described above in which a purchaser buys a property from a vendor and then reassigns the contract at a higher price before the sale closes without the vendor’s knowledge. The new regulations under the  Real Estate Services Act  came into force May 16, 2016 and state the following in section 8.2(3):

Unless otherwise instructed in writing by the party to whom or on whose behalf the licensee is providing trading services, a licensee must include the following terms in a contract the licensee prepares for consideration by that party before the contract is presented to another party:

(a) this contract must not be assigned without the written consent of the seller;

(b) the seller is entitled to any profit resulting from an assignment of the contract by the buyer or any subsequent assignee.

In response to this legislation, the British Columbia Real Estate Association added the following paragraph to its standard Contract of Purchase and Sale:

20A. RESTRICTION ON ASSIGNMENT OF CONTRACT:

The Buyer and the Seller agree that this Contract: (a) must not be assigned without the written consent of the Seller; and (b) the Seller is entitled to any profit resulting from an assignment of the Contract by the Buyer or any subsequent assignee.

Penalty for Non-compliance

What happens if a realtor does not include the language required by the regulations? Section 35(1)(a) of the  Real Estate Services Act  states that a  “licensee commits professional misconduct if the licensee . . . contravenes this Act, the regulations or the rules” . Section 43(1) says that if a discipline committee determines that a realtor has committed professional misconduct, the discipline committee must do one or more of the following:

(a) reprimand the licensee;

(b) suspend the licensee’s licence for the period of time the committee considers appropriate or until specified conditions are fulfilled;

(c) cancel the licensee’s licence;

(d) impose restrictions or conditions on the licensee’s licence or vary any restrictions or conditions applicable to the licence;

(e) require the licensee to cease or to carry out any specified activity related to the licensee’s real estate business;

(f) require the licensee to enrol in and complete a course of studies or training specified in the order;

(g) prohibit the licensee from applying for a licence for a specified period of time or until specified conditions are fulfilled;

(h) require the licensee to pay amounts in accordance with section 44 (1) and (2) [recovery of enforcement expenses] ;

(i) require the licensee to pay a discipline penalty in an amount of

(i) not more than $20 000, in the case of a brokerage or former brokerage, or

(ii) not more than $10 000, in any other case.

Therefore, if a realtor contravenes the regulations and does not include the required terms in the contract, then the realtor could face serious consequences that could hinder or prevent them from working in the real estate industry.

What Effect will the Regulations Have? Are there any Problems?

The main purpose of section 8.2 of the regulations is to protect vendors who are selling real estate from persons using the legitimate practice of assignment to illegitimately deprive those vendors of additional profits that should rightfully be theirs. However, on the face of it, there are a few problems with the regulations.

One problem is that the regulations only apply to a “licensee”, in other words, a realtor. This means that the regulations do not apply to non-licensed agents. Although many people use licensed realtors to sell real estate, if a person uses a non-licensed agent, the regulations will not apply and that person will not benefit from the protection afforded by the regulations.

Another problem with the regulations is that they do not provide sufficient remedies for the vendor if ‘shadow flipping’ occurs. If a realtor does not include the provision required by the regulations and the purchaser profits by assigning the sale to another purchaser (engages in ‘shadow flipping’), then the vendor has no remedy against the original or second purchaser. The vendor can only report the realtor for committing professional misconduct and take legal act against them for negligence for failing to include the provision. It is questionable if either of these avenues would return the lost profits to the vendor.

Whether these flaws will prevent the regulations from having the intended cooling effect on the practice of ‘shadow flipping’ is yet to be seen as the real estate market in BC continues to heat up and record sales are recorded.

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Real Estate Law Blog

(a) the contract of purchase and sale may not be assigned without the written consent of the vendor; and

(b) that the vendor is entitled to any profit resulting from an assignment of the contract by the purchaser or any subsequent assignee (the “ Assignment Restriction ”).

(a) prevent a purchaser (the “ Original Purchaser ”) from entering into contract with the owner, transferring title to the Original Purchaser by filing a transfer in the Land Title Office and immediately transferring title to a new purchaser.  In such a case however, property transfer tax will be paid twice, once on the transfer to the Original Purchaser and again with respect to the transfer to the new purchaser;

(b) restrict or prevent a change in control of the  shareholders of a corporate purchaser; or

(c) define what a profit is or how or when that profit is to be paid to the vendor or how the vendor enforces such payment.

(d) prevent the insertion of more detailed or complicated assignment provisions that restricts assignment generally but allows for assignments to affiliated entities or to specified parties. The Assignment Restriction can be amended in any manner the parties agree to, so for example to allow for assignment to a company controlled by an original purchaser;

(e) apply to contracts of purchase and sale made without the involvement of licensed real estate agents; or

(f) apply to contracts of purchase and sale made before the effective date of the Regulations.

(a) used in land assemblies;

(b) used for non-residential properties (commercial, industrial, bare land, multi-family etc.); or

(c) accepted after the effective date of the Regulations.

Ed practices in the real estate and municipal law fields with a specialty in real estate development.

Ed has assisted clients in such projects as: redevelopment of industrial sites to permit multi-family residential uses; heritage ...

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Assignment of Rents in Residential Real Estate Transactions

When discussing a mortgage product with your broker, you will be required to disclose certain information so that the mortgage may be crafted in accordance with your specific needs. As part of this task, you will be required to disclose whether the property will be your primary residence or an investment. Where borrowers own a property that is or may be leased in the future, most lenders will require that either a general assignment of rents or a specific assignment of rents be secured against the borrower’s property in addition to the secured mortgage.

In most cases, lenders will have borrowers execute the general or specific assignment of rents in a form of a separate document however, some lenders choose to incorporate an assignment of rents clause within the mortgage agreement itself. Even if the mortgage document is silent about assigning rents, the lender’s right to receive rental income will be inserted into the mortgage as incidents of ownership (the retainment of the right to collect rent). Both the general and specific assignment of rents provide a degree of financial protection for a lender as both entitle them to collect rental income from the borrower’s tenant(s) if the borrower defaults on the mortgage.

The specific assignment of rents applies where the lender is only interested in a specific lease(s). This arrangement may be appropriate in situations where a property has one tenant under a long-term lease or where multiple lenders are taking security in a particular property and wish to divide specific leases and income derived from each. Once such a lease(s) expires or terminates, the lender will no longer be entitled to any rental income from subsequent new leases.

On the opposite end of the spectrum is the general assignment of rents . Once implemented, not only does it give the lender the right to rental income from current or future tenants and leases but it also provides the lender with the ability to exercise all of the rights of a landlord under any prevailing or new leases, assignments, or subleases. This type of arrangement is a more popular choice with lenders as it provides synoptic security.

Like a mortgage, both general and specific assignment of rents are usually registered against title to a property as a notice under s. 78 of the Land Titles Act [1] .

I hope that this article has provided you with some helpful information. If you have any questions, please do not hesitate to contact me at [email protected] .

[1] R.S.O. 1990, c. L.5

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Assignment of contract

How it relates to the law in british columbia canada.

In British Columbia, an assignment of contract is a legal document that allows one party to transfer their rights and obligations under a contract to another party. This can be useful in situations where the original party is unable or unwilling to fulfill their obligations under the contract, or where they wish to transfer the benefits of the contract to another party. Under British Columbia law, an assignment of contract is generally valid and enforceable, provided that certain conditions are met. These conditions may include obtaining the consent of the other party to the contract, ensuring that the assignment does not violate any laws or regulations, and ensuring that the assignee is capable of fulfilling the obligations under the contract. In some cases, an assignment of contract may also be subject to specific legal requirements or restrictions, depending on the nature of the contract and the parties involved. For example, certain types of contracts may be subject to specific statutory requirements, such as the requirement for written consent or notice of assignment. Overall, an assignment of contract can be a useful tool for parties in British Columbia to transfer their rights and obligations under a contract, but it is important to ensure that all legal requirements are met in order to avoid any potential legal issues or disputes.

Impact on Business Owners in British Columbia

The impact of the assignment of contract on small businesses in British Columbia, Canada, is that it provides them with the ability to transfer their contractual rights and obligations to a third party. This can be useful for small businesses that are unable or unwilling to fulfill their obligations under a contract, or for those who wish to transfer the benefits of the contract to another party. However, small businesses must ensure that all legal requirements are met, such as obtaining the consent of the other party to the contract and ensuring that the assignee is capable of fulfilling the obligations under the contract, in order to avoid any potential legal issues or disputes.

Potential Legal Risks, Legal Challenges, or Legal Pitfalls for Businesses in British Columbia

As a small business owner in British Columbia, it is important to be aware of the potential legal risks and challenges associated with the assignment of contract. This refers to the transfer of rights and obligations under a contract from one party to another. One potential legal risk is that the assignment may be prohibited by the terms of the contract itself. It is important to carefully review the contract to ensure that there are no restrictions on assignment, or to obtain the consent of the other party to the assignment. Another potential legal challenge is that the assignment may not be valid if it is not properly executed. This could result in a breach of contract and potential legal action against the business. To avoid these issues, it is important to seek legal advice before entering into any contract that may be subject to assignment. This can help ensure that the contract is properly drafted and that any potential restrictions on assignment are identified and addressed. In addition, it is important to ensure that any assignment is properly executed and that all necessary steps are taken to transfer the rights and obligations under the contract to the new party. By being aware of these potential legal risks and challenges, small businesses in British Columbia can take steps to avoid or mitigate them and ensure that their contracts are properly assigned.

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In order to assist our clients understand the words and terms they may hear while buying or selling a home, we have prepared the following definitions. If any terms are missing, please let us know.

Adjustment date.

Date on which the Vendor and Purchaser have agreed to share any liabilities which may be attached to the property. The most common example is property taxes, which are paid yearly. In most situations, the Vendor is responsible for the portion of the taxes from January 1 up to but not including the adjustment date. The purchaser is responsible for the taxes from the adjustment date to the end of the year.

Amortization Period

The length of time that it will take to pay off a loan when making equal monthly payments (including interest).

Assignment of Rents

A charge registered against title allowing a lender to collect rent directly from a tenant if there is a default under a mortgage.

(Transferee) person who receives interest in property in exchange for legal consideration (payment).

(Transferor) person who gives interest in property in exchange for legal consideration (payment).

Certificate of Pending Litigation

A document registered against title to a property which indicates that a law suit has been commenced. The person who started the law suit and filed the Certificate of Pending Litigation is claiming an interest in the property.

Civic Address

Street address of the property.

Claim of Builder’s Lien

Claim for materials supplied and/or work done by a contractor. The claim is registered against the property and is valid for one year from the date of registration.

Clear Title

A property that is not subject to any financial encumbrances. There is no money owing against the property.

Completion Date

The date when the documents necessary to transfer title must be registered in the Land Title Office. Also called the Closing Date. This is also the date when the money changes hands.

Contract of Purchase And Sale

The agreement executed by the Vendor and the Purchaser outlining the terms upon which the Property is to be transfered. This is a binding Contract containing the conditions of sale.

The process involving the transfer of ownship of property from the Vendor to the Purchaser (including the preparation, execution and registration of documents to effect the transfer).

See Restrictive Covenant.

Money paid by the Purchaser to the Vendor or the Purchaser’s real estate agent at the time of signing the Contract of Purchase and Sale.

Duplicate Certificate of Title

A duplicate of the Certificate of Title is a document which may be issued by the Land Title Office, but only at the request of the registered owner and only if the property is free from any encumbrances, i.e. no Mortgages or Agreements for Sale registered against the property. The duplicate Certificate of Title must be returned to the LTO before any further documents are registered on the title.

A benefit which owners of one piece of property have over an adjoining piece of property.

The amount of the money left over after subtracting the amounts owing on all financial charges registered against the property from the fair market value.

Foreclosure Action

A law suit commenced in Supreme Court by a mortgagee (lender) once a default occurs in a mortgage.

This is the part of the mortgage which shows the details of the mortgage. This is where the terms of the mortgage (names, amount borrowed, length of term, interest rate, etc.) are displayed.

In British Columbia, a person under 19 years of age.

Joint Tenants

A form of ownership of property. In this form, parties have an equal undivided interest with a right of survivorship. The right of survivorship simply means that when an owner becomes deceased, their ownership passes to the survivor, regardless of any terms in a Will. This form of ownership is frequently used when family members (husband and wife) acquire property.

Legal Description

Description of real property as recorded in the Land Title Office (not the street address).

A document which represents a loan secured by land. These are almost always registered in the Land Title Office as a financial charge. A mortgage is comprised of two parts, the Form B and the Standard Mortgage Terms. These are defined elsewhere.

The person or company who has lent money to a borrower.

The person or company who has pledged land or property as security to ensure repayment of the debt to the Mortgagee.

Option to Purchase

Right conferred by agreement to accept or reject an offer to buy property within a certain time.

Possession Date

Date on which the Purchaser is entitled to move in and take physical possession of the property, usually the same day as Adjustment Date and after Completion Date.

Power of Attorney

A document allowing one person to execute documents on behalf of another. If a Power of Attorney is used, the original must be filed at the Land Title Office.

Priority Agreement

Agreement to postpone a claim, putting one party’s claim ahead of another.

The person buying the property, who will be registered as the new owner after registering the transfer document.

Restrictive Covenant

A charge registered on title to land which documents a promise made by the Owner to another not to do certain things on the Owner’s land.

Right of First Refusal

Agreement giving a party rights to make an offer on property if a sale is pending.

Right of Way

A charge registered on title allowing a party access rights to the property. A Right of Way is limited to certain benefits, such as power poles, telephone poles, sewer, etc. and can only be filed by persons defined in the Land Title Act.

Standard Mortgage Terms

This is the part of the mortgage which is standard to most mortgages. This part outlines the 5 basic obligations of the mortgage, and imposes a personal covenant to pay on the Borrowers.

State of Title Certificate

A certified copy of title issued by the Registrar of the Land Title Office of the ownership and state of the title as of a given date and time.

Statement of Adjustments

A document for each of the Purchaser and Vendor showing how much the Purchaser must pay and how much the Vendor will receive.

Statutory Building Scheme

A charge registered against the property showing limitations as to what buildings, etc. can be built on a property.

Survey Certificate

A drawing prepared and signed by a BC Land Surveyor which identifies the boundaries of the property and the location of the home inside the property lines.

Tenants in Common

A form of ownership of the property. Unlike Joint Tenants, there is no right of survivorship. What this means is that each party on title may leave their interest to whomever they choose in their Will. This form of ownership is frequently used when business partners (not family members) acquire property.

See Title Insurance

The person who is selling the property.

• What is an Assignment of Rents?

WHAT IS AN ASSIGNMENT OF RENTS?

An assignment of rent is a binding contract between a lender and a borrower stipulating that in the event the borrower defaults on the mortgage, the lender will be entitled to collect any rent payments made by a tenant occupying the property. If the lender is aware that the borrower intends to use the mortgaged property as a rental property, the lender may include an assignment of rents clause in the mortgage agreement to further protect its interest. A lender may choose to enter a general assignment of rents or a specific assignment of rents.

In a general assignment of rents, the agreement is binding on all future leases. A specific assignment of rents is only binding on the specific parties listed in the agreement. In the context of a real estate transaction, an assignment of rents, whether general or specific, may be registered on title. An assignment of rent may also be registered under the Personal Property Security Act as a secured interest. An assignment of rents is typically only deleted from the title when the corresponding mortgage is discharged and paid in full.

Contact us if you require legal assistance with your real estate transaction. Our real estate law team has the experience and knowledge to assist you throughout every step of the transaction.

Disclaimer: The information contained in this article is not to be construed as legal advice. The content is drafted and published only for the purpose of providing the public with general information regarding various real estate and business law topics. For legal advice, please contact us.

About the Author:

Shahriar Jahanshahi is the founder and principal lawyer at Jahanshahi Law Firm with a practice focus on representing business star-ups and investors in the province of Ontario. For further information about Shahriar Jahanshahi, click here .

Real Estate Law Insights

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• Can a Lawyer Represent both the Buyer and the Seller in a Real Estate Transaction?
• Understanding the Difference between Chattels and Fixtures
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• Understanding Easements, Encroachments, and Rights of Way in Real Estate Transactions
• How is Commission Paid to the Real Estate Agent(s)
• How to Invest in Private Mortgages in the Province of Ontario
• When is HST Payable on the Purchase Price of Real Estate in Ontario?
• Understanding the Difference Between Joint Tenancy and Tenants in Common
• What is a Power of Attorney?
• What is Title Insurance?
• What are the Typical Costs Involved in a Real Estate Transaction
• The Difference Between Variable and Fixed Rate Mortgages
• What is a Lender Fee?
• What is a Broker Fee?
• What are Mortgage Instructions?
• What are Standard Charge Terms?
• What is a CMHC Mortgage?
• What is the Cooling-Off Period for the Purchase of Pre-Construction Condominiums in Ontario?
• What is a Cross-Collateral Mortgage?
• What is a Real Estate Deposit?
• What is a Loan Agreement?
• What is a Mortgage Commitment?
• What is a Mortgage Guarantee?
• What is a Mortgage Investment Corporation?
• What is a Mortgage Term?
• What is a Prepayment Penalty?
• What is a Private Mortgage?
• What is a Property Survey?
• What is a Real Estate Assignment?
• What is a Reverse Mortgage?
• What is a Statement of Adjustments?
• What is a Status Certificate?
• What is a Syndicated Mortgage?
• What is a Title Search?
• What is a Transfer Deed?
• What is a Real Estate Trust Agreement?
• What is an Amortization Period?
• What is an Appraisal?
• What is an Institutional Mortgage?
• What is an Occupancy Closing?
• What is Form 9D?
• What is Form 9E?
• What is Kitec Plumbing?
• What is Land Transfer Tax?
• What is the Role of a Lawyer in a Real Estate Transaction?
• What is the Role of Real Estate Agents in a Real Estate Transaction?

Real Estate Development Marketing Act

[sbc 2004] chapter 41.

Assented to May 13, 2004

Part 1 — Definitions and Application

Definitions

1   In this Act:

"approving authority" means whichever of the following applies:

(a) for land located in a municipality, the municipal council;

(b) for land located in a regional district, excluding municipalities, treaty lands and Nisg̱a'a Lands, the regional district board;

(b.1) for treaty lands, the governing body of the treaty first nation;

(c) for land located in Nisg̱a'a Village Lands, the Nisg̱a'a Village Government;

(d) for land located in Nisg̱a'a Lands, excluding Nisg̱a'a Village Lands, the Nisg̱a'a Lisims Government;

(e) in relation to land located outside British Columbia, the local government body that has similar authority in relation to that land;

"approving officer" means

(a) an approving officer as defined in the Land Title Act , and

(b) in relation to land located outside British Columbia, a person who performs a similar function;

"Authority" means the BC Financial Services Authority established under section 2 of the Financial Services Authority Act ;

"bare land strata lot" means

(a) a strata lot in a bare land strata plan, and

(b) in relation to land located outside British Columbia, a similar lot;

"bare land strata plan" means

(a) a bare land strata plan as defined in the Strata Property Act , and

(b) in relation to land located outside British Columbia, a similar plan;

"brokerage" means a person licensed as a brokerage under the Real Estate Services Act ;

"consolidated disclosure statement" means a statement filed with the superintendent under section 15.2 [consolidated disclosure statements] ;

"cooperative association" means

(a) a corporation, as defined in the Business Corporations Act ,

(b) a limited liability company, as defined in the Business Corporations Act ,

(c) a partnership, and

(d) an entity incorporated or otherwise created outside British Columbia that is similar to one described in paragraphs (a) to (c)

that owns, leases or has a right to acquire land;

"cooperative interest" means an interest that includes both

(a) a right

(i) of ownership, directly or indirectly, of one or more shares in the cooperative association, or

(ii) to be a partner or member, directly or indirectly, in the cooperative association, and

(b) as a result of the right described in paragraph (a), a right to use or occupy a part of the land in which a cooperative association has an interest;

"deposit" means money paid by a purchaser to a developer in relation to a development unit before the purchaser acquires title or any other interest in the development unit;

"developer" means a person who, directly or indirectly, owns, leases or has a right to acquire or dispose of development property, unless the person is, or is in a class of persons which is, excluded by regulation;

"development property" means any of the following:

(a) 5 or more subdivision lots in a subdivision, unless each lot is 64.7 ha or more in size;

(b) 5 or more bare land strata lots in a bare land strata plan;

(c) 5 or more strata lots in a stratified building;

(d) 2 or more cooperative interests in a cooperative association;

(e) 5 or more time share interests in a time share plan;

(f) 2 or more shared interests in land in the same parcel or parcels of land;

(g) 5 or more leasehold units in a residential leasehold complex;

"development unit" means any of the following in a development property:

(a) a subdivision lot;

(b) a bare land strata lot;

(c) a strata lot;

(d) a cooperative interest;

(e) a time share interest;

(f) a shared interest in land;

(g) a leasehold unit;

"director" means

(a) in the case of a corporation as defined in the Business Corporations Act , a director as defined in that Act, and

(b) in the case of a partnership or other entity,

(i) a person who holds the title of director, and

(ii) a person who, by whatever name designated, performs the functions of a director of a corporation;

"disclosure statement" means a statement that discloses material facts about a development property, prepared in accordance with section 14 (2)  [filing disclosure statements] , and includes a consolidated disclosure statement, a phase disclosure statement and an amendment made to a disclosure statement;

"financial services tribunal" means the financial services tribunal under the Financial Institutions Act ;

"land title office" means

(a) a land title office under the Land Title Act , and

(b) in relation to land located outside of British Columbia, an office that performs a similar function;

"leasehold unit" means a unit in a residential leasehold complex;

"market" means

(a) to sell or lease,

(b) to offer to sell or lease, and

(c) to engage in any transaction or other activity that will or is likely to lead to a sale or lease;

"material fact" means, in relation to a development unit or development property, any of the following:

(a) a fact, or a proposal to do something, that affects, or could reasonably be expected to affect, the value, price, or use of the development unit or development property;

(b) the identity of the developer;

(c) the appointment, in respect of the developer, of a receiver, liquidator or trustee in bankruptcy, or other similar person acting under the authority of a court;

(d) any other prescribed matter;

"misrepresentation" means

(a) a false or misleading statement of a material fact, or

(b) an omission to state a material fact;

"new purchaser" means a purchaser who has not previously received from a developer a disclosure statement in relation to the development unit or development property;

"phase disclosure statement" means a statement filed with the superintendent under section 15.1 [phase disclosure statements] ;

"previously occupied building" means a building that has been occupied at any time in its past for any purpose, including residential, commercial, institutional, recreational or industrial use;

"purchase agreement" means a contract of purchase and sale or a contract to lease;

"purchaser" means

(a) a purchaser, from a developer, of a development unit,

(b) a lessee, from a developer, of a development unit, and

(c) a prospective purchaser or lessee, from a developer, of a development unit;

"residential leasehold complex" means a complex containing one or more buildings capable of being used, in whole or in part, for leasehold residential purposes, other than buildings comprised of strata lots, cooperative interests or shared interests in land;

"shared interest in land" means a person's interest in one or more parcels of land if

(a) the parcel or parcels are owned or leased, directly or indirectly, by the person and at least one other person, and

(b) as part of any arrangement relating to the acquisition of the person's interest, that person's right of use or occupation of the land is limited to a part of the land;

"sketch plan" means

(a) a sketch plan as defined in the Land Title Act , and

"strata lot" means

(a) a strata lot as defined in the Strata Property Act in a stratified building, and

(b) in relation to land located outside of British Columbia, a similar interest;

"strata plan" means

(a) any strata plan as referred to in the Strata Property Act , and

"stratified building" means a building subject to a strata plan that is not a bare land strata plan;

"subdivision" means land that is divided into lots or parcels, other than under the Strata Property Act ;

"subdivision lot" means a lot or parcel in a subdivision;

"superintendent" means the Superintendent of Real Estate appointed under section 2.1 (1) of the Real Estate Services Act ;

"time share interest" means a person's interest in a time share plan;

"time share plan" means a plan in respect of land in which persons participating in the plan

(a) each have a right of recurring use, occupation or possession of all or part of the land, including any accommodations or facilities located on it, on a periodic basis, and

(b) may or may not acquire an ownership interest in the land that is the subject of the plan.

Application

2   (1) This Act applies to a developer who markets, in British Columbia, a development unit.

(2) This Act applies regardless of whether

(a) the development unit being marketed is located in British Columbia or not,

(b) the land that a developer owns, leases or has a right to acquire or dispose of

(i) has not yet been divided into development units, or

(ii) is divided once or in successive stages, if, in the opinion of the superintendent, the successive divisions occur reasonably close in time, or

(c) a developer

(i) markets development units relating to the same development property simultaneously or at different times, or

(ii) does not intend to market one or more development units within a development property.

Part 2 — Marketing and Holding Deposits

Division 1 — Marketing Requirements Generally

Marketing of development property

3   (1) A developer who markets or intends to market a development unit must

(a) meet the applicable requirements of Division 2  [Preliminary Requirements or Approvals] ,

(b) ensure that arrangements have been made in accordance with Division 3  [Title Assurance and Utility Payments]

(i) to assure the purchaser's title or other interest for which the purchaser has contracted, and

(ii) to pay the cost of utilities and other services, and

(c) file and provide a disclosure statement in accordance with Division 4  [Disclosure Statements] .

(2) A developer who receives a deposit must deal with the deposit in accordance with Division 5  [Deposits] .

Division 2 — Preliminary Requirements or Approvals

Subdivision lots and bare land strata lots

4   A developer must not market a subdivision lot or a bare land strata lot unless, in relation to the subdivision lot or bare land strata lot,

(a) a subdivision plan or bare land strata plan, as applicable, has been deposited in a land title office, or

(b) an approving officer has given preliminary layout approval.

Strata lots and leasehold units

5   (1) A developer must not market a strata lot or a leasehold unit unless, in relation to the strata lot or leasehold unit,

(a) a strata plan or sketch plan, as applicable, has been deposited in a land title office, or

(b) the appropriate municipal or other government authority has issued a building permit in relation to the strata lot or leasehold unit.

(2) In addition to the requirement under subsection (1), a developer must not market a strata lot that is created or intended to be created by the conversion of a previously occupied building in British Columbia, unless, in relation to the strata lot, the requirements of section 242  [approval for conversion of previously occupied buildings] of the Strata Property Act have been met.

Cooperative interests

6   (1) A developer must not market a cooperative interest that includes a right of use or occupation of a building unless the appropriate municipal or other government authority has issued a building permit in relation to the land that is to be subject to the cooperative interest.

(2) In addition to the requirement under subsection (1), a developer must not market a cooperative interest that is created or intended to be created by the conversion of a previously occupied building in British Columbia, unless, in relation to the cooperative interest, an approving authority has given approval for the conversion.

(3) A developer must not market a cooperative interest that does not include a right of use or occupation of a building unless the appropriate municipal or other government authority has given development approval in relation to the land that is to be subject to the cooperative interest.

Time share interests

7   A developer must not market a time share interest unless

(a) the land, accommodations and facilities that are subject to the time share plan can be lawfully used or occupied by a purchaser, or

(b) the appropriate municipal or other government authority has, in relation to the land that is to be subject to the time share interest,

(i) if the time share interest includes a right of use, occupation or possession of a building, issued a building permit, or

(ii) in any other case, given development approval.

Shared interests in land in B.C.

8   (1) Despite section 2 (2) (a)  [application] , this section does not apply to a shared interest in land that is located outside British Columbia.

(2) A developer must not market a shared interest in land that includes a right of use or occupation of a building unless the appropriate municipal or other government authority has issued a building permit in relation to the land that is to be subject to the shared interest in land.

(3) In addition to the requirement under subsection (2), a developer must not market a shared interest in land that includes a right of use or occupation of a previously occupied building unless an approving authority has given approval, in accordance with subsection (5), to market the shared interest in land.

(4) A developer must not market a shared interest in land that does not include a right of use or occupation of a building unless an approving officer has given approval, in accordance with subsection (6), to market the shared interest in land.

(5) For the purpose of subsection (3),

(a) section 242 (1) to (6) and (11) [approval for conversion of previously occupied buildings] of the Strata Property Act applies in respect of the intended marketing as if it were an intended conversion into strata lots under that Act, and

(b) the approving authority must deal with the matter as if the intended marketing were an intended conversion into strata lots under that Act.

(6) For the purpose of subsection (4), an approving officer, within 2 months of receiving an application for approval, or within a longer period prescribed by the Lieutenant Governor in Council, must

(a) consider

(i) the public interest,

(ii) any criteria prescribed by the Lieutenant Governor in Council, and

(iii) any other matter that the approving officer considers to be relevant, and

(b) notify the developer, in writing, that

(i) the approval is granted,

(ii) the approval is refused until conditions specified in the notice are met, or

(iii) the approval is refused, in which case, the notice must set out the reasons for the refusal.

Shared interest in land outside B.C.

9   A developer must not market a shared interest in land that is located outside British Columbia unless

(a) the shared interest in land can be lawfully used or occupied by a purchaser, or

(b) the appropriate municipal or other government authority has, in relation to the land that is to be subject to the shared interest in land,

(i) if the shared interest in land includes a right of use or occupation of a building, issued a building permit, or

Early marketing with permission

10   (1) Despite sections 4 to 9  [subdivision lots and bare land strata lots to shared interests in land outside B.C.] , a developer may market a development unit if the developer has obtained both

(a) approval in principle to construct or otherwise create the development unit from the appropriate municipal or other government authority, and

(b) the superintendent's permission to begin marketing.

(2) In relation to a permission given under subsection (1) (b), the superintendent may

(a) attach conditions to the permission, and

(b) at any time, revoke the permission.

(3) The superintendent may publish, in accordance with the regulations, a policy statement setting out circumstances in which permission will be deemed to be granted under subsection (1) (b) to developers who are described by the circumstances set out in the notice.

(4) If the superintendent publishes a policy statement under subsection (3), a developer who is described by the circumstances set out in the policy statement

(a) is deemed to have the superintendent's permission under subsection (1) (b), and

(b) must comply with the terms and conditions, if any, that are stated in the policy statement.

Division 3 — Title Assurance and Utility Payments

Assurance of title

11   (1) A developer must not market a development unit unless the developer has made adequate arrangements to ensure that a purchaser of the development unit will have assurance of title or of the other interest for which the purchaser has contracted.

(2) For the purpose of subsection (1), a developer has made adequate arrangements to ensure that a purchaser of a development unit will have assurance of title or of the other interest for which the purchaser has contracted if

(a) arrangements have been made for title to the development unit to be held in trust by a lawyer, notary public or another person, or class of persons, specified by the superintendent until title or the other interest for which the purchaser has contracted is assured,

(b) the developer provides a bond to the superintendent or other person specified by the superintendent for the benefit and protection of purchasers, with surety in the amount and subject to the terms required by the superintendent, or

(c) the developer has made other arrangements that are satisfactory to the superintendent.

(3) Without limiting subsection (1) or (2), if a development unit may be affected by a mortgage, lien or other encumbrance that secures or evidences the payment of money, the developer must

(a) ensure that the mortgage, lien or other encumbrance provides, without condition, that a purchaser who complies with the terms and conditions of the purchaser's purchase agreement obtains title, or the other interest for which the purchaser has contracted, free and clear of the mortgage, lien or other encumbrance, or

(b) make other arrangements, satisfactory to the superintendent, to assure title or the other interest for which the purchaser has contracted.

Utilities and services

12   (1) A developer must not market a development unit unless the developer has made adequate arrangements to ensure payment of the cost of utilities and other services associated with the development unit.

(2) For the purpose of subsection (1), a developer has made adequate arrangements to ensure payment of the cost of utilities and other services associated with the development unit if

(a) arrangements have been made for title to the development unit to be held in trust by a lawyer, notary public or another person, or class of persons, specified by the superintendent until the cost of utilities and other services associated with the development unit has been paid,

Deemed adequate arrangements

13   (1) The superintendent may publish, in accordance with the regulations, a policy statement setting out circumstances in which arrangements made under section 11 (2) (c) and (3) (b) [assurance of title] or 12 (2) (c) [utilities and services] are deemed adequate for the purpose of those sections.

(2) If the superintendent publishes a policy statement under subsection (1), a developer who has made the arrangements set out in the policy statement

(a) is deemed to have made adequate arrangements to ensure

(i) that a purchaser of a development unit will have assurance of title or the other interest for which the purchaser has contracted, or

(ii) payment of the cost of utilities and other services associated with a development unit,

as applicable, and

Division 4 — Disclosure Statements

Filing disclosure statements

14   (1) A developer must not market a development unit unless the developer has

(a) prepared a disclosure statement respecting the development property in which the development unit is located, and

(b) filed with the superintendent

(i) the disclosure statement described under paragraph (a), and

(ii) any records required by the superintendent under subsection (3).

(2) A disclosure statement must

(a) be in the form and include the content required by the superintendent,

(b) without misrepresentation, plainly disclose all material facts,

(c) set out the substance of a purchaser's rights to rescission as provided under section 21  [rights of rescission] , and

(d) be signed as required by the regulations.

(3) A developer must provide to the superintendent any records the superintendent requires to support any statement contained in the disclosure statement filed under subsection (1).

(4) Without limiting section 16  [non-compliant disclosure statements] , if a developer markets development units in phases, the developer, before marketing each successive phase, must file with the superintendent an amendment to a disclosure statement submitted in respect of the previous phase.

(4.1) Despite subsection (4), a developer who markets development units in a successive phase of a strata plan that is the subject of a Phased Strata Plan Declaration under the Strata Property Act need not file an amendment to a disclosure statement if both of the following apply:

(a) the developer files a phase disclosure statement under section 15.1 [phase disclosure statements] before marketing development units in the successive phase;

(b) the developer does not market any development units in any previous phase of the development property.

(5) On a person's payment of the prescribed fee, the superintendent must

(a) permit the person to inspect, at the superintendent's office and during regular business hours, a disclosure statement filed under this section, and

(b) provide a copy of a disclosure statement filed under this section, or a copy of part of it, to a person who requests it.

Providing disclosure statements to purchasers

15   (1) A developer must not enter into a purchase agreement with a purchaser for the sale or lease of a development unit unless

(a) a copy of the disclosure statement prepared in respect of the development property in which the development unit is located has been provided to the purchaser,

(b) the purchaser has been afforded reasonable opportunity to read the disclosure statement, and

(c) the developer has obtained a written statement from the purchaser acknowledging that the purchaser had an opportunity to read the disclosure statement.

(2) A developer must

(a) retain a written statement obtained under subsection (1) (c) for a period of 3 years or a longer period prescribed by regulation, and

(b) produce the written statement for inspection by the superintendent on the superintendent's request.

(3) Despite section 4 (2) of the Electronic Transactions Act , a developer may provide a copy of a disclosure statement by electronic means only with the written consent of the purchaser.

Phase disclosure statements

15.1   (1) A developer who markets development units in a strata plan that is the subject of a Phased Strata Plan Declaration under the Strata Property Act

(a) may, before marketing development units in a phase, file with the superintendent a phase disclosure statement under this section, and

(b) may provide the phase disclosure statement to a new purchaser.

(2) A developer must ensure that a phase disclosure statement complies with section 14 (2) [filing disclosure statements] in relation to the development property and the development units in the phase.

(3) Despite any provisions in this Act or the regulations, but subject to subsection (4), if a developer provides a phase disclosure statement to a new purchaser of a development unit in a phase, the developer need not provide to the new purchaser

(a) the first disclosure statement filed in relation to the development property by the developer,

(b) any amendment to a disclosure statement filed prior to or at the same time as the filing of the phase disclosure statement,

(c) any consolidated disclosure statements filed in relation to other phases of the development property, or

(d) any phase disclosure statements filed in relation to other phases of the development property.

(4) A new purchaser who receives a phase disclosure statement may request in writing a copy of a disclosure statement referred to in subsection (3) (a), (b), (c) or (d), and the developer must provide to the new purchaser, without charge, a copy of the disclosure statement no later than 30 days after receipt of the request.

Consolidated disclosure statements

15.2   (1) A developer who files an amendment to a disclosure statement, including an amendment to a phase disclosure statement,

(a) may also file with the superintendent a consolidated disclosure statement under this section, and

(b) may provide the consolidated disclosure statement to a new purchaser.

(2) A developer must ensure that a consolidated disclosure statement contains the following:

(a) in the case of a phase of a development property with respect to which a phase disclosure statement has been filed, the content of the phase disclosure statement filed in relation to the phase as modified by any subsequently filed amendment to the phase disclosure statement;

(b) in every other case, the content of the first disclosure statement in relation to the development property filed by the developer as modified by any subsequently filed amendment to the first filed disclosure statement.

(3) Despite any provision in this Act or the regulations, but subject to subsection (4), if a developer provides a consolidated disclosure statement to a new purchaser, the developer need not provide to the new purchaser

(b) the phase disclosure statement in a case where the consolidated disclosure statement is in relation to a phase of a development property with respect to which a phase disclosure statement has been filed,

(c) any amendments to a disclosure statement filed prior to or at the same time as the filing of the consolidated disclosure statement, or

(d) any consolidated disclosure statement previously filed in relation to the development property.

(4) A new purchaser who receives a consolidated disclosure statement may request in writing a copy of any disclosure statement referred to in subsection (3) (a), (b), (c) or (d), and the developer must provide to the new purchaser, without charge, a copy of the disclosure statement no later than 30 days after receipt of the request.

Non-compliant disclosure statements

16   (1) If a developer becomes aware that a disclosure statement does not comply with the Act or regulations, or contains a misrepresentation, the developer must immediately

(a) file with the superintendent, as applicable under subsection (2) or (3),

(i) a new disclosure statement, or

(ii) an amendment to the disclosure statement that clearly identifies and corrects the failure to comply or the misrepresentation, and

(b) within a reasonable time after filing a new disclosure statement or an amendment under paragraph (a), provide a copy of the disclosure statement or amendment to each purchaser

(i) who is entitled, at any time, under section 15  [providing disclosure statements to purchasers] to receive the disclosure statement, and

(ii) who has not yet received title, or the other interest for which the purchaser has contracted, to the development unit in the development property that is the subject of the disclosure statement.

(2) A developer must file a new disclosure statement under subsection (1) (a) (i) if the failure to comply or misrepresentation referred to in that subsection

(a) is respecting a matter set out in paragraph (b) or (c) of the definition of "material fact" in section 1  [definitions] ,

(b) is respecting a matter set out in paragraph (d) of the definition of "material fact" in section 1, and the regulation prescribing the matter specifies that a new disclosure statement must be filed if subsection (1) of this section applies, or

(c) is of such a substantial nature that the superintendent gives notice to the developer that a new disclosure statement must be filed.

(3) A developer must file an amendment to the disclosure statement under subsection (1) (a) (ii) in any case to which subsection (2) does not apply.

(4) A developer who is required to file a new disclosure statement or an amendment under subsection (1) must not market a development unit in the development property that is the subject of the new disclosure statement or amendment

(a) until the developer has complied with subsection (1) (a), or

(b) unless permitted by the superintendent.

Superintendent under no duty

17   The superintendent is not under any duty to determine any of the following:

(a) the merits of any statement contained in a disclosure statement;

(b) whether a disclosure statement contains a misrepresentation;

(c) whether a disclosure statement filed with the superintendent, or the information contained in it, meets the requirements of this Act and the regulations.

Division 5 — Deposits

Handling deposits

18   (1) A developer who receives a deposit from a purchaser in relation to a development unit must promptly place the deposit with a brokerage, lawyer, notary public or prescribed person who must hold the deposit as trustee in a trust account in a savings institution in British Columbia.

(2) A trustee under subsection (1) holds the deposit for the developer and the purchaser and not as an agent for either of them and must not release the deposit from trust except as follows:

(a) if the money was paid into the trust account in error;

(b) to the purchaser with the written consent of the purchaser and the developer;

(c) in accordance with subsection (3) or (4);

(d) in accordance with section 19  [developer use of deposit] of this Act;

(e) in accordance with section 21  [rights of rescission] of this Act;

(f) in accordance with section 32  [unclaimed money held in trust] of the Real Estate Services Act ;

(g) in accordance with section 33  [payment of trust funds into court] of the Real Estate Services Act ;

(h) in accordance with a court order;

(i) in accordance with the regulations under this Act.

(3) A trustee under subsection (1) must release the deposit to the developer if the developer certifies in writing that

(a) the purchaser who paid the deposit has no right to rescission under section 21  [rights of rescission] ,

(b) if required, the subdivision plan, strata plan or other plan has been deposited in the appropriate land title office,

(c) the approvals required for the lawful occupation of the development unit have been obtained, and

(d) as applicable,

(i) if all or part of the purchaser's interest in the development unit is registrable in a land title office, the interest has been registered in the appropriate land title office and an instrument evidencing the registration has been delivered to the purchaser, or

(ii) if all or part of the purchaser's interest in the development unit is not registrable in a land title office, an instrument evidencing the interest of the purchaser has been delivered to the purchaser.

(4) A trustee under subsection (1) must release the deposit to the developer if the developer certifies in writing that

(b) the purchaser has failed to pay a subsequent deposit or the balance of the purchase price when required by the purchase agreement under which the deposit held by the trustee was paid,

(c) under the terms of the purchase agreement, if the purchaser fails to pay a subsequent deposit or the balance of the purchase price when required, the developer may elect to cancel the purchase agreement and, if the developer elects to cancel the purchase agreement, the amount of the deposit is forfeited to the developer, and

(d) the developer has elected to cancel the purchase agreement.

(5) For the purposes of subsection (2) (f) and (g), the provisions of the Real Estate Services Act referred to in that subsection apply to a trustee as if the trustee were a brokerage.

(6) Payment to a person in accordance subsection (2) (b), (c), (d) or (e) discharges the trustee from liability for the deposit in the amount paid out.

Developer use of deposit

19   (1) In this section:

"deposit protection contract" has the same meaning as in section 142 (1) of the Insurance Act ;

"developer's own purposes" means purposes related to the development property that includes the development unit in relation to which the deposit under section 18 (1)  [handling deposits] was paid, including, without limitation, the construction and marketing of that development property.

(2) A developer who desires to use for the developer's own purposes a deposit the developer has placed with a trustee under section 18 (1), must enter into a deposit protection contract in relation to that deposit and provide notice of the deposit protection contract to the purchaser in accordance with the regulations.

(3) A trustee must pay a deposit held under section 18 (1) to a developer who has entered into a deposit protection contract in relation to the deposit on receiving

(a) from an insurer the original or a true copy of the deposit protection contract, and

(b) from the developer a certification, in writing, that the purchaser who paid the deposit has no right to rescission under section 21  [rights of rescission] .

(4) If a deposit is paid under subsection (3), the developer may use that deposit only for the developer's own purposes.

Division 6 — Exemptions

Superintendent's exemptions

20   (1) The superintendent may exempt, with or without conditions, the following from all or part of a provision of this Part:

(a) a person;

(b) land that is, or will be, the subject of development;

(c) a transaction.

(2) The superintendent may suspend or cancel an exemption made under subsection (1).

(3) If an exemption has been made in respect of a class of persons, land or transactions under section 46  [regulations] , the superintendent may suspend or cancel the exemption in relation to a particular person, land or transaction within the class, if the superintendent has reason to believe that

(a) the person is not complying with the terms or conditions of the exemption, or

(b) the exemption, if applied to that land or transaction, would be detrimental to the public interest.

(4) If the superintendent makes an exemption, or suspends or cancels an exemption, under this section, the superintendent must publish, in accordance with the regulations, the exemption, suspension or cancellation.

Part 2.1 — Assignment Reporting Requirements

20.1   In this Part:

"administrator" means the administrator designated under the Property Transfer Tax Act ;

"assignment" means a transfer of some or all of the rights, obligations and benefits under a purchase agreement made in respect of a strata lot in a development property, whether the transfer is made by the purchaser under the purchase agreement to another person or is a subsequent transfer.

Application of Part

20.2   This Part applies in respect of purchase agreements, entered into by developers, for the sale or lease of strata lots in development properties located in British Columbia.

Requirements respecting assignments

20.3   (1) Unless the developer does not permit the assignment of the purchase agreement, a developer who enters into a purchase agreement for the sale or lease of a strata lot must include in the purchase agreement, in the prescribed form, all of the following:

(a) a term prohibiting any assignment of the purchase agreement without the prior consent of the developer;

(b) a notice that, before the developer consents to an assignment of the purchase agreement, the developer will be required to collect from the proposed parties to the assignment agreement the information and records referred to in subsection (2);

(c) a term requiring all proposed parties to an assignment agreement to give to the developer the information and records referred to in subsection (2).

(2) A developer must not consent to any assignment of a purchase agreement unless the developer first collects, from each proposed party to the assignment agreement, all prescribed information and records, including personal information,

(a) respecting the identity of the party,

(b) respecting contact and business information of the party,

(c) respecting the terms of the assignment agreement, and

(d) required for the purposes of section 20.5 [confidentiality] .

(3) A developer who has consented to an assignment of a purchase agreement must

(a) collect from the parties to the assignment a copy of the written and signed assignment agreement, and

(b) keep a copy of the assignment agreement in the prescribed manner for the prescribed period.

Filing information respecting assignments

20.4   (1) A developer must file with the administrator, in the form and manner required by the administrator and as required by the regulations, the following:

(a) for each assignment to which the developer consents, the information and records collected under section 20.3 (2) [requirements respecting assignments] ;

(b) if paragraph (a) does not apply, a statement that no information or records were collected under section 20.3 (2).

(2) The administrator may require a developer to file additional information or records for the purpose of verifying the information and records filed under subsection (1).

(3) A developer must comply with a requirement made under subsection (2) within the period set by the administrator.

Confidentiality

20.5   (1) Subject to subsection (2), the administrator or another person having custody or control of information or records collected under this Part must not use or disclose the information or records except

(a) for the purposes of administering or enforcing this Act, a taxation Act, the Home Owner Grant Act or the Land Tax Deferment Act ,

(b) in court proceedings related to this Act or an Act referred to in paragraph (a),

(c) under an agreement that

(i) is between the government and another government,

(ii) relates to the administration or enforcement of tax enactments, and

(iii) provides for the disclosure of information and records to and the exchange of similar information and records with that other government,

(d) for the purpose of the compilation of statistical information by the government or the government of Canada, or

(e) to the British Columbia Assessment Authority.

(2) If the superintendent has custody or control of information or records collected under this Part, the superintendent must not use or disclose the information or records except for a purpose set out in subsection (1) (a) or (b).

(3) Except in respect of a proceeding under an Act referred to in subsection (1) (a), the administrator or another person to whom subsection (1) applies may not be compelled in a civil proceeding to disclose or give evidence respecting any information or records obtained by the administrator or person in the course of exercising powers or performing duties under this Act.

Lieutenant Governor in Council's exemptions

20.6   The Lieutenant Governor in Council may exempt, by order, from all or part of a provision of this Part, with or without conditions,

(a) a person,

(b) land that is, or will be, the subject of development, or

Part 3 — Remedies and Enforcement

Division 1 — Remedies

Rights of rescission

21   (1) A purchaser does not have a right of rescission under this section

(a) if the purchaser is not entitled to receive a disclosure statement under this Act, or

(b) as a result of receiving an amendment to a disclosure statement in respect of a development property, including an amendment described in section 16 (1) (a) (ii)  [non-compliant disclosure statements] , unless the purchaser has not previously received any disclosure statement in respect of that development property.

(2) Regardless of whether title, or the other interest for which a purchaser has contracted, to a development unit has been transferred, a purchaser of the development unit may rescind the purchase agreement by serving written notice of the rescission on the developer within 7 days after the later of

(a) the date that the purchase agreement was made, and

(b) the date that the developer obtained, under section 15 (1) (c)  [providing disclosure statements to purchasers] , a written statement from the purchaser acknowledging that the purchaser had an opportunity to read

(i) the disclosure statement provided under that section, or

(ii) a new disclosure statement, if any, described in section 16 (1) (a) (i)  [non-compliant disclosure statements] .

(3) Subject to subsection (3.1), regardless of whether title, or the other interest for which a purchaser has contracted, to a development unit has been transferred, if a purchaser is entitled to a disclosure statement in respect of a development property under this Act and does not receive the disclosure statement, the purchaser may rescind, at any time, a purchase agreement of a development unit in that development property by serving a written notice of rescission on the developer.

(3.1) Subsection (3) does not apply if the disclosure statement the purchaser is entitled to receive, but does not receive, in respect of a development property is any of the following:

(a) an amendment to a disclosure statement;

(b) a disclosure statement that the purchaser becomes entitled to receive as a result of a request made under section 15.1 (4) [phase disclosure statements] ;

(c) a disclosure statement that the purchaser becomes entitled to receive as a result of a request made under section 15.2 (4) [consolidated disclosure statements] .

(3.2) Regardless of whether title, or the other interest for which a purchaser has contracted, to a development unit has been transferred, a purchaser of a development unit may rescind a purchase agreement by serving a written notice of rescission on the developer if the purchaser does not receive an amendment to a disclosure statement that the purchaser was entitled to receive, and if all of the following apply:

(a) the purchaser does not become entitled to receive the amendment to the disclosure statement only as a result of a request made under section 15.1 (4) [phase disclosure statements] or 15.2 (4) [consolidated disclosure statements] ;

(b) the amendment the purchaser is entitled to receive relates to or would have related to a fact or proposal to do something that is a material fact on the earlier of the following dates:

(i) the date on which the notice of rescission is served on the developer;

(ii) the date on which the purchase agreement requires the developer to transfer to the purchaser title or the other interest for which the purchaser has contracted;

(c) the amendment the purchaser is entitled to receive relates to or would have related to a fact or proposal to do something that was or would have been reasonably relevant to the purchaser in deciding to enter into the purchase agreement;

(d) no more than one year has elapsed after the transfer of title or the other interest for which that purchaser has contracted.

(4) A notice of rescission under subsection (2), (3) or (3.2) must be served according to the regulations.

(5) If a developer is served with a notice of rescission that complies with the requirements of subsections (2) to (4), the developer must immediately inform the person who is holding the purchaser's deposit under section 18  [handling deposits] .

(6) If a person who is holding a purchaser's deposit under section 18 is informed, under subsection (5), of the purchaser's rescission, the person must promptly return the deposit to the purchaser.

(7) If a purchaser to whom title, or the other interest for which the purchaser has contracted, has been transferred serves a notice of rescission on a developer, the developer may apply to court for an order that the purchaser must pay to the developer market rent for occupation of the development unit.

Liability for misrepresentation

22   (1) In this section:

"developer" means a developer that is required by the Act or regulations to

(a) file a disclosure statement with the superintendent, or

(b) provide a disclosure statement to a purchaser

in respect of a development property;

"director" means a director of a developer at the time that the developer

(a) filed a disclosure statement with the superintendent, or

(b) provided a disclosure statement to any purchaser

in respect of a development property.

(2) This section does not apply to a purchaser who is not entitled to receive a disclosure statement under this Act.

(3) If a developer files a disclosure statement respecting a development property and the disclosure statement contains a misrepresentation, a purchaser of a development unit in the development property, whether the purchaser received the disclosure statement or not,

(a) is deemed to have relied on the misrepresentation, and

(b) has a right of action for damages against

(i) the developer,

(ii) a director,

(iii) a person who consented to be named, and was named, in the disclosure statement as a developer or director,

(iv) a person who authorized the filing of the disclosure statement, and

(v) a person who signed the disclosure statement.

(a) a disclosure statement contains a misrepresentation at the time at which a purchaser and a developer enter into a purchase agreement, and

(b) the misrepresentation is removed or otherwise corrected after the purchaser and developer have entered into the purchase agreement,

subsection (3) continues to apply as if the misrepresentation had not been removed or corrected.

(5) A person is not liable to a purchaser under subsection (3) if the person proves that the purchaser had knowledge of the misrepresentation at the time at which the purchaser received the disclosure statement.

(6) An individual is not liable to a purchaser under subsection (3) if the individual proves

(i) the disclosure statement was filed without the individual's knowledge or consent, and

(ii) on becoming aware of its filing, the individual gave written notice to the developer, the superintendent and the public that it was filed without the individual's knowledge or consent, or

(b) that, after filing the disclosure statement but before entering into a purchase agreement with the purchaser in relation to a development unit in the development property to which the disclosure statement relates, the individual

(i) became aware of a misrepresentation in the disclosure statement,

(ii) withdrew the individual's consent to the disclosure statement, and

(iii) gave written notice to the developer, the superintendent and the public of the withdrawal and the reason for it.

(7) An individual is not liable under subsection (3) with respect to any part of the disclosure statement made on the authority of an expert if the individual had no reasonable grounds to believe, and did not believe, that the opinion of the expert

(a) was based on, or contained, a misrepresentation, or

(b) was unfairly represented in the disclosure statement.

(8) An individual is not liable under subsection (3) with respect to any part of a disclosure statement not made on the authority of an expert if the individual

(a) made reasonable inquiries to determine whether the disclosure statement contained a misrepresentation, and

(b) believed that there had been no misrepresentation.

(9) An action for damages under this section may not be commenced more than 2 years after the misrepresentation on which the action is based first comes to the knowledge of the purchaser.

Agreements void for non-compliance

23   (1) Subject to subsection (2), a purchase agreement in relation to a development unit is not enforceable against the purchaser by a developer who has breached any provision of Part 2 [Marketing and Holding Deposits] .

(2) A purchase agreement in relation to a development unit is enforceable against the purchaser if either of the following applies to each of the developer's breaches of Part 2:

(a) the breach involves a disclosure statement that does not comply with the Act or the regulations, but there is no misrepresentation in the disclosure statement concerning a material fact that was or would have been reasonably relevant to the purchaser in deciding to enter into the purchase agreement;

(b) the breach involves a disclosure statement that includes a misrepresentation concerning a material fact, but the developer was not aware of the misrepresentation at the time the purchaser and the developer entered into the purchase agreement and the misrepresentation is corrected in an amendment to the disclosure statement to which both of the following apply:

(i) the amendment is filed with the superintendent no later than 30 days after the developer becomes aware of the misrepresentation and the amendment is provided to the purchaser within a reasonable time after filing, as required by section 16 (1) (b) [non-compliant disclosure statements] ;

(ii) the amendment is filed with the superintendent and provided to the purchaser no later than 14 days before the date on which the purchase agreement requires the developer to transfer to the purchaser title or the other interest for which the purchaser has contracted.

Division 2 — Enforcement Powers

Non-compliance

24   In this Division:

"developer" includes a former developer;

"non-compliant" means, in respect of a developer,

(a) contravening a provision of this Act or the regulations,

(b) failing to comply with the terms or conditions of

(i) an order of the superintendent,

(ii) a permission given by the superintendent under section 10  [early marketing with permission] ,

(iii) a policy statement issued under section 10 (4) (b) or 13 (2) (b) [deemed adequate arrangements] , and

(iv) an undertaking given under section 36  [undertakings] ,

(c) failing to follow any direction of the superintendent in relation to an arrangement made under section 11 (2) (c) or (3) (b) [assurance of title] or 12 (2) (c) [utilities and services] , and

(d) making, or allowing to be made,

(i) a misrepresentation in any record that is required to be produced or submitted under this Act, or

(ii) a false or misleading statement in a certification under section 18  [handling deposits] , in information or a record filed under section 20.4 [filing information respecting assignments] or in an investigation under section 25  [investigations] ;

"recipient of the notice" means a person who receives a notice under section 27 (1)  [notice of hearing] that a hearing will be held to determine whether a developer is, or has been, non-compliant.

Investigations

25   (1) The superintendent may, by order, appoint investigators for the purposes of this section by doing one or both of the following:

(a) naming a specific person as an investigator;

(b) providing that a person who holds a specified title or position is an investigator.

(1.1) If the superintendent or an investigator has reason to believe that a developer is, or has been, non-compliant, the superintendent or investigator may conduct an investigation to determine whether the developer is, or has been, non-compliant.

(2) For the purpose of an investigation, the superintendent or investigator may do one or more of the following:

(a) at any time during business hours, inspect and copy records that are located on the business premises of

(i) a developer, or

(ii) an officer, director, controlling shareholder or partner of a developer;

(b) require a person referred to in paragraph (a) to produce information, records or other things in the person's possession or control;

(c) require a person who the superintendent or investigator has reason to believe has in the person's possession or control information, records or other things relevant to the investigation to produce the information, records or things.

(3) A person referred to in subsection (2) must not withhold or destroy, conceal or refuse to provide any information, record or thing reasonably required for the purposes of an investigation under this section.

(4) An investigator who conducts an investigation under subsection (1.1) must provide the superintendent with a written report of the investigation.

Court order for search and seizure

26   (1) The superintendent may apply to the Supreme Court for an order authorizing the seizure of records or other evidence, wherever located, belonging to or relating to a developer from the person named in the order, if there are reasonable grounds to believe that the developer is, or has been, non-compliant.

(2) An application under subsection (1) may be made without notice to any other person unless otherwise ordered by the court.

(3) An application under subsection (1) must be supported by an affidavit stating

(a) the grounds for believing that the developer is, or has been, non-compliant, and

(b) the grounds for believing that the seizure will produce evidence relevant to that matter.

(4) In an order under subsection (1), the court may

(a) designate the person who will conduct the seizure and authorize that person to conduct it,

(b) state the time and place the seizure will occur, and

(c) give any other directions necessary to carry out the seizure.

(5) This section does not apply to records or other evidence subject to solicitor-client privilege.

Notice of hearing

27   (1) Following an investigation under section 25  [investigations] , the superintendent may deliver, to a person against whom an order under section 30  [orders] may be made, notice that the superintendent intends to hold a hearing under section 29  [hearings] to determine if a developer is, or has been, non-compliant.

(2) The notice must

(a) describe the matter that is to be the subject of the hearing,

(b) specify the time and place set for commencement of the hearing,

(c) advise the recipient of the notice that the superintendent is entitled to proceed with the hearing in the absence of the recipient of the notice, and

(d) be accompanied by either

(i) a copy of the investigator's report, if any, made under section 25 (4)  [investigations] , or

(ii) if no investigator's report has been made, a summary of the superintendent's investigation.

(3) The notice must be delivered at least 21 days before the time set for the hearing as follows:

(a) in the case of delivery to a current developer, by personal service or by mailing the notice by registered mail to the address of the developer shown in that developer's disclosure statement;

(b) in the case of delivery to a person who is not a current developer, by personal service;

(c) in any case, in accordance with an order for substituted service under section 43  [substituted service] .

Consent orders

28   (1) A recipient of the notice may deliver, at least 14 days or a shorter period permitted by the superintendent before the time set for the hearing, to the superintendent a written proposal that includes the person's consent to the superintendent making a specified order under section 30  [orders] without conducting a hearing.

(2) If the superintendent accepts a proposal under subsection (1),

(a) the superintendent may make the proposed order under section 30, and

(b) no further proceedings may be taken under this Division with respect to the matter, other than to enforce the terms of the order as proposed.

(3) Regardless of whether a proposal under subsection (1) has been accepted or rejected by the superintendent, the proposal may not be used

(a) in any proceeding under this Act, other than as referred to in subsection (2) (b), or

(b) in any civil proceeding with respect to the matter.

29   (1) If a notice of hearing has been delivered in accordance with section 27  [notice of hearing] , the superintendent may proceed with the hearing under this section whether or not the recipient of the notice appears in person and whether or not the recipient of the notice is represented by legal counsel at the hearing.

(2) For the purposes of a hearing under this Act, sections 34 (3) and (4) [power to compel witnesses and order disclosure] , 48 [maintenance of order at hearings] and 49 [contempt proceeding for uncooperative witness or other person] of the Administrative Tribunals Act apply to the superintendent as if the superintendent were a tribunal under that Act.

30   (1) After a hearing, if the superintendent determines that a developer is, or has been, non-compliant, the superintendent may do one or more of the following:

(a) order the developer to cease or refrain from marketing one or more development units;

(b) order the developer to carry out a specified activity related to marketing;

(b.1) order the developer to comply, or to carry out a specified activity for the purpose of complying, with a prohibition or requirement of

(i) Part 2.1 [Assignment Reporting Requirements] , or

(ii) a regulation made for the purpose of Part 2.1;

(c) order the developer to pay amounts in accordance with section 31  [recovery of enforcement expenses] ;

(d) order the developer to pay an administrative penalty in an amount of

(i) not more than $500 000, in the case of a corporation, or

(ii) not more than $250 000, in the case of an individual.

(2) If the superintendent intends to make an order under subsection (1) (c) or (d), the superintendent may make the order against

(a) the developer,

(b) a person who was an officer, director, controlling shareholder or partner of the developer at the time of non-compliance, if that person authorized, permitted or acquiesced in the non-compliance, or

(c) both the developer and a person described in paragraph (b).

(3) The superintendent, by order made on the application of or with the consent of a person affected by the order, may

(a) vary or rescind an order made under subsection (1), and

(b) as a condition of varying or rescinding an order under paragraph (a), require an undertaking under section 36 (1)  [undertakings] .

Recovery of enforcement expenses

31   (1) The superintendent may, by an order under section 30 (1) (c)  [orders] , require a person described under section 30 (2) to pay the expenses, or part of the expenses, of either or both of the following:

(a) an investigation under section 25  [investigations] ;

(b) the hearing.

(2) Expenses assessed under subsection (1)

(a) must be for the matters, and must not exceed the amounts, set out in the regulations, and

(b) may include remuneration expenses for employees, officers or agents of the Authority engaged in the investigation or hearing.

Orders in urgent circumstances

32   (1) The superintendent may make an order referred to in section 30 (1) (a) or (b) [orders] against a developer under this section if the superintendent considers

(a) that the developer is, or has been, non-compliant,

(b) that the length of time that would be required to complete an investigation or hold a hearing, or both, would be detrimental to the public interest, and

(c) that it is in the public interest to make the order.

(2) Despite any other provision of this Division, an order may be made under this section

(a) whether or not a notice of hearing has been issued under section 27  [notice of hearing] ,

(b) without giving notice to the developer, and

(c) without providing the developer an opportunity to be heard.

(3) Promptly after an order under this section is made, the superintendent must deliver, in accordance with section 27 (3), to the developer who is the subject of the order

(a) a copy of the order and written reasons for it, and

(b) written notice that a hearing may be held respecting the order.

(4) A developer who is the subject of an order under subsection (1) may require, within 14 days after receiving a copy of the order, a hearing before the superintendent by delivering written notice to the superintendent.

(5) Within a reasonable time after receiving written notice referred to in subsection (4), the superintendent must

(a) provide notice of the hearing in accordance with section 27, and

(b) hold the required hearing in accordance with section 29  [hearings] .

(6) Following the hearing referred to in subsection (5) (b), the superintendent

(a) must confirm, revoke or vary the order, and

(b) may make any other order referred to in section 30 (1).

(7) Section 30 (3) applies in respect of an order made under this section.

Publication of orders

33   The superintendent must

(a) publish, in accordance with the regulations, each order of the superintendent made under section 30  [orders] or 32 [orders in urgent circumstances] , and

(b) provide a copy of an order published under paragraph (a) to any person who requests it and pays the prescribed fee.

Court filing of superintendent's orders

34   (1) If the superintendent considers that a person has failed to comply with an order of the superintendent under this Division, the superintendent may file a certified copy of the order with the Supreme Court.

(2) An order filed under subsection (1) has the same force and effect, and all proceedings may be taken on it, as if it were an order of the Supreme Court.

Application for injunction

35   (1) The superintendent may apply to the Supreme Court for an injunction restraining a person from contravening, or requiring a person to comply with,

(a) this Act or the regulations, or

(b) an order of the superintendent under this Act.

(2) The court may grant an injunction sought under subsection (1) if the court is satisfied that there is reason to believe that there has been or will be a contravention of this Act, the regulations or an order referred to in that subsection.

(3) The court may grant an interim injunction until the outcome of an application commenced under subsection (1).

Undertakings

36   (1) If the superintendent has reason to believe that a developer is, or has been, non-compliant, the superintendent, with or without an investigation or a hearing under this Division, may

(a) give notice to the developer of the superintendent's reason for believing that the developer is or has been non-compliant, and

(b) accept a written undertaking from the developer to do one or more of the following:

(i) cease or refrain from marketing one or more development units;

(ii) comply with terms or conditions set by the superintendent, which may include a condition that the developer pay the expenses, or part of the expenses, incurred by the Authority in relation to the undertaking;

(iii) do anything that the developer is required to do under this Act;

(iv) cease or refrain from doing anything that the developer is prohibited from doing under this Act.

(2) Expenses assessed under subsection (1) (b) (ii)

(b) may include remuneration expenses for employees, officers or agents of the Authority engaged in matters related to the undertaking.

(3) An undertaking given by a developer under this section is binding on the developer and every director of the developer.

Division 3 — Appeals

Appeals to the financial services tribunal

37   (1) A person who is the subject of an order or decision of the superintendent made under any of the following sections may appeal the decision to the financial services tribunal:

(a) section 11 (2) (c) and (3) (b) [assurance of title] ;

(b) section 12 (2) (c)  [utilities and services] ;

(c) section 16 (2) (c)  [non-compliant disclosure statements] ;

(d) section 20 (2) or (3) [superintendent's exemptions] ;

(e) section 30  [orders] ;

(f) section 32  [orders in urgent circumstances] .

(2) The superintendent is a party to an appeal under this section.

(3) Sections 242.2  [practice and procedure] and 242.3 [judicial review] of the Financial Institutions Act apply in relation to an appeal under this section.

Effect of filing notice of appeal

38   (1) An order made under section 30 (1) (a)  [orders] or 32 [orders in urgent circumstances] is not stayed by the filing of a notice of appeal under section 37  [appeals to the financial services tribunal] and may not be stayed under section 242.2 (10) (a) (i)  [tribunal member hearing appeal may stay order] of the Financial Institutions Act .

(2) An appealable decision, other than one referred to in subsection (1), is stayed by the filing of a notice of appeal under section 37, but the stay may be lifted under section 242.2 (10) (a) (ii) of the Financial Institutions Act .

Division 4 — Offences and Penalties

39   (1) A person who does any of the following commits an offence:

(a) contravenes

section 4  [subdivision lots and bare land strata lots] ,

section 5  [strata lots and leasehold units] ,

section 6  [cooperative interests] ,

section 7  [time share interests] ,

section 8  [shared interest in land in B.C.] ,

section 9  [shared interests in land outside B.C.] ,

section 10 (4) (b)  [early marketing with permission] ,

section 11  [assurance of title] ,

section 12  [utilities and services] ,

section 13 (2) (b)  [deemed adequate arrangements] ,

section 14  [filing disclosure statements] ,

section 15  [providing disclosure statements to purchasers] ,

section 15.1 (2) or (4) [phase disclosure statements] ,

section 15.2 (2) or (4) [consolidated disclosure statements] ,

section 16  [non-compliant disclosure statements] ,

section 18  [handling deposits] ,

section 19  [developer use of deposit] ,

section 20.3 [requirements respecting assignments] ,

section 20.4 (1) or (3) [filing information respecting assignments] ,

section 21 (5)  [rights of rescission] , or

section 25 (3)  [investigations] ;

(b) neglects or refuses to comply with an order of the superintendent under this Act;

(c) subject to subsection (2), makes a statement in a disclosure statement filed or provided under this Act that, at the time and in the light of the circumstances under which the statement is made, contains a misrepresentation;

(d) subject to subsection (2), makes a statement in a record filed, submitted, provided or delivered under this Act, other than a disclosure statement, that, at the time and in the light of the circumstances under which the statement is made, contains a false or misleading statement.

(2) A person does not commit an offence under subsection (1) (c) or (d) if, at the time of the statement, the person

(a) did not know that the statement contained a misrepresentation or was false or misleading, and

(b) in the exercise of reasonable diligence, could not have known that the statement contained a misrepresentation or was false or misleading.

(3) If a developer commits an offence under this Act, an officer, director, controlling shareholder or partner of the developer who authorizes, permits or acquiesces in the offence commits the same offence whether or not the developer is convicted of the offence.

(4) Section 5  [offence to contravene any enactment] of the Offence Act does not apply to this Act or to the regulations.

40   A person who commits an offence under section 39  [offences] is liable,

(a) in the case of a corporation,

(i) on a first conviction, to a fine of not more than $1.25 million, and

(ii) on each subsequent conviction, to a fine of not more than $2.5 million, and,

(b) in the case of an individual,

(i) on a first conviction, to a fine of not more than $1.25 million or to imprisonment for not more than 2 years, or to both, and

(ii) on each subsequent conviction, to a fine of not more than $2.5 million or to imprisonment for not more than 2 years, or to both.

Limitation period

41   (1) The time limit for laying an information for an offence under this Act is

(a) 2 years after the date that the facts on which the information is based arose, or

(b) if the superintendent issues a certificate described in subsection (2), 2 years after the date that the facts on which the information is based first came to the knowledge of the superintendent.

(2) A record purporting to have been issued by the superintendent, certifying the date on which the facts on which the information is based first came to the knowledge of the superintendent,

(a) is admissible without proof of the signature or official position of the person appearing to have signed the certificate, and

(b) is proof of the certified matters.

Remedies preserved

42   A proceeding, conviction or penalty for an offence under this Act does not relieve a person from any other liability.

Part 4 — General

Substituted service

43   (1) In relation to any requirement or authorization established under this Act that a notice or another record be served on a person, that service may be done by substituted service in accordance with an order under subsection (2).

(2) On application, the Supreme Court may order that a record referred to in subsection (1) may be served by substituted service in accordance with the order.

Delegation by superintendent

44   (1) The superintendent may, in writing, delegate any of the superintendent's powers or duties under this Act.

(2) The superintendent may impose conditions or restrictions on any delegation made under subsection (1).

Personal liability protection

45   (1) In this section, "protected individual" means an individual who is any of the following:

(a) the superintendent;

(b) an individual acting on behalf of or under the direction of the Authority or the superintendent.

(2) Subject to subsection (3), no legal proceeding for damages lies or may be commenced or maintained against a protected individual because of anything done or omitted

(a) in the exercise or intended exercise of any power under this Act, or

(b) in the performance or intended performance of any duty under this Act.

(3) Subsection (2) does not apply to a protected individual in relation to anything done or omitted in bad faith.

(4) Subsection (2) does not absolve the Authority from vicarious liability arising out of anything done or omitted by a protected individual for which the Authority would be vicariously liable if this section were not in force.

Regulations

46   (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act .

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:

(a) exempting from all or part of a provision of Part 2  [Marketing and Holding Deposits]  or 2.1 [Assignment Reporting Requirements] , with or without conditions,

(i) a class of persons,

(ii) a class of land that is, or will be, the subject of development, or

(iii) a class of transactions;

(a.1) excluding a person or a class of persons from the definition of "developer" in section 1;

(b) prescribing periods of time for the purpose of section 8 (6)  [shared interests in land in B.C.] ;

(c) respecting criteria to be considered under section 8 (6) (a) (ii);

(d) respecting the execution of disclosure statements;

(e) respecting periods of time for which a developer must retain a written statement under section 15  [providing disclosure statements to purchasers] ;

(f) defining matters as material facts and specifying whether or not new disclosure statements must be filed in respect of them if section 16  [non-compliant disclosure statements] applies;

(g) prescribing persons who may hold a deposit in trust under this Act;

(h) respecting the release of deposits for the purpose of section 18 (2) (i)  [handling deposits] ;

(i) respecting the time and manner in which notice under section 19 (2)  [developer use of deposit] must be given;

(i.1) prescribing the form of the terms and notice referred to in section 20.3 (1) [requirements respecting assignments] ;

(i.2) respecting the information and records that must be collected under section 20.3 (2);

(i.3) respecting the keeping of assignment agreements for the purposes of section 20.3 (3);

(i.4) for the purposes of section 20.4 (1) [filing information respecting assignments] ,

(i) requiring filing on a prescribed date or within a prescribed period, whether according to a schedule or with reference to the occurrence of a prescribed event, and

(ii) authorizing another person to accept filing on the administrator's behalf;

(j) respecting service of a notice of rescission under section 21  [rights of rescission] ;

(k) prescribing the types and amounts of expenses that can be recovered for the purposes of sections 31 (2)  [recovery of enforcement expenses] and 36 (2) [undertakings] ;

(l) respecting fees and the calculation of fees, including requiring different fees based on the number of development units within a development property, for

(i) filing a disclosure statement,

(ii) requesting an exemption under section 20  [superintendent's exemptions] ,

(iii) providing copies of disclosure statements,

(iv) providing copies of orders under section 33 (b)  [publication of orders] ,

(v) retrieving files held by the superintendent, and

(vi) other things necessary to the administration of this Act;

(m) respecting the collection and payment of a fee prescribed under paragraph (l) and penalties for non-payment of fees;

(n) respecting the publication of matters as required by this Act;

(o) defining a word or expression used but not defined in this Act;

(p) for any other matter for which regulations are contemplated by this Act.

Transitional

47   (1) A prospectus or disclosure statement that was accepted for filing by the superintendent under the Real Estate Act before the repeal of that Act is deemed to be a disclosure statement filed under this Act.

(2) Despite the repeal of section 78  [rescission] of the Real Estate Act , that section, as it read before its repeal, continues to apply to a person described in that section if a right of rescission accrued to the person under the Real Estate Act before the repeal of section 78 of that Act.

(3) [Repealed 2004-41-61.]

(4) The Lieutenant Governor in Council may make regulations for meeting or removing any difficulty arising out of the transition to this Act from the Real Estate Act , and for that purpose disapplying or varying any provision of this Act.

(5) The authority to make or amend a regulation under subsection (4), but not the authority to repeal a regulation under subsection (4), ends 3 years after the date on which subsection (4) comes into force.

Transition — definitions

47.1   In sections 47.2 to 47.4:

"administrator" has the same meaning as in section 20.1 [definitions] ;

"assignment" has the same meaning as in section 20.1;

"assignment agreement" means an assignment agreement referred to in section 20.3 (3) (a) [requirements respecting assignments ];

"assignment information and records" means the information and records described in section 20.3 (2);

"pre-existing purchase agreement" means a purchase agreement entered into before the date section 20.3 comes into force.

Transition — duties if assignment of pre-existing purchase agreement

47.2   (1) If a pre-existing purchase agreement provides that an assignment of the purchase agreement requires the consent of the developer, the developer may consent to the assignment only if that developer first makes a reasonable effort to collect, from each proposed party to the assignment agreement, assignment information and records.

(2) If a developer consents to an assignment of a pre-existing purchase agreement, the developer must comply with section 20.3 (3).

(3) If a pre-existing purchase agreement provides that an assignment of that purchase agreement does not require the consent of the developer, or is silent with respect to obtaining the consent of the developer, but the developer receives notice of an assignment, the developer must make a reasonable effort to

(a) collect, from each party to the assignment agreement, assignment information and records, and

(b) collect a copy of the assignment agreement and keep it in accordance with section 20.3 (3) (b).

(4) Part 2.1 [Assignment Reporting Requirements] applies to assignment information and records and an assignment agreement collected under this section as if they were collected under section 20.3 (2) and (3) [requirements respecting assignments] .

Transition — if no information or records collected

47.3   (1) If a developer does not collect assignment information and records in accordance with section 47.2 [transition — duties if assignment of pre-existing purchase agreement] , the developer must file a statement with the administrator and the statement

(a) must indicate that no assignment information or records were collected under section 47.2 (1) or (3) (a), and

(b) must be filed in the form and manner required by the administrator and as required by the regulations.

(2) Part 2.1 [Assignment Reporting Requirements] applies to a statement filed under this section as if it were a statement filed under section 20.4 (1) (b).

Transition — regulations for transition to Part 2.1

47.4   (1) The Lieutenant Governor in Council may make regulations for meeting or removing any difficulty arising out of the transition to Part 2.1 [Assignment Reporting Requirements] , and for that purpose disapplying or varying any provision of

(a) Division 4 [Disclosure Statements] of Part 2 [Marketing and Holding Deposits] ,

(b) Part 2.1, or

(c) sections 47.2 [transition — duties if assignment of pre-existing purchase agreement] and 47.3 [transition — if no information or records collected] .

(2) The authority to make or amend a regulation under this section, but not the authority to repeal a regulation under this section, ends 3 years after the date on which this section comes into force.

Consequential Amendments

[Note: See Table of Legislative Changes for the status of sections 48 to 61.]

Related Amendments

Commencement

62   The provisions of this Act referred to in column 1 of the following table come into force as set out in column 2 of the table:

Copyright © King's Printer, Victoria, British Columbia, Canada

Real Estate Notice of Assignment of Contract for Deed

Notice of assignment of contract for deed.

[Month, Day, Year]

[Name of Current Contract Holder]

[2345 Address of Current Contract Holder]

[Big City, Any State, 000]

Re: Notice of Assignment of Contract for Deed

Dear [Name of Current Contract Holder],

We hope this letter finds you well. This correspondence serves as official notification of the assignment of the Contract for Deed (hereinafter referred to as the "Contract") pertaining to the property located at [789 Property Address] (hereinafter referred to as the "Property").

As of [Month, Day, Year], [Your Company Name], henceforth referred to as the "Assignee," has acquired all rights, title, and interest in and to the Contract previously held by [Name of Previous Contract Holder], the "Assignor."

The essential terms of the Contract remain unchanged, including but not limited to:

Please be advised that all future communications, payments, or inquiries regarding the Contract should be directed to the Assignee at the following contact information:

[Your Company Name]

[Your Company Address]

[Your Company Number]

[Your Company Email]

[Your Company Website]

Should you have any questions or concerns regarding this assignment, please do not hesitate to contact us at the provided information.

Thank you for your attention to this matter.

[Real Estate Agent]

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