Published by the B.C. Real Property & Planning Group
McCarthy Tétrault VOL.3,
Real Estate MATTERS

Welcome to Volume 3, Issue 1 of Real Estate MATTERS, a periodic publication of our B.C. Real Property & Planning Group. This publication is intended to give you a summary of recent developments in real estate law in British Columbia and, more importantly, what they mean to you.

We hope you will find Real Estate MATTERS informative and useful. Please let us know if you have any suggestions to make this publication even more helpful, or if there are topics or issues you would like to see covered in future issues.

Scott Smythe and Russ Benson (Editors)

The Importance of Amending the Certificate of Limited Partnership When Capital Contributions Change
It is common for developers to undertake real estate developments using limited partnerships formed specifically for that purpose. They generally do so in order to provide limited partners with limited liability, to allow for the pass through of profits and losses directly to limited partners and to facilitate raising capital from investors and financing from lenders. In British Columbia, limited partnerships are formed upon the filing of a certificate of limited partnership with the Registrar of Companies. The certificate must contain certain information prescribed by the Partnership Act (British Columbia) and third parties are entitled to rely on the information set out in the certificate.

Construction Completion Dates: There and Back Again
Many pre-sale cases decided by British Columbia courts under the Real Estate Development Marketing Act (REDMA) have emphasized that the REDMA is consumer protection legislation and have held developers to a standard of near perfection in respect of their disclosure obligations, regardless of whether a technical deficiency in the disclosure had any meaningful effect upon the purchasers. A number of more recent cases, however, have recognized that, although the REDMA is consumer protection legislation, a measure of common sense should be employed in determining whether a technical deficiency should render a purchase contract unenforceable. One of those cases is the British Columbia Supreme Court (BCSC) decision in 299 Burrard Residential Limited Partnership v. Essalat (299 Burrard). Another is Bosa Properties Inc. v. Ban, discussed below, where the BCSC held that a completion date that occurred earlier than what was contemplated in the developer’s disclosure statement did not negate the purchasers’ contractual obligations. Unfortunately, the trend suggested by these two cases has come to a grinding halt with the British Columbia Court of Appeal’s reversal of the decision in 299 Burrard.

The Supreme Court of Canada Applies "Central Management and Control Test" in Determining Residency of a Trust
A recent decision of the Supreme Court of Canada may have significant tax implications for real estate ownership structures that involve a trust and that were implemented on the assumption that the trust is resident in a jurisdiction outside of Canada, or in a particular province within Canada, due to the trustee being resident in such jurisdiction or province.