Real Estate Law

>>>>Real Estate Law
Real Estate Law2018-11-22T22:56:26+00:00

Huckvale LLP maintains a full-service practice representing clients who participate in every facet of the real estate business, including developers, investors, lenders, banks, retailers, property managers, and brokers. Our transactional experience has involved every kind of property, including office buildings, hotels, shopping centers, industrial properties, and residential developments.

The real estate group draws upon a great depth of practical experience in handling client matters and is committed to providing timely and careful service to its clients.

Whether you are a commercial developer, or buying your first home, we can provide you the assistance you need. Our firm’s real estate practice includes a broad range of advisory and transactional services, including:

Development

  • Office, hotel, multi-family housing, and warehouse building acquisitions and dispositions
  • Joint ventures
  • Hotel management agreements
  • Condominiums and cooperatives
  • Like-kind exchanges
  • Environmental concerns in real estate transactions
  • Construction contracts

Leasing

  • General commercial, office, restaurant, retail and warehouse leasing
  • Residential leases
  • Build-to-suit transactions

Financing

  • Mortgage lending and borrowing
  • Leasing
  • Condominium financing
  • Secured lending
  • strategies for dealing with distressed real estate

Contact our

Real Estate Law Team

Business Law FAQ

Builder’s Lien

The Builders’ Lien Act of Alberta provides protection to contractors and tradesman who supply labour and materials to a property but have had difficulty in collecting payment for their services. If a valid lien is registered at the Land Titles Office, and a court action is commenced, then the court may then order the sale of the land or the sale of materials furnished on the land with the proceeds of the sale to be used to satisfy the lien.

The Act states that anything constructed, erected, built, placed, dug or drilled, unless it was not affixed to the land or intended to become affixed to the land, can qualify for a lien against the property.

Contractors, sub-contractors, material providers, labourers, individuals renting equipment used on the property, and architects may qualify for a builders’ lien.

The lien’s value is limited to the value of the service provided or the materials furnished. In other words, there can be no builders’ lien for the loss of prospective damages. In addition, the lien only applies to the land on which the improvements are incorporated and attaches to any interest that the person who procured the work may have in the land.

A lien arises when the work is begun, the services are first rendered or the material is first furnished to the property.

A builders’ lien usually must be registered within 45 days from when the last work was completed on the land or from when the materials were last furnished for the work done to the land. If the lien is not registered within 45 days then the lien ceases to exist.

A lien registered at the Land Titles Office expires 180 days after registration unless the lienholder commences a court action to realize the lien and files a certificate of lis pendens with the Land Titles Office in respect of the action.

The owner of property which has had a lien filed against it can serve a written notice on the lienholder wherein if the lienholder does not commence an action or file a certificate of lis pendens relating to the lien within 30 days then the lien ceases to exist.

Commercial Lease

  • Fewer consumer protection laws. Commercial leases are not subject to most consumer protection laws that govern residential leases — for example, there are no caps on security deposits or rules protecting a tenant’s privacy.
  • No standard forms. Many commercial leases are not based on a standard form or agreement; each commercial lease is customized to the landlord’s needs. As a result, you need to carefully examine every commercial lease agreement offered to you.
  • Long-term and binding. You cannot easily break or change a commercial lease. It is a legally binding contract, and a good deal of money is usually at stake.
  • Negotiability and flexibility. Commercial leases are generally subject to much more negotiation between the business owners and the landlord, since businesses often need special features in their spaces, and landlords are often eager for tenants and willing to extend special offers.

Before you sign a lease agreement, you should carefully investigate its terms to make sure the lease meets your business’s needs.

First, consider the amount of rent and the length of the lease. You probably do not want to tie yourself to a five- or ten-year lease if you can help it; your business may grow faster than you expect or the location might not work out for you. A short-term lease with renewal options is usually safer but may cost more as well.

Also think about the physical space. If your business requires modifications to the existing space — for example, adding cubicles, raising a loading dock, or rewiring for better communications — make sure that you (or the landlord) will be able to make the necessary changes.

Other, less conspicuous items spelled out in the lease may be just as crucial to your business’s success. For instance, if you expect your shoe repair business to depend largely on walk-in customers, be sure that your lease gives you the right to put up a sign that’s visible from the street. If you are counting on being the only sandwich shop inside a new commercial complex, make sure your lease prevents the landlord from leasing space to a competitor.

– the length or term of the lease
– renewal options
– rent, including allowable method of determining rent increases
– whether the rent charged will include insurance, property taxes and maintenance costs or whether you will be charged for these items separately
– the security deposit and conditions for its return
– exactly what space you are renting (including common areas such as hallways, rest rooms and elevators) and how the landlord measures the space (some measurement practices include the thickness of the walls)
– whether there will be improvements, modifications or fixtures added to the space, and who will pay for them and who will own them after the lease ends
– specifications for signs, including where you may put them
– who will maintain and repair the premises, including the heating and air conditioning systems
– whether the lease may be assigned or subleased to another party
– if and how the lease may be terminated, including notice requirements, and whether there are penalties for early termination, and
– whether disputes must be mediated or arbitrated as an alternative to court.

Tenants may wish to have a lawyer review the lease to protect the tenant’s interest and business. Commercial leases usually favour the landlord and therefore the tenant may need to have their rights and responsibilities clearly explained to them.

Landlords may have a number of leases which need to be kept track of and maintained on an ongoing basis. A lawyer is able to track all of the commercial leases and make sure they are taken care of effectively and promptly. Furthermore, the landlord is allowing someone else to occupy their property and a well drafted commercial lease can be useful when a commercial tenant needs to be evicted, rent needs to be increased, or damages for breach of the lease need to be pursued against the tenant.

Residential Real Estate

You should understand that an offer to purchase is a contract. Once you have signed it you are bound by the terms. It is a good idea to consult a lawyer before you sign the contract and not after.

You should be sure to obtain as much information about the property you want to buy before you sign any offers to purchase. You should be sure to get the following information:

– check the amount of the yearly property taxes and if there are any tax arrears
– check any restrictions on the title to the property
– consider having a building inspector look over the property for structural problems and prepare a written report for you
– check with your banker and make sure that you will be eligible for the amount of mortgage financing you will need

In Alberta, most offers to purchase are contained in a standard form prepared by the local real estate board. At a minimum, these forms will cover the following information:

– the parties, that is the names of the vendor (seller) and purchaser (buyer)
– the legal and municipal title of the property
– the purchase price, including the deposit and information about whether an existing mortgage on the property will be taken over by the purchaser or whether the purchaser will obtain a new mortgage, the payment of the outstanding balance between the deposit, the mortgage funding and the total price
– interest on any outstanding balances
– conditions (subject to’s), such as the right to have the agreement looked at by the parties’ lawyers, obtaining financing, satisfactory building inspection, etc.
– any items that are to be included in the purchase price such as drapes, appliances, rugs, mirrors and so on
– any information about the state of repair of the property or warranties about land use, and bylaws or, as the case may be, a statement that no warranties about the property are made.
– time requirements, such as the amount of time the vendor will have to accept the offer; for the transfer of actual possession; and the date for adjustments to such things as the municipal tax account
– insurance requirements; who is responsible for insuring the property, for what time periods and for how much
– information about how to deal with default if one of the parties tries to back out of the deal
– payment of the real estate commission
– payment of GST and other taxes
– places for the signatures of the vendor and purchaser, their witnesses and the real estate agent

Yes, you may make your offer to purchase conditional on many things. Some of the most common conditions are obtaining a favourable building inspection report; obtaining suitable financing from your bank, obtaining your lawyer’s approval of the terms in the offer, and selling your present home if you have one.

A Real Property Report is a legal document created by a land surveyor that illustrates in detail the location of all relevant, visible public and private improvements relative to property boundaries. It generally takes the form of a plan or illustration of the various physical features of the property including a written statement detailing the surveyor’s opinions or concerns. The buyer, the seller, the lender and the municipality can rely on the Real Property Report as an accurate representation of the improvements on your property. A Real Property Report can be submitted to the municipality before a property is purchased for confirmation that the property conforms to municipal by-laws. As such, a Certificate of Compliance from the municipality stating that the property as illustrated in the Real Property Report should be a condition of any offer to purchase.

A lawyer protects your interests as you purchase a home. For example, your lawyer will order a copy of the title to the property and check it for restrictions on the title, such as easements, restrictive covenants, encumbrances, mortgages, builder’s liens, and other items. Any one of these things on the title to your property could have very serious consequences for your future use and enjoyment of the property.

Most joint owners in Alberta choose to register the title to their homes as “Joint Tenants”. Joint Tenants own the whole property together. If one Joint Tenant dies the other automatically inherits the whole property. One Joint Tenant cannot leave the property to anyone else in a will.

Another less common way of holding title to land when there is more than one person is by “Tenants in Common”. Each Tenant in Common separately owns an equal interest in the property with equal rights to occupy the whole of the land. A Tenant in Common can dispose of his or her own interest in the land by selling it or leaving it to someone in a will.

Of course, it is always possible to register title to your home in your name alone or in the name of your spouse. While you may have good reasons for doing this, it should be thoroughly discussed with your spouse and your lawyer before you take this route.

If the home is your matrimonial home, the spouse who is not named on title will still have “dower rights” – which is a right under the Dower Act to prevent sale of the home without that spouse’s consent or a Court order.

It is always possible to register title to your home in your name alone or in the name of you and your spouse. While you may have good reasons for doing this, it should be thoroughly discussed with your spouse and your lawyer before you take this route.

The effect of that decision can affect rights on death of an owner, and can also effect rights upon divorce – the details of which should be discussed prior to registering title to your home.

If the home is your matrimonial home, the spouse who is not named on title will still have something called “dower rights”. Dower rights arise out of an Alberta provincial statute called the Dower Act. The purpose of dower rights is to prevent a spouse from selling the matrimonial home (or homestead in the case of a farming couple) without the consent of the spouse. Dower rights only arise if there is a spouse. When a married person disposes of a homestead, the Dower Act requires the consent of the spouse in writing or else the vendor must state on the transfer of land document that he or she is not married or that the spouses have not lived on the land since the date of the marriage. If a spouse wants to consent to the sale of the property, he or she must sign an acknowledgment to that effect before a Commissioner for Oaths (or Notary Public if sworn outside of Alberta) and must be given legal advice about dower rights separate and apart from the other spouse.

When a bank or mortgage company lends you the money to buy your home and you in turn sign documents which are registered on the title to your home promising to repay them this document is registered at the Land Titles Office. You, the owner of the land, are called the “mortgagor” and the lender is called the “mortgagee”. If you default (i.e. do not pay) on your mortgage the home may be repossessed to repay the loan.