PLTC Practice Material - Law Society of British Columbia

CAUTION

The Professional Legal Training Course (PLTC) provides the Practice Material to users as an aid to developing entry-level competence, with the understanding that neither the contributors nor PLTC are providing legal or other professional advice.

Practice Material users must exercise their professional judgment about the accuracy, utility and applicability of the material. In addition, the users must refer to the relevant legislation, case law, administrative guidelines, rules, and other primary sources.

Forms and precedents are provided throughout the Practice Material. The users also must consider carefully their applicability to the client's circumstances and their consistency with the client's instructions.

The Law Society of British Columbia and PLTC can accept no responsibility for any errors or omissions in the Practice Material and expressly disclaim such responsibility.

Professional Legal Training Course 2023

Practice Material

Real Estate

Recent Contributors: Dick Chan Jessica H. Chung Tyler Galbraith Tony Magre Robert Spagnuolo Greg Umbach Edward L. Wilson The Land Title and Survey Authority of BC

Practice Material Editors: Susan MacFarlane, Katie McConchie

Printed for the May 2023 Session of the Professional Legal Training Course

A requirement for admission to the bar of British Columbia, the Professional Legal Training Course is supported by grants from the Law Society of British Columbia and the Law Foundation of British Columbia. ? 2023 The Law Society of British Columbia. See lawsociety.bc.ca >Terms of use.

REAL ESTATE

CONTENTS

LAND OWNERSHIP, RIGHTS AND INTERESTS

[?1.01] Introduction to These Materials

1

[?1.02] Statutes Governing Land Ownership in British Columbia

1

1. Land Title Act

1

2. Land Act

2

3. Strata Property Act

2

4. Land Owner Transparency Act

4

[?1.03] Other Statutes and Rules Relevant to Ownership

4

1. Property Law Act

4

2. Family Law Act

4

3. Fraudulent Conveyance Act, Fraudulent Preference Act, and the BC Code

5

[?1.04] Indigenous Land Claims and Interests in Reserve Lands

5

1. Background to Indigenous Land Claims

6

2. Indian Act and Indian Land Registry

7

3. Framework Agreement on First Nation Land Management Act

8

4. Self-Governing Band-Adopted Registry System

9

5. Fee Simple by Treaty

9

[?1.05] Further Reading

10

1. Practice Manuals

10

2. Texts

10

CONVEYANCING PRACTICE

[?2.01] Role of the Lawyer

11

1. Buyer's Lawyer

11

2. Seller's Lawyer

12

[?2.02] Role of Non-lawyers

12

[?2.03] Receiving Instructions From the Buyer

13

[?2.04] Conflict of Interest

13

APPENDICES--NOT AVAILABLE IN ONLINE VERSION

Appendix 1 ? Sample Conflict Letter (Buyer)

15

Appendix 2 ? Sample Conflict Letter (Lender)

16

PURCHASE AGREEMENTS

[?3.01] The Purchase Contract

17

1. Nature and Origin of the Purchase Contract

17

2. Initial Review of the Purchase Contract

17

Real Estate

(ii)

[?3.02] Is the Purchase Contract Binding?

18

1. Offer and Acceptance

18

2. Amendments

18

3. Certainty on Essential Terms

19

[?3.03] The Main Elements of the Contract of Purchase and Sale

23

1. Description of Parties

23

2. Description of Property

24

3. Price

24

4. Deposit

24

5. Completion Date

25

6. Possession Date

25

7. Adjustment Date

25

8. Included Items and Viewed

26

9. Title Free and Clear

26

10. Closing Procedure

27

11. Completion

28

12. Costs

29

13. Risk

30

14. Representations and Warranties

30

15. Personal Information

30

16. Restriction on Assignment of Contract

30

17. Agency Disclosure

31

18. Real Estate Commission

31

19. Information Page

31

[?3.04] Property Disclosure Statement

31

APPENDIX--NOT AVAILABLE IN ONLINE VERSION

Appendix 3 ? Contract of Purchase and Sale

33

SEARCHES

[?4.01] Searching for Titles, Documents and Plans From the Land Title Office

41

1. Obtaining the Legal Description

41

2. Searching the Title

41

3. Obtaining Particulars of Charges (If Requested)

42

4. Obtaining Plans

42

5. Land Title Office Search Checklist

42

[?4.02] Index Searches

43

[?4.03] Strata Title Searches

44

[?4.04] Real Property Taxes

44

[?4.05] Corporate Searches

44

[?4.06] Encumbrances

45

1. Easements

45

2. Statutory Rights of Way and Statutory Covenants

45

3. Certificate of Pending Litigation

45

4. Caveat

45

Real Estate

(iii)

[?4.07] Investigating Title

46

1. Aboriginal Title

46

2. Builders Lien Act

46

3. Environmental Management Act

46

4. Mineral Tenure Act

47

5. Family Law Act

48

6. Heritage Conservation Act

48

7. Land Act

48

8. Land (Spouse Protection) Act

48

9. Land Title Act

49

10. Land Owner Transparency Act

49

11. Land Transfer Form Act

49

12. Personal Property Security Act

49

13. Power of Attorney Act

50

14. Property Law Act

50

15. Resort Municipality of Whistler Act

50

16. Miscellaneous Other Statutes

51

[?4.08] Site Registry

53

[?4.09] Transactions Involving Indigenous Peoples' Lands

53

APPENDICES--NOT AVAILABLE IN ONLINE VERSION

Appendix 4 ? Easement

55

Appendix 5 ? Statutory Right of Way

56

Appendix 6 ? Restrictive Covenants

58

STEPS AND DOCUMENTS IN A CONVEYANCE

[?5.01] Duties of the Buyer's Lawyer

59

[?5.02] Steps in a Residential Conveyance

59

1. Initial Contact

59

2. Client Interview

59

3. Title Search

60

4. Follow-Up From Interview and Title Search

61

5. Document Preparation

61

6. Matters Before Closing

62

7. Registration

62

8. Closing Procedures

62

9. Land Title Office Electronic Filing

63

10. Post-Closing Procedures

66

[?5.03] Witnessing and Executing Documents

66

[?5.04] Form A Freehold Transfer

66

[?5.05] Property Transfer Tax Return

67

1. Property Transfer Tax

67

2. Additional Property Transfer Tax

67

3. Payment of the Tax

68

4. Completing and Filing the Property Transfer Tax Return

68

Real Estate

(iv)

[?5.06] Land Owner Transparency Registry Filings

68

[?5.07] Form C General Instrument

69

[?5.08] Survey Certificate

69

[?5.09] Goods and Services Tax

69

1. What Is Taxable

69

2. Representations and Warranties

70

3. Who Collects the Tax

70

4. GST Certificates

71

5. Rebates

71

[?5.10] In/Out Analysis

72

[?5.11] Holdbacks for Non-Resident Sellers

72

[?5.12] Loss Prevention Summary

73

1. Client Instructions

73

2. Implementation

73

3. Completion

74

4. Specific Deficiencies

74

[?5.13] Statements of Adjustments

74

[?5.14] Methodology for Statements of Adjustments

75

1. Determine Who Paid and Who Owes

75

2. Calculation

75

3. Payout Statements

75

4. Specific Adjustments

76

[?5.15] Notes to Statements of Adjustments

79

[?5.16] Initial/Interim Report to Client

81

1. Receiving Instructions

81

2. Title Opinion

81

3. Parameters of Instructions

81

4. Conflicts

82

5. Fees

82

6. Conclusion

82

[?5.17] Interim Report Letter Checklist

82

[?5.18] Insurance

83

[?5.19] Undertakings

84

1. Giving Undertakings

84

2. What Is an Undertaking?

84

3. Deemed Undertakings

86

4. Basic Practical Rules for Undertakings

86

5. Undertakings in Real Estate Transactions

86

APPENDICES--NOT AVAILABLE IN ONLINE VERSION

Appendix 7 ? Canadian Bar Association (BC Branch) Real Property Section

Standard Undertakings

88

Appendix 8 ? Canadian Bar Association (BC Branch) -- What Constitutes Diligent

and Commercially Reasonable Efforts

94

Appendix 9 ? Sample Survey Certificate

95

Real Estate

 ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download