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
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