SOLICITOR – REAL ESTATE TIMELINES
AGREEMENT OF PURCHASE AND SALE (APS)
Deposits
Deposit Received by Broker
Section 17 of O. Reg. 567/05, made under the Real
Estate and Business Brokers Act, 2002 – Broker
must place deposit in its trust account within 5
banking days of receipt.
LAND REGISTRATION IN ONTARIO
Lawyer Acting Jointly for Borrower AND Lender
Final Report to lender (to
A lawyer acting for a borrower and lender must make
mitigate risk of fraudulent
full disclosure of material information to the lender
transactions)
and borrower and to provide final reports to lenders
within 60 days of the registration of a mortgage.
Title Search Period &
Commencement Date
Root of Title
Notice period – expiration of
claims
Unregistered hydro (electricity)
easement
Waste Disposal Search
TITLE SEARCHES
Registry System Title Search
Various sections of the Registry Act – With a few
exceptions, the conveyancer needs to search title for
the last 40 years (title search period).
The search will commence on the date that is 40
years prior to the date of the APS (commencement
date).
The conveyancer looks for the first conveyance of the
freehold estate registered after the commencement
date. This deed becomes the “root of title” and will
serve as the starting point for preparing the chain of
title.
If there is no conveyance of the freehold estate
registered after the commencement date, the
conveyancer must go back further in time to the first
conveyance registered before the commencement
date, and that deed becomes the root of title.
Any rights arising from a registered instrument expire
40 years from the date of registration UNLESS the
claimant registers a notice of claim in the prescribed
form.
LETTER ENQUIRY SEARCHES
Urban Properties
Electricity Act, 1998, s 46(3) – Within 21 days after
receiving a request, the utility company must inform
whether such an unregistered right affects the land
(and if so, the term & extent of such right).
EPA, s 46 – no land shall be used within 25 years
from the use of that land for disposal of waste,
UNLESS Minister of Env & Climate Change
approves.
614(R)
642(L)
R 3.4 - 3.15
and 3.2-9.8
644(L)
644(L)
644(R)
653(L)
653(R)
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Local Roads Board – forfeiture
of land
Unorganized Territories
The Min. of Natural Resources & Forestry can
declare a property owner’s land forfeited if (1) local
road board’s annual levy (land tax) remains unpaid
for 2 years or more (2) AND remains unpaid for 12
months after the mailing of a notice (3) AND the
Secretary Treasurer of the Local Road Board certifies
as to those 2 things.
SUBDIVISION CONTROL
Registered Plan of Subdivision (RPS)
Planning Act, s 50 (4) – A municipality may deem a
plan of subdivision that has been registered for 8
Deregistering RPS (s. 50(4))
years or more not to be an RPS.
Note: the plan remains a “plan of subdivision” for all
purposes but one: it is now regulated by 50(3), not
50(5).
The prohibited transactions (s
The following transactions are prohibited in the
50(3))
opening words of s. 50(3):
entering into any agreement that has the effect of
granting the use of or right in land, either directly or
by entitlement to renewal, for a period of 21 years or
more. For example, this would include
–granting a right-of-way or easement over land in
perpetuity;
–granting a lease with a term of 21 years or more;
–granting a 15-year lease with an option to renew for
six or more years; or
–granting an option to purchase.
With the coming into force of Bill 276, there are now
10 exceptions in s. 50(3) to which the basic
prohibitions do not apply.
Exceptions to 50(3)
Land conveyed is “described in The possibility of subdivisions of land within an RPS
accordance with and. Is within a are dealt with s.50(5) of the Act.
registered plan of subdivision”
(s.50(3)(a))
See pages 668-669 for rules around RPS land.
No Abutting Lands
If the owner does not own land abutting the land
being conveyed, they are allowed to carry out the
transaction.
662(L)
665(L)
665(LR)
665(R)
665(R)
Additionally, if the abutting land is part of an RPS
they can also carry out the transaction.
666(L)
If abutting lands are owned by joint tenants A and B,
and B dies, A is still able to convey each property
separately.
667(R)
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Transactions Involving
Government (s 50(3)(b.1))
Government Consent Exception
(Lapse Date) (s. 50(3)(f))
Clause 50(3)(b.1) creates an exception to the general
prohibition for leases of abutting land having terms
between 21 and 99 years where the land will contain
affordable housing units.
Pursuant to s 53(43), a consent lapses on the expiry
of 2 years following the date on which the certificate
of decision of consent was given if the transaction
approved for consent has not been carried out.
667(R)
667(L)
Note: The body granting consent may also shorten
the lapse date or grant its consent subject to
conditions that must be satisfied before the consent
takes effect.
Creating New Exceptions
(leases on part of a building) (s
50(9))
Failure to satisfy the conditions within one year
renders the consent void under s. 53(41).
With the coming into force of Bill 276 (January 1,
2002), the period within which to fulfill the condition
has been increased to 2 years under s. 53(41).
Subsection 50(9) – leases of part of a building: The s.
50(3) prohibits all leases of real property exceeding
21 years, BUT a lease such as a 25-year lease of
one floor of a 20-storey office building wasn’t
intended to be caught by this prohibition.
669(LR)
Thus, this exception allows leases for any period of
years where only “part of a building or structure” is
being leased.
Note: lease of outdoor surface rights for more than 21
years (i.e., parking lots, patios) is not included in this
exception and is, therefore, currently prohibited.
Searches of abutting lands for
no prior contravention of s.
50(3) or (5) – “starting date”,
from which the abutting-land
search must begin.
Note 2: With the coming into force of Bill 276, s. 50(9)
was amended to include ancillary uses of land, such
as outdoor spaces, that may be included with the
lease of a part of a building, which is a logical
implication of this exception.
How far back in time must searches of abutting lands
for violations of ss. 50(3) and (5) be made varies
based on various circumstances. Many
circumstances explained over several pages.
671(L)673(L)
June 15, 1967 is the “default start date”. Unless an
event occurred or legislation was passed after June
15, 1967 that had the effect of changing the default
date to a later period (that is shortening the abuttingland search period), the abutting-land search must
begin at June 15, 1967.
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REQUISITIONS
Deadline to Submit Requisitions (into “the hands” of the seller)
Vendors and Purchasers Act, s 4(b) – 30 days after
Title Requisitions
acceptance, unless agreement says otherwise. Note:
the deadline for submitting root of title requisitions is
anytime up to completion of the transaction.
These requisitions may be submitted up to
Conveyancing Requisitions
completion of the transaction.
Anytime up to the completion of the transaction,
Contract Requisitions
unless agreement says otherwise.
Declaration of Possession (for
property in the Registry System
or property that is Land Titles
Conversion Qualified)
See 682(L) for OREA agreement provisions
regarding dates for requisition, searches, and
entitlements to title documents
Solutions
A Declaration of Possession can be used to
guarantee that there have been no claims of
possessory rights which may lead to a finding of
adverse possession or prescriptive rights. The length
of declaration of possession must refer to a period of
10 consecutive years to obtain the protection of the
Real Property Limitations Act.
Note: It is possible to join together successive
periods of ownership from previous owners to the
period of ownership of the current owners.
681(L)-(R)
681(L)-(R)
682(L)
686(LR)
686(R)
Where no declaration
available/feasible
Expiry of Certificate of Action
for Construction Lien
Real Property Limitations Act
Recitals, statements & descriptions of facts that are
at least 20 years old are deemed to be sufficient
evidence of the truth of such facts, UNLESS there is
contrary evidence. (s. 1 Vendors and Purchasers
Act).
Construction lien expires if certificate of action is not
registered on title within
� if CA, within 150 days of trigger
� if CLA, within 90 days of trigger
Note: Trigger info for CLA and CA at 903(L)-904(R).
Real Property Limitations Act, s 25 – A dower interest
ceases to exist after 10 years.
686(R)
687(L)
An action on a covenant in a mortgage expires on the
LATER OF 10 years after a) the cause of action
arose OR b) the date upon which the person liable on
the covenant transferred the person’s interest.
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Mortgagor must pay the
balance due
ENFORCEMENT OF MORTGAGE SECURITY
Judicial Sale
60 days after taking of accounts.
725(R)
Foreclosure
60 days after taking of accounts.
725(R)
Power of Sale – General
35-45 days after the issuance of a notice of sale
725(R)
Mortgagor must pay the
balance due
Mortgagor must pay the
balance due
Where mortgagor is a farmer –
notice of enforcement – farm
property
Where mortgagor is insolvent
under the BIA – enforcing
security on inventory (etc.) used
for business of insolvent person
Notice of Sale
Exercising Contractual POS
Farm Debt Mediation Act, s.21 – Mortgagee must
give 15 business days’ written notice of intent to
realize on security that constitutes the property of a
farmer. The notice should advise the farmer of the
farmer’s right to apply to an administrator for relief
(pursuant to s. 5), which may result in a 30-day stay
of proceedings (pursuant to s. 7(1)(b)).
BIA, s. 244(2)
that enforcement of that security shall not proceed
until 10 days after the notice of intention to enforce
security has been sent, unless the insolvent person
consents to an earlier enforcement of the security.
Secured creditor must give 10 Days’ Notice of their
intent to enforce security
on all or substantially all of the inventory,
accounts receivable, or other property of the
insolvent person
- IF the assets being enforced upon have been
acquired for, or used in relation to, a business
carried on by that insolvent person.
Note: can enforce earlier with consent.
Contractual Power of Sale (POS)
Lender can serve the notice of sale after the default
has been ongoing for at least 15 days.
727(L)
727(L)
727(L)
Note: the recipients of notice and manner of serving
notice are set out in Part III of Mortgages Act, and are
the same for contractual & statutory POS.
727(L) 728(L)
Note: if notice was given by registered mail, notice is
deemed to have been given on the day it was mailed.
731(L)
Exercisable 35 days after notice (these 35 days are
the redemption period).
732(L)
Note: prudent to give at least 37 days b/c the notice
of sale must specify a date for payment more than
the statutory minimum of 35 days.
5
Statutory Power of Sale (POS)
Mortgages Act, s 24 – Mortgagee gets POS (power
to sell and insure)
- after the expiration of 3 (three) months from
the time of default in the payment
Notice of Sale
Lender can serve the notice of sale after the default
has been ongoing for at least 15 days.
Note: the recipients of notice and manner of serving
notice are set out in Part III of Mortgages Act, and are
the same for contractual & statutory POS. Note: if
notice was given by registered mail, notice is deemed
to have been given on the day it was mailed.
Exercisable 45 days after notice (these 45 days are
Exercising Statutory POS
the redemption period).
Rights of Mortgagor upon Receiving Notice of Sale
Request by Mortgagor for
Mortgagee is required to answer such a request
within 15 days after receipt of the request.
Additional Information re:
amount of principal, interest,
and mortgagee expenses
Statutory conferral of POS on
the mortgagee
New standard form lease
Renter request for standard
form lease
RESIDENTIAL RENTAL PROPERTIES
Occupancy & Security of Tenure
On and after April 30, 2018, landlords of most private
residential rental units are required to use a new
standard form of lease for all new tenancies (RTA, s.
12.1).
For leases entered on or after April 30, 2018:
- if a landlord fails to provide a renter with the
new form of standard lease within 21 days
after a renter has made a request in writing,
the renter may (i) withhold a maximum of one
month’s rent, or (ii) give 60 days’ notice to
terminate a yearly or fixed-term tenancy early.
- If the landlord fails to provide the new
standard form of lease within 30 days after
the renter has begun withholding rent, the
renter does not have to repay the one month’s
rent that was withheld.
Notice of Landlord’s legal name
and address for service
(whether or not there is a
written lease)
Landlord must give tenant such notice within 21 days
of commencement of the tenancy.
Copy of written lease &
landlord’s contact information
(for written leases)
Landlord must give tenant a signed copy of the
written lease, including the landlord’s contact
information for the purposes of giving notices and
other documents under the RTA, within 21 days of
the tenant signing & giving the lease to the landlord.
727(R)
727(L)
727(L) 728(L);
731(L)
719(R)
733(R)
763(LR)
763(R)
763(R)
763(R)
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Access to rental unit
Termination by Landlord – nonpayment of rent
Termination by Landlord – other
grounds
Order evicting tenant
Termination by Tenant –
domestic abuse
Termination by Tenant –
remaining tenant after abuse
app
Mobile Homes
Where landlord has an approved reason for entry,
they must give written notice 24 hours before the
time of entry, specifying the reason, day, & time
(must be between 8am-8pm).
Note: landlord has limited rights to enter unit w/o
written notice (e.g. emergency or tenant’s consent at
time of entry).
Termination of Lease
Notice to terminate for non-payment of rent must be
sent 14 days prior to applying to LTB for termination.
Note: application to LTB can’t be made until the day
following the termination date specified in the notice.
Various notice periods.
� demolition or repairs – 120 days.
� demolition or repairs to mobile home – 1 year
� drug-related illegal acts – 10 days.
� subsequent purchaser under APS or landlord’s
personal occupany of premise– 60 days.
Note: unless tenant leaves voluntarily in response to
notice of termination, Landlord must apply to LTB –
the appl. may be commenced immediately upon
service of the notice & must be commenced within 30
days of the termination date specified in the notice.
An exception to the 30-day rule occurs when the
application is based on the tenant’s failure to pay rent
(s. 69(3)).
An order evicting a tenant expires 6 months after the
date on which it takes effect if it is not yet filed with
the sheriff.
28 days’ notice required.
Notice must be accompanied by either a recent
restraining order OR a separate abuse form.
The remaining tenants may jointly terminate the
balance of the tenancy on 60 days’ notice.
Special Properties
If the tenant of a Mobile Home Park leaves behind
their mobile home after the lease is terminated, then
the landlord can sell, dispose of, or keep the former
tenant’s mobile home but the landlord must wait:
- 60 days after both sending the tenant a notice
by registered mail to the tenant’s last known
mailing address AND having the notice
published in a newspaper with general
circulation in the locality where the mobile
home park is located (s. 162(2))
764(LR)
765(L)
765(LR)
765(R)
766(L)
766(L)
766(R)
7
-
Life Leases
BUT the tenant can respond within 6 Months
after the notice & publication,
o In which case the landlord must return
the Mobile Home or the proceeds of
sale,
o BUT the landlord can deduct
reasonable expenses & require tenant
to pay rent arrears
Not governed specifically for this, rather it’s governed
by common law; must rely on the terms of the
contract.
767(L)
Advisable to registered the lease or notice of the
lease on title to the property to protect the tenant
from the sale by the new owner to a third-party
purchaser without notice of the life lease.
Automatic Rent Decrease
Annual Increase
Rent Decreases & Increases
If municipal realty tax declines by more than 2.49% in
a calendar year, the lawful rent is automatically
reduced the following January 1st.
Rent may be increased by the guideline amount once
every 12 months on at least 90 days’ written notice
768(L)
768(L)
Note: the guideline amount is based on the Ontario
CPI, however, regardless of the CPI, the guideline
can never exceed 2.5%. The guideline is fixed every
August for the next calendar year.
Above-Guideline Increase
(agreement b/w landlord &
tenant)
Above-Guideline Increase
(application to LTB)
Tenant can agree to a rent increase of up to 3%
above the guideline (in exchange for landlord
undertaking a capital expenditure or providing a new
service)
Capital expenditure and building security increases
can be capped at the discretion of the LTB at up to
3% above the guideline for up to a maximum of 3
years.
768(R)
768(R)
Note: AGI order does not apply to any tenant who
moves in later than 90 days before the first effective
date under the order (i.e. before app was filed)
8
Registration of Declaration
Rent decreases, abatements,
rebates, or damages
Declaration
By-Laws
Rules
Registering certificate of lien
(re: lien for common expenses)
Notice of lien (re: lien for
common expenses)
Registration of Unit Leases
(priority concerns)
Condominium Conversions
Restrictions on giving notice of termination do not
apply to certain complexes when the condo
declaration is registered within 2 years of the first
rental in the complex.
Tenant Applications to the LTB
In general, the limitation period for a tenant to
commence an application is 1 year after the alleged
infraction or breach. Specifically, rent charged 1 or
more years earlier is deemed to be lawful rent
unless an application to dispute the lawfulness is
made within 1 year after the date that amount of rent
was first charged.
CONDOMINIUMS
Key Condo Docs
Declaration can be amended by a vote of either 80%
or 90% of unit owners (depending on which part is
being amended).Note: Alternatively, declaration can
be amended by SCJ judge on application, and some
errors may be corrected by the Director of Titles.
BoD may make, amend, or repeal by-laws, but to
become effective these changes must be confirmed
by a majority of unit owners (or such other number
as is prescribed).
BoD may make, amend, or repeal rules, but the
changes will not be effective until 30 days after
notice to owners with no requisition for a meeting by
owners owning at least 15% of units.
If meeting requisition is received, changes will only
be effective if approved at the owner’s meeting.
Searching Title to Condo Units
A default in paying common expenses gives rise to a
lien, but a certificate of lien must be registered within
3 months of the default (or else lien expires).
Units owners must be given notice of the lien at least
10 days before the lien is registered.
Note: unregistered liens expire 3 months after the
default that gave rise to them, unless the corporation
registers a certificate of lien within that time.
Registration of notice of lease NOT needed for lease
to have priority: leases for a term less than 3 years
where tenant is in actual possession of the unit.
769(L)
769(R) –
770(L)
784(R) 785(L)
785(R)
785(R)
788(R)
788(R)
788(R)
Registration of notice of lease needed for lease to
have priority over subsequently registered
encumbrances: leases having a term of 3 years or
more.
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Plan for Future Funding of
Reserve Fund
(based on reserve fund study)
Status Certificate
Enforcement of chargebacks
*NOTE: Bill106 creates this
procedure, when it comes in
force
Financial Aspects
BoD must send unit owners a “plan for future funding
of the reserve fund” based on the study within 120
days of receiving a reserve fund study.
Resale Units
Prudent practice is to add a Condition Precedent [CP]
to OREA condo form of agreement that the seller
must deliver a status certificate to the buyer’s lawyer
within 10 days of agreement.
Note: CP usually adds an additional 2-3 days so that
the buyer’s solicitor has time to review the status
certificate.
Upon adding a chargeback to a unit’s common
expenses, the corp gives the unit owner notice within
15 days. The unit owner has 30 days after notice to
pay the chargeback.
789(R)
791(R)792(L)
792(R)
Note: if owner transfers the unit within those 30 days,
owner must ensure chargeback is held in escrow and
subsequently paid to the Corp.
Note 2: owner may dispute chargeback by application
to SCJ or Condominium Authority Tribunal. For
matters that fall within the CAT, can be challenged by
a unit holder by application within 30 days of
receiving notice from the condominium corporation
that the chargeback amount has been added to the
unit ledger.
Notification of Closing
Disclosure Requirements
Revised Disclosure Statement
(after “material change”)
Rescission Period
Note: statutory rescission is
also available after material
The new owner must notify the corporation of the
owner’s name and unit number as soon as
reasonably possible, but within 30 days after the
closing.
New Condominium Homes
Bill 106 provides that the declarant shall deliver a
final budget statement to the buyer no later than 10
days before delivering to the buyer a deed to the unit
that is in registrable form.
The declarant must send a revised disclosure
statement or notice to the purchaser within a
reasonable time after the material change and, in any
event, no later than 10 days before the final closing
date.
A buyer may rescind an agreement within 10 days
after receiving copies of the fully signed agreement
and the disclosure statement (+ condo guide under
Bill106).
793(R)
795(R)(R)
796(L)
795(R)
10
change b/c not “full & accurate”
disclosure (795(R)-796(L))
Application to Court Re:
Material Change
Two Stage Closing
Deposit Payments
Pre-existing elements fund
Note: the 10-day period begins on the date the buyer
receives the last of the above 3 mentioned
documents, including any revised disclosure
statements (i.e. 10-day period restarts after material
change).
Note: If a buyer wishes to rescind the agreement,
written notice of rescission is required to be sent to
the developer or the developer’s lawyer within the
aforementioned 10-day period. [795(R) – 796(L)]
Where buyers can establish to the satisfaction of a
Superior Court of Justice judge that (a)material
information is missing or misstated in the disclosure
statement, and (b) they would likely not have
proceeded with the transaction but would have
rescinded the agreement within the 10-day time
period had the correct information been provided,
they may be entitled to treat the contract as nonbinding. The onus is on the buyer to establish in court
that the missing or misstated information is “material.”
An application to the SCJ to determine whether there
was a material change may be brought within:
Buyer: within 10 days after receiving a revised
disclosure statement or notice;
Declarant: within 10 days after receiving a buyer’s
notice of rescission (stat rescission).
Most sale agreements for new condominium units in
Ontario require a two-stage closing procedure. At the
first stage, known as the “interim closing,” possession
is delivered to the buyer; and in the second stage,
“final closing,” registration as owner is provided. In
some cases, developers decide to dispense with the
interim closing and proceed only with the usual single
closing when title is conveyed.
See 797-798.
Declarant must provide the buyer with a notice of
receipt re: the deposit within 10 days of the cheque
being cashed in the trust account (notice must
specify bank address & account #).
The deposit must then be held in trust.
Residential Condo Conversion Projects
Upon registration as a condo, if the pre-existing
elements fund contains money that was intended for
repairs to a specific unit and the amount is greater
than $10,000, the amount will be disbursed to the
applicable unit owner on the earlier of the date the
intended repairs are done OR 7 year after
registration.
If less than $10,000 it will be disbursed to the unit
owner on registration.
796(LR)
797(LR)
797(R)
836(L)-(R)
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Right to Occupy Mat Home
Deadline for Election of
Surviving Spouse
ESTATE CONVEYANCING
FLA
If surviving spouse is occupying mat home at time of
other spouse’s death & has no interest in it, they are
allowed to retain possession against spouse’s estate
(rent free) for 60 days after spouse’s death.
6 months
808(R)
809(L)
Section 6 of the FLA provides certain rights of the
surviving spouse to make elections. Until these
provisions have been dealt with, no distribution to
beneficiaries of the deceased’s estate may be made
within 6 months of the spouse’s death.
Automatic Statutory Vesting (in
the context of either a non-trust
will without a power of sale OR
an intestacy)
Adverse Possession claim
against the Crown
Prescription
Shoreline Structures on Bed of
the Waterway (i.e. on Crown
land)
Statutory Power of Sale
Automatic vesting occurs if within 3 years after the
date of death the estate trustee has not (a) sold the
land to a third party under s. 17 of the EAA, (b)
transferred it to the beneficiaries, or (c) registered a
caution against the land under s. 9 of the EAA.
COTTAGE & RURAL CONVEYANCING
Adverse Possession
Adverse possession against the Crown is permitted
on proof of 60 years’ occupation (but this does not
apply to vacant Crown land pursuant to s 16 of Real
Property Limitations Act).
Unused highways are only subject to adverse
possession if one (1) can prove 60 years’
possession PRIOR TO 1913 (2) AND s. 51 of Land
Titles Act does not vitiate such a claim.
“Prescription” is the acquiring of an easement or right
of way by open, continuous, and exclusive use of
land (but not possession, which is the subject of
adverse possession), with or without permission but
with the owner’s express or implied consent, for an
uninterrupted period of 20 or 40 years (Real Property
Limitations Act, s. 31).
Where a shoreline structure has been in place for
more than 60 years, an application can be made to
the Crown for a transfer of title of the footprint of the
structure that sits on the bed.
815(L)
822(LR)
822(LR)
824(R)825(L)
828(L)
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NEW HOMES –delayed closing/ delayed occupancy warranty
The “addendum” is the basic document used to incorporate the delayed closing warranty (for freehold
properties) and the delayed occupancy warranty (for condominiums and, as of October 1, 2012,
“parcels of tied land,” or POTLs) into a new home agreement. The word “Closing” is part of the name of
the addendum for freehold properties because occupancy and closing coincide, whereas with
condominiums, they may not.
Each addendum is available in two separate “flavours”: (a) for transactions having tentative closing or
occupancy dates, or (b) for transactions having firm closing or occupancy dates. Vendors can choose
between firm and tentative closing/occupancy date options. The tentative closing or occupancy dates
must be converted into firm dates in accordance with the regulation. Thus, for each new home
agreement of purchase and sale, builders select one of the following forms of addendum:
1. Freehold firm closing date – three dates(846 LR);
2. Freehold tentative closing date – six dates (846 R);
3. Condominium firm occupancy date - three dates (847 L); or
4. Condominium tentative occupancy date - four dates (847 L).
5. POTL firm occupancy date - three dates (847 LR); and
6. POTL tentative occupancy date – seven dates (847R – 848L)
- A POTL is a freehold parcel of land tied (“attached” unders. 139(2)(a) of the Condominium Act, 1998)
to a common elements condominium corporation (CEC).
- An addendum must include a statement of critical dates, which will vary depending on (a) the type of
property (a freehold dwelling, a unit in a condominium, or a POTL), and (b) whether the vendor has
selected the firm or tentative closing/occupancy date option.
See 846(L)-848(R) for more details on each specific form of addendum.
Firm Closing Date Option (all warranty types) (for Freehold Home/ Condo Unit and POTL)
Specific Firm
Selected by the vendor: if the home is not completed/ 846(LR); 847
Closing/Occupancy Date
occupancy not provided (condo and POTL)/ by this
(LR)
date, the purchaser is entitled to delayed
closing/occupancy compensation of up to $150 a day
after the firm closing date/ firm occupancy date, up to
a total of $7,500.
365 days after the Specific Firm Closing Date/ Firm
Outside Closing Date
846(R); 847
Occupancy Date OR the latest date that the vendor
(LR)
has agreed to provide occupancy by (if condo unit).
The buyer may terminate the agreement if the
home/unit/ dwelling is not ready within 30 days after
Buyer’s Termination Period &
846(R); 847
Refund & Delayed Closing
the outside closing date/ occupancy date.
(LR)
Compensation
Note: If buyer opts to terminate, they will receive a
846(R)full refund of all money paid + delayed closing
847(LR)
compensation of up to $150/day after the firm closing
date (up to a max of $7500).
If Buyer chooses to proceed with the agreement
instead of terminating, they will receive delayed
closing compensation of $150/day (up to a max of
$7500).
Tentative Closing Date Option (all warranty types)
If the property is a freehold dwelling and the builder
chooses the tentative closing date option, the buyer
Delayed Closing Compensation
846(R)847(LR)
Freehold home
846(R)
13
will know from the start that the closing date is
subject to change. In that case, the addendum must
provide six specific dates:
●
First Tentative Closing Date selected by
the vendor: the date of the builder’s original
closing estimate.
●
Notice of Delay Beyond the First Tentative
Closing Date: 90 days before the First
Tentative Closing Date. This is the last date
by which notice of a further delay must be
given.
●
Second Tentative Closing Date: a date 120
days after the First Tentative Closing Date.
The builder can unilaterally extend closing to
this second date without penalty.
●
Firm Closing Date: a date 120 days after the
Second Tentative Closing Date. This is the
maximum limitation on the builder’s ability to
extend without setting a “Delayed Closing
Date” and paying compensation.
●
Outside Closing Date: the date that is 365
days after the Second Tentative Closing Date
or the Firm Closing Date, whichever is earlier.
If the house is still not finished and final
closing does not take place by this outside
date, the buyer may at the buyer’s option
terminate the agreement, receive a full refund,
and claim delayed closing compensation of up
to $150 a day after the Firm Closing Date, up
to a total of$7,500. The same compensation
is available if th ebuyer chooses to proceed
with the agreement after the Outside Closing
Date has passed so that closing takes place
after the builder has used up all of its
permitted extensions.
End of the Buyer’s Termination Period: the
end of the 30-day period that the buyer has to
terminate the agreement if the home is not
ready by the Outside Closing Date.
If the property is a residential unit in a proposed
condominium and the builder chooses the tentative
occupancy date option, the buyer will know from the
start that the occupancy date is subject to change. In
that case, the addendum must provide four specific
dates:
●
Condo Unit
●
847(L)
First Tentative Occupancy Date: the date of
the builder’s original occupancy estimate.
14
POTL
●
Notice Period for an Occupancy Delay:90
days before the First Tentative Occupancy
Date. This is the last date by which notice of a
further delay must be given.
●
Outside Occupancy Date: This is the latest
date by which the vendor has agreed to
provide occupancy. If the unit is still not
finished and occupancy does not take place
by this outside date, the buyer may at the
buyer’s option terminate the agreement,
receive a full refund, and claim delayed
closing compensation of up to $150 a day
after the Firm Occupancy Date, up to a total
of $7,500. The same compensation is
available if the buyer chooses to proceed with
the agreement after the Outside Occupancy
Date has passed so that occupancy takes
place after the builder has used up all of its
permitted extensions.
●
End of the Buyer’s Termination Period: the
end of the 30-day period that the buyer has to
terminate the agreement if the unit is not
ready for occupancy by the Outside
Occupancy Date.
If the property is a POTL and the builder chooses the
tentative occupancy date option, the buyer will know
from the start that the occupancy date is subject to
change. In that case, the addendum must provide
seven specific dates:
●
First Tentative Occupancy Date selected
by the vendor: the date of the builder’s
original occupancy estimate.
●
Notice of Delay Beyond the First Tentative
Occupancy Date: 90 days before the First
Tentative Occupancy Date. This is the last
date by which notice of a delay of the First
Tentative Occupancy Date must be given.
●
Second Tentative Occupancy Date: a
date120 days after the First Tentative
Occupancy Date. The builder can unilaterally
extend occupancy to this second date without
penalty.
●
Notice of Delay Beyond the Second
Tentative Occupancy Date: 90 days before
the Second Tentative Occupancy Date. This
is the last date by which notice of a further
delay must be given.
847(L) –
848(L)
15
●
Firm Occupancy Date: a date 120 days after
the Second Tentative Occupancy Date. This
is the maximum limitation on the builder’s
ability to extend without setting a “Delayed
Occupancy Date” and paying compensation.
●
Outside Occupancy Date: the date that is
365days after the Second Tentative
Occupancy Date or the Firm Occupancy Date,
whichever is earlier. If the dwelling on the
POTL is still not finished and occupancy does
not take place by this outside date, the buyer
may at the buyer’s option terminate the
agreement, receive a full refund, and claim
delayed occupancy compensation of up to
$150 a day after the Firm Occupancy Date,
up to a total of $7,500.The same
compensation is available if the buyer
chooses to proceed with the agreement after
the Outside Occupancy Date has passed so
that occupancy takes place after the builder
has used up all of its permitted extensions.
End of the Buyer’s Termination Period: the
end of the 30-day period that the buyer has to
terminate the agreement if the dwelling on the
POTL is not ready for occupancy by the
Outside Occupancy Date.
NEW HOMES – statutory warranty coverage
Statutory Warranty Coverage
Coverage begins on the buyer’s date of possession
Start of Warranty Coverage
and remains in effect even if the home is sold before
the warranty expires.
●
The buyer’s warranty coverage begins on the date of
closing if possession is delivered at closing. In the
case of new condominium units for which an interim
closing takes place, the warranty coverage begins on
the date of taking possession.
Deficiency Reports
Buyer must report deficiencies in writing to TARION
within 1, 2, or 7 years after the date specified in the
Certificate of Completion and Possession (CCP); the
reporting time period depends on the type of
deficiency.
853(L)
854 (L)
853(LR)
Note: see 853(LR) for which types of deficiencies
correspond to which reporting time period.
Note: CCP is signed at or immediately after the PreDelivery Inspection (PDI) (854(L))
Submitting Warranty Claims
16
30-day Statutory Warranty
Form
Year-End Warranty Form
Builder Response 1
Buyer Conciliation Request
Builder Response 2
Warranty Assessment Report
Builder Response 3 (final)
Note: if builder still does not
repair, TARION settles the
matter directly with homeowner.
Buyer must submit to TARION AND Vendor within
the first 30 days after warranty coverage begins.
Buyer must submit to TARION in the 11th month
after possession (i.e. during the last 30 days of the
first year of possession).
Builder has 120 days after (either) warranty form is
received by TARION to complete the repairs.
Note: builder must be allowed reasonable access to
complete the repairs.
If the builder fails to complete its work by the end of
that 120-day period, then Buyer has 30 days to
contact TARION and request a conciliation.
TARION will notify the builder of the conciliation
request, and the builder has 30 days thereafter to
resolve the issue and avert the conciliation.
If the outstanding matter is not repaired or resolved to
the homeowner’s satisfaction within that time period,
then TARION will conduct an inspection and issue a
warranty assessment report to both the homeowner
& the builder within 10 days of the inspection.
If TARION finds even one item in the report is
warranted, the builder has one final chance to repair
within 30 days after TARION issues the report.
854(L)
854(L)
854(R)
854(R)
854(R)
854(R)
854(R)
There are similar procedures
available for Years 2 to 7 of the
warranty term.
Requirement to be in writing
(Statute of Frauds)
Registry System Property
Land Titles System Property
Landlord’s Other Remedies
(aside from termination)
COMMERCIAL LEASING
Lease
Leases that do not exceed a term of 3 years where
the rent during the term is at least 2/3rds of the full
improved value of the premises being leased are not
required to be in writing.
Registration
Lease of property under the registry system does not
need to be registered to bind 3rd parties where the
lease has a term not exceeding 7 years (and actual
possession goes along with the lease). (s.70(2) of the
Registry Act)
Property is deemed encumbered by an unregistered
lease if the lease period yet to run does not exceed 3
years (and there is actual occupation). (s.44(1)(4) of
the Land Titles Act)
Tenant Defaults
Time periods for prior written notice of default & cure
period can be set out in the lease or statutory.
Typically, shorter time period for notice and cure
888(L)
891(L)
891(L)
892(R) 893(L)
17
period for monetary defaults than for non-monetary
defaults.
Termination by Landlord for
monetary default
Termination by Landlord for
non-monetary default
Remedy of Distress
Application of CA vs CLA
Where lease is silent, s.18(1) of the Commercial
Tenancies Act provides that landlord has the right to
terminate once rent has been outstanding for more
than 15 days (and no requirement to provide notice
or cure period). Note: s.18(1) is limited to the right of
termination.
Even where lease sets out notice & cure periods,
Landlord is bound by s.19(2) of the Commercial
Tenancies Act to give notice & a “reasonable
amount of time” to correct the default before
exercising the right to terminate.
Note: this CTA provision CANNOT be contracted out
of.
Landlord must provide proper notice following the
distress and must wait 5 clear days to sell any of the
seized goods. (Commercial Tenancies Act, s. 53).
Note: Distress may only be exercised between
sunrise and sunset and never on a Sunday
CONSTRUCTION LIENS
The old Construction Lien Act (CLA) applies if
- the prime contract (the contract between the
owner of the property and contractor), OR
procurement process was entered into
BEFORE July 1, 2018 OR the property is
subject to a leasehold interest and the lease
was first entered into BEFORE July 1, 2018
The new Construction Act (CA) applies otherwise.
893(R)
893(L)
893(L-R)
899(R)
903(L) –
904(L)
Expiration of Lien
Liens expire if either the preservation or perfection
deadline is missed (lien right exists from the date that
the work commences)
Preservation of Lien
Liens must be registered against the land:
� if under CA: within 60 days of trigger
� if under CLA: within 45 days of trigger
903(R)
Trigger info can be found on 896(L)
An action must have been commenced and
certificate of action issued and registered against the
land
� if under CA: within 150 days of the trigger
� if under CLA: within 90 days of the trigger
903(R) –
904(L)
Perfection of Lien
Perfection – CA lien claim
action
Trigger info can be found on 896(L)
All lien claim defences must be delivered within 20
days.
There is no notice of intent to defend a lien claim.
906(L)
18
Termination of Lien
Leasehold Improvements –
application of CA vs CLA
In the event of termination of a lien, the owner or
contractor must publish a Form 8, Notice of
Termination, in a construction trade newspaper.
The old CLA continues to apply to improvements
made to a leasehold interest only if: (1) the leasehold
interest was entered into BEFORE July 1, 2018, (2)
AND the contract for the improvement was entered
into BETWEEN July 1, 2018 – December 6, 2018.
905(L)
905(R)
The new CA applies to all leasehold improvements:
arising from contracts entered into AFTER
December 6, 2018, REGARDLESS of the date the
leasehold interest was entered into.
Leasehold Improvements –
CLA (old)
Leasehold Improvements – CA
(new)
Contractor must provide written pre-construction
notice of improvement to the landlord. Landlord has
15 days to disclaim responsibility for the
improvement.
If tenant defaults on lease, landlord must send to lien
claimants notice of (1) intention to forfeit or terminate
lease (2) AND of the amount of unpaid rent. Lien
claimants have 10 days to pay any unpaid rent, and
that amount may be added to that person’s claim for
lien.
Contractor not required to give pre-construction
notice of improvement to the landlord.
905(L)
905(R)
905(R)
Condo registrations
Prompt payment
*effective October 1, 2019
Adjudication
*effective October 1, 2019
Landlord not entitled to disclaim responsibility for
improvements.
Owner of land intended to be registered as a condo
must publish notice of intended registration in a
construction trade newspaper at least 5 days before
and not more than 15 days before they submit the
condo description for approval.
Under the new CA, prompt payment obligations are
triggered upon the owner receiving a “proper invoice”
from the contractor.
Upon receipt of invoice, Owner has 28 days to pay
the Contractor.
The contractor must pay all Subcontractors within 7
days of receipt of payment, in full or in part, from the
owner.
Likewise, subcontractors must make payment to their
subcontractors within 7 days of receiving funds from
the contractor.
Once adjudication is triggered by a party, by serving
a notice of adjudication, a dispute will be summarily
determined in approximately 42 days without
interrupting the flow of work on the project.
908(R)
909(R)
909(R) –
910(L)
19
Unpaid parties have the right to suspend work if they
are not paid within 10 days of the adjudicator’s
decision.
Setting Down Lien Action
An action must be set down for trial within 2 years
from the date the action was commenced, failing
which the lien action will expire.
910(R)
20