Property Development

Property Development is a broad practice area that includes real estate financing and development, which covers all aspects of real property transactions, and municipal law, which encompasses commercial, retail, and residential planning and land use work. Canada’s provincial governments have the main responsibility for property development law in Canada. Generally, this law finds its origins in the common law except for Québec, where it is governed by the Civil Code of Québec. Although the Canadian Charter of Rights and Freedoms does not provide constitutional protection for property rights, governments must compensate for any expropriation. Fee simple, leasehold interests, condominium ownership, and strata ownership are all common in Canada, and land in all provinces is subject to public land titles registration.

The agreement of purchase and sale is the basic real estate document for property transfers. Normally, it contains the business terms necessary for the transaction, including a description, the purchase price, the deposit, the closing date, and assorted unique provisions. Conditions for the benefit of all or some of the parties can also populate these agreements, as can representations and warranties.

Due diligence is the purchaser’s responsibility. It includes title and zoning searches, lease reviews, and surveys. Engineering reviews are also common. Title insurance is available and a regular feature of real estate transactions in Canada.

Leasing comes in various forms, including long-term ground leases, which may be transferred in the same manner as property held in fee simple. Agreements to lease are the primary documents in commercial lease transactions. These agreements are binding and contain the normal business terms including a description of the space, term, rent, and inducements. Rent is typically paid on a net/net basis. Retail leases frequently relate rent to sales volume.

Developers dealing with residential leases must beware of provincial legislation that does not allow for contractual opting-out. Some provinces also have rent control regimes.

Banks, credit unions, trust companies, pension funds, and insurers all provide real estate financing in Canada, which can be based on foreign currencies. Foreign lenders may be required to pay withholding or other taxes on the interest they receive.

Interest rates in Canada can be fixed or variable. Variable rates are based on the prime rate set by various lending institutions, which are in turn dependent on a rate announced by the Bank of Canada from time to time. Lenders usually charge commitment and processing fees, and borrowers are generally responsible for the lender’s legal fees.

Security may be primary or collateral. Forms of primary security include debentures, mortgages, charges, and trust deeds. Forms of collateral security include lease and rent assignments, general security agreements, and personal guarantees.

Prospective developers should be aware that Canada has a host of environmental laws on both the federal and provincial level. Many attribute liability for environmental damage to landowners and polluters. Property owners may also have responsibilities in relation to the discharge of contaminants and hazardous material from property they own. Subsequent owners may inherit liability for improper waste management. It follows that purchasers should conduct environmental risk assessments of the subject properties, and indeed, lenders may require them to do so. Such assessments may include environmental audits involving scientific testing and technical analysis.

Canada’s provinces also regulate property development, much of it at the municipal level through official plans and zoning bylaws governing land use and density. Development charges are increasingly common. Other forms of regulation include preservation of existing structures, building codes, and building permits.

Real estate brokers, mortgage brokers, lenders, and administrators are subject to various forms of regulation and licensing through provincial laws.

Ontario’s Land Planning Appeal Tribunal

In 2019, the new Ontario government led by Premier Doug Ford and the Progressive Conservative Party of Ontario replaced the Ontario Municipal Board with a new tribunal, the Land Planning Appeal Tribunal (LPAT), as the independent adjudicative tribunal that conducts hearings and makes decisions on land use planning issues in the province. The Ontario Government also made legislative changes to the Planning Act “to help speed up local planning decisions and make the appeals process more efficient.”1 Bill 108, the More Homes, More Choice Act, brought the following changes to LPAT:

A single hearing process, where the Tribunal has the power to make binding decisions, including a final decision to approve, refuse, or modify all or part of the matter;

Request for party status no longer needs to be made in writing 30 days before the proceeding;

  • The reason for an appeal is no longer limited to conformity and consistency with the Provincial Planning Statement;
  • Participants to a matter will only be able to make written submissions;
  • Only the applicant, municipality, Minister, public body, or prescribed list of persons can appeal a draft plan of subdivision; and
  • Limiting examination or cross-examination of a witness if the Tribunal is satisfied that all matters relevant to the proceeding have been addressed.

  1. “Bill 108: New Processes and Rules for the Local Planning Appeal Tribunal.” Ontario Land Tribunals. September 3, 2019. https://olt.gov.on.ca/bill-108-new-processes-and-rules-for-the-local-planning-appeal-tribunal/.

Lawyer(s):

Firm(s):

Practice Area(s):