Property Development lawyers work is a broad practice area which, for purposes of the Lexpert Directory, is broken down as follows:
Commercial, retail and residential real estate financing and development work covers all aspects of real property transactions, including land acquisitions, site assembly, dispositions, financing structures and negotiations, joint ventures, partnerships, syndications, initial lease-ups, institutional investments including pension funds and REITs, condominium work (registration, bylaws, enforcement, annual meetings, unit purchases and sales, etc.), and issues relating to the enforcement of real estate security.
Please note that the lexpert directory has separate practice areas for:
When a person buys, uses, or sells his or her property, or basically does anything with regards to that property, it will be covered by the legal system of laws and regulations on property rights. In sum, this is called Property Law.
Property Law is the set of laws which governs the relationship between a person or a corporation – called the property owner – and their property. This law primarily governs the rights of the property owner, which may include, but are not limited to, the right to enjoy or use the property, the right to sell it when the owner pleases, or the right to recover it in situations where it has been unlawfully restrained against the property owner by another person.
These rights attach the moment that the property owner acquires or buys the property, or even when the said property owner acquires interest over the said property in any other capacity other than being an owner, such as in a lessor-lessee relationship, mortgagee-mortgagor arrangement, or in a property owner and real estate developer contract, among others.
In regulating property rights, the state creates laws and enforces regulations based on these laws which are mostly prohibitions imposed against either the property owner with respect to his or her rights, or against other persons with respect to the rights of another as a property owner.
Property development lawyers in Canada are generally concerned with laws othat are governed by both federal and provincial jurisdictions.
These laws at the federal and provincial level are in addition to the precedents or laws found in common law.
As for federal properties, the governing law is the Federal Real Property and Federal Immovables Act, which is regulates the disposition or leasing of federal real properties or federal immovables (personal property). In addition, the Act also governs the licencing of federal real properties or federal immovables.
Legislations and common law may have for its subject the different kinds of properties in the legal sense, namely, real properties, personal properties, and intellectual properties. While both personal property laws and real property laws are mostly made up of common law in addition to provincial legislations in Canada, intellectual property laws are governed by different laws such as the Patent Act, Trademarks Act, Copyright Act, and Industrial Design Act.
This legal system mentioned above, which is a combination of federal or provincial legislations and common law governing properties in Canada, also applies to the industry of commercial property development. Hence, property development lawyers apply different jurisdictional laws specific for commercial property or real estate development.
The business of commercial property development may refer to the series of transactions in the life of developing a real property (a land, most of the time) for it to become useful and generate income. Thus, it covers a wide range of business transactions, such as:
Thus, property development lawyers are knowledgeable on the legal technicalities of these different transactions in guiding clients and to substantially comply with state regulations.
Furthermore, the laws on contracts based on common law (and the Civil Code for Quebec) will heavily apply to this industry. This is because in doing these transactions, entering contracts with the other party will always be its first step. For this matter, property development lawyers may assist clients with the preparation of contracts until its consummation and perfection. Property development lawyers may also represent any of the parties in a commercial property engagement – the financer or investor, developer, contractor, insurer, property owner, lessors, etc.
Developing a property starts with the acquisition of investments and capital funds to commence the project, and numerous laws may apply in this transaction. Canadian laws do permit foreign entities to provide investment to Canadian property development projects through legal entities such as corporations or partnerships. Hence, these legal entities would be subject to respective laws applying to each entity (e.g., corporations are governed by the Canada Business Corporations Act, the Competition Act, etc.). Property development lawyers are knowledgeable on these overlapping laws on investments and financings to help clients acquire or put-up investments in Canada.
When a party buys or acquires a real property for the purpose of a commercial property development project, the transaction would be governed by common law principles on the laws on contracts. In addition, property development lawyers may also help parties in complying with federal and provincial taxation laws, such as transfer taxes, withholding taxes for foreign investors, Goods and Services Tax (GST), Harmonized Sales Tax (HST), provincial sales tax, capital gains tax, among others.
When property development transactions involve a foreign investment, or when the subject real property is to be owned by a foreign entity or personality, the provisions on notification or review of a federal regulating agency as those found in the Competition Act and Investment Canada Act may apply.
At the provincial level, Section 35 (1) of the federal Citizenship Act authorizes the provincial government to restrict any ownership of foreign persons or corporations with respect to real properties in the said province. Thus, property development lawyers must be consulted should any of these Acts apply to a property development project to prevent its violation.
Property development lawyers can specify which government (either federal or provincial), which law, and which regulating body must be coordinated with for a commercial property development engagement.
Generally, regulation of Canadian properties – specifically real properties – are among the jurisdiction of the provinces. These provinces may provide for the specific system for land use through legislations and regulations, such as specific areas that are available for real property development.
Engaged in the business of commercial property development? Scroll down for the list of the best property development lawyers in Canada for any of your inquiries and consultations.
