Have Questions about BC Real Estate Law?
The following list of BC real estate laws & regulations is not exhaustive but it does provide a sense of some of the many provincial (and federal) real estate laws and regulations that apply to Comox Valley homes. Need more info? Contact Brett.
BC Statute Law and Real Estate
Statute law if the body of law made by our government representatives in the federal parliament, provincial legislature or municipal council. This partial list of statute real estate laws is provided to give the reader a sense of the many different laws and regulations that could have a bearing on a Comox Valley home transaction in British Columbia. For legal advice always consult your lawyer. More information on these and other laws can be found by going to the BC Laws website that provides free public access to the current laws of British Columbia. Federal laws can be accessed through the Department of Justice website.
Laws Applicable to Real Estate
The Criminal Code of Canada contains provisions related to property and criminal interest rates that could apply to Comox Valley property.
The Limitation Act of BC concerns limitation periods to bring various legal actions and there are a number of stipulations concerning the possession of land.
The federal Competition Act was designed to eliminate privately imposed restraints on trade, encourage competition, ensure that small and medium businesses can compete with large corporations and provide consumers with competitive prices and product choices. Consistent with this act, Comox Valley real estate firms are free to set their own rates and commission splits.
The Real Estate Services Act governs the sale of real estate in British Columbia. This act aims to protect the public by ensuring that those offering real estate services meet minimum reasonable competency requirements in order to obtain a license, and to establish standards for Comox Valley licensees to conduct themselves appropriately when licensed. As well, this act establishes the Real Estate Council of British Columbia to administer the act.
The Law of Agency concerns the relationship between an agent (a person who is authorized to act on behalf of another persona) and the other person (call the principal). In real estate in British Columbia, the agents are the brokerages, who through their licensees (real estate agents) represent their principal (client of the real estate agent) in a particular transaction or service. Agency relationships can be created in several ways (such as through the signing of a listing contract) and the relationship between the agent (brokerage through the real estate agent) and the client (buyer or seller) is described in detail by the British Columbia Real Estate Association in its pamphlet “Working with a Realtor ®”.
The Law and Equity Act touches on many areas of the law and it establishes the principle that the rules of equity (fairness) prevail when conflicting with common law (court-based, judge-made law). For real estate, there are is a section (Section 59 – Enforceability of Contracts) that discusses the enforceability of a contact respecting land (or a disposition of land). This section says that, in most cases, contracts dealing with real estate must be in writing to be enforceable. This real estate law also establishes rules for Comox Valley foreclosures and redemptions.
The Law of Contract comprises those general legal principles that apply to the formation and enforcement of all contracts. A contract has seven essentials (offer, acceptance, consideration, legal intention, capacity, legal object, and genuine consent. Real estate agents are expected to write valid, enforceable contracts. Examples of ineffectual contracts include those that are void, illegal, voidable, and unenforceable. The real estate law of contract addresses disclosure of defects by the vendors, contaminated property and defects in title and is applicable to Comox Valley home contracts.
The federal Proceeds of Crime (Money Laundering) and Terrorist Financing Act, among other things, establishes record keeping and client identification requirements for financial services providers and other persons engaged in businesses, professions or activities that are susceptible to being used for money laundering and the financing of terrorist activities. There are specific elements of this act that apply to real estate such as the requirement to identify and document the identity of people before they engage in Comox Valley real estate transactions.
The Personal Information Protection Act regulates the collection, use and disclosure of personal information by private organizations. This real estate act recognizes the right of individuals to protect their personal information and the need of organizations to collect this type of information for purposes that a reasonable Comox Valley person would consider appropriate.
The Property Law Act requires that the vendor of land must deliver a registered title. This law also addresses issues such as the assumption that the ownership of land sold to two or more people will be to them as tenants in common (as opposed to joint tenancy) unless a contrary intention appears in the instrument. This affects issues such as the right of survivorship. Under tenancy in common, if you own property with another person and you die, your interest in the property becomes part of your estate to be passed on according to your will. If you own interest as joint tenants and you die, your interest passes to the remaining joint tenant. This law establishes rules on the transfer of ownership to oneself, the transfer of the responsibilities under and existing mortgage from a buyer to a seller, the requirement for mortgagees (banks, etc.) to provide financial statements to the mortgagor (free of charge) on the status of the mortgage, and more.
The Wills Variation Act establishes provisions for estates that may come into play if a person who owns property dies. Section 12, for example, establishes a time constraint on distribution after probate that can affect property title passing to a beneficiary.
The Land Title Act concerns British Columbia’s land registration system, the operation of its seven land title districts and land title offices, and the title of land through Certificates of Title. The land title office for Vancouver Island is located in Victoria. A freehold title and a property transfer tax return are required for a land title office to transfer the title from the vendor to the purchaser.
The Fraudulent Conveyance Act provides that the conveyance of property (including real property) made to hinder or defraud creditors is void unless the transfer was made for good consideration and done in good faith to a person, not having at the time of the transfer, knowledge of the fraud or collusion.
Section 392 of the Land Title Act provides for the filing of a notice of Special Waste on title for those properties that are deemed contaminated. The Environmental Management Act establishes a Contaminated Sites Registry that is modeled after the land registry system.
The Manufactured Home Act provides for the central registration of manufactured homes because the ownership and transfer of manufactured homes is not registered in the land title office. Real estate agents are authorized to sell manufactured homes when some interest in land is involved in the transaction. The manufactured home registry for the province is located in Victoria under the administration of the Ministry of Finance and Corporate Relations.
When a person who wishes to purchase a chattel like a manufactured home and needs financing to help pay for the item, the methods of financing available are governed by the Personal Property Security Act.
The Mortgage Brokers Act regulates persons who deal with real estate mortgages in the province.
The federal Interest Act contains provisions, among other things, that apply to the interest rates on mortgages, and conditions under which no further interest is payable on a mortgage after five years after the date of the mortgage.
The Business Practices and Consumer Protection Act is a provincial statutory provision dealing with interest rates, including mortgage interest rates. This real estate law, among other things establishes the rights and obligations of borrowers and credit (including mortgage) grantors, and financial disclosure requirements.
Mortgage Law distinguishes between the financial and legal aspects of a mortgage. Legally, a mortgage is not a loan. For example, It is an interest in land created by contract as security for a loan made by a Comox Valley lender (mortgagee) to the borrower (mortgagor). A mortgage is a transfer of a legal or equitable interest in land on the condition that the interest in land will be returned when the terms of the mortgage contract are performed. A caveat is a note placed on a Certificate of Title by someone claiming an interest in the land. A mortgage will appear as such a note.
The Real Estate Development Marketing Act applies to developers who market development units in British Columbia. This act imposes disclosure requirements on developers marketing various forms of real estate developments such as strata lots, cooperatives and time shares. Is also establishes the right of recision of a purchaser (section 21) to rescind the purchase agreement by serving written notice on the developer within 7 days within the constraints outlined in section 21 of this act.
The Strata Property Act regulates strata properties (condominiums) in British Columbia. This act establishes a framework for the creation and operation of strata developments, and it establishes guidelines under which strata corporations must operate. The contents of this act and its regulations are supplemented by 28 Strata Property Instruction guides produced by the Superintendent of Real Estate and made available on the Financial Institutions Commission website.
The Cooperative Associations Act regulates the formation and operation of associations, including housing cooperatives. Cooperative ownership differs from strata title ownership because it does not bestow an individual fee simple title to the cooperative owner’s unit. The cooperative corporation acquires fee simple title or a long term lease to the land or land and buildings. The organizers in the cooperative then determine what number of shares in the cooperative corporation are to be allocated to each unit. These shares are then sold to buyers who become entitled to a lease of the unit and the right to occupy the unit. This type of arrangement can pose challenges to potential buyres when internal financing is not an option. As well, there may be restrictions on sale when the sale has to be approved by the Board of Directors.
The Occupier’s Liability Act contains provisions related to the responsibility an occupier (person who is in physical possession of and responsibility and control over) to show care towards persons entering on the premises in respect to dangers to them.
The Residential Tenancy Act contains provisions that will affect the sale of a property if all or a portion of the property is occupied by a tenant. There are, for example, notification requirements based on the type of tenancy agreement. A fairly common situation is the purchase of a property of which the purchaser (or immediate family) intends to occupy. The purchaser certifies in writing the intent to occupy, and the purchaser requests that the seller give notice of the end of tenancy to the tenant. Once the offer to purchase becomes unconditional, the seller can give notice to the tenant. This notice must be at least 2 months and it is effective on the latter of: the last day of a later rental payment period or on the expiry date of a fixed term tenancy.
All land use and improvements are subject to the Assessment Act for property tax assessment purposes.
The federal government does not does not have any general power to control land use within a province, but some federal laws can, and do, affect such use. For example, the Aeronautics Act (Department of Transport) restricts the height of buildings near airports or in flight paths. The Fish Protection Act (Department of Fisheries) has jurisdiction over certain rivers which support spawning areas near those rivers. The Riparian Areas Regulation enacted under section 12 of the Fish Protection Act calls on local governments to protect riparian areas during residential, commercial and industrial development by ensuring that proposed activities are subject to a science-based assessment by a Qualified Environmental Professional.
The provincial government delegated most of the authority to regulate land use to the local governments but still retains some such as the Agricultural Land Commission Act which established the Agricultural Land Commission and Agricultural Land Reserves (ALR) within the province. ALR designated land may not be used for non-farm purposes or subdivided without the Commission’s approval.
The Health Act makes public health authorities responsible for things such as septic tank disposal fields as a private means of sewage disposal.
The Local Services Act establishes planning regulation enforcement in some rural areas of the province not undertaken by regional districts such as the Comox Valley.
The Transportation Act requires the approval of the Minister of Transportation prior to the rezoning of lands within 800 meters of an intersection of a controlled access highway with another road.
The Environmental Management Act is intended as a province-wide screening process when an applicant applies for development approval and provides a site profile to the relevant local authority who forward them to the registry within which they are entered after approvals by the Ministry related to water, land and air protection.
The Water Act regulates British Columbia’s water resource. Surface water, streams (with or without water), lakes, rivers and the like are covered by this act. Water licenses are required to divert, use of store water from such sources. For example, water drawn from a lake via a pipe in the lake.
The BC Fire Code is a regulation of the BC Fire Services Act. The BC Fire Code establishes technical provisions related to the construction, use, or demolition of buildings and facilities.
The Heritage Conservation Act protects heritage and archaeological sites within the province.
The Islands Trust Act provides for an Island Trust which is a unique form of government over the Gulf Islands to preserve and protect the environment and unique nature of the islands. Denman and Hornby island fall within this act in the Comox Valley.
The Local Government Act and Community Charter provide for the creation and regulation of, among other things, bylaws related to land use. Local governments (municipalities and regional districts) derive their powers from the province. Powers included such things as real estate zoning bylaws, re-zoning, land use permits, sub-divison of land, building bylaws and inspection, and licensing bylaws are examples of these powers.
Need more info on laws that apply to Comox Valley real estate? Contact Brett Cairns of RE/MAX Ocean Pacific Realty.
by Brett Cairns