Have Questions about Real Estate In British Columbia?
The following questions & answers are some of the more typically asked questions about real estate in the Comox Valley. Have one not covered here? Contact Brett directly.
Real Estate in British Columbia is a highly regulated industry that is subject to may laws and regulations. This portion of Brett’s website is intended as general information on some of the more commonly asked questions asked by buyers and sellers of Comox Valley residential real estate in British Columbia. It is not intended as advice (legal or otherwise) nor should it be interpreted as such. People who need legal advice should seek such advice from a lawyer. People who are seeking real estate advice (other than legal advice) should contact Brett directly.
If you have a real estate question of a general nature that you think would be a useful addition to this website, please contact Brett and let him know.
What does the term real property mean?
Real property is a term that refers to land and whatever is erected, growing upon, or affixed to the land. Land also include rights related to the land. Real property is distinct from Personal property that is, in effect, everything else. Personal property generally includes any right or interest which one has in moveable objects. According to the Real Estate Services Act real estate means real property.
Who owns land?
In the context of land, ownership involves the control of the right to use land and control of the decision to transfer all or a portion of these rights to others. In Canada, the only owner of land is the Crown (meaning the Federal and Provincial governments). This is why, for example, governments can evict people from land and why they can determine land use through building codes and zoning. Note that municipalities become involved when there is subdivision of land. In terms of possession and administration, most of the land in Canada is Public Land that is administered by the provincial and federal governments while the minority is privately held. Property rights and the division of powers between the federal and provincial governments were addressed in various versions of the Constitution Act beginning in 1867.
I purchased land and built my home on it. What do I own?
When we purchase and subsequently possess land, we actually only purchase rights to the land that are expressed as interests in land . Interests in land are expressed through the concept of estates and interests less than estates. The estate is an abstract legal concept that refers to the degree, quantity, nature and extent of interest which is held by a person.
What rights do I have to the airspace above my land, to the water on my land, and to the sub-surface below?
Landowners generally only have airspace rights above their land only to the extent that they can make effective use of it. These rights have some limitations in law. Other acts such as the federal Aeronatics Act have supporting regulations that establish airport zoning regulations such as those that apply to the Comox airport.
The subsurface rights of landowners are generally limited by provincial governments which have reserved most of the precious metals, metals and petroleum products for their use. For example, in British Columbia, mineral rights may exist through freehold, Crown granted mineral claim (administered under the Land Act) or a mineral title (acquired and maintained under the Mineral Tenure Act). There are very few freehold mineral tenures.
In British Columbia, all surface water is the property of the provincial government. To be entitled to use surface water, a landowner must be licensed under the Water Act.
What Kinds of Estates Exist in British Columbia as they apply to land?
An estate in land is a legal concept that is distinct from the actual land. Estates in land in British Columbia can be either Freehold (involving an indefinite duration) or Leasehold (having a fixed duration such as a lease). Freehold Estates can be Fee Simple or Life Estates.
A Fee Simple Estate is what we commonly think of as ownership of land. A Fee Simple owner has more rights over land than any other owner. Fee simple owners are subject only to:
a. the Crown’s right of expropriation and tax sale;
b. the Crown’s land use and building regulations; and
c. other individuals’ common law rights.
Other than the above restrictions, the rights of Fee Simple owners last idefinitely and the owners may pass these rights on to their heirs. They may also dispose of their interests in land in total by sale, for a period of time through a lease, or they may grant a portion of their rights away through an interest that is less than an estate such as an easement.
A Life Estate is created when Fee Simple interest is passed to a person for the duration of their life (pur sa vie) or the life of another person (pur autre vie).
A Life Estate pur sa vie is a form of freehold estate that exists only for the lifetime of the holder who is known as the life tenant. The Life Tenant is charged with a number of responsibilities for the land during his or her life. The Life Tenant many also use and occupy the land and may sell or otherwise dispose of the land. A Life Estate pur autre vie is an estate based on the life of another person. For example, a wife inherits a life tenancy from her husband upon his death which terminates upon her death and passes to an only child in fee simple. During her lifetime the wife remarries and she disposes of the property to another person who receives it as an estate pur autre vie which means the other person owns the rights to the property as long as the wife is alive.
As they apply to land, what are the Interests Less Than Estates?
There are three main classifications of interests in land that do not amount to estates. These include: easements, restrictive covenants, and profits a prendre.
An Easement is a privilege acquired by a landowner for the benefit of his or her land over the land of another. For example, a right of way through another property in order to provide access to something such as a lake.
A Restrictive Covenant imposes a restriction on the use of one person’s land for the benefit or another. For example, a person subdivides his land and sells a portion with a restrictive covenant limiting the construction of any structure to less than a specified height in order to retain the view of the ocean from the land not sold. A Building Scheme is a group of restrictive covenants that apply to two or more lots within a development plan.
A Profit a Prendre is defined as the right to enter the land of another person and to take some profit (minerals, oil, trees, fish, etc.) from the land.
What document describes what I acquired when I purchased land?
The Title is the document that describes what a person purchases when they purchase land in British Columbia. The Title will include things such as the registered owner or owners, the type of estate and ownership, and it will describe the interests less than estates that apply to the land. Common items appearing on the title may include whether or not there is a duplicate Certificate of Title (if one is issued and removed from the land title office, the registrar will not register a transfer, mortgage or long term lease on the title until the duplicate is returned), Caveat (a note placed on title by a person claiming an interest in the land – a caveator must commence a court action within 2 months of lodging the caveat – a caveat prevents all dealings with the land inconsistent with the interest claimed), a Certificate of Pending Litigation (notice that court action has commenced concerning the property) a Builder’s Lien, Judgments, Covenants and Notices of Special Waste. It is important to note that they may be restrictions on the property not registered on the title. For more information on land titles refer to the Land Title Act of British Columbia.
The BC Land Title and Survey Authority (LTSA) maintains British Columbia’s official legal record of private property ownership which contains legal information about property in BC. The LTSA’s Electronic Filing System (EFS) allows authorized customers such as lawyers, notaries, registry agents, conveyancers and land surveyors to electronically submit documents to the LTSA through BC Online.
Do Manufactured Homes have Titles?
Manufactured Homes are governed by the Manufactured Home Act that became effective in April of 1978. A Manufactured Home is defined as a structure used for dwelling or business purposes that is designed to be moved from one place to another (although wheels are not necessary). Purchasers can place them on property they already own or rent space on which to place them in a manufactured home park. Manufactured Homes are registered in the Manufactured Home Registry (with some exceptions) but there is no title, just registered ownership. Manufactured Homes should have a serial number and a valid CSA sticker (or in the case of an electrical alteration, a silver label). Both the Manufactured Home Registration (MHR) sticker and the CSA sticker are typically found on the electrical panel, however, the CSA sticker can also be found near the front door of the manufactured home whereas the MHR sticker is generally found on the front left corner of the manufactured home.
When a manufactured home is sold with land, owners can apply to be exempt under section 21 of the Manufactured Home Act from the Registration Requirement of the Manufactured Home Registry. Note that each owner or other secured party with a security interest in the manufactured home (who registered a financing statement in the personal property registry under the Personal Property Security Act using the registration number assigned under the Act) must consent to the application and at least one registered owner of the manufactured home is registered in the land title office as an owner of the fee simple interest in land.
I want to purchase land with another person. How does this work?
When land is purchased by two or more people, this is commonly referred to as co-ownership. Such ownership is generally either by Joint Tenancy or by Tenancy in Common. The Property Law Act of British Columbia states that when land is transferred to 2 or more persons, they are tenants in common unless specified otherwise.
What is the difference between Joint Tenancy and Tenancy in Common?
In a Joint Tenancy , each co-owner (Joint Tenant) owns an undivided interest in the whole of the land. When one Joint Tenant dies, the entire tenancy remains with the surviving joint tenant(s). For example, if a husband and wife own the land and one spouse dies, the other spouse inherits the land.
This is different from a Tenancy in Common where there is no right of survivorship. Tenants in Common may possess different shares in the property and they may leave their share by will to whomever they wish. Tenancy in Common is common in business relationships where co-ownership of property is involved.
How are Strata Properties (Condominiums) and Co-Operatives Different?
A strata development is a special way of subdividing land and buildings into parts for separate ownership with an interest in common features. A residential strata development provides for an individual to acquire a fee simple ownership of a separate part of a development together with an interest in the common features in the complex. The part of the property that the individual owns is called a strata lot (informally also called the stata unit). The remainder of the property is called the common property. A Strata owner owns the strata unit and has a proportionate fee simple interest (described in the Schedule of Unit Entitlement) as a tenant in common with the other owners of the common property. Strata properties in British Columbia are governed by the Strata Property Act.
When a developer leases land for a strata development, the developer may only lease the property from the federal, provincial or a municipal government or from some other public authority and the lease must be for a minimum of 50 years. The strata plan then becomes a leasehold strata plan and a Schedule of Restrictions should be registered with the Strata Plan deposited in the Land Title Office that may impose restrictions on the further leasing, assignment or occupancy or the strata lots included in the leasehold strata plan.
The owner of a strata lot must pay property taxes based on the strata lot owned and the share of the common property.
Common property can be designated as Limited Common Property (common property designated for the exclusive use of the owners of one or more of the strata lots) or as Short Term Exclusive Use (for example, in strata plans where parking stalls and storage areas are common property, strata corporations typically use short term exclusive use arrangements to assign these assets to individual owners and their tenants).
Parking stalls and storage lockers will either be a separate strata lot (no longer allowed in residential strata plans), part of the strata lot, part of the common property or designated as Limited Common Property.
Cooperative Corporations in British Columbia are created under the Cooperative Association Act. The owner in a cooperative possesses an undivided joint interest in the land and/or buildings most frequently by a share ownership in a non-profit corporation. The owners of the cooperative determine what number of shares are to be allocated to each unit and the shares are sold to buyers. A buyer of shares then becomes entitled to a lease of a unit. Because cooperative owners do not actually own an interest in the land, financing of a cooperative purchase is more difficult. For example, a “chattle” mortgage could be obtained using personal property as security. As well, unlike strata properties, the cooperative’s Board of Directors approval is normally required before an owner can sell their interests in the cooperative.
If a property is occupied by a tenant, what are the implications of buying and selling?
Tenancy agreements in British Columbia are governed by the Residential Tenancy Act. Under this Act, a fixed term tenancy agreement has a predetermined expiry date. When this date is reached, the tenancy agreement will expire (if not renewed) and either the tenant will vacate the premises on or before the expiry date or the tenant will continue to occupy the premises based on a month-to-month tenancy.
When a property is offered for sale that accommodates a tenant, a purchaser who intends to occupy the property (or a close family member intends to occupy the property) after its purchase may ask the seller to provide notice to the tenant to vacate the premises. To do this, the notice must be at least 2 months and is effective on the later of: the last day of a later rental payment period; or, if a fixed term tenancy, on its expiry date. This notice cannot be issued until an offer becomes unconditional.
The seller who gives notice under Section 49 of the Act (landlord’s use of property) must pay the tenant on or before the effective date of the notice, an amount that is equivalent to one month’s rent. The seller has the option of offering the tenant one month’s rent free instead of collecting the rent and returning it to the tenant.
In terms of property, what is the difference between a lease and a license?
In general terms, a lease creates an interest in land that binds successors in title while a license creates a contractual privilege which does not. As well, a lease creates a landlord – tenant relationship while a license does not.
I am looking at a development property. What is different about them?
The British Columbia Real Estate Development Marketing Act applies to a developer who markets, in British Columbia, a development unit. Development property means 5 or more subdivision lots in a subdivision (unless each lot is 64.7 ha or more), 5 or more bare strata lots in a bare land strata plan, 5 or more stratified lots in a stratified building, 5 or more time share interests in a time share plan, 5 or more leasehold units in a residential leasehold complex, 2 or more cooperative interests in a cooperative association, or 2 or more shared interests in land in the same parcel or parcels of land.
The Real Estate Development Marketing Act stipulates that a developer must obtain the necessary approvals (or have permission to market prior to obtaining the necessary approvals), make adequate arrangements relating to the title or interest being sold or leased, and prepare a Disclosure Statement with the Superintendent of Real Estate. Prior to the developer entering into a contact of purchase and sale for a development unit, a prospective purchaser must be provided with a copy of the Disclosure Statement and be given a reasonable time to read it. The Disclosure Statement must indicate that, whether or not title to the development unit has been transferred, the purchaser has the right to rescind the purchase agreement by serving written notice on the developer within 7 days after (the later of the following two dates) the date or the purchase agreement or the date the developer obtained a written statement from the purchaser acknowledging that the purchaser had an opportunity to read the Disclosure Statement.
I am considering the purchase of a new home. Any there any special considerations?
New homes listed fall under the Homeowner Protection Act, an act that applies to all homes built after 1 July 1999. The major requirements of the Act are that all new homes must be built by a Homeonwer Protection Office (HPO) licensed builder, all new homes must be covered by home warranty insurance (or there must be an exemption for these requirements), and to legally offer for sale a new and never occupied home, a developer (owner) must be a licensed residential builder.
The most common exemption is the Owner-Builder Authorization (OBA). A potential owner-builder must qualify for and apply for an OBA through the HPO. An owner-builder must be the builder (directly or as a general contractor), the owner of the land, and an individual. The owner-builder must own and occupy the home for 12 months after obtaining a final occupancy certificate. The owner-builder must obtain an Owner-Builder Disclosure Notice from the HPO and provide the disclosure to all potential buyers. This requirement applies throughout the first 10 years after the occupancy permit is issued and subsequent owners must provide the disclosure notice to all potential buyers within this time period.
If a home is under construction or complete and never occupied, it should have a valid HPO New Home Registration Form. Any home that is less than 10 years old should have valid Homeowner Protection Office documentation available to satisfy the requirements of the Act. The online registry of new homes can be accessed online to check for HPO registration for homes built after November 2007 and the HPO contacted for homes built prior to November 2007.
I just inherited some property and want to sell it. What do I do?
Sellers of an estate need to ensure that the property may be offered for sale and whether a grant of probate or letters of administration have been made which will allow the property to be transferred. The Wills Variation Act places restrictions on the executor of an estate and it establishes limitations that can effect when a title of such a property can be registered in a land title office. If you have inherited some property and you want to sell it, a good first step is to contact a lawyer for advice.
I am considering the purchase of a rural property. Are there different things to think about?
Each property is unique and may have unique considerations. A competent real estate professional should be able to help you determine the considerations that apply to the rural property in question. Water and sewage disposal are generally typical considerations.
There may or may not be an identified source of drinking water on an undeveloped (bare land) rural property.
If the land does not have a well you may need to contact a water dowser to find water and a driller to drill for it. If there is a source of surface water nearby (for example, a lake), a regional district office (such as the Comox Valley Regional District) should be able to tell you if a water license exists for the property to allow access to the surface water, and whether or not the license is in good standing. If there is no license, the water license application process can take as long as 6 months to complete.
If there is a well on the property, the well could be either private or shared. There should be a Water Well Log for the well. Other documentation may include a drilling report, water pump installation record, water testing results (there is a significant difference between a Basic Potability Report and a Comprehensive Water Test). Other testing documentation may include an annual Coliform Bacteria Well Water Testing report, and a Water Well Inspection Report. Online resources in British Columbia include Water Well Information provided by the Ministry of Environment and the BC Water Resource Atlas.
A second basic consideration is the existence of a septic system on the property (assuming that there is no access to a municipal sewerage system. Modern septic systems (Type 1, Type 2, and Type 3) have a septic tank and leaching bed that must be installed by a Registered Onsite Wastewater Practitioner (ROWP). The Applied Science Technologists & Technicians of British Columbia maintain a Wastewater Consumer Information Centre online that provides information on how to find a ROWP. Costs associated with a septic system include those related to installation, inspection, cleaning and maintenance (regular pump outs). Systems installed before May 2005 needed permits and a government inspection. Those installed after May 2005 need a letter of certification filed with the local Health Authority. The British Columbia Sewerage System Regulation (31 May 2005) is monitored by the Health Protection Environmental Services branch of the Vancouver Island Health Authority for Vancouver Island. They can be contacted on questions such as permits to construct a sewage disposal system. ROWPs can be contacted on questions relating to inspecting septic systems.
While looking for rural properties one stated that it was ALR. What does that mean?
The acronym ALR stands for Agricultural Land Reserve. An ALR is a provincial zone in which agriculture is recognized as the priority use of the land. Farming (land, plants and animals) is encouraged and other uses are controlled. Non farm use of ALR is not permitted and no more than one residence is allowed unless required for farm use. ALR land is administered by the Agriculture Land Commission Act and no sub-divison of ALR land is allowed except on application to the Provincial Agricultural Land Commission.
I am considering the purchase of a very old home. Are there any common considerations?
Each property is unique and generally will have unique considerations. A competent real estate professional should be able to help you determine the considerations that apply to the property in question. While all of the possible considerations are too numerous to mention on this website, some of the more common ones include property insurance considerations, health and environmental concerns, wood fireplace considerations, and underground storage tanks.
Some property insurance considerations include electrical service capacity less than 100 amps (60amp electrical service was fairly common in the 1960s), “knob & tube” wiring (fairly common until the 1940s) that did not provide a third wire for ground, a very old roof, galvanized plumbing, very old wiring or a wood stove/fireplace/insert/chimney that has not passed a Wood Energy Techology Transfer (WETT) inspection. The Consumer Division of the Insurance Bureau of Canada operates a toll free number that British Columbians can call to ask questions about things such as how to obtain insurance on homes with 60A service and knob & tube wiring (1-877-772-3777) Their website is www. ibc.ca
Some health and environmental concerns include asbestos, urea formaldehyde, radon gas, lead pipes and lead-based paint that may exist in the house. The Hazardous Waste Regulation and Hazardous Waste Legislation Guide address environmental aspects, and WorkSafeBC addresses some aspects related to removal from the home.
Some older properties may have been oil heated and may have had underground oil tanks. Unused or abandoned underground storage tanks are latent defects and sellers are obliged to disclose them. If they have been abandoned for more than 2 years they must be removed. If the tanks contained oil that contaminated the surrounding ground, the contamination must be remediated and inspected. The Land Remediation section of the Ministry of Environment administers the provisions for the investigation and remediation of contaminated sites in British Columbia under the Environmental Management Act and Contaminated Sites Regulation.
I saw a home for sale that was foreclosed. What does that mean?
A foreclosure is a legal process by which a mortgagee (lender) or other lien holder extinguishes the mortgager’s (borrower’s) right of redemption. The borrowers legal right is already extinguished because borrower has defaulted. While there are a number of remedies available for foreclosure, one of them involves a foreclosed property listed for sale as a court-ordered sale. The sale is carried out under supervision of the court and the court must approve the sale. Unlike most other real estate listings, foreclosures are generally offered for sale “as is where is” and with amendments to the standard contract. As well, no property disclosure statement will be made available. The lender will generally not make any representations or give any warranties concerning the condition of the property.
A few other things are different with foreclosures. First, offers to purchase must provide for the lender to obtain court approval. Second, Schedule A contains terms that amend and override those in the standard contact. Third, the completion date is dependent on court approval. Fourth, when an offer is considered by the court, other interested buyers may show up in court and present offers.
What is the difference between Property Tax and Property Transfer Tax?
Property Tax is a tax levied on an annual basis for services you receive from your local government. Property Transfer Tax is a tax paid when you purchase or acquire an interest in property in BC.
My neighbour told me that their home is affected by the Riparian Regulation. What is that about?
The Fish Protection Act is an element of the British Columbia Fisheries Strategy to protect our fish stocks. The Riparian Areas Regulation is focused on stream health and protecting riparian fish habitat while facilitating urban development. A stream is defined as a watercourse (whether or not it actually contains water) such as a pond, lake, river, creek, brook, and a ditch, spring or wetland that is connected by surface flow to a water course that provides fish habitat. The Riparian Assessment Area (RAA) for a stream is the 30 meter strip on both sides of the stream measured from the high water mark. Additional criteria are established for ravines. When an existing home falls within the riparian assessment area, limitations on what can be done when a person wants to make improvements. When someone buys land, the existence of a riparian assessment area places limitations on setbacks and where construction is allowed. If the Riparian Areas Regulation applies to your property, you need to have your property assessed by a Qualified Environmental Professional. The assessment will determine the Stream side Protection and Enhancement Area (SPEA) on your property which represents the development setback to prevent degradation of fish habitat. Additional measures may be required in the area beyond the SPEA but within the RAA.