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Legally Speaking 513 (April 2019)

Chris Johnston B.A., LL.B.

Seller’s agents must be certain that they are dealing with the person with authority to list and sell the property. Confirming the identity and the authority of your clients may seem simple. However, in the global society today with complex deals, complicated ownerships of property and challenging deals, the pitfalls may be expanding.

Examples of situations that may result in claims or complaints against licensees include:

  • a person acting on behalf of the seller does not have a proper power of attorney to execute documents for the absent seller;
  • a licensee who has been authorized in writing to sign on behalf of the seller does not execute the contract properly (i.e. signs in the name of the seller rather than in the licensee’s own name, as agent for the seller);
  • a licensee fails to do a title search and is not dealing with the seller on title;
  • a licensee acts for a company without ensuring that she has proper authority from the corporate directors; or
  • a licensee takes instructions from an unauthorized representative of the seller such as a friend, family member or business partner without the knowledge or requisite written authority of the seller.

Predictably, these scenarios can lead to situations where the seller refuses to close and is sued by the buyer for failing to complete. In a rising market, the buyer seeks damages for any difference in value of the property, costs and expenses thrown away, specific performance and/or related damages, interests and legal costs. The licensee may be named as a party to the lawsuit with allegations of negligence for failing to ensure the contract was being signed by the proper party or for misrepresenting that they had the authority of the seller to list the property and to accept an offer of purchase and sale for a property.

In a recent decision1 of the British Columbia Supreme Court, a licensee faced this type of allegation when he was not aware that he was receiving instructions from someone other than the person on title. Although the Court found a binding contract at the end of the day and the claims against the licensee were dismissed, the stresses and expenses of a trial that lasted more than 50 days would have been extensive. The best ways to avoid such a kerfuffle include the following:

  1. When listing a property, always conduct a full title search. Know who your client is!
  2. On any listing involving a corporation, be certain to have a company search done and ask for the articles of incorporation and proof of who the officers and directors are with authority to authorize a transaction, perhaps with a Director’s Resolution.
  3. Where the seller may be absent physically or have health issues and wishes to give a power of attorney to another person, recommend your client get legal advice to ensure the form of power of attorney being used is valid and acceptable for filing with the Land Titles office and that it has not expired and/or been revoked.
  4. Consider using DocuSign or other software for secure electronic signatures with proper written consents in place for absent parties to a deal, rather than signing for them.
  5. If asked to sign for a party, be sure that the request is in writing, is genuine, and that the licensee signs in the name of the seller rather than in the licensee’s own name, and as agent for the seller.
  6. Never witness a signature that you did not actually witness.
  7. Don’t be lulled into believing that a family member has authority to make decisions for the person on title. Make sure you are getting instructions from the owner of the property and if it is someone else, that they have been granted the proper authority from the seller to sign on their behalf.

Licensees are expected to draft legally enforceable contracts and the starting point should always be to ensure that you know who owns the property and that you are dealing with the person with proper authority. An ounce of prevention is worth a pound of cure.

Economists rule out rate change next week

Economists believe BoC will leave rate as is

Steve Randall
Canadian Real Estate Wealth

The Bank of Canada will announce its April interest rate decision next week but a survey shows little expectation that it will make a change.

Nine out of 10 economists including those from TD, Laurentian, the Conference Board of Canada and University of Manitoba – expect that the BoC will leave rates unchanged at 1.75%.

“All combined, the global slowdown and specific factors weighing down on Canadians households and the oil sector are justifying to keep the overnight rate at current level,” said Sebasiten Lavoie, chief economist at Laurentian Bank Securities.

However, the poll by Finder.com found that Atif Kubursi of Economic Research Ltd. and McMaster University, is predicting a rate cut, citing “sluggish growth and poor export performance.”

While the others are ruling out a cut in April, four now believe Governor Poloz could announce one in July and longer term we could see a 1.15% rate within the current cycle.

Recession fears While a rate hold and cut will be good news for the housing market, the underlying reasons for economists making their predictions is more concerning.

Canada is either somewhat or very likely to go into recession in the next 12 months, according to half of the panellists.

“Uncertainty remains elevated, and recent trends (January notwithstanding) have been quite weak – domestic demand contracted over the latter half of 2018. Retail sales remain soft, as do housing markets,” said Brian DePratto, senior economist at TD Economics.

The panel expects the CMHC First Home Buyers Incentive to have either marginal or little to no impact on housing affordability but they believe that property prices will stabilise by the end of the year. Montreal house prices are expected to increase the most

Copyright © 2019 Key Media Pty Ltd

The Oaks 731 Anskar Court Coquitlam 135 homes in a 6 storey building by Strand Developments

Amenity spaces will enhance community at The Oaks

The Province

West Coquitlam has been described as a growing hub of culture and outdoor recreation, an ideal place for families to put down roots and for people to connect with each other. It’s this sense of interaction that has inspired Strand to develop The Oaks as a unique offering to the neighbourhood – and a distinctive addition to Greater Vancouver’s busy housing market.

While the high-quality features and the affordable prices of The Oaks’ one-, two-, and three-bedroom homes are attracting the attention of first-time buyers and young families alike, arguably the most exciting aspect of this project is that Strand is delivering The Oaks as a community within the city, thanks to 28,000 square feet of private indoor and outdoor amenities. “That includes over half an acre of green, family-friendly outdoor space, including private gardens, two courtyards, children’s play areas, an outdoor barbecue area and walking paths,” says Mike Mackay, president of Strand.

The sense of a community within the city is enhanced by the fact that the outdoor space is nestled within what will ultimately be three six-storey condominium buildings, making it both a protective haven for children and respite for adults, as well as a lush architectural feature for homeowners gazing out their windows.

Equally impressive is the sheer volume and usefulness of amenities Strand has included inside The Oaks. All homeowners have access to a 2,700-square-foot living room with elegantly designed comfortable space, including a cosy lounge, a children’s playroom and a reservable dining space with kitchen (ideal for hosting private events and special occasions).

A games room is a space for relaxation and recreation, with pool and foosball on hand, while a fitness studio provides all the luxuries of a modern, fully outfitted training facility.

That’s only part of The Oaks’ offerings. There’s also a spin studio with on-demand digital training sessions, an indoor kids’ play area, a theatre and flexible workspaces for those who need to concentrate or collaborate from home. “Every amenity space Strand has created has been with the intention of promoting human interaction while maximizing utility,” says Mackay. “We want homeowners to meet each other and foster a lasting sense of community together and for families to grow in a safe place.”

However, this abundance of amenities would mean little if it wasn’t matched by livable units developed with an equally high degree of care and thoughtfulness. Strand retained Ste. Marie, which is renowned for its work in the restaurant sector, to bring The Oaks’ homes to life.

Mackay says: “The floor plans of the one-, two-, and three-bedroom homes maximize space with high ceilings and plenty of natural light and have been designed with the utmost attention to detail throughout, from the quartz countertops in the kitchen and the frameless shower doors in the bathrooms, to the USB outlets conveniently located by the master beds.” As for the design of the three buildings themselves, they are West Coast contemporary, distinctly modern and very appealing.

All of these elements are entirely in keeping with Strand’s approach to residential development. “Strand brings a global sensibility and elegance to every project it undertakes,” says Mackay. “We are a local Vancouver based company with over 40 years of experience developing homes in Greater Vancouver and over 23,000 homes across North America. Every project we deliver is underpinned by a commitment to quality and timeless design, which have been major differentiators for our company over the course of its history.”

The other distinct advantage of The Oaks is its location: homeowners are only a 10-minute walk away from the Burquitlam SkyTrain Station (which in turn brings commuters to downtown Vancouver in less than 40 minutes), minutes to the shopping/dining destination of Lougheed Town Centre, and nearby schools for all ages (including Miller Park Elementary School and Banting Middle School) as well as the Simon Fraser University Burnaby campus.

Port Moody is easily accessed from The Oaks by car or SkyTrain and provides a host of family activities at Rocky Point Park, including swimming, biking, wildlife viewing, and kayaking/paddle boarding. (Rocky Point is also a place with plenty of free events, like RibFest and Golden Spike Days.)

Mackay concludes: “The Oaks is unique in its creation of a sense of community within a greater urban space, and West Coquitlam is the ideal neighbourhood for growing families to experience this.”

The Oaks’ presentation centre is now open and Mackay urges prospective buyers to visit the two-bedroom display home at the presentation centre, which is located at 730 Clarke Road, Coquitlam (open daily from noon until 5 p.m. Closed Fridays, or by appointment). Website: www.owntheoaks.com

© 2019 Postmedia Network Inc.

Balancing security rights with safety

Owners do not have to hand over keys

Tony Gioventu
The Province

Dear Tony:

The story of the owner who raised alarms in her unit over unlawful access by an employee has also raised serious concerns in our condo.

We live in downtown Vancouver and were the first people to move into a new building five years ago. We recently received notice of a bylaw violation because we had allegedly altered our kitchen and installed a refrigerator with a water and ice unit, which is prohibited in our bylaws. However, this was installed by the developer as an upgrade when we purchased.

We requested a hearing and at the council hearing, the property manager produced a photograph of our kitchen, which dated by the note on our fridge, was taken within the last month. When we asked how the photo was taken, the property manager refused to respond and no council members would answer the question.

It was clear someone has been in our unit when we were not home. We immediately ordered a locksmith and when he arrived to change our locks, our building manager informed him only the strata could change the locks as they were required to retain a key for access.

We threatened court action and the matter was resolved. We have no such bylaws and no one in our building I have spoken to was aware the strata council and building manager had keys to their units. Now owners are demanding a general meeting to address this as everyone is concerned about personal and property safety. Any help would be grateful appreciated.

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Nastasia K.

Dear Nastasia:

Whether you are an owner or tenant, when you move into a condo you do not have to provide keys for access. Living in a condo does not mean you surrender your personal safety and security.

When a new development is created, individual lock sets are installed in each unit; however, there is a master key system, which is essential for the contractors’ access as they move from suite to suite installing products and finishing construction. When the project is complete, the master keys remain unless the master lock access has been removed, which in my experience is rare. 

Even after five years, it is possible the original master lock set system exists in your building. It is appalling the strata council and manager are aware there is a master access and have not informed the owners, sought their permission to retain keys, and insisted the corporation has a key to each unit. 

A bylaw that requires owners to provide keys to access their units is virtually impossible to enforce and I suspect will not be enforceable when challenged because security and privacy rights of owners will be compromised.

The Strata Property Act and Standard Bylaws provide conditions for access to strata lots. For routine service and inspection of the unit, the strata must inform the owner or tenant in writing with 48 hours written notice, which really means six days as the notice periods must be respected.

It is your responsibility as an owner or tenant to ensure access. If access is not granted, a potential bylaw enforcement issue exists that could result in penalties or an application through the civil resolution tribunal ordering access. It does not give the strata corporation the authority to retain a locksmith to enter a unit.

In the event of an emergency, access may be gained without notice; however, if there is an emergency, a 911 call or emergency response protocols should be executed and the owners and tenants immediately notified. 

If the owners, tenants and strata corporation agree to the provision of keys for access, here are a few tips. A consent form to provide a key is recommended and the following information is essential. Identify how the keys are accessed, when and how the key access may be used, who has access to the keys and whether that person(s) is bonded, how the keys are stored to ensure there is no risk of theft or identity of the keys, and in the event there is a security breach, a requirement that every owner and tenant be immediately notified. 

A strata corporation may potentially incur a significant amount of liability if it has retained master keys for access to strata lots without the consent of the owners or tenants. All residents of condo units have the right to feel safe in their homes. 

© 2019 Postmedia Network Inc.

MODE 3438 Sawmill Crescent Vancouver a 25 storey tower with 257 homes by Wesgroup Properties

Wesgroup?s MODE to take its place in an expanding Vancouver neighbourhood

Kathleen Freimond
The Province


What: a 25-storeys building with 257 homes

Where: 3438 Sawmill Crescent, Vancouver

Residence size and prices: One bedroom 562 to 775 square feet; two bedroom 789 to 1391 square feet; three bedroom 1,059 to 1,537 square feet; Starting at $499,900

Developer: Wesgroup Properties

Sales centre: 3202 Riverwalk Avenue, Vancouver

Hours: Open daily 11 a.m. to 4 p.m.

Telephone: 604-879-8830

The 25-storey building is part of the second phase of the 130-acre master-planned community between Kerr Street and Boundary Road in southeast Vancouver.

MODE, Wesgroup Properties’ new tower in Vancouver’s River District, will evoke the neighbourhood’s rich heritage by featuring industrial-inspired materials in the architectural design and incorporating historic artifacts – reminders of the sawmills that once dominated the area – in the building’s elegant lobby.

The 25-storey building is part of the second phase of the 130-acre master-planned community between Kerr Street and Boundary Road in southeast Vancouver.

When complete, the River District will include 250,000 square feet of retail space, 25 acres of green space and approximately 7,000 residences.

Brad Jones, Wesgroup’s vice-president of development, notes that the first phase — the western neighbourhood — is almost complete and the town centre area in the middle of the site, which includes residential development and most of the retail space, is now the focus.

While design guidelines apply to all buildings in the River District, Jones says Wesgroup has been deliberate about recalling the industrial heritage of the site through the use of materials like board-form concrete and incorporating the look of weathered, rusted steel in the buildings it has developed.

 “For MODE, we’ve taken it a step further,” he says. “The mills had old beehive-shaped steel burners on the site and they weathered to a beautiful patina – that patina will be reflected in the fins on the podium façade.”

The entrance to the building will be marked by salvaged V-rollers once used in the sawmills, while a daytime concierge will greet visitors and accept packages in the lobby with its backlit metal panels and detailed millwork.

While architectural design features may recall the past, MODE is attracting a lot of attention for its 9,000 square feet of modern-era amenities and sophisticated interior design, Jones says.

The building has a large entertaining space, which includes an indoor kitchen and dining space that opens to an outdoor terrace; a work hub with two boardrooms, individual booths and meeting spaces; a theatre room with a large-screen projector and surround sound; games lounge with pool table; fitness facility with access to an outdoor hot tub; a workshop and bike repair room and dog-wash station.

Erin Kenwood, Wesgroup’s vice-president of interior design, says that while she expects the common spaces to be popular, residents will find a serene and calm ambience in their homes.

Buyers can choose from two schemes – light or dark – both with a grey palette.

The display unit at the sales centre showcases the dark scheme. The kitchen features a grey marble-look quartz countertop on the island, perimeter cabinets and the slab backsplash. The dual-tone cabinetry has flat-panel high-gloss grey doors and drawer fronts while the island, the oven and microwave tower, and the panels that integrate the Blomberg refrigerator/freezer are a warm wood-look laminate.

The ensuite has a black matte towel rod that gives the space a timeless custom look. A frameless glass shower enclosure with a built-in niche, LED lighting under the large mirror and medicine cabinet and over-sized white porcelain wall tiles contribute to the spa-like look, Kenwood says.

© 2019 Postmedia Network Inc.

Owners of West Georgia White Spot site propose two luxury condo towers

Proposed twin 38-storey Alberni Towers would house 455 units in revised concept

Joanne Lee-Young
The Province

Owners of the much-watched White Spot restaurant property in the West End across from Coal Harbour are proposing to build two high-end condo towers, according to a rezoning application filed with the City of Vancouver.

The proposed twin 38-storey Alberni Towers would house 455 condo units and total 433,657-sq.-ft. of floor space.

In late 2017, Carnival Group International, a Chinese company known for building a giant resort in Qingdao on China’s east coast, partnered with Vancouver’s ASPAC Developments to buy two-thirds of the block on West Georgia where it heads from downtown toward Stanley Park.

The $245-million pricetag made it the largest property transaction in the region that year.

With planned zoning for just under 398,000-sq.-ft. of residential space, the sale had an expensive figure of $615 per build-able square foot, and expectations that any condos would be priced accordingly.

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It is not known how Hong Kong-listed Carnival and ASPAC split the investment.

The transaction occurred off the radar of the major commercial real estate players and was brokered instead by a residential real estate agent and a real estate consultant, both based in West Vancouver.

It was months later that a slew of speculation and vacancy taxes and an increase in the foreign buyers tax that would drag on sales and prices for the high-end and presale condo market were introduced.

The White Spot property had been owned by Shato Holdings, which was founded by Peter Toigo and is now run by his sons. Shato had preliminary designs for two towers of 33 and 39 storeys and some 350 condos, but never went through a rezoning process.

Now, the Carnival and ASPAC partnership has hired Connecticut-based Pelli Clarke Pelli Architects to come up with a revised concept. The American firm is known for some skyline-defining buildings, including the Petronas Towers in Kuala Lumpur, the International Finance Centre in Hong Kong, and World Financial Centre in New York.

Pelli’s design includes more than 100 additional condo and townhome units than envisioned by Shato’s plans. It calls for 200 in each 38-storey tower and then 55 in a four-storey “podium” that connects the two. The application is aiming for an increase in total floor area to 433,657 sq. ft.

Vancouver-based ASPAC vice-president Gary Wong, who is listed as a director of the B.C.-registered company on the property’s land title, did not return several calls by Postmedia.

Vancouver-based Gwyn Vose of architecture firm IBI Group is the applicant contact listed on the rezoning application. He referred calls to Vancouver-based Barry Savage of Savage Development Management, who is working with ASPAC.

On its website, Carnival Group International describes its Vancouver property alongside its resort, luxury condo and villa real estate projects in Qingdao, Chengdu (in China’s southwestern Sichuan province), Beijing and Hong Kong.

© 2019 Postmedia Network Inc.