Real Estate 2021

Last Updated April 13, 2021

Canada

Law and Practice

Authors



Stikeman Elliott LLP has 60 lawyers in its National Real Estate Group, who provide decisive advice and workable solutions to the industry’s most sophisticated players on their most complex projects, including non-taxable institutional investors, publicly traded REITs, investment funds, private equity firms and foreign investors. Stikeman Elliott leverages its national real estate expertise and long-standing relationships with key real estate developers to advise clients on acquisitions and divestitures, auction processes, brownfield redevelopments, commercial leasing, construction contracts, construction finance, distressed real estate, due diligence, engineering and environmental audits, environmental assessments and permits, investment structuring, joint ventures, land use planning and development, landlord-tenant disputes, procurement, project finance, reciprocal easement agreements, security enforcement and title searches. The firm provides full real estate capabilities through offices located in Montréal, Toronto, Calgary and Vancouver, helping clients to structure real estate investments in Canada and around the world. The team also specialises in spin-offs, sale/leasebacks and other innovative transactions. The firm would like to thank Jennifer Myhal, Simone Main, Alan Stachowiak, Avery Tsang, Catherine Grygar, Julie D’Avignon, Gordon Masson, Andrew Elliott, Andrew Cunningham, Philippe Kattan, Jean-Guillaume Shooner and Philippe St-Hilaire for their contribution to this Guide.

Under Canada’s federal constitution, laws relating to real estate fall within provincial jurisdiction. Specifically, each Canadian province enacts its own legislation with respect to the ownership structures, use, acquisitions and dispositions, financing and development of real property. Such laws tend to be similar across most of Canada’s provinces, as well as in the three northern territories. The exception is the civil law jurisdiction of Québec.

In Canada’s common-law jurisdictions – ie, all provinces and territories other than Québec – common-law jurisprudence is a key component of real estate law. In addition, some real estate-related common-law principles have been codified in legislation in Canada’s common-law jurisdictions. In Québec, the Civil Code (similar to those in use in many continental European countries) serves as the primary source of law, although case law clarifies issues that remain after the application of the Civil Code of Québec.

International law is not a significant source of real estate law in Canada. Nevertheless, international treaties are occasionally reflected in Canadian legislation relating to real estate. Orders of foreign courts are enforceable in Canada under certain conditions.

While the onset of the coronavirus pandemic in Canada in the spring of 2020 caused a short-term pause in transaction volume, the feared "crash" did not occur and one year later, all sectors of the Canadian real estate market have generally recovered to some extent, although to varying degrees. Hardest hit are the office, hospitality and retail sectors, although optimism is gaining traction as vaccination progresses. The spring and summer months of 2021 will be telling as to the shape of the "return to work" and whether these sectors will rebound fully. While the impact on the downtown office sector has been significant, a committed shift from investment in this sector has not generally been seen. The industrial sector faltered little in the early days of the pandemic, and has fully returned to its prior buoyancy, sooner than other sectors, especially given increased demand in the logistics sphere. The residential sector has seen a shift in focus as the demand for suburban and recreational property has enjoyed a strong boost, especially in late 2020 and early 2021, to the extent that this sector has generally returned to very strong levels. 

Investors who held back from making major investments in 2020 have begun deploying their capital, marking a return to pre-pandemic deal volumes being seen in early 2021. Institutional and private funds have enjoyed a dominant place in the market, with the emergence of new private, pooled funds over the past year demonstrating a competitive response by those seeking to take advantage of the easing of pandemic restrictions. Financings and re-financings are very active, capitalising on the currently low interest rates.

Initial concerns that transaction speed would be hindered by pandemic-related restrictions have proven inconsequential, with the ability to source, market, finance and close transactions having adapted fully to current circumstances.

The Canadian real estate market has not yet been significantly impacted by potentially disruptive developments such as blockchain and proptech. The long-term transformative effects of the coronavirus pandemic on the office (including parking), hotel and hospitality sectors will only be known following the successful re-opening of the economy when legislated restrictions are removed following wide-spread vaccination and reduction of new coronavirus cases. Related sectors may also see transformative change, such as shifts in office, retail and residential demand from urban centres to suburban areas, potential reductions in demand for office space (with increased numbers working from home) and increased demand for vacation and recreational properties. In addition, the explosive growth of online commerce, with even greater demand due to the exponential demand for logistics and distributions centres as a result of the pandemic, have sustained and increased pressures on the industrial real estate market as major online distributors vie for scarce urban space in which to house new fulfilment centres.

While several Canadian jurisdictions already tax unregistered (or “beneficial”) transfers of land, others have either recently introduced such taxes (Québec) or are considering doing so (British Columbia). Ontario has imposed onerous disclosure requirements, including details of shareholdings and beneficial ownership for transfers of agricultural land and certain categories of residential properties.

The continuing shortage of affordable housing has led to legislative action being taken. Both British Columbia and Ontario have already instituted foreign-buyer taxes in respect of certain residential properties in certain geographic areas. In British Columbia, an annual "speculation" tax has been introduced, which targets owners who do not pay taxes in British Columbia and who own real estate that is neither their principal residence nor made available for long-term rental. The goal is to encourage rental of under-used residential properties in British Columbia's major urban centres, and the tax rate varies from 0.5% to 2% of the property’s assessed value.

In British Columbia, steps have been taken to increase transparency and end hidden (beneficial) ownership of real estate. A publicly accessible registry of indirect owners of land came into effect on 30 November 2020: the first of its kind in Canada. Corporations, trusts and partnerships that acquire fee-simple property or leases with a term of over ten years must identify and provide information on all individuals who hold a significant interest in that entity. Developers of certain development properties are required to collect, report and retain information regarding assignments of purchase agreements in the new registry. Disclosure of these interest-holders will be required by the registered owner of an interest in land on a retroactive and ongoing basis. While certain information is expected to be publicly available by 30 April 2021, more sensitive information will be made available only to law enforcement/government entities. These measures have been subject to intense media scrutiny and have been criticised as onerous and leading to an unnecessary increase in transaction costs.

Property rights fall within the jurisdiction of the provinces or territories, and differ across the country. Each jurisdiction has enacted statutes that govern the acquisition, ownership, use, financing and development of real estate. In the common-law jurisdictions, a freehold estate in real property is a right or interest that exists for an indefinite duration. Conversely, a leasehold estate exists for a fixed duration. A fee-simple estate is the most common freehold estate in Canada and is considered as absolute ownership of real property. A leasehold estate is not absolute but confers an exclusive right of possession during the lease term to the tenant.

Other non-possessory rights in land include:

  • easements and rights-of-way (rights to use a portion of land for a specified purpose); and
  • restrictive covenants (specified restrictions on the use of land).

Licences to use land are contractual, do not grant exclusive possession and do not create an interest in land.

In Québec, real estate is generally governed by the Civil Code of Québec, which distinguishes between personal rights and real rights.

Transfers of title are governed by provincial and territorial statute. Certain jurisdictions (Alberta, Manitoba, Prince Edward Island, Québec and Saskatchewan) restrict the ownership of farmland or rural recreational land by non-residents. In Québec, non-residents include residents of other Canadian provinces or countries (in the case of individuals) and those whose directors and ultimate shareholders are not domiciled in Québec (in the case of corporate entities).

In common-law jurisdictions, registered (legal) title is typically transferred to the buyer upon registration of a deed or transfer in the relevant land registry office. In Québec, ownership is transferred as soon as there is a “meeting of the minds”, but the sale may not be opposable against third parties until a deed is registered.

There are two types of land registration systems in Canada:

  • the registry system – a public record of instruments affecting land; and
  • the Torrens (land title) system – which is government-operated and effectively guarantees title, subject to certain limitations.

Each province and territory uses either one or a combination of these systems. However, most common-law jurisdictions have converted or are in the process of converting to the more modern land title system.

The requirements for registration of instruments affecting land differ across the various provinces and territories and may include procedural, format and content requirements. Electronic registration of instruments is available in certain jurisdictions.

Title insurance is commonly used in Canada, but less so in provinces with a Torrens system (ie, with a statutory assurance of title). Many real estate lenders require borrowers to obtain title insurance. Title insurance can also insure against instances where aspects of diligence have not been performed, such as when a legal survey is not available, or when unusual title risks exist.

Typically, a buyer and seller will enter into a conditional purchase agreement, following which due diligence is conducted. If the buyer is satisfied with its investigations, it will waive its due diligence condition and the transaction will become “firm”, provided any other conditions have also been satisfied.

Real estate due diligence generally consists of:

  • examining title and zoning;
  • conducting off-title inquiries with municipal, provincial and federal departments and utilities;
  • reviewing leases, property contracts and surveys; and
  • commissioning environmental and building condition assessments.

Buyers and sellers have adapted to changes in the due diligence process necessitated by the coronavirus pandemic. Although the bulk of due diligence investigations are already conducted through online data rooms and conference/video calls, challenges have arisen with physical site visits, property inspections and in-person meetings with key personnel. Buyers have also adjusted their due diligence timelines to account for delays due to governmental restrictions on in-person gatherings and travel. Certain areas of due diligence, including supplier, customers and employee matters have received increased attention, with a particular focus on force majeure clauses, pandemic response protocols and employee workplace health and safety procedures.

The coronavirus pandemic and resulting governmental closure of certain businesses and restrictions on travel has resulted in purchasers, particularly foreign purchasers, being unable to conduct in-person property visits and rely on local consultants. Where consultants such as environmental and engineering consultants have been unable to conduct on-site and/or lab investigations, some parties have built extension provisions into their due diligence conditions to accommodate delays.

No major market shifts have been seen in the nature of the due diligence conducted as a result of the coronavirus pandemic; however, purchasers tended to focus more on the covenant of existing tenants and on review of force majeure clauses in leases. In addition, some purchasers looked to insert additional conditions in purchase agreements relating to tenant insolvencies or rent-relief concessions made after the transaction became “firm”. 

The typical contractual representations and warranties that a seller gives a buyer will depend on market conditions and the relative bargaining power of the parties. Real property is commonly sold on an “as is” basis, with limited warranties given by the seller. A seller will usually warrant factual matters that might be difficult for a buyer to verify independently through its own due diligence, such as the fact that the seller:

  • has delivered copies of all contracts, leases and reports related to the real property in its possession or control; and
  • has not received notices of non-compliance, environmental contamination or expropriation.

In the common-law jurisdictions, no general duty of disclosure is imposed on a seller by law. Generally, the principle of caveat emptor (“buyer beware”) applies to buyers when purchasing real property. However, there are exceptions to this principle, which oblige the seller to disclose matters such as environmental contamination or latent defects that render the property dangerous or uninhabitable.

In Québec, warranties as to ownership and the absence of latent defects apply, unless excluded or limited by contract under the deed of sale. A professional seller may not exclude or limit these warranties in respect of undisclosed defects of which it is aware or should be aware. A non-professional seller, however, may exclude or limit these warranties on the basis of the Québec caveat emptor equivalent. However, all sellers are bound to act in good faith under Québec civil law, and failure to disclose a known defect would likely amount to fraud.

Across Canada, caveat emptor does not apply to fraud. A seller will be liable for latent defects where the failure to disclose them amounts to fraudulent misrepresentation. In the common-law jurisdictions, a seller may be liable to a buyer for innocent, negligent or fraudulent misrepresentation.

The remedies for misrepresentation are rescission (the setting-aside of the contract) and/or damages. For fraudulent and negligent misrepresentation, the claimant may claim rescission and damages. For innocent misrepresentation, the court may award damages in lieu of rescission, but cannot order both remedies.

An investor will seek comfort that the value of the property and/or its revenue stream is retained over time. An investor will conduct investigations to determine whether any registered or unregistered agreements affect the lands, and whether the land is free from undisclosed liabilities that could diminish the value or constrain the use of the land. Secondly, the zoning/land use legislation should be reviewed to determine the current and intended uses of the land.

Transfer-tax considerations are increasingly impactful on real estate transactions in most jurisdictions in Canada – see 2.10 Taxes Applicable to a Transaction.

Environmental contamination and remediation of real property is governed by both federal and provincial or territorial legislation; however, enforcement is primarily at the provincial or territorial level, and clean-up requirements vary across the country. Although responsibility and liability to regulators, buyers and third parties for remediation generally rests with the seller or person that caused the contamination, subsequent owners, occupiers and those exercising control over real property can be liable for that contamination. This generally occurs when the subsequent owner/occupier failed to perform diligence, knowingly accepted the environmental condition of the lands, and/or contractually assumed environmental liability.

Between buyers and sellers, environmental risk and liability are often allocated contractually by representations, warranties and indemnities and, in some cases, adjustment of the purchase price. However, parties cannot contract out of regulatory liability; their liability for environmental contamination is potentially unlimited, although certain provincial governments recognise the contractual allocation of liability.

The permitted uses of a parcel of real estate under applicable zoning or planning law can be ascertained through inquiries with local planning authorities and a review of municipal land use by-law regulations. For larger developments, developers must enter into agreements with the applicable municipality to facilitate the development, whether to obtain construction approvals, subdivide the land, or to change the applicable land use by-laws. These agreements commonly relate to servicing and public facilities commitments, land dedications and bonding.

The expropriation of real estate falls under both federal and provincial regulatory regimes. The federal government has the authority to expropriate land interests in land for public works or other public purposes, pursuant to the Expropriation Act (Canada). Similarly, each province and territory has similar legislation.

Expropriation legislation across the country sets out procedural requirements for expropriating authorities, such as prescribed notice periods. Compensation is generally based on the fair market value of the subject lands and may include costs and damages.

Transfers of real estate in most Canadian jurisdictions are subject to transfer tax, which is imposed at the provincial levels and is typically payable upon registration of the transfer instrument in the relevant land registry. Certain municipalities (such as the City of Toronto in Ontario and various municipalities in Québec) may levy land transfer tax in addition to the tax levied by the province. In Québec, municipalities charge and collect transfer duties. Taxation rates vary across the country, from a high of 5% of the consideration for certain residential properties in Toronto, to no tax at all in Alberta, Newfoundland and Labrador and parts of Nova Scotia. All provinces charge registration fees, which are generally nominal.

In Ontario and Québec, unregistered transfers of beneficial interests in real property are also taxed, subject to some exceptions. In Ontario (but not in Québec), the transfer of an interest in a partnership that owns land is considered to be a taxable transfer of beneficial interest in that land.

In most jurisdictions, the buyer is liable for the payment of land transfer tax and is typically responsible for paying the applicable sales taxes, registration fees and other expenses relating to the purchase.

British Columbia and Ontario impose taxes of 20% and 15%, respectively, on the transfer of certain residential properties in certain urban areas to foreign nationals, foreign corporations or trustees for a beneficial owner that is a foreign national or foreign corporation.

At the federal level, the Competition Act and the Investment Canada Act provide for notification to, or review by, the federal government in certain circumstances involving acquisitions by non-resident purchasers. The federal Citizenship Act also permits each province and territory to enact laws restricting ownership of real property by non-residents.

At the provincial and territorial level, restrictions on the ownership of real property by non-residents vary from jurisdiction to jurisdiction. Most jurisdictions have taken measures to preserve farm or non-urban land, and certain jurisdictions limit the amount of farmland that can be owned by non-residents. Some provinces and territories also require that non-Canadian corporations obtain an extra-provincial licence or complete certain registrations to own real estate.

As mentioned in 2.10 Taxes Applicable to a Transaction, British Columbia and Ontario also impose additional taxes on foreign investors in certain circumstances.

Acquisitions of commercial real estate are typically financed through mortgage debt provided by financial institutions such as banks, insurers, trust companies, pension funds, credit unions and other entities that lend money in the ordinary course of business.

Real estate financing is commonly secured by granting a mortgage and a general assignment of rents and leases, or an immovable hypothec in Québec, in respect of the borrower’s interest in the subject real estate, along with a general security agreement, or a movable hypothec in Québec, with respect to the borrower’s personal property. These security interests are created by the execution of security documents and are perfected by registration in the applicable land title and personal property registries. Lenders may also require additional security, such as an assignment of contracts, or third-party indemnities or guarantees.

Although any person may lend money and take a mortgage (a hypothec in Québec) to secure real estate loans, certain financial institutions are regulated by statute, with special provisions applying to foreign financial institutions, and mortgage brokerage legislation applying to lending on the security of real property in several provinces. For the registration of security, certain land-title registries require foreign lenders to provide evidence of their existence and good standing. Others require foreign lenders to be extra-provincially registered with the provincial corporate registry in order to take security over real property in the province. Although mortgage interests may be exempt from restrictions on foreign ownership of land, the act of realising upon security (for example, by way of foreclosure) may contravene such restrictions.

Nominal registration fees apply to the registration of a mortgage, a general assignment of rents, a hypothec or any other registered real property security.

While giving financial assistance has traditionally been legally restricted or prohibited, many Canadian jurisdictions have recently eased or eliminated the requirements. However, legislation in some provinces still contains express disclosure and reporting requirements. Even where financial assistance is not directly prohibited or restricted by statute, directors must observe their fiduciary duty to act in the best interest of the corporation when approving such arrangements.

In the common-law provinces, the remedies for mortgage lenders generally include foreclosure, action on the covenant, appointment of a receiver, judicial sale, power of sale and possession, although the availability of such remedies will differ from province to province. Power of sale is a sale of the mortgaged property by the mortgage lender without court proceedings or supervision, pursuant to either the provisions of the mortgage which expressly grant the lender the power to sell the mortgaged property upon default, or the applicable provincial mortgage legislation (a power of sale is not available as a remedy in all common-law provinces). In Québec, analogous remedies include a personal right of action against the debtor, as well as the hypothecary rights of taking in payment, sale by a secured creditor, sale by judicial authority and taking possession for the purposes of administration.

A lender is obliged to give “reasonable notice” before making a demand for payment and will generally be required to send notices under federal bankruptcy legislation before seeking to enforce its security over the interest in land. In Ontario, New Brunswick, Prince Edward Island and Québec, the lender is free to sell the property privately by following a prescribed process, while reserving the right to sue the borrower for any deficiency in the sale proceeds. In British Columbia, Alberta, Ontario and Québec, the lender can sue for foreclosure (resulting in title to the property passing to the lender in full satisfaction of the debt). More commonly, most provinces also permit a lender to apply to court for a judicial sale of the property, with the borrower remaining liable for any resulting deficiency.

Certain statutory liens for property taxes, pension deficits, construction liens or other statutory remittance obligations may have priority over secured debt, even if the secured debt was registered/perfected prior to the creation of the lien. Otherwise, debt secured by registration may generally only be subordinated to new debt by agreement of the existing secured party.

Generally speaking, merely holding security will not expose a lender to environmental liability, although the value of the secured asset could be reduced if that liability comes to light during the term of the loan. Upon taking steps to realise on the security and taking possession or control of the subject lands, a lender (or its receiver) could be exposed to environmental liability.

If security interests were granted by a borrower on a legitimate bona fide basis, for good consideration, the subsequent insolvency of the borrower generally does not affect the enforceability of the security interest. However, the secured party’s enforcement proceedings may then be subject to court oversight and associated delays. If security was granted for little or no consideration, or on any basis where the intent of the grant of security was to prefer certain debts over others, federal legislation imposes “claw-back” rules that could impair or invalidate the security.

The impact of the expiry of the London Inter-bank Offered Rate (LIBOR) on borrowers has mainly been limited to amending credit agreements with LIBOR-based loans to include language to establish replacement benchmark rates. 

Provincial governments are responsible for land-use planning (other than on federal lands), but delegate most planning and zoning functions to municipalities. Much of the regulation of real property is in the form of zoning by-laws and building by-laws (informed by provincial policies and plans, municipal official plans and “plans d’urbanisme”).

Municipal by-laws regulate nearly all aspects of the use of land, the nature of buildings thereon, and the size and intensity of development of the land. Building permits are required for construction and for additions/alterations to buildings. Building permit fees are typically calculated based on the floor area of the proposed building or the value of proposed construction, and the type and use of the building. Building by-laws, including building permit requirements and building code standards, govern the types of building materials to be used, heating and ventilation systems, electrical systems, sewage and water systems, fire safety, access and inspection. The National Building Code of Canada has been adopted in whole or in part by the municipalities of most provinces, resulting in a trend toward national uniformity in building regulation. If an existing building has heritage value, regulations may restrict redevelopment. For developments in specialised urban areas, additional approvals pertaining to design may be required.

Most provincial planning and zoning functions have been delegated to municipalities. Enacted zoning and building by-laws designate geographic zones within the municipality and prescribe the uses allowed in each zone. These by-laws will generally also restrict density, height and parcel size, and impose requirements such as minimum building setbacks and parking requirements.

Development projects typically require applications for subdivision permission, re-zoning and development permits. Each municipality has differing eligibility, procedural and documentary requirements for each category of development permissions, which range from submitting an application and paying fees to meeting with municipal committees or the public, submitting plans and seeking the approval of municipal councils. Third parties (particularly neighbours) may have the right to be given notice of the application and to participate at a public hearing.

The availability of a right of appeal in these matters varies. In some provinces, such as Alberta and Ontario, the decision of a municipality may be appealed to a specialised tribunal. In others, such as British Columbia, there is no such tribunal and municipal council decisions are not subject to judicial review on their merits (although they may be reviewable on formal grounds such as lack of jurisdiction, procedural fairness or natural justice).

Large-scale developments by private real estate developers will typically require agreements with the municipality, setting out the terms and conditions for the development to proceed, relating to the construction of public facilities, land dedications, servicing commitments and financial obligations.

Provincial legislation generally provides for fines and penalties for contravention of applicable zoning and building by-laws. Municipalities may also take direct enforcement action against an offender to bring about compliance, and may pursue injunctions and court orders.

Legal persons (corporations and natural persons) may hold real property in Canada. As such, investment in real estate may be by way of direct ownership by an individual or through ownership of shares in a corporation that owns real estate. Relationships may also be established for the ownership of land, such as co-ownerships, partnerships and trusts, largely based largely on tax consequences, liability concerns and business considerations. Corporations, partnerships, co-ownerships and trusts are the most popular real estate investment vehicles.

Corporations are legal entities distinct from their shareholders. While corporations provide the benefit of limited liability for shareholders, the income, losses, gains and capital cost allowances of the corporation are taxed or deducted at the corporate level, followed by the taxation of dividends in the hands of the shareholders.

By contrast, a partnership is not a distinct legal entity, and constitutes a legal relationship among its partners and is governed by common law and/or statute. Under Canadian law, there are two principal types of partnership – “general” and “limited”:

  • in a general partnership, all partners can participate in management and are subject to unlimited joint and several personal liability for the partnership’s obligations; and
  • in a limited partnership, partners are divided into “general” and “limited” partners, with the latter’s liability being limited to the amount of their capital contributions, on the condition that they do not participate in the management of the business of the partnership.

A significant advantage of investment via a partnership is the tax treatment: although income and losses are calculated at the partnership level, they are taxed and deducted at the partner level.

Co-ownerships, like partnerships, are not separate legal entities but constitute a contractual relationship between land-owners. Income and losses pass through to the co-owners, who may claim tax deductions separately from the other co-owners. Accordingly, co-ownership agreements must be drafted to avoid the possibility of the relationship being construed as one of partnership (where, for example, each partner can bind all the other partners) rather than co-ownership.

Trusts are also not separate legal entities and constitute a relationship whereby a person holds property as trustee for the benefit of others. Both trustees and beneficiaries can be personally liable in connection with the trust property, subject to indemnification. Additionally, publicly traded real estate investment trusts have certain legislative protections in this regard. Income may be taxed at the trust or beneficiary level.

There is no minimum capital requirement for any of the aforementioned entities.

Corporations can be incorporated either federally or provincially, and are required to file articles of incorporation. A corporation’s governance framework can be shaped by its shareholders through its articles, shareholder agreements and corporate by-laws. The articles provide basic details such as the corporation’s business name, registered office, first director(s), share capital and share provisions. By-laws are used to add to, or supplant, default provisions set out in the corporation’s governing statute. Shareholder agreements may regulate how shares will be sold, specify procedures by which important decisions are made and provide protection for minority shareholders. Although there are mechanisms to individualise a corporation’s governance structure, federal or provincial statutes stipulate corporate requirements such as the number and residency of the directors and fiduciary duties. Public corporations are also subject to applicable securities law requirements.

While partnership legislation may impose basic governance rules, most sophisticated parties enter into partnership agreements setting out matters of governance in detail. The agreement typically addresses capital contributions, the business operations, profit/loss distributions and the addition or removal of partners.

Based on the contractual nature of a co-ownership, governance requirements vary depending on the agreement between the parties, which may establish rights and restrictions relating to the underlying land, determine profit-sharing and delegate management responsibilities.

Trusts are typically governed by the trust deed, under which the trustees powers may be limited to merely holding title at the behest of the beneficial owner, or may extend to allowing the trustee to exercise full discretion over dealings with the subject lands. In all cases, the trustee holds all benefits derived from the land for the beneficial owner/beneficiary.

Annual legal costs for entity maintenance are typically less than CAD1,000.

Leases and licences are contracts that permit the occupancy and use of real estate for a period of time, without buying it outright. While leases provide for exclusive possession over a specific area for a limited period of time, licences may not grant exclusive possession, and do not constitute an interest in land.

The most common categories of commercial lease include commercial/office leases, retail leases, and industrial/warehouse leases.

Commercial leases may be further categorised into “net leases” and, rarely, “gross leases”. Under a net lease, all operating costs and expenses relating to the property are passed on to the tenant in addition to the payment of base rent, although responsibility for capital expenses may remain with the landlord. Under a gross lease, tenants are charged an “all in” fixed gross rent to cover the landlord’s operating and capital costs and expenses, while providing the tenant certainty as to its financial obligations.

Ground leases are generally long term, with few landlord obligations and the tenant’s right or obligation to construct and control the improvements on the land. In Québec, "emphyteutic leases" (a conveyance of a dismemberment of ownership for a term) is analogous to a ground lease. Ground leases allow the tenant to invest in, and enjoy the depreciation of, the buildings on the land. Accordingly, the landlord will enjoy a low threshold of oversight and control, while the tenant will have greater contractual certainty to protect and finance its investment.

Rents and lease terms are freely negotiable, with the exception that the Québec Civil Code caps the term at 100 years. In response to the coronavirus pandemic, a number of temporary measures were introduced.

On 24 April 2020, the federal government announced the Canada Emergency Commercial Rent Assistance Program (CECRA), under which the federal and provincial (or territorial) governments partnered to pay 50% of the gross rent of participating tenants in the form of a forgivable loan to their landlords. The parties were required to have negotiated a rent reduction of at least 75%. Tenants were also required to meet certain financial criteria, including a demonstrable revenue decline of 70% in April, May and June 2020 and various size-of-business thresholds (eg, gross annual revenues of no more than CAD20 million on a consolidated basis).

After the expiry of the CECRA on 30 September 2020, the federal government introduced the Canada Emergency Rent Subsidy (CERS), which will remain in place until 5 June 2021. The CERS provides subsidies via the federal income tax system to a maximum of 65% of qualifying rent expenses (up to CAD48,750 per property for each of the nine 28-day “qualifying periods”). Multi-location entities are eligible for a maximum of CAD195,000 per qualifying period. Those accessing CERS subsidies must have experienced defined revenue declines.

Eviction moratoriums were also instituted by most provinces in the spring and summer of 2020. Most of these moratoriums were predicated on CECRA eligibility and concluded at or around the date on which the CECRA programme ended (1 October 2020). Ontario, the most populous province, subsequently instituted a new moratorium programme for recipients of the CERS that provides for non-enforcement of certain commercial lease remedies, including eviction for arrears of rent, until 22 April 2022.

An initial lease term typically ranges between five and ten years, subject to a tenant’s option to extend for one or more additional periods. A ground lease, in which the tenant will have financed and constructed the buildings on the land, will have a longer initial term and options to extend. The coronavirus pandemic has not resulted in material changes to commercial lease provisions. In the short term, leases in the hard-hit retail sector may see amendments to provide for abatement of rent specific to the current pandemic, but these are unlikely to become typical lease terms. While force majeure clauses may be updated to cover future pandemics, their application will continue to exclude breaches of payment obligations.

As a result of the coronavirus pandemic, both landlords and tenants have revisited lease provisions, including the definition and effect of force majeure provisions and quiet-enjoyment covenants. Typically, landlords have not been seen to allow for rent abatements in the event of future pandemics.

For commercial leases, rent is based on market conditions and negotiated prior to settling the lease agreement. Market conditions will determine whether there will be a fixed rental rate for the term, or whether the rental rate will increase throughout the term.

Rent is commonly increased during renewal terms. The rent payable for an extension or renewal can be:

  • fixed;
  • set at the market rate for a comparable property at the time of extension or renewal; or
  • increased based on an index (such as the Canadian Consumer Price Index).

Goods and Services Tax (GST), Harmonized Sales Tax (HST) or Québec Sales Tax (QST) is payable on rent and must be collected by landlords. If the commercial tenant is registered for GST/HST/QST purposes and is engaged in commercial activities, up to 100% of those taxes should be recoverable by the tenant. GST/HST/QST paid by commercial landlords on their expenses is generally recoverable, whereas GST/HST/QST paid by residential landlords is not.

A security deposit may be due at the commencement of a lease. In some jurisdictions, transfer tax may be triggered if the lease term exceeds certain thresholds.

Tenants occupying leased premises in a multi-tenanted development will typically pay a pro rata share of the expenses for maintaining and repairing common areas, as additional rent. In more landlord-friendly markets, responsibility for maintenance, repair and replacement costs will be allocated to the tenants, including for structural matters. However, major capital costs are often allocated to the tenant on an annual amortised/depreciated basis, so that the tenant's proportionate share of such major costs is not charged to the tenant at one time.

Tenants are typically responsible for the cost of their own utilities and telecommunications services, plus a proportionate share of such costs for common areas.

Landlords typically insure the buildings of a leased development, whereas tenants are responsible for insuring its fixtures, trade fixtures and personal property. Insurance premiums paid by the landlord are typically recovered from tenants as additional rent. Tenants must typically carry “all risks” physical damage insurance and general liability insurance.

Generally, landlords may impose restrictions on how a tenant uses the real estate, subject to land use, zoning and planning laws. The use of real estate can sometimes be affected by restrictive covenants (granted in favour of other tenants or neighbouring land-owners), imposing use restrictions on the tenancy.

The terms and conditions of a lease will determine whether a tenant is permitted to alter or improve leased premises or install tenant trade fixtures. Landlords often restrict tenant alterations, improvements and installations that affect the structure of the leased premises or affect or disturb other tenants. Tenants will almost always be responsible for the repair and maintenance of such alterations, improvements and installations. Upon termination, the lease will dictate whether the alterations, improvements and installations must be removed and the leased premises restored to its original state by the tenant, whether reasonable wear and tear is excepted, and whether improvements will become the property of the landlord.

All Canadian provinces and territories have residential tenancy legislation; in Québec, it is included in the Civil Code. Some provinces and territories also have legislation governing commercial tenancies generally, without specific provisions in respect of any particular category of commercial property. Where legislation does not exist or does not address an issue, common-law principles apply. During the pandemic, rent-subsidy programmes and eviction moratoriums have applied to commercial and residential tenancies, respectively. For a discussion of commercially focused programmes, see 6.3 Regulation of Rents or Lease Terms.

Subject to the specific terms and conditions of a lease, a tenant’s insolvency would likely trigger the occurrence of an event of default under the lease and permit a landlord to terminate the lease; however, bankruptcy legislation would apply to the tenancy relationship.

A landlord may require a tenant to pay a security deposit and may require the tenant to grant the landlord security over the tenant’s personal property. Landlords may also require a third-party guarantee from a parent company or subsidiary.

Commercial tenants generally do not have the right to continue to occupy the relevant real estate after the expiry or termination of the lease term. However, leases often contain an “overholding” clause whereby a tenant may remain in possession on a monthly basis, usually at increased rent (up to 200% of the monthly rent payable during the term). 

Most leases provide that the landlord must first consent to any assignment of lease, any subletting of the leased premises or any change of corporate control of the tenant. The lease will dictate whether or not that consent may or may not be unreasonably withheld and will state the conditions for that consent. Most common-law jurisdictions will dictate certain circumstances for which the landlord may withhold consent. Commercial leases may also give the landlord the right to terminate the lease upon a request for assignment, sublet or change of control.

A landlord will typically have the right to terminate a lease upon the tenant’s failure to pay rent, upon another material breach that is not cured within a specified time, upon the tenant’s insolvency and upon substantial damage or destruction of the leased premises/building. Tenants typically either have no right to terminate a lease or may only do so in limited circumstances, such as upon damage or destruction of the leased premises. Where a tenant negotiates an early termination right, fees will be payable based on the unamortised value of leasehold improvements paid for by the landlord.

In common-law jurisdictions, tenants are typically permitted to register evidence of their lease against title to the subject lands in the relevant land registry, although, other than in Québec, the lease may allow the landlord to prohibit registration. Depending on the jurisdiction, the actual lease agreement, a caveat/notice of lease or a short form of lease can be recorded on title to the subject lands. Upon the registration of a lease, transfer tax may be payable in British Columbia and Ontario. Generally, the tenant is responsible to pay such transfer taxes. In Québec, a lease with a term that exceeds 40 years, inclusive of renewals, triggers transfer duties.

A tenant may be forced to vacate leased premises in the event of default. Leases often provide that a breach must be material and go uncured beyond a specified grace period before the tenant can be dispossessed. In addition, in most jurisdictions a landlord is required to serve notice, specifying the breach and allowing a reasonable period to remedy the breach before they may re-enter the premises.

As a result of the COVID-19 pandemic, commercial tenancy eviction moratoriums were introduced by many Canadian provinces in the spring and summer of 2020 (Québec was the major exception). For a discussion of the provincial moratoriums applied to commercial tenancies, see 6.3 Regulation of Rents or Lease Terms.

A lease may be terminated by governmental or municipal authorities pursuant to legislative authority relating to expropriation (ie, public taking) or condemnation of land. In such cases, compensation will depend on the relevant legislation and both the landlord and tenant may be compensated.

In some jurisdictions, a lease for a term longer than three years may become invalid, and therefore terminated, if a bona fide third party acquires a landlord’s interest for value without notice of the lease. In such instances, however, equitable considerations may prevent an outright termination.

Canadian construction contracts generally adopt one of the following structures:

  • fixed price – predetermined, stipulated or lump-sum price;
  • cost-plus – based on the contractor’s actual costs, plus a percentage or fixed fee applied to actual costs, potentially subject to an overall guaranteed maximum price; or
  • unit price – predetermined fixed amount for each specified unit of work performed, which are multiplied by the measured quantity of work performed for each specified unit.

The allocation of responsibility for the design and construction of Canadian construction projects is determined by the project delivery model, and the form of construction contract used by the owner.

  • Design-build: the owner engages a single design-builder, who assumes overall responsibility for the design and construction of the project, including price, schedule and performance. The owner generally retains the risks associated with changes or unexpected conditions. Should the owner enter into separate contracts with the designer and the general contractor, the owner will assume the risk associated with co-ordination and conflict issues arising between those counterparties.
  • Owner and multiple contractors: the owner enters into separate contracts with different contractors for each portion of the work to be completed. This assigns the risk evenly amongst the contractors and creates a direct contractual relationship with each of them. Responsibility and risk associated with co-ordination and conflicts remains with the owner. Accordingly, an owner may engage a construction manager to enter into direct contracts with the contractors on the owner’s behalf to help to manage those risks better, and in some cases reallocate them. 

Generally, construction risks are managed through the construction contract, by way of indemnities, warranties, retentions, liquidated damages, termination rights, exclusions, limitations and waivers of liability, force majeure and insurance requirements. Risk may also be managed through the use of bonds, letters of credit or guarantees.

Schedule-related risks are generally managed through the contract, which will stipulate which party bears responsibility for different types of schedule impacts and delays. The parties may incorporate liquidated damage provisions such that an owner is entitled to compensation or set-off rights if certain milestone and completion dates are not achieved, subject generally to force majeure and owner-caused delays. The amount of the compensation must represent a genuine pre-estimate of the actual cost or loss to the owner attributable to such a delay and not a penalty to the contractor, as Canadian law limits the enforcement of penalty clauses. Payment incentives and early-completion bonuses are also common features of construction contracts.

While ultimately dependent on the nature and scope of the applicable construction project, as well as the parties involved, it is common for owners to seek additional types of security from a contractor. That security is most commonly in the form of labour, material and performance bonds and letters of credit, although in some cases an owner may insist on some form of corporate guarantee.

Each of the Canadian provinces gives statutory construction, builders’ or mechanics’ lien rights to those providing work, materials and/or services supplied to a construction project. The applicable legislation must be reviewed to confirm the applicable rights and procedures. Generally, construction liens are registered against the project lands, with owners having the ability to remove the lien in two ways:

  • by discharging the lien, which requires the lien claimant to deliver and register a release (typically following payment of the amount owing under the lien), or requires the owner to obtain a court order that the lien is invalid (ie, because the lien claimant has failed to meet the prescribed time periods for preserving and/or perfecting the lien); or
  • by vacating the lien, which requires the owner to pay, or to provide a bond or letter of credit for, the full amount of the claim for lien to the court. Such monies will stand as security for the claim in lieu of the property and the lien will be removed from title to the project.

Most provincial construction lien statutes protect owners who abide by the hold-back provisions of the statute and retain the specified percentage (usually 10%) from each progress payment under the construction contract. These hold-back funds can be paid into court if a lien is registered against an owner’s lands to have the lien discharged from title to the lands. In so doing, the owner’s liability is capped, provided the owner had no direct contractual obligations to the lien claimant.

In Québec, construction liens (legal hypothecs) are governed by the Civil Code and subsist without registration for 30 days after the end of the work, after which they must be registered. There are no hold-back provisions in the Civil Code, and such legal hypothecs secure the value added by the work, services or supplied materials.

In most cases, an occupancy permit or final approval, based on compliance with building codes and other applicable regulations/standards, must be issued by the local municipality before a project can be inhabited or used for its intended purpose.

Goods and services tax (GST), harmonized sales tax (HST) and Québec sales tax (QST) constitute all applicable VAT in Canada; rates range from 5% to 15%, depending on the jurisdiction within Canada in which the transfer takes place.

GST/HST/QST generally apply to the transfer of commercial real property, as well as new residential real property. The seller is responsible for collecting the applicable VAT from the buyer, except where the buyer is entitled to self-assess VAT (ie, buyers that are registered for VAT purposes and acquire real estate in the course of their commercial activities). Used residential real estate is generally exempt from VAT. Additionally, transfers of real property in the context of the sale of a business may be exempt from GST/HST/QST.

Where land transfer tax is imposed, it typically applies to the transfer of real estate and not to transfers of shares of a corporation or (with exceptions, such as in Ontario) interests in a partnership that owns real estate. In some jurisdictions, land-transfer tax is payable on the conveyance of a leasehold interest in land if the term of the lease exceeds specified thresholds.

In British Columbia, property-transfer tax is currently only payable on registered transfers of real property; transfers of a beneficial interest in real estate do not trigger payment of property-transfer tax. As a result, owners of commercial real estate often structure their ownership as a bare trust, with a nominee company holding the legal or registered title to the real estate in trust for the “real” or beneficial owner of the real estate. At the closing of a sale transaction, the seller transfers the shares of the nominee company and transfers the beneficial interest in the property to the buyer, avoiding the need to register a transfer of title in the Land Title Office. However, such transactions are anticipated to incur tax in the near future.

Municipal property taxes are payable by the owner of the property, and are generally passed on to tenants. These taxes are typically calculated based on the use and assessed value of the property. Some municipalities provide exemptions for public and/or non-profit organisations, or for geographical areas in which the municipality wishes to provide an incentive for development.

The taxation of Canadian rental income for a non-resident of Canada depends partly on whether such income is characterised as income from property or income from carrying on a business. Generally, the more effort expended in respect of the property, the higher the likelihood that it would constitute a business.

If the rental income constitutes carrying on business in Canada, the non-resident will generally be subject to tax on its net income attributable to that rental business. The rate of tax paid is generally the same as that which is paid by Canadian resident corporations (approximately 26.5%). In addition to the mainstream Canadian tax on Canadian-source income, the non-resident will also be liable to pay a branch tax of 25% on its after-tax Canadian profits that are not reinvested in its Canadian business. The branch tax can be limited to 5% if its members are corporations that are entitled to the benefits of the Canada-US Tax Treaty (with the first CAD500,000 of earnings being exempt from the branch tax).

Passive payments such as dividends, interest, royalties and rent made by a Canadian resident to a non-resident are subject to Canadian withholding tax of 25% which may be reduced by virtue of a tax treaty between Canada and the state of residence of the non-resident.

If the rental income is passive, the non-resident will generally be subject to Canadian withholding tax under Part XIII of the Canadian Income Tax (ITA). The ITA provides for a withholding tax of 25% on gross rental income. Canada’s tax treaties generally do not reduce the rate of withholding tax on passive rental payments for the use of Canadian real property. The payor making payment is required to withhold and remit this tax to the Canadian tax authorities.

As an alternative to the 25% gross withholding tax regime, a non-resident can make an election in respect of its passive rental income (a "section 216 election") that will allow it to file a Canadian income tax return and be taxed on a net basis (ie, after deducting its expenses associated with property). The rate of tax payable is the same as that paid by Canadian resident corporations.

Non-residents are subject to Canadian income tax under the ITA if, amongst other things, they dispose of taxable Canadian property (TCP). For these purposes, TCP includes a direct interest in real property or an interest in a private corporation, partnership or trust where, at any time in the last 60 months prior to the date of disposition, more than 50% of the value of the interest is derived primarily from real property situated in Canada. Relief may be available under an applicable income tax treaty if the sale of an interest in a corporation, partnership or trust does not, at the time of sale, derive more than 50% of its value primarily from real property situated in Canada.

Where a non-resident of Canada proposes to sell TCP, the purchaser may be required to withhold 25% (for non-depreciable capital property) or 50% (for depreciable property) from the purchase price, unless a clearance certificate is applied for and granted in advance. In addition, a non-resident must notify the Canadian taxing authorities about a disposition of TCP either before they dispose of the property or within ten days following the disposition.

For a discussion of VAT on rent, see 6.7 Payment of VAT.

In computing net rental income (ie, where income is earned by a resident entity, where rental income earned by a non-resident constitutes business income, or where a section 216 election has been made by a non-resident earning property income), expenses incurred in earning such income may generally be deducted, including operating expenses, reasonable financing costs and tax depreciation.

Tax depreciation may be claimed on buildings and other depreciable property used to earn rental income. Tax depreciation is allowed generally at rates varying from a 4% to 10% declining balance rate on buildings and other structures. The amount claimed is discretionary, and claims may be made in whole or in part, although tax depreciation generally cannot be used to create or increase a rental loss. The rate in the year of acquisition is generally one half of the rate otherwise available; however, this rule has been effectively suspended for most types of property acquired prior to 2024, with a phased resumption of the half-year rule between 2024 and 2028.

Stikeman Elliott LLP

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Law and Practice

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Stikeman Elliott LLP has 60 lawyers in its National Real Estate Group, who provide decisive advice and workable solutions to the industry’s most sophisticated players on their most complex projects, including non-taxable institutional investors, publicly traded REITs, investment funds, private equity firms and foreign investors. Stikeman Elliott leverages its national real estate expertise and long-standing relationships with key real estate developers to advise clients on acquisitions and divestitures, auction processes, brownfield redevelopments, commercial leasing, construction contracts, construction finance, distressed real estate, due diligence, engineering and environmental audits, environmental assessments and permits, investment structuring, joint ventures, land use planning and development, landlord-tenant disputes, procurement, project finance, reciprocal easement agreements, security enforcement and title searches. The firm provides full real estate capabilities through offices located in Montréal, Toronto, Calgary and Vancouver, helping clients to structure real estate investments in Canada and around the world. The team also specialises in spin-offs, sale/leasebacks and other innovative transactions. The firm would like to thank Jennifer Myhal, Simone Main, Alan Stachowiak, Avery Tsang, Catherine Grygar, Julie D’Avignon, Gordon Masson, Andrew Elliott, Andrew Cunningham, Philippe Kattan, Jean-Guillaume Shooner and Philippe St-Hilaire for their contribution to this Guide.

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