For many Kelowna visitors, our lakes, mountains and sunshine are a place to unwind with their friends and family at secondary vacation homes. As these properties are now starting to get passed on to the second (or third) generations,  many interesting legal issues are arising including:

1. Income Taxes (capital gains) payable on the death of the Parents on Title;
2. Income Taxes payable due to placement of kids as Joint Tenants with Parents (to avoid #1)!;
3. “Sharing” issues between family members on things like upkeep costs and usage times;
4. Liability issues in the event of a judgment against or divorce of one the owners (where property is shared);

Some Potential Solutions Include:

1. Legal Ownership Structuring – Does there need to be a “Co-Ownership” agreement setting out the use and enjoyment of the property between multiple families? For larger or more complex family holdings, has a Family Holding Company or Trust been considered (Divorce/ Liability Protection)?
2. Tax Planning – Capital gains will be payable upon transfer to children (whether as joint tenancy or upon death), has this tax been accounted for (life insurance may assist)? Is a principal residence exemption/ election available (or part thereof), especially if the primary home is not expected to appreciate?
3. Securing Family Loans – Where a property (or portion thereof) is to be transferred to kids without immediate payment, parents should ensure that a promissory note/ mortgage evidence the loan (important in case of a future marital breakup).

Need help with a family vacation residence?

Call Kelowna Real Estate Lawyer Peter Borszcz.

Pihl Law Corporation closes first ever assignment of sublease (resale) in the West Harbour community by Troika. For more on West Harbour see: http://wp.me/p23AFz-9w

The use of a “bitcoin” for BC Real Estate Contracts would not be legal, tender must be in CANADIAN DOLLARS #oops CBC: http://cbc.sh/UugLdK

Ever wonder what a real estate lawyer has to do when you get a residential mortgage? Here is a great article: http://ow.ly/kwIGA

I can still remember the day when my dad told me that we were putting in a pool at our old Nathan Road home in the Okanagan Mission in Kelowna, BC. It was better than Christmas. My sisters and I lived in that pool every summer thereafter. Swimming has always been an integral part of my life, as Kelowna Aquajet, as a lifeguard at Swim Bay in Peachland, and now taking my daughter swimming every weekend to the H20 Centre.

I get excited when Buyers and Realtors ask, “Can I put a pool in my backyard?”, but the answer depends on a number of factors including:

1. Land Title Restrictions
2. Bare Land Strata Restrictions
3. City of Kelowna Building Permit Requirements
4. Water Input and Discharge Considerations
5. Security and Safety Concerns

A. Land Title Issues

Many different land title charges on a property can affect the placement of a pool on the property. The terms of these charges need to be obtained from the Land Title Office and reviewed with your Real Estate Lawyer.  Among the potential “red flags” are Easements, Statutory Rights of Way, and Covenants which may prevent the placement of a pool in the preferred location.

B. Bare Land Strata Restrictions

Bare Land Strata subdivisions “look” like fee simple residential subdivision, but the Strata Property Act will apply and the strata will be able to place rules and restrictions on the use of the property (Ironhorse is one local example). When considering a pool in one of these neighborhoods, the strata bylaws and rules need to be reviewed to ensure a pool is permitted.

C.  City of Kelowna Requirements

i. Fences – the City of Kelowna requires that a fence maintained in good repair surround the pool having a height of not less than 1.07m (3.5 ft.) that has no more than a 10 cm gap and designed to prevent climbing. Any gates must be “self-closing”. This is a minimum, and from my experience as both a lawyer and lifeguard, I would recommend that clients go further and install at least a 5 foot fence that does not allow a child to “see through” and be tempted to climb over into the pool area.

ii. Water Input and Management – the City of Kelowna prohibits the filling of a pool until the fence is complete and the home owner should note that some local municipalities have, in the past, prohibited filling of pools in times of drought (City of Vernon). Chlorinated pool water cannot be discharged into the a municipal storm water system (this is both a municipal and federal requirement). A water discharge plan should also be part of the any pool design. If a home owner discharges water and it flows onto a neighboring property, the home owner may be liable under the tort of nuisance for damages that are caused to the neighbor.

Summary

A home owner wishing to install a pool will need to consult a number of professionals, including a Lawyer, BC Land Surveyor, municipal officials, and the pool contractor.

1. Consult your Lawyer and obtain the terms of all registered non-financial charges from your lawyer, including easements, rights of way, registered no build/ no disturb zones, septic easements.
2. Ensure you know the location of the non-financial charges, if unsure contact a BC Land Surveyor and obtain a consolidated site plan.
3. Ensure you have a water discharge plan for the property.
4. Review the current building permit requirements with a City of Kelowna official.

Written by Kelowna Real Estate Lawyer Peter Borszcz.

To help our clients during the PST transition, Pihl Law Corporation will be OPEN on Mon April 1, 2013 (Easter Monday)! http://ow.ly/i/1pium

This is a repost of a Law Society of BC Alert: this guy actually contacted me twice through a couple different Kelowna Realtors (but we sniffed it out both times! whew!)

Bad cheque scam – real estate purchase by Kin Hang Cheung
Three BC lawyers in three different locations were requested to act on separate BC real estate purchases for Kin Hang Cheung, a new client outside of Canada. Giving an air of credibility, the three properties were listed with different BC realtors, who each made the lawyer referrals.
In each instance, Cheung provided a bad cheque for an amount much larger than required for deposit into the lawyer’s trust account (e.g. $350,000 US). The scam appears to be that Cheung signs a contract of purchase and sale with a subject to inspection clause or that he has another avenue to back out of the deal. He will then ask for his deposit back, presumably by electronic transfer, less the lawyer’s fees and disbursements. If the lawyer wires the funds from his or her pooled trust account, the lawyer’s account will be short and perhaps overdrawn.
Cheung appears to have also been targeting lawyers and realtors in the United States.
Find out how to identify the scam and avoid being caught by reading the “Bad cheque” materials in Fraud Alerts. For confidential advice, contact practice advisor Barbara Buchanan (bbuchanan@lsbc.org or 604.697.5816).
Please note that real people with the same name may be a victim of a fraudster or of coincidence, but are not suspected of wrongdoing.