Do I Need a Power of Attorney?

Here in Kelowna there are several reasons an individual may require a Power of Attorney (POA) when preparing to sell his or her property. A Power of Attorney is a legal documents that grants to a person (sometimes called the “Attorney”) the right to sell and dispose of the assets of the Donor (the person granting the power of attorney). Although there are many circumstances where a Power of Attorney can be useful, some of the most common situations are:

  1. families where spouses are working overseas/ out of town (including military duty)
  2. adult caregivers of elderly persons needing to manage their everyday financial and property affairs
  3. real estate agents who act under the terms of a specific and limited Power of Attorney to complete a real estate deal (for example when their clients are on vacation)

When the time comes to transfer land using a POA, a lawyer is going to be looking for certain criteria in order to establish the validity of the POA.

  1. ascertaining the true identity of the parties involved;
  2. make inquiries to ensure the POA has not been revoked;
  3. ensuring that the ORIGINAL must be filed with the Land Title Office with a DF#;
  4. ensuring that the POA was properly witnessed by an OFFICER under s.42(3) of the Land Title Act;
  5. ensuring the POA has sufficient powers to transfer land; and,
  6. ensuring that the attorney must be at least 19 yrs old.

The flexibility of allowing another person to make financial and legal decisions for someone else can make Power of Attorney a useful tool in real estate transactions. Contact lawyers@pihl.ca to find out more.

PTT changes announces in BC Budget

Effective Feb. 17, 2016:

  • Newly Build Home Exemption:
    • housing up to $750,000 will be exempt from Property Transfer Tax.
    • Details: http://www2.gov.bc.ca/gov/content/taxes/property-taxes/property-transfer-tax/understand/exemptions/newly-built-home-exemption
  • New Tax on High Value Transfers:
    • The Property Transfer Tax rate will increase from 2% to 3% on the portion of fair market value over $2 million.

Casting some light on “Shadow Flipping”

Shadow flipping or assigning a contract prior to completion has been brought under recent media scrutiny See: CBC or VANCOUVER SUN stories.

This generally refers to ASSIGNING a contract, which is a legal process whereby Purchaser #1 “sells” its contract to Purchaser #2.

This is legal because, once subjects are removed from the deal (and the contract is binding), the Purchaser has an equitable interest in the property from that date. This can occur months in advance of closing. The Purchaser (with binding contract in hand) then will gain if the property appreciates OR will lose if the property depreciates.  (In the Kelowna real estate market I have seen both occur)

It is also this equitable interest that allows Purchasers to sue for specific performance of real estate contracts and demand conveyance of the property to them if a Seller refuses to complete.

Altering this principal of British Columbia real estate law would dramatically change many aspects of real estate law in this province and would not be prudent legislative policy. A better practice would be for real estate buyers and sellers to work with all their professional advisors – lawyers, realtors, appraisers and accountants – early in the process to get well rounded independent advice.

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Written by Kelowna Real Estate Lawyer Peter Borszcz

Making an Offer on a #Kelowna Home? Involve your Lawyer.

Real estate negotiations can be a very emotionally intense time. A strong team is essentially, including a professional Realtor, Home Inspector, Mortgage Broker, Accountant and Lawyer.

An early phone call to your Lawyer (Before Subject Removal) can provide great value!

  1. Are there any charges on the land title for you to worry about?
  2. Do you understand your obligations in the contract?
  3. Have you considered what funds you will need to close according to the contract?
  4. What are the unique considerations for
    1. the neighborhood?
    2. strata property?
    3. leasehold and WFN lands?
    4. mixed used developments?
  5. What questions should I be asking other professionals?

For clients of our referring Realtors, these important initial discussions are just part of our continuing goal to exceed our client’s expectations.

Want to talk about Kelowna Real Estate? Call Kelowna Real Estate Lawyer Peter Borszcz at 250-762-5434.

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WFN – Tesoro Arca (Townhomes for Toys) FAQ

WFN-Tesoro Arca- Townhomes for Toys Lease FAQ

Tesoro Arca is a townhome community located around the corner from Two Eagles Golf Course on Cougar Road in West Kelowna.

What is the term?

Unless earlier terminated, the sublease expires September 29, 2106. Upon termination of the lease, your leasehold interest will expire and you must remove all belongings and leave the premises in good condition. A lease may be terminated prior to the end of the term in the event of an uncured default of either the sublease or the head lease.

Is the lease entirely prepaid?

YES- however you are responsible for paying additional components on a monthly ongoing basis such as Property Taxes, Utilities, and Home Owners Association dues.

Other financial obligations under the lease?

The rent is pre-paid however, as with other strata-type properties, there are additional components which you are responsible for paying on a monthly ongoing basis such as: Property Tax and Utilities which are payable to Westbank First Nations (WFN), and Home Owner Associate dues are payable (similar to strata fees) which will include common costs for property taxes, common area maintenance, common area insurance, and common area utilities.

Does the lease allow the owner to assign (sell) to a third party?

YES – but, prior to assignment (sale) to any third party a certificate of good standing will have to be obtained and a transfer fee may be payable. The Assignment must be registered with WFN.

Does the lease permit the owner to obtain a mortgage from a bank?

YES – the lease will permit the mortgaging of the Tenant’s interest without consent of the Landlord. The lease also contains those provisions which are required by the CMHC to provide insurance to lenders.

Does the lease restrict the use of the property?

YES- Your use of your property is restricted to residential use and home office use which are indoor and ancillary to your residential use.

Are there unique insurance requirements?

You are required to insure your premises and its contents according to the terms of the Sublease (including adding the Head Landlord, Lessee and Home Owner Association as additional insured).

Are there provisions for a homeowners association?

Similar to a Strata, The Home Owners Association or Sub-landlord may create bylaws and rules and fines may be imposed if you breach those bylaws or rules.

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A different kind of #BackToSchool Shopping in #Kelowna

For many home buyers, particularly those with children, a major criterion when purchasing a new home is the proximity to schools within the community.

Therefore, if you want your children to attend a certain school in School District #23, it is best if you reside within the catchment area for that particular school.

The Student Placement Regulations state that priority will be given to students in the following order:

  1. Catchment area students who, in the previous year, attended the school
  2. Catchment area students who, in the previous year, attended the school
  3. Catchment area students who, in the previous year, were ‘placed’ by the district in a different school
  4. Siblings of catchment area students
  5. New catchment area students
  6. Siblings of non-catchment area students currently enrolled in the school
  7. Non-catchment area students who request to attend the school which is other than their catchment area school
  8. Non-district area students
  9. International students

For a map of the catchment areas for School District #23, click on Catchment Area Maps.

Can we help you with a home purchase?  Contact us at 250-762-5434 or lawyers@phil.ca

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Know what your new home will cost to purchase…

…with our user-friendly Closing Cost Calculator!

There are many different fees and disbursements that go along with purchasing a new home in British Columbia.  Our calculator makes it easy to find out how much your dream home is going to cost.  Simply input the figures for your desired property and the calculator will give you an estimate.

Contact us at 250-762-5434 or lawyers@pihl.ca for more information.