You have a new client with a rental property they are looking to sell. What do you do at this stage?

In our previous article “BC Tenancy Act: What Landlords Should Know Before Selling The House” we looked at the Do’s and Don’ts of maintaining a good relationship with the tenant during this process. 

Let’s look at maintaining a good relationship with the owner as well!

HERE ARE THE BASICS:

1. You can’t evict a tenant to sell a property
2. tenancy laws overrule the real estate contract (when it comes to vacant possession)
3. follow proper protocols for providing notice for showings
4. be aware of the proper notice required for eviction (and notice required by buyer, notice to evict tenant form)

START OFF ON THE RIGHT FOOT WITH THE TENANT

When is the best time to tell the tenant the home is being sold?

• Best practice is to tell them up front so there are no surprises – like a for sale sign suddenly goes up or strangers start wandering the property
• Have clear communication on what each party will do to respect everyone’s privacy, access and showings
• Ask the tenants: is there anything that needs to be fixed up? This is a good time to see if landscaping, painting or any repairs could be done are addressed
• Remember: this is going to be stressful on the tenant too but you can minimize it!

TYPES OF TENANCY AGREEMENTS

When it comes to a BC tenancy agreement, here are the two most common types:

Month to Month Tenancy:

• The buyer and seller are required to give two months notice to end tenancy if it’s a month to month tenancy and the buyer plans to live in the property.
• A written notice is required.
• The landlord must serve the Two Month Notice to End Tenancy so that it’s received:
• At least two months before the effective date of the notice, and
• Before the day that rent is due

Fixed Tenancy Agreements:

• This type of tenancy is in the form of a lease
• the new buyers of the property cannot move in until the lease expires, unless otherwise mutually agreed to by both parties.
• The new buyer will have no power over to whether or not the tenancy will end early

SHOWING A PROPERTY

The tenant has a legal right to peace and quiet while the tenancy continues. The landlord or their agent must provide written notice to the tenant or have their permission to enter and show the unit to prospective buyers or to conduct an open house.

The notice must provide the:

• Reason for entering the rental unit
• Date and time of entry – which must be between 8 a.m. and 9 p.m., unless the tenant agrees to another time
• Ideally, a tenant and landlord can agree in writing on a schedule for viewing times. If not, the landlord must give the tenant 24 hours written notice of each showing of the unit (these showings may be on the same day or on a reasonable number of other days).

When the landlord has given proper notice, they can show the rental unit even if the tenant isn’t home.

During showings of the rental unit, the landlord or the landlord’s agent is required to ensure the safety of the tenant’s possessions.

OPEN HOUSES

A standard showing of a rental unit requires the landlord or the landlord’s agent (Ex. a Realtor) to accompany any prospective purchaser. With open houses, multiple prospective purchasers or agents may attend the property at the same time with varying levels of direct supervision by the landlord’s agent. Landlords should be aware of the tenants’ right to quiet enjoyment and avoid holding multiple open houses in a short period of time as these have the potential to be disruptive.

TENANT RIGHTS AND RESPONSIBILITIES

When the landlord has given proper notice to enter the rental unit, the tenant must not prevent the landlord’s access (or access by the landlord’s agent).

The tenant, or a representative of the tenant, may be present at the time the rental unit is entered. The landlord cannot require that a tenant leave when the rental unit is shown. Tenants who are concerned about their possessions may be present.

When a rental unit is being shown to prospective buyers or prospective tenants, the landlord or the landlord’s agent must be present.

CAN A TENANT REFUSE ENTRY THAT’S UNREASONABLE OR UNLAWFUL?

Unreasonable entry could be all-day showings every Saturday for several weeks. Unlawful entry could be where the landlord or the landlord’s agent has not provided proper notice of entry.

UNCOOPERATIVE TENANTS

If a tenant unreasonably refuses access to show the unit or provides misleading or inaccurate information to prospective buyers, the landlord could:

• Discuss the situation with the tenant
• Invite them to contact the Residential Tenancy Branch
• Serve a One Month Notice to End Tenancy for Cause

IT’S SOLD! NOW WHAT?

Once a property is sold, the buyer becomes the new landlord and the tenancy continues under the same terms. The buyer and the tenants don’t need to sign a new tenancy agreement, but may do so if they both agree.

The buyer must serve notice to end the tenancy in good faith if they plan to occupy the unit or use it for other purposes – the tenant has 15 days to dispute that notice

HOW TO GIVE LEGAL NOTICE

Sudden tenancy eviction notices can happen but in BC you can not just randomly evict a tenant, you have to serve proper legal notice.

EXAMPLE: if rent is due on the 1st of every month and you receive a firm deal on March 15:

• You would give notice prior to September 1st.
• If the tenant as acknowledges it received by August 31st then the two months notice is now effective September 1st.
• The entirety of September & October would constitute as two months notice.
• The buyer could move in as of November 1st.

**Keep in mind any holidays when serving notice**

WHAT IF THE BUYER IS DOING DEMOLITION, RENOVATION, REPAIRS OR A CONVERSION?

“Renoviction” is a term used in British Columbia to describe an eviction that is carried out to renovate or repair a rental unit.

Effective July 1, 2021, under new legislation, if a landlord wants to end a tenancy for extensive renovations or repairs, they need to apply for an Order of Possession from the Residential Tenancy Branch.

• Four months notice is required
• Learn more about the new legislation

COMPENSATION

When serving a Two Month Notice to End Tenancy or a Four Month Notice to End Tenancy, the landlord must compensate the tenant with an amount equal to one month’s rent – paid on or before the effective date of the notice period. Compensation is owed even if the tenant gives notice to leave earlier. The tenant may choose to not pay rent in the last month of the tenancy instead of taking a payment from the landlord.

• Learn about rights and responsibilities in this situation
• Find out about additional compensation

SECURITY AND PET DAMAGE DEPOSITS

When a tenant moves out, the person who owns the property at the time is responsible for the tenant’s security deposit or pet deposit. This may make the buyer responsible for a tenant’s security deposit or pet damage deposit, even though the deposits were held in trust by the seller. The buyer and seller may wish to address the transfer of deposits in trust in their contract of sale or the closing settlement.

If the tenant owes money to the seller, it’s important that the parties to the sale – the buyer and seller – address these debts clearly in the contract of sale and purchase. Landlords should seek independent legal advice if they’re unsure how to do this.

WHAT IF…?

What if the buyer wants to move in? What kind of paperwork is required?

• Does the Buyer want the home to be vacant at the time of possession?
• on the contract of purchase and sale in the “possession” section of the contract they would add ‘vacant’ in addition to their move in date and time.
• the buyer must serve written notice to the tenants that they are moving in, which would be provided by the buyer’s agent to the buyer to sign off on and then deliver to the seller’s agent.

What if the Buyer wants to take over the tenancy instead?

• Yes, absolutely the buyer can take over the tenancy!
• the new buyer can arrange a new agreement to be drafted with or without amendments to the terms and conditions already stipulated.
• if the buyer takes title of the property later than the 1st of the month, the rent for that month is typically adjusted and split between the buyer and the seller.
• the security deposit originally collected is typically credited to the buyer upon completion.

FINAL TIPS & SUGGESTIONS

• Do not break any tenancy laws
• give tenants lots of advanced notice on your plans with selling
• if looking for vacant property incentivise the tenant to sign a mutual agreement to end tenancy by offering free rent or financial compensation
• work around the tenants schedule for showings – not the other way around, you need cooperation!

LINKS:
BC RTO – Selling a Tenanted Property
BC Tenancy Forms – All tenancy forms

Did you know that the sale of commercial real property is treated as a taxable supply, for which the Goods and Services Tax (“GST”) applies? A common pitfall for investors and advisors in real property transactions is determining whether GST will apply to a transaction, and which party is responsible for paying it. The application of GST in residential and commercial real property sales is set out in Canada’s Excise Tax Act, R.S.C., 1985, c. E-15 (the “ETA”). Generally, GST applies to all transfers of real property, unless explicitly exempted.

Under the ETA, an owner or vendor of a property is obligated to collect and remit GST. However, excluding certain circumstances involving residential complexes and special types of properties, if the purchaser is registered for GST purposes, then the purchaser will be obligated to account for GST instead. In this situation, the vendor should obtain and validate the purchaser’s GST registration number and the purchaser may claim an input tax credit on its GST remittance form, if eligible.

Commercial transfers of real property will be subject to GST. Moreover, purchasers of new residential property, including pre-sales, will be required to pay GST. Broadly, there are several exemptions under the ETA for real property transactions:

1. Property that has been previously occupied and used for residential purposes will be exempt from GST. However, if the property was substantially renovated prior to being sold, then GST may apply to the sale of that property.
2. Residential lands, such as a residential land leases or trailer parks.
3. Land or residences acquired for personal use, unless the land is subdivided into more than two parcels.
4. Bare land sold by non-profit organizations or an individual or trust will usually be GST-exempt. However, land sold by a corporation or partnership will be subject to GST.

Note that GST is also payable on rental payments for commercial properties, unless specifically exempted, such as a lease made by a public service body. Businesses paying a commercial lease will usually be entitled to claim an input tax credit on that GST, but landlords of residential leases will not be able to claim input tax credits on their businesses.

All stakeholders in commercial real estate should be well advised as to their obligations, liabilities and exemptions. They should make clear in their contracts whose responsibilities it is to pay, collect and remit such taxes.

Sources: Commercial Real Property – Sales and Rentals, Canada Revenue Agency GST/HST memorandum 19.4.1.; Real Property and the GST/HST, Canada Revenue Agency GST/HST memorandum 19.1; Sales of Vacant Land by Individuals, Canada Revenue Agency GST/HST Info Sheet GI-003.

Can I Own my Waterfront Shoreline? 

The area between the bank and the water's edge (often called the beach or foreshore) belongs to the Crown, not to landowners. Even if dedicated lands don't separate your lot from the lake, the land closest to the lake or river is usually the bank of the water body. In British Columbia, the foreshore is publicly owned. The foreshore of the Burrard Inlet where ones's property is located is managed by the District of West Vancouver, which leases it from the province. The pool and seawall are considered "encroachments" on the foreshore. Click here to read more

More priority communities selected to deliver more homes

As part of the Province’s commitment to build more homes for people, the next set of priority communities has been identified to receive housing targets for the next five years.

These communities are in high-growth, high-need regions of B.C., where many communities are taking action to deliver more homes quicker.

“We are addressing the housing crisis with our municipal partners so thousands more affordable homes can be built for people who need them,” said Ravi Kahlon, Minister of Housing. “Our goal for the next 20 communities is to build on the work they are already doing, while they continue to implement the recent provincial legislative changes. This group includes communities that are doing well on housing and some that need to do more.”

The Province introduced the Housing Supply Act in 2023 and established housing targets for the first 10 priority municipalities, based on areas of greatest need and highest projected growth. Twenty additional priority municipalities have been identified. The Province will work with these communities to ensure they meet their housing targets, laying the foundation for tens of thousands more homes to be built quicker.

The next 20 priority municipalities identified to receive housing targets are:

• Central Saanich; 
• Chilliwack; 
• Colwood;
• Esquimalt;
• Kelowna;
• City of Langley;
• Maple Ridge;
• Mission;
• Nanaimo;
• New Westminster;
• North Cowichan;
• North Saanich;
• City of North Vancouver;
• Port Coquitlam;
• Prince George;
• Sidney;
• Surrey;
• View Royal; 
• West Kelowna; and
• White Rock.

Federal budget 2024: Canada’s recently unveiled 2024 budget proposes to adjust the capital gains inclusion rate. What does this mean for investors and taxpayers? 

The federal government's proposed change to capital gains taxation is expected to increase taxes on investments.

After unveiling plans to spend billions of dollars to boost Canada's housing supply and social programs, the federal government is framing its plan as a fair way to offset those investments and prevent younger generations from inheriting a bigger deficit.

"I understand for some people this may cost more if they sell a cottage or a secondary residence. But young people can't buy their primary residences yet," Prime Minister Justin Trudeau told reporters Tuesday in Saskatchewan.

Here's what you need to know about the change to capital gains taxation. Click here to find out more.