REDMA Regulations and Policy Statements Amended

Articles

As discussed in our previous article titled “Bill 17: New Amendments to REDMA”, the Real Estate Development Marketing Act (“REDMA“) was amended on May 29, 2014 by Bill 17. Following this amendment, both the regulations to REDMA and the policy statements promulgated under REDMA were amended.

Amended Regulations

Effective September 5, 2014, the regulations to REDMA were amended to: exempt several transactions from REDMA‘s marketing requirements; modify and add the definitions of municipality and related person, respectively, found in the regulations; and to require a trustee to pay all or a portion of a deposit held where certain requirements have been satisfied. The amendments can be briefly summarized as follows:

Return of Deposit
Where:

  1. a purchaser and a developer certify in writing to a trustee holding a deposit pursuant to REDMA that the purchase agreement to which the deposit relates has been terminated; and
  2. the purchaser and the developer have agreed on how to distribute the deposit between them the trustee must payout the deposit in accordance with the agreed upon distribution.
Exemptions From Marketing Requirements
A person is exempt from Part 2 of REDMA in respect of marketing of a development unit in a development property by a developer if:

  1. the person and the developer are not “related persons”;
  2. the person does not sell or lease, or offer to sell or lease, the development unit to a purchaser, other than the developer;
  3. one of the following is true:
    1. the person leases the development property to the developer;
    2. the developer has, by agreement, a right to purchase the development property from the person*; or
    3. the person has no interest in the development property other than a financing charge (defined in the regulations to include both a security interest or an encumbrance registered on title to the development property as a mortgage, assignment of rents, rent charge or equitable charge); and
  4. the person does not engage in activity that will or is likely to lead to a sale or lease of the development unit, other than the one activity, as the case may be, referred to above in bullet “3”.

*Where the condition outlined in bullet 3(b) is being relied on, no purchase agreement between the developer and a purchaser for a development unit can be completed unless the developer first purchases the development property or development unit from the person.
Definition of Municipality and Related Person
The Resort Municipality of Whistler is included within the definition of “municipality” found in s. 6 of the regulations and “related person” is defined to have the same meaning that it has in the Property Transfer Tax Act, being:

“related person” means a person who is
(a) a related individual, or
(b) a related person within the meaning of section 251 of the Income Tax Act (Canada).
The Property Transfer Tax Act defines “related individual” to mean:
(a) a person’s spouse, child, grandchild, greatgrandchild, parent, grandparent or greatgrandparent,
(b) the spouse of a person’s child, grandchild or greatgrandchild, or
(c) the child, parent, grandparent or greatgrandparent of a person’s spouse.

Amended Policy Statements

In August of 2014, the Superintendent of Real Estate introduced amendments to eight of the fifteen policy statements under REDMA. These recent amendments will become effective on October 1, 2014, and are intended to complement the amendments introduced by Bill 17.

The eight policy statements that have been amended cover the following topics:

The following table briefly outlines several of the notable changes to the eight policy statements affected by the amendments:

1, 2, 3, 8, 9, 10 and 11permits a developer to provide a copy of a disclosure statement by electronic means but only with the written consent of the purchaser. As a result, developers will still want to ensure they obtain sufficient acknowledgement of receipt of the disclosure statement;

Policy Statement(s) Amended Details of Amendment
1, 2, 3, 8A, 8B, 9, 10 and 11 requires, where a developer is filing a consolidated disclosure statement, to note this fact in conspicuous type font on the cover page;
1, 2 and 8B requires, where a developer is filing a phase disclosure statement, to note this fact in conspicuous type font on the cover page;
1, 2, 3, 8B, 9, 10 and 11 requires a developer to describe the permissible uses of the development property intended by the developer and whether there may be other permissible uses of the development property beyond those intended by the developer;
1, 2, 3, 8B, 9, 10 and 11 requires a developer to provide purchasers with information about where to obtain further information and details about zoning requirements and permissible uses, such as the name and contact information of the responsible municipal department. Developers will want to confirm this information remains up to date before filing any amendments to their disclosure statement;
1, 2 and 8B permits a developer who markets development units in phases to market multiple phases of a development property concurrently under separate disclosure statements, provided the developer complies with REDMA, including s. 14(4), which requires developers, before marketing development units in a subsequent phase, to file an amendment to a disclosure statement submitted in respect of a previous phase unless, in accordance with s. 14(4.1) of REDMA, the developer files a phase disclosure statement under section 15.1 and the developer does not market, including the completion of a sale, any development units in any previous phase of the development property;
1, 2, 3, 9, 10 and 11
  • defines “commencement of construction” and “completion of construction” and requires developers to state the actual date of commencement and/or completion of construction if either or both have already occurred, or an estimated date range of commencement and/or completion of construction, not exceeding three months, where either or both events have not already occurred;
  • “commencement of construction” means the date of commencement of excavation in respect of construction of an improvement that will become part of a development unit within the development property, and where there is no excavation it means the date of commencement of construction of an improvement that will become part of a development unit within the development property;
  • “completion of construction” means the first date that a development unit within the development property may be lawfully occupied, even if such occupancy has been authorized on a provisional or conditional basis;
8A and 8B requires developers to state the various construction dates as required by the policy statement that applies to the interest in land that is subject to the time share plan, and requires developers to state either: that the offered time share interests are available for use; or, if they are not yet available for use, an estimated date range, not exceeding three months, for when the offered time share interests will become available for use; and
5 defines “building permit” to include one of multiple or staged building permits issued by an approving authority, where required, provided that each of the further required building permits to complete construction of the development property is promptly applied for, and promptly paid for. This provides developers with greater certainty as to when they have met the Policy Statement 5 requirements and can amend their disclosure statements.