A recent Court of Appeal decision from British Columbia may have devastating consequences for businesses engaged in corporate tax planning and asset protection. In Abakhan & Associates Inc. v. Braydon Investments Ltd. (“Braydon“), the Court of Appeal held that any transfer of assets made with a view to protecting such assets from current and/or future creditors might [...]
Category Archives: Real Estate
An “All Obligations” mortgage is one which, by its terms, secures all of the mortgagor’s present and future obligations of all types, from time to time owed to the mortgagee, limited at any one time to the maximum principal or face amount stated in the mortgage. This type of mortgage has become increasingly popular with [...]
A purchaser of residential real estate closes the transaction, moves in and then subsequently discovers that there is a convicted pedophile living across the street. The new purchaser has a young family living with him. Is the existence of the neighbouring pedophile a “latent defect” under real estate contract law sufficient to enable the purchaser [...]
Many property owners have been working all year getting apartment buildings registered as condominiums, but this will be much harder when new laws come into effect on November 7. The government hasn’t quite slammed the door on conversions, but almost. See my Whiteboard Session for more details.
Did you know that if you acquire title to a parcel of real estate which is subject to a mortgage, you will, without signing any document, be “automatically” obligated to both the mortgagee (the creditor) and to the party transferring to you (the original mortgagor/debtor), that you will be responsible for performance of all of the obligations owed to the mortgagee/creditor under the mortgage? To find out what the ramifications of this rule may be, please refer to my more detailed memorandum on this matter by going to same on “Implied Covenants”
Where an owner of lands and premises undertakes to provide you with some rights pertaining to his/her/its realty, you would, in most cases, wish to be able to enforce those rights against property owners who acquire title subsequent to the current owner’s title holding. In other words, you wish to bind all “successors in title” [...]
DANGER FOR A LENDER WHO GETS TOO CLOSE TO ITS BORROWER’S THIRD PARTY CONTRACTORS
Where a lender is making credit available to a borrower operating/carrying on a business or using the lender’s money to build something, the lender has an obvious concern and interest in how the borrower carries on its business and how it goes about building/developing a project. This often results in a lender extracting a number of covenants/promises from the borrower relating to what the borrower may – and may not – do in its business activities. Where a borrower gets into financial difficulty, the lender may take an even greater role in “controlling” or monitoring the borrower’s activities. This may range from the extraction of further undertakings/covenants from the borrower (further restricting its activities) to appointing a “monitor” to review the borrower’s activities on a day-to-day basis, to appointing a receiver for the borrower. The danger for a lender in doing this is that a lender may – note perhaps inadvertently – insert itself into the borrower’s affairs to such a degree that a Court later holds the lender was responsible to third parties for certain failures or shortcomings on the part of the borrower.
If a secured lender takes a security interest in the debtor’s goods which are or in the future become affixed to real property (whether belonging to the debtor or some third party, such as a lessor), it is generally accepted practice for the creditor to file a financing statement in the Personal Property Registry and additionally file a PPSA (Fixtures) Notice against the title or titles to the underlying land. But what about the situation where a creditor takes a real property mortgage but not a security agreement charging goods which are or may become fixtures? Is it enough to register the mortgage in the usual manner as a mortgage at the Land Titles Office? Or does something else have to be done by the creditor to protect its position vis-à-vis the fixtures? Does the registration of the mortgage alone protect the lender’s interest in fixtures?
By enacting Manitoba Regulation #60/2010 (effective May 25, 2010), the Manitoba government has somewhat eased its regulatory requirements relating to “onsite wastewater management systems”, specifically, systems commonly known as “sewage ejectors”. Under this latest Environment Act Regulation dealing with “onsite wastewater management systems”, property owners in specified situations are now given specified exemptions, which in [...]
If you are a property owner, manager, or mortgagee of, or, a neighbour of an abandoned and/or run-down building (residential or non-residential), the property’s existence in its woeful state can cause problems for you as well as for those at The City of Winnipeg charged with the responsibility of minimizing or eliminating such problems. In [...]