Bill 25 – 2018: Real Estate Development Marketing Amendment Act, 2018

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

SECTION 1: [Real Estate Development Marketing Act, section 11] adds the subject of the provision for consistency with the amendment to section 15.2 of the Act by this Bill.

1 Section 11 (3) of the Real Estate Development Marketing Act, S.B.C. 2004, c. 41, is amended

(b) in paragraph (a) by striking out "the mortgage, lien or other encumbrance must provide," and substituting "ensure that the mortgage, lien or other encumbrance provides,", and

SECTION 2: [Real Estate Development Marketing Act, section 15.1] is consequential to the amendment to section 39 of the Act by this Bill.

2 Section 15.1 (2) is amended by striking out "A phase disclosure statement must comply" and substituting "A developer must ensure that a phase disclosure statement complies".

SECTION 3: [Real Estate Development Marketing Act, section 15.2] is consequential to the amendment to section 39 of the Act by this Bill.

3 Section 15.2 (2) is amended by striking out "A consolidated disclosure statement must contain the following:" and substituting "A developer must ensure that a consolidated disclosure statement contains the following:".

SECTION 4: [Real Estate Development Marketing Act, Part 2.1]

defines "administrator" and adds a definition of "assignment" for the purposes of Part 2.1 of the Act, as added by this Bill;
limits the application of Part 2.1 of the Act, as added by this Bill, to the sale or lease of strata lots in development properties in British Columbia;
requires developers who permit assignments of purchase agreements to include certain terms in each agreement and to collect information and records in respect of each assignment;
requires developers to file information and records with the administrator respecting assignments of purchase agreements;
prohibits persons who have custody or control of information or records collected under Part 2.1 of the Act, as added by this Bill, from using or disclosing the information or records except as authorized;
authorizes the Lieutenant Governor in Council to make orders exempting persons, land or transactions from all or part of a provision of Part 2.1 of the Act, as added by this Bill.

Definitions

"administrator" means the administrator designated under the Property Transfer Tax Act;

"assignment" means a transfer of some or all of the rights, obligations and benefits under a purchase agreement made in respect of a strata lot in a development property, whether the transfer is made by the purchaser under the purchase agreement to another person or is a subsequent transfer.

Application of Part

20.2 This Part applies in respect of purchase agreements, entered into by developers, for the sale or lease of strata lots in development properties located in British Columbia.

Requirements respecting assignments

20.3 (1) Unless the developer does not permit the assignment of the purchase agreement, a developer who enters into a purchase agreement for the sale or lease of a strata lot must include in the purchase agreement, in the prescribed form, all of the following:

(a) a term prohibiting any assignment of the purchase agreement without the prior consent of the developer;

(b) a notice that, before the developer consents to an assignment of the purchase agreement, the developer will be required to collect from the proposed parties to the assignment agreement the information and records referred to in subsection (2);

(c) a term requiring all proposed parties to an assignment agreement to give to the developer the information and records referred to in subsection (2).

(2) A developer must not consent to any assignment of a purchase agreement unless the developer first collects, from each proposed party to the assignment agreement, all prescribed information and records, including personal information,

(a) collect from the parties to the assignment a copy of the written and signed assignment agreement, and

(b) keep a copy of the assignment agreement in the prescribed manner for the prescribed period.

Filing information respecting assignments

20.4 (1) A developer must file with the administrator, in the form and manner required by the administrator and as required by the regulations, the following:

(a) for each assignment to which the developer consents, the information and records collected under section 20.3 (2) [requirements respecting assignments];

(b) if paragraph (a) does not apply, a statement that no information or records were collected under section 20.3 (2).

(2) The administrator may require a developer to file additional information or records for the purpose of verifying the information and records filed under subsection (1).

(3) A developer must comply with a requirement made under subsection (2) within the period set by the administrator.

Confidentiality

20.5 (1) Subject to subsection (2), the administrator or another person having custody or control of information or records collected under this Part must not use or disclose the information or records except

(a) for the purposes of administering or enforcing this Act, a taxation Act, the Home Owner Grant Act or the Land Tax Deferment Act,

(b) in court proceedings related to this Act or an Act referred to in paragraph (a),

(iii) provides for the disclosure of information and records to and the exchange of similar information and records with that other government,

(d) for the purpose of the compilation of statistical information by the government or the government of Canada, or

(2) If the superintendent has custody or control of information or records collected under this Part, the superintendent must not use or disclose the information or records except for a purpose set out in subsection (1) (a) or (b).

(3) Except in respect of a proceeding under an Act referred to in subsection (1) (a), the administrator or another person to whom subsection (1) applies may not be compelled in a civil proceeding to disclose or give evidence respecting any information or records obtained by the administrator or person in the course of exercising powers or performing duties under this Act.

Lieutenant Governor in Council's exemptions

20.6 The Lieutenant Governor in Council may exempt, by order, from all or part of a provision of this Part, with or without conditions,

SECTION 5: [Real Estate Development Marketing Act, section 24] adds circumstances in which a developer may be considered non-compliant, consequential to the addition of Part 2.1 of the Act by this Bill.

5 Section 24 is amended in paragraph (d) (ii) of the definition of "non-compliant" by adding ", in information or a record filed under section 20.4 [filing information respecting assignments]" after "section 18 [handling deposits]".

SECTION 6: [Real Estate Development Marketing Act, section 25]

authorizes the superintendent to appoint investigators by naming a specific person, or a person holding a specified title or position, as an investigator;
extends the powers of investigators with respect to the production of relevant information, records or other things.

(1) The superintendent may, by order, appoint investigators for the purposes of this section by doing one or both of the following:

(b) providing that a person who holds a specified title or position is an investigator.

(1.1) If the superintendent or an investigator has reason to believe that a developer is, or has been, non-compliant, the superintendent or investigator may conduct an investigation to determine whether the developer is, or has been, non-compliant. ,

(b) in subsection (2) by striking out "a person carrying out the investigation" and substituting "the superintendent or investigator",

(c) require a person who the superintendent or investigator has reason to believe has in the person's possession or control information, records or other things relevant to the investigation to produce the information, records or things. ,

(d) in subsection (3) by striking out "subsection (2) (a) must not withhold or destroy, conceal or refuse to provide any information or thing" and substituting "subsection (2) must not withhold or destroy, conceal or refuse to provide any information, record or thing", and

(e) in subsection (4) by striking out "appointed under subsection (1) (b)" and substituting "who conducts an investigation under subsection (1.1)".

SECTION 7: [Real Estate Development Marketing Act, section 30] authorizes the superintendent to make orders against developers who are non-compliant with the requirements of Part 2.1 of the Act, as added by this Bill.

(b.1) order the developer to comply, or to carry out a specified activity for the purpose of complying, with a prohibition or requirement of

SECTION 8: [Real Estate Development Marketing Act, section 30] increases the maximum administrative penalty amounts that non-compliant developers may be required to pay.

(a) in subparagraph (i) by striking out "$50 000," and substituting "$500 000,", and

(b) in subparagraph (ii) by striking out "$25 000," and substituting "$250 000,".

SECTION 9: [Real Estate Development Marketing Act, section 39] adds provisions, the contravention of which constitutes an offence.

SECTION 10: [Real Estate Development Marketing Act, section 39] adds provisions consequential to the addition of Part 2.1 of the Act by this Bill, the contravention of which constitutes an offence.

SECTION 11: [Real Estate Development Marketing Act, section 40] increases the maximum fine amounts that developers may be required to pay upon their conviction.

(a) in paragraphs (a) (i) and (b) (i) by striking out "$100 000" and substituting "$1.25 million", and

(b) in paragraphs (a) (ii) and (b) (ii) by striking out "$200 000" and substituting "$2.5 million".

SECTION 12: [Real Estate Development Marketing Act, section 46] adds regulation-making powers, consequential to the addition of Part 2.1 of the Act by this Bill.

(a) in paragraph (a) by adding "or 2.1 [Assignment Reporting Requirements]" after "Part 2 [Marketing and Holding Deposits]", and

(i.1) prescribing the form of the terms and notice referred to in section 20.3 (1) [requirements respecting assignments];

(i.2) respecting the information and records that must be collected under section 20.3 (2);

(i.3) respecting the keeping of assignment agreements for the purposes of section 20.3 (3);

(i.4) for the purposes of section 20.4 (1) [filing information respecting assignments],

(i) requiring filing on a prescribed date or within a prescribed period, whether according to a schedule or with reference to the occurrence of a prescribed event, and

(ii) authorizing another person to accept filing on the administrator's behalf; .

SECTION 13: [Real Estate Development Marketing Act, sections 47.1 to 47.4]

adds definitions for the purposes of transitional provisions;
imposes duties on developers in respect of purchase agreements entered into before the date section 20.3 of the Act, as added by this Bill, comes into force;
provides for the application of Part 2.1 of the Act, as added by this Bill, to purchase agreements entered into before the date section 20.3 of the Act, as added by this Bill, comes into force;
provides for regulations to be made to address the transition to Part 2.1 of the Act, as added by this Bill.

Transition – definitions

"assignment agreement" means an assignment agreement referred to in section 20.3 (3) (a) [requirements respecting assignments];

"assignment information and records" means the information and records described in section 20.3 (2);

"pre-existing purchase agreement" means a purchase agreement entered into before the date section 20.3 comes into force.

Transition – duties if assignment of pre-existing purchase agreement

47.2 (1) If a pre-existing purchase agreement provides that an assignment of the purchase agreement requires the consent of the developer, the developer may consent to the assignment only if that developer first makes a reasonable effort to collect, from each proposed party to the assignment agreement, assignment information and records.

(2) If a developer consents to an assignment of a pre-existing purchase agreement, the developer must comply with section 20.3 (3).

(3) If a pre-existing purchase agreement provides that an assignment of that purchase agreement does not require the consent of the developer, or is silent with respect to obtaining the consent of the developer, but the developer receives notice of an assignment, the developer must make a reasonable effort to

(a) collect, from each party to the assignment agreement, assignment information and records, and

(b) collect a copy of the assignment agreement and keep it in accordance with section 20.3 (3) (b).

(4) Part 2.1 [Assignment Reporting Requirements] applies to assignment information and records and an assignment agreement collected under this section as if they were collected under section 20.3 (2) and (3) [requirements respecting assignments].

Transition – if no information or records collected

47.3 (1) If a developer does not collect assignment information and records in accordance with section 47.2 [transition – duties if assignment of pre-existing purchase agreement], the developer must file a statement with the administrator and the statement

(a) must indicate that no assignment information or records were collected under section 47.2 (1) or (3) (a), and

(b) must be filed in the form and manner required by the administrator and as required by the regulations.

(2) Part 2.1 [Assignment Reporting Requirements] applies to a statement filed under this section as if it were a statement filed under section 20.4 (1) (b).

Transition – regulations for transition to Part 2.1

47.4 (1) The Lieutenant Governor in Council may make regulations for meeting or removing any difficulty arising out of the transition to Part 2.1 [Assignment Reporting Requirements], and for that purpose disapplying or varying any provision of

(a) Division 4 [Disclosure Statements] of Part 2 [Marketing and Holding Deposits],

(c) sections 47.2 [transition – duties if assignment of pre-existing purchase agreement] and 47.3 [transition – if no information or records collected].

(2) The authority to make or amend a regulation under this section, but not the authority to repeal a regulation under this section, ends 3 years after the date on which this section comes into force.

Consequential Amendments

SECTION 14: [Income Tax Act, section 64] authorizes officials to provide taxpayer information to an official for the purposes of administering or enforcing the Real Estate Development Marketing Act.

14 Section 64 (5) (c) of the Income Tax Act, R.S.B.C. 1996, c. 215, is amended by adding the following subparagraph:

(iii.5) to an official solely for the purposes of the administration or enforcement of the Real Estate Development Marketing Act, .

SECTION 15: [Property Transfer Tax Act, section 32] authorizes ministry persons to use and disclose information and records collected under the Property Transfer Tax Act for the purposes of administering or enforcing the Real Estate Development Marketing Act.

15 Section 32 (a) of the Property Transfer Tax Act, R.S.B.C. 1996, c. 378, is amended by striking out "the Home Owner Grant Act or the Land Tax Deferment Act" and substituting "the Home Owner Grant Act, the Land Tax Deferment Act or the Real Estate Development Marketing Act".

Commencement

16 The provisions of this Act referred to in column 1 of the following table come into force as set out in column 2 of the table:

Explanatory Notes