How Tarion’s newly mandated info sheet falls short of truly helping condo buyers


thestar.com
Bob Aaron
Bob Aaron bob@aaron.ca

Posted On: Saturday, January 18, 2020
Since the start of 2020, every new purchase agreement for a pre-construction residential condominium is required to have attached to it an information sheet highlighting important issues that are part of a pre-construction transaction.

The requirement only applies to projects that first go to market after January 1, and not to those which were launched prior to this year.

The new requirement has been mandated by the Tarion Warranty Corporation as an attempt to warn prospective purchasers of the potential risks and considerations involved in purchasing builder condominiums, including:

  • a purchaser has an initial 10 days under the Condominium Act, 1998 to cancel a sales agreement;
  •  information about the status of the development, such as formal zoning approval, relevant approval authority and date of commencement of construction;
  • pre-construction condominium projects may never be completed;
  • early termination conditions that would allow a developer to cancel a project; 
  • information about any restrictions on the developer’s land title that may prevent the project from going forward; and
  • the expected date when a purchaser can take occupancy.

One section describes three types of early termination conditions which could result in the purchase being cancelled.

In general terms, the form clarifies that the builder can terminate the transaction if, by a specific date,

  • a set level of sales for the project has not been achieved,
  • certain zoning and/or development approvals have not been obtained, or
  • satisfactory financing for the project has not been obtained.

Unfortunately, there is no legislated requirement that the builder act in good faith when terminating a project due to lack of satisfactory financing.

The new information sheet does not apply to purchases of leasehold, common element and vacant land condominium units.

There is also a compulsory statement by the builder that it owns the land or has the power to transfer ownership of the unit before closing. This change is in response to the situation of the 1,100 cancelled Icona condo purchases where the builder was unable to build on the site because of restrictions registered on title.

Another repetition from the Tarion addendum to each purchase agreement is a disclosure of whether or not the builder has obtained the appropriate zoning approval for the building and a promise to notify buyers within 10 days after approval has been obtained.

A further section also discloses whether or not the builder has started construction (which should be obvious) or a date when it is expected to begin.

The last section on the new form states in bold face capitals that the buyer should seek advice from a lawyer and review the builder’s disclosure statement.

Virtually all of the information on the form is a repetition of parts of the multi-page Tarion Addendum which is also attached to the purchase agreements. In the event of a conflict or discrepancy between the two forms, the Addendum takes priority over the new information sheet – effectively rendering it meaningless. As well, if the sheet is missing from the purchase agreement, it remains valid. Instead of requiring the new information warnings to be on the first page of the builder offer, where they belong, they can be buried dozens of pages into the offer where virtually no buyer will see them.

The information form states that Tarion’s “expectation” is that the document be placed at the front of the agreement. Then it says that compliance with this “requirement” does not affect the enforceability of the agreement.

Tarion has pointed me to a Registrar’s Advisory stating that the form must be placed at the front of the purchase agreement.

But since agreements with the forms buried at the end are still valid, I stand by my critique of the new rules.

My view is that the new form has been adopted more to protect the government from criticism by consumers who say they were not warned about the possibility of transactions being cancelled, and less to protect or warn consumers.

The government could easily have implemented legislation which introduced penalties or other disincentives for builders to cancel condominium projects. The information sheet is a very weak alternative and does little or nothing to provide badly needed consumer protection.

https://www.tarion.com/sites/default/files/2019-10/InfoForPreConstructionCondoBuyers_Oct29_2019.pdf 

 

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Bob Aaron is a Toronto real estate lawyer and frequent speaker to groups of home buyers and real estate agents.
He can be reached by email at bob@aaron.ca, phone 416-364-9366 or fax 416-364-3818.

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