Touchstone Law Group LLP – Kelowna Lawyers

When purchasing a home, the only reliable way to establish the property’s lot boundaries and the location of any improvements is through a current survey certificate provided by a qualified surveyor. While the plan filed with the Land Title Office can be helpful, it is not definitive. The Land Title Office does not certify that these plans accurately reflect the boundaries and dimensions of the property.

A survey certificate typically outlines the lot boundaries, the locations of improvements, and may also indicate any registered rights of way or easements. This document is crucial for determining whether any structures on the property encroach on neighboring land, or if adjacent properties have improvements that infringe on your land. While the cost of obtaining a survey may vary, it is a relatively small investment to confirm the precise boundaries and location of improvements on what is likely one of the largest financial commitments most people will ever make.

In some cases, the seller may already have a survey certificate. Depending on the age of the certificate and whether any changes have been made to the property or its improvements, the buyer might find the seller’s survey acceptable. Often, the seller will provide a statutory declaration confirming that, to the best of their knowledge, the survey remains accurate and no alterations have been made to the property since it was last surveyed. While this is not as reliable as a current survey certificate, it can offer some peace of mind if the buyer chooses not to commission a new survey.

For buyers obtaining a mortgage, lenders typically require a survey certificate as part of the loan process. However, many lenders may accept a title insurance policy instead. Title insurance can protect the lender from various potential issues related to the property, such as encroachments or past title defects. Buyers also have the option to purchase a homeowner’s policy, which offers similar protections for them. Even with title insurance in place, it’s worth considering whether to obtain a survey certificate if one is not already available, as it provides additional assurance regarding the property’s boundaries and condition.

This information is general in nature only. You should consult a lawyer before acting on any of this information. This information should not be considered as legal advice. To learn more about your legal needs, please contact our office at (250)-448-2637 or by email to info@touchstone.law

It’s Friday night, you’ve uncorked a bottle of the Okanagan’s finest Syrah, and as you sip, your mind wanders into deeper territory. Suddenly, a thought hits: “I don’t have a will!” In a burst of inspiration, you grab the nearest napkin and start jotting down your final wishes.

The Wills, Estate and Succession Act of British Columbia outlines the formal criteria needed to create a valid will:

The will must be in writing (you’ve got that covered!);
The will must be signed at its end by the will-maker (or by another person in the will-maker’s presence and by the will-maker’s direction);
The will-maker must make or acknowledge the signature in the presence of two or more witnesses who are both present at the time;
Two or more witnesses of the witnessed must sign the will in the presence of the will-maker (there are exceptions for members of the armed forces on active service); and
The will-maker must be at least 16 years old (unless a member of the armed forces on active service).

In the simplest sense, if your napkin Will covers those bases, it is valid. Naturally, like everything else in life, things aren’t quite so simple; that’s why you have us!

As part of the Law Society of British Columbia requirements, law firms are required to retain certain records for all funds deposited to the law firm’s trust account which is often a pooled trust account including funds for multiple clients.

Electronic deposits into a law firm’s trust account are permissible, so long as the lawyer obtains written confirmation, either from the financial institution or remitter including the details required for compliance. Proof of the deposit is required, such as a deposit receipt, for funds transferred from account to account by a banking institution on behalf of a client. In the event a client deposits a bank draft made payable to the law firm in trust into the trust account, then a deposit receipt is required as well as a copy of the bank draft to verify the type of funds deposited. Wire transfers are also acceptable provided a satisfactory record of the wire transfer initiation is received and retained by the law firm.

All funds deposited must be confirmed with appropriate back up for audit purposes and must be retained by the law firm as part of their accounting procedures.

Una Kuzio: una@touchstone.law

Elizabeth Ford: elizabeth@touchstone.law

Jane Otterstrom: jane@touchstone.law

As we approach the March 31 deadline for the December 31, 2024 declarations required to be made under the Speculation and Vacancy Tax Act in British Columbia (the “Act”), we wish to remind you to consider what, if any, steps you are required to take with respect to property owned by you, whether personally or through a corporation or trust. It is important to remember that the filing requirement will apply to the party who was the registered owner of the property as of December 31, 2024 so transfers of the property close to that date will need to be carefully considered as to who is to complete the filing. A transfer filed at the Land Title Office may take several days or weeks to be processed to reflect the new owners and, during that time, the “seller” of the property would remain as the registered owner, subject to the pending transfer.

If you have not already, you should receive a declaration letter in the mail before the end of February, 2025 that will include your Letter ID and your Declaration Code. You will need both of those to complete the declaration. Be aware, that the letter is typically sent to your address as it shows on title to your property so if that address is not current, it is possible you may not receive your letter. That, however, does not remove the obligation to complete the filing so you are responsible to ensure you meet the filing and payment requirements regardless.

New for the filing due by March 30, 2025 is the addition of 13 new communities to those that the Act applies to including, but not limited to, Vernon, Coldstream, Kamloops, Penticton, Summerland, Peachland and Lake Country. Please be sure to check if your property is now included, even if it was not previously subject to the Act and, if in doubt, ensure you seek confirmation or clarification!

More information can be found here: Speculation and vacancy tax – Province of British Columbia

Una Kuzio: una@touchstone.law

Elizabeth Ford: elizabeth@touchstone.law

January 1, 2025 means the launch of the new “anti-flipping tax rule” in British Columbia applicable under the Residential Property (Short-Term Holding) Profit Tax Act (the “Act”). Generally speaking, the new Act will serve to tax property owners who sell a property with less than two years of ownership (there are various situations that are considered a sale including the transfer of a beneficial interest in a property for consideration in money or kind).

While there are certain exemptions, having knowledge of the exemptions and requirements to obtain the exemption will be important as some are automatically exempt while others need to be declared on a return.

Where taxable, the profits made on the sale will be subject to a tax up to 20% of the profits made and the tax may be applicable, regardless of when the property was acquired (i.e. it does not apply just to properties acquired after January 1, 2025).

The BC system is separate and distinct from the federal tax requirements so property owners are well advised to discuss potential property sales with their accounting professionals early to ensure they are aware of the totality of the tax implications. As well, specific filing timelines apply so it’s key that (the return must be filed within 90 days of the sale of the property)

More details can be found here: BC home flipping tax – Province of British Columbia

Elizabeth Ford: elizabeth@touchstone.law

Una Kuzio: una@touchstone.law

As of December 31, 2024, Nancy Priddle has retired from her role as a legal assistant at Touchstone Law Group LLP. Just short of her 5 year anniversary with Touchstone Law, Nancy will be truly missed as a beaming smile and wonderful sense of humour in the office. She was a light in the office that often ensured many of the everyday tasks just got completed without anyone even knowing they had been done!

With an already interesting life of a full range of activities and experiences, we are excited to see how retirement treats Nancy and to see the ways she finds to make life a little more fun, a little more relaxing, and to make her continuing mark on the world.

While we will miss her dearly, we are thrilled for her as she enters this new stage of life! Thank you, Nancy, for all you have done for the Touchstone Team over the last 5 years. We know you won’t be a stranger!

As part of incorporating a company, the shareholders must appoint at least one director who will generally be responsible for running (and/or delegating) the day-to-day operations of the company and have a responsibility to ensure the company complies with certain obligations. All directors of a company must provide the delivery address for the office at which the individual can usually be served with records between 9:00 a.m. and 4:00 p.m. on business days and, if different, the mailing address. The delivery address must not be a post office box.

A company must keep an up-to-date register of its directors and must file a Notice of Change of Directors with the BC Registries within 15 days of the company becoming aware of any change of directors or change of director’s addresses.

Information about directors is corporate information, and as such, is required to be made public in British Columbia (at least the names and addresses of the directors). It is important that it be made public because this disclosure lets people know who is responsible for the company and also provides contact information for service in the event of a claim. Those who may want to access public corporate information include shareholders, investors or legal counsel. While a person’s home address is usually considered to be personal information, the Privacy Act allows for this information to be made available to the public because corporate laws require its disclosure.

One way a company can be served in legal proceedings is by serving a director of the company pursuant to section 9(c) of the Business Corporations Act, so this is another reason to ensure this information is current with the Corporate Registry.

Una Kuzio: una@touchstone.law

The Law Society of British Columbia and virtually all financial institutions in Canada require proper identification verification for every client when a lawyer is retained to provide legal services with respect to a real estate matter. Though identification verification is required for several different types of files, where a lender is involved in real estate or other financial transactions there is an additional level of identification verification required on behalf of the lender.

Our office will complete this verification process during your in-person appointment. A copy of your identification will be made and will remain on file. If you are signing out of our office, we will coordinate with you to complete the necessary identification verification process which may require us to select an agent to do so.

Where the file involves a financial loan, identification requirements differ from lender to lender. We will advise you of the specifications your lender requests, so we can ensure we meet both our Law Society obligations and the lender’s requirements.

Below, you will find the identification requirements that we generally are required to work within:

Documents and information must be valid, original and current;
Identification document issued by the Government of Canada, a province or territory or a foreign government, other than a municipal government that:

contains the individual’s name and photograph, and
is used in the physical presence of the client to verify that the name and photograph are those of the client.

This is the most common method of identification we use. Whether one piece or two pieces are required is dependent on the nature of the file and lawyer discretion;

Information in the individual’s credit file that is used to verify that the name, address and date of birth in the credit file are those of the individual, if that file is located in Canada and has been in existence for at least three years; or
Any two of the following with respect to the individual:

information from a reliable source that contains the individual’s name and address that is used to verify that the name and address are of those of the individual;
information from a reliable source that contains the individual’s name and date of birth that is used to verify that the name and date of birth are those of the individual;
information that contains the individual’s name and confirms that the individual has a deposit account or a credit card or other loan amount with a financial institution that is used to verify that information.

Here are some examples of acceptable identification that we often see brought in:

A valid Canadian (or other jurisdiction) Driver’s License (photo) and Canadian Firearms License
Canadian Passport (photo) and Credit Card/Debit Card from a major institution with the client’s name is stated on the card
BC Services Card (photo) and Birth Certificate

There are also now some services that assist in identification verification that may be used by the lawyer or a lender. These often require a facial scan, log in to an account and uploading of images of identification. These processes also assist in mitigating risks of fraud.

Una Kuzio: una@touchstone.law

When it comes to purchasing and selling a property, there are three important dates to consider: completion, possession and adjustment. Each date can be set at any time, as long as it has been agreed upon by both the Buyer and Seller.

The completion date is the date where the legal ownership transfer from the Seller to the Buyer occurs including the submission for registration of the transfer of the property. This is also the day that the money exchange between firms is completed, in most cases.

The possession date is the date on which the Buyer is entitled to obtain physical possession of the property. Depending on your contract, this may be a specific date and time or ‘upon registration’ and may be either vacant possession or may be subject to agreed tenancies.

The adjustment date is the date when the Buyer will take responsibility for taxes, rates, local improvement assessments, fuel utilities and all other charges/expenses/credits involved in that property.

A same day purchase and sale is likely to occur when the Buyer is relying on the sale proceeds of their sale property to purchase another property. Under the standard British Columbia residential purchase agreement, the Buyer has until 4:00pm to complete registration with the Land Title Office on the day of closing. The standard Canadian Bar Association undertakings (professional promises) in British Columbia require that the lawyer (or notary) has all funds in their trust account in order to submit documents for registration (less the mortgage proceeds for any new mortgage provided all lender conditions have been met, other than a satisfactory post search).

There are several moving parts to consider for a successful exchange of funds on the completion date:

The Buyer’s lawyer/notary will often have until the end of the business day to deposit the purchase funds into the Seller’s lawyer’s/notary’s trust account (note, most banks are open from 9am to 5pm); and
Once sale proceeds are received, the Buyer’s lawyer/notary must register the transfer, complete necessary post searches, issue relevant cheques and arrange for the deposit of funds to the Seller’s lawyer’s/notary’s bank to deposit the funds, before the transaction will be considered completed.

If the sale proceeds on a client’s same day sale are deposited into your lawyer’s trust account at 4:45pm, your lawyer faces a relatively restricted time frame to complete the above and successfully complete the purchase of the new property.

For this reason it is highly recommended that you stagger your completion and possession dates, to allow some wiggle room if there is a delay. By placing the completion date of your purchase one business day after your sale, you provide time to resolve potential complications and relieve stress for both you and your legal representative for completion of your purchase. While it is not always possible to do so, we do recommend considering if this is an option for your transactions for a little peace of mind!

Una Kuzio: una@touchstone.law

TAF, as it is referred to sometimes, is the Trust Administration Fee in British Columbia. You may have come across the acronym TAF on an invoice from your lawyer’s office if they were helping you with a real estate transaction, or in the dispersal of funds from an estate matter. But what is TAF?

The Trust Administration Fee is a $15.00 (plus GST) fee that a lawyer is required to collect when placing client funds into a trust account, which is normally a pooled trust account with funds from multiple clients. This fee is remitted to the Law Society of British Columbia and is used to fund the Law Society’s Trust Assurance Program.

The Trust Assurance Program is designed to support 4 main goals:

Compliance with trust accounting standards,
Deterrence to the mishandling of trust funds and trust accounts,
Detection of serious breaches in handling trust funds and trust accounts, and
Credibility with the public in how trust funds and accounts are managed.

When law firms are entrusted with client funds, this money is held in trust by that organization in a designated trust account within a financial institution. The Trust Assurance Program is tasked with trying to ensure that specific procedures, standards, and processes are followed by the holder of those funds so that the client can have confidence that their money is being appropriately handled.

Every year lawyers and law firms that hold trust accounts must report to the Law Society of British Columbia on their management of their trust accounts and the trust funds they are holding. Additionally, the Law Society conducts compliance audits of trust account holders periodically, to help ensure the Trust Assurance Program is being implemented as it should. The Trust Assurance Program also provides educational and support tools to help practitioners do the best job possible in being stewards of their clients trust funds.

Holding client funds in trust is a core responsibility of lawyers and law firms in British Columbia; the Trust Assurance Program is here to ensure that responsibility is managed to as high a standard as possible. This helps provide the public with some comfort that when they deliver their lawyer a $500,000.00 bank draft, those funds will be appropriately managed and that the receiving body is regulated with respect to same.

Una Kuzio: una@touchstone.law

ABOUT US

OUR LOCATION

OUR LAW BLOG

“Is My Napkin Will Valid?”

Trust Funds – Why do we need your receipt/draft/etc.?

SPECULATION TAX – REMEMBER TO DECLARE!

SITE NAVIGATION

CONTACT US