Federal Foreign Buyers Ban is in Effect
TAGS: Foreign Buyers Foreign Buyers Ban policy Purchase of Residential Property by Non-Canadians Act Real Estate Practice
For a period of two years starting January 1, 2023, non-Canadians are banned from purchasing homes in Canada under the definition of “residential property” indicated in the legislation and associated regulations that the federal government published on December 21, 2022.
Although further technical interpretations of the regulations are still pending, here is the current understanding of the regulations.
How does the Foreign Buyers Ban Impact REALTORS®?
REALTORS®, along with lawyers and notaries, have an obligation to inform their clients. The legislation does not rely on REALTORS® to enforce the prohibition. However, REALTORS® who knowingly assist a non-Canadian in contravening the prohibition can be found guilty of an offence and liable on summary conviction to a fine of up to $10,000.
Importantly, REALTORS® do not have any information collection, processing or reporting requirements. REALTORS® should still engage in due diligence as a measure of risk mitigation. To support REALTORS® with their due diligence, the Canadian Real Estate Association (CREA) has developed a certificate: Certification and Consent of Purchaser.
The certificate should be completed before assisting or advising a potential purchaser and it should be used in combination with other due diligence practices. Such practices may include reviewing and keeping a record of the purchaser’s valid and current identification (such as a passport) to determine the purchaser’s citizenship, residency or exempt status.
The key difference between the completion of this certificate and the Know Your Client FINTRAC Regime’s requirement to ID your client at the time of transaction is that with the Foreign Buyers Ban, REALTORS® should ID clients before assisting or advising them on the purchase of a property.
Exceptions exist for international students, temporary residents, specifically exempted foreign nationals and refugee claimants, subject to varying conditions, such as tax filing and residency obligations.
Properties located outside of a Census Metropolitan Area (CMA) or a Census Agglomeration (CA) are excluded from this prohibition.
An order requiring the residential property be sold may be sought if certain conditions are met, namely the non-Canadian is the owner at the time the order is made, and notice requirements have been met.
Certain aspects of the Foreign Buyers Ban still lack clarity, including the exemptions. Under CREA's jurisdictional leadership, we are actively engaged in ongoing dialogue with federal policymakers, legal experts, Statistics Canada, the Canadian Mortgage and Housing Corporation and other stakeholders for clarification on the ambiguities.
For further details, please consult the regulations.
The ban applies to “residential property,” which includes detached houses or similar buildings of one to three dwelling units, as well as parts of buildings such as semi-detached houses, strata units or other similar premises. The definition further includes “land that does not contain any habitable dwelling, that is zoned for residential use or mixed use, and that is located within a census agglomeration or a census metropolitan area, is a prescribed real property or immovable.”
“Non-Canadian” as it relates to corporations and other entities, refers to:
- “an entity formed otherwise than under the laws of Canada or a province;" and
- an entity formed under Canada’s laws that has direct or indirect ownership by a non-Canadian of 3 per cent or more of the value of the entity’s equity or voting rights.
“Purchase” is defined as “the acquisition, with or without conditions, of a legal or equitable interest or a real right in a residential property,” with the exception of, among other things, acquisitions of interests resulting from transitional or life events such as death, divorce, separation, or a gift.
The Act restricts non-Canadians from avoiding the ban by using corporations or other entities to purchase residential property.
“Control” with respect to a corporation or entity, means:
- “direct or indirect ownership of shares or ownership interests of the corporation or entity representing 3 per cent or more of the value of the equity in it, or carrying 3 per cent or more of its voting rights;" or
- “control in fact of the corporation or entity, whether directly or indirectly, through ownership, agreement or otherwise.”
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