In Canada, the savvy real estate investor has a myriad of opportunities across the spectrum of real estate asset classes.
However, understanding the landscape of real estate investment and land development in Canada can mean the difference between success and lost opportunities. Items to consider in the most common real property transactions are canvassed below to provide foreign investors with a snapshot of what to consider when investing in real estate in a country known for its stable political and economic environment.
Generally, Canada does not impose significant restrictions on foreign ownership of real property, but there are a few to consider. The rules around foreign ownership of real estate in Canada are not related to citizenship. In fact, even Canadian citizens who do not reside in Canada for more than six months are considered non-residents (and thus subject to any applicable foreign ownership rules). Generally, both natural persons and Canadian non-residents are capable of acquiring, holding, and disposing of real estate in Canada.
At the federal level, foreign businesses must be mindful of the application of the Investment Canada Act (“ICA”) in respect to their investments in Canada. The ICA and its regulations prescribe the legal responsibilities of foreigners investing in Canada and the information which they are required to submit. The ICA applies to every acquisition of control of a Canadian business by a foreign investor, as those terms are broadly defined in the ICA. Accordingly, notifications and/or governmental approvals may be required in the case of a foreign investor establishing or acquiring a Canadian business (including in respect of real estate) where applicable financial thresholds are exceeded.
That said, real property law in Canada is principally governed at the provincial level giving each province the right and ability to pass its own legislation, including legislation that may restrict the acquisition of land by individuals who are not citizens or permanent residents as well as corporations and associations controlled by such individuals. From province to province, there may be slightly different legislation that applies to domestic and foreign ownership of Canadian real property.
Currently, the provinces have not imposed material restrictions that are barriers to entry into their markets for investors (although the recently instituted foreign-investor driven tax requirements in British Columbia that are discussed below are notable). In the province of Ontario (generally held as the economic/financial centre of Canada), there are no restrictions or prohibitions imposed upon foreign investors, whether natural persons or corporate entities. Ontario’s Aliens’ Real Property Act grants non-citizens the same rights as Canadians to hold or dispose of real property, but certain taxing, reporting and registration provisions may apply.
In other provinces, such as Alberta, Saskatchewan, Manitoba, Prince Edward Island, and Québec, there are limits imposed on the type and/or amount of land that can be owned by non-residents. For example:
- Alberta and Québec have legislation that prohibits non-residents from acquiring an interest in certain types of real property such as agricultural land without the prior consent of the province.
- Québec, which is governed by the civil law system, also restricts ownership of what are referred to as “classified cultural objects”.
- Prince Edward Island has enacted legislation which significantly restricts the amount of land that may be held by persons (whether corporations or individuals) not resident in the province.
- Nova Scotia requires the filing of a disclosure report with the provincial government if a non-resident has acquired any land outside a city or town, although certain exemptions apply.
In addition, all provinces require corporations that have been incorporated in other jurisdictions to be licensed or registered in the province in which they carry on business. The concept of “carrying on business” is a broad one, and in most cases includes holding an interest in real property.
Structuring an Investment
In Canada, ownership of land can only be held by one or more individuals and/or corporate entities. Accordingly, there are many ways in which a real estate investment can be organized and structured in Canada. It is quite common for foreign investors to joint venture with local Canadian partners in more complex real estate investments (and especially for new developments where local expertise is critical). These joint ventures can take the form of a corporation, partnership, co-ownership or sale-leaseback arrangement. Quite often the choice of structure will be driven by the tax and liability ramifications to the participants.
Non-residents of Canada are generally subject to tax only on their Canadian source income, including that derived from profits or gains from the disposition of land. The disposition of real estate in Canada by a non-resident triggers a requirement under the Income Tax Act (Canada) that the purchaser withhold a portion of the purchase price of the real property until the vendor provides the purchaser with an adequate tax certificate from the authorities confirming that it has received assurances that it will be able to collect the applicable income taxes owing by the vendor as a consequence of the sale.
Transfers of real estate in most Canadian jurisdictions are also subject to a land transfer tax, which is imposed at both the provincial and municipal levels. In some municipalities, such as the City of Toronto, in the Province of Ontario, the municipality levies a land transfer tax in addition to the tax levied by the Province. The rate of such taxes varies across the country, from a high of 4% of the value of the consideration for certain residential properties in Toronto (the combined municipal and provincial tax rates) to no tax at all in Alberta. In addition, the transfer of commercial and new residential buildings is subject to the goods and services taxes (or their equivalent) in several provinces, which amounts the seller is responsible for collecting from the buyer, other than for buyers who are entitled to self-assess under the appropriate tax legislation.
Effective August 2, 2016, a new tax of 15% of fair market value is payable by “foreign nationals” or “foreign corporations” who acquire residential property in Vancouver, which tax is in addition to the existing land transfer tax, with the result that a foreign purchaser will be paying between a 16% and 18% transfer tax on residential property.
Acquiring Real Estate Interests
The main categories of interests in land that can be acquired in Canada include: (i) Freehold: the highest estate in land that can be held in Canada and synonymous with ownership; (ii) Leasehold: essentially the interest of a tenant whose interest in land is not only limited to a term but is also subject to the payment of rent and performance of other obligations; (iii) Mortgage: mortgagee can have a mortgage over freehold, leasehold, or any other estate in land, which serves as security for performance of obligations. Failure to perform those obligations can result in the sale of the land to a third party or foreclosure by the mortgagee; and (iv) Easement: the holder of an easement has a right in land but not the ownership of it. There are many other interests in land, but they generally fall into one of the categories listed above. For example, the ownership of a condominium unit is considered to be a freehold interest even though the ownership is only with respect to the airspace within the condominium unit. To facilitate the transfer of title to such interests in land, there are public land registration systems in place which are sophisticated and orderly, and property rights are well established and specific.
Municipal and Planning
Each province has planning legislation which governs the use and occupation of land and buildings, although many planning functions are delegated to municipalities which will have their own specific requirements. Much of the regulation of real property is in the form of zoning and building by-laws, municipal codes and construction permits, that regulate virtually all aspects of the use of land, the nature of buildings and structures thereon, the size of parcels of land and the permissible development of land among other things. The time required to develop a parcel of land varies significantly – from several months to several years – and depends on factors such as location, proposed use, the size of the development and the potential impact on surrounding properties. Accordingly, when investing in a development project, the due diligence that is conducted should include canvassing the zoning and planning landscape that the potential development may be subject to.
Canada’s stable political and economic climate and limited barriers to entry has fueled foreign demand of real estate and price gains in recent years as (particularly in the cities of Vancouver and Toronto) it remains a top target for foreign investors. Foreign investors remain comfortable in moving money into Canadian real estate, particularly amidst instability in many key world economic markets in recent years.