Gov Extends Its Ban On Foreign Investors Buying Real Estate Another Two Years

On February 4, 2024, the Minister of Finance, the Honourable Chrystia Freeland, announced the federal government's intention to extend the existing ban on foreign ownership of Canadian housing by two years. The Prohibition on the Purchase of Residential Property by Non-Canadians Act (the “Act”), which came into force on January 1, 2023, and prohibits non-Canadians from purchasing, directly or indirectly, residential real estate in Canada for an initial period of two years, is now extended to January 1, 2027. This extension is in line with the federal government's desire to solve the housing shortage across the country.

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October 13, 2022

Starting January 1, 2023, non-Canadians will be prohibited from purchasing residential real estate in Canada for a period of two years under the newly enacted Prohibition on the Purchase of Residential Property by Non-Canadians Act (the Act).1Developers and vendors should familiarize themselves with the requirements of the new legislation. The following are key points to keep in mind:

The prohibition will last two years, starting January 1, 2023.
Existing agreements, where liability arose or was assumed before January 1, 2023, will likely not be impacted.2
The prohibition will not apply to Canadian citizens, permanent residents of Canada, or companies incorporated in Canada that are not controlled by non-Canadians.
The validity of sales will not be impacted.
People who have knowingly assisted in a contravention of the Act may be subject to monetary penalties.

This insight discusses these key points in greater detail and will suggest next steps for developers and vendors.

An overview of the legislation

The Act prohibits direct and indirect purchases of residential real estate by individuals who are not Canadian citizens or permanent residents, foreign corporations, and others deemed to be “non-Canadian.”3 Contractual obligations that arise or are assumed prior to January 1, 2023, are not impacted.Key details that will define the precise scope of the prohibition, including the activities that will constitute a “purchase,” whether vacant land with development potential will be considered “residential real estate,” the classes of persons exempted from the prohibition, and the level of non-Canadian investment that will be permitted before a corporation will be deemed to be a non-Canadian, have not yet been finalized and released. They will be addressed in supporting regulations expected to be issued in the coming months (the Future Regulations). The Government’s initial proposals on these issues were outlined in an earlier consultation paper (the Consultation Paper), and the Future Regulations will likely take a similar approach.

Key aspects of the legislation

Who will be deemed “non-Canadian” under the Act?4

Individuals who are not Canadian citizens or permanent residents of Canada.
Corporations that are not incorporated in Canada.
Corporations controlled within the meaning of the Future Regulations by foreign corporations or individuals who are not Canadian citizens or permanent residents of Canada. The Consultation Paper indicated that the threshold would be: (1) direct or indirect ownership of 3% or more of the value of equity or voting rights of a corporation, or (2) control in fact.
Other persons and entities set out in the Future Regulations.

What types of “residential property” will be impacted?5

A detached house or similar building containing not more than three dwelling units.
A part of a building that is a semi-detached house, rowhouse unit, residential condominium unit, or similar premises that is intended to be owned apart from any other unit in the building.
Other properties prescribed by Future Regulations. The Consultation Paper indicated that vacant land zoned for residential or mixed-uses in a Census Metropolitan Area or Census Agglomeration would constitute residential property for the purpose of the Act.
The Consultation Paper indicated that recreational properties outside of Census Metropolitan Areas or Census Agglomeration would not be considered residential property.

What exemptions will be available?6

Refugees.
Individuals who purchase residential property with their spouse or common-law partner if the spouse or common-law partner is eligible to purchase residential property in Canada.
Temporary residents in Canada who satisfy conditions prescribed in the Future Regulations. The Consultation Paper indicated that students and foreign workers who meet specified criteria might be eligible.
Other classes of persons prescribed by the Future Regulations. The Consultation Paper indicated that there would be exemptions for any persons to whom indigenous rights under Section 35 of the Constitution Act, 1982 apply.

How will pre-existing and future contracts be impacted?

The prohibition does not apply where a non-Canadian becomes liable or assumes liability under a contract of purchase and sale prior to January 1, 2023.
The Future Regulations are expected to determine what future activities will be prohibited. The Consultation Paper indicated that the prohibition will apply to acquisitions and entering into a conditional or unconditional contract to acquire legal or beneficial interests in land.

Impacts on existing and future contracts

Significantly, the Act will not impact the underlying validity of sales of residential property that may contravene the Act.7 The implication is that purchasers and vendors will still be legally bound to comply with their obligations under contracts that contravene the Act unless contracts contain termination provisions or other protective measures. It is expected that these contracts will continue to be enforceable by usual legal means. Presumably, assignment and assumption contracts will be similarly enforceable, notwithstanding any contravention of the Act. The prohibition on purchases by non-Canadians does not apply to contractual obligations arising or assumed prior to January 1, 2023.8 Subject to the requirements of the Future Regulations, it is implied that conveyances are allowed during or after the two-year prohibition period if the contractual obligation to purchase arose prior to January 1, 2023. What is unclear is whether this exclusion applies to conditional contracts entered into prior to January 1, 2023, that become unconditional on or after January 1, 2023.The Future Regulations delineate the kinds of transactions that will constitute prohibited “purchases.” The Consultation Paper indicated that a “purchase” would include both acquiring and entering into a conditional or unconditional contract to acquire a legal or beneficial interest in residential property. If that is the case, non-Canadians will be prohibited from entering into pre-sale contracts and from completing the purchase transactions (other than in respect of contracts entered into or assumed prior to January 1, 2023) during the two-year period. There is currently no indication that the prohibition will be extended beyond two years.

Enforcement and penalties

Anyone who “knowingly…counsels, induces, aids or abets” in a contravention of the Act by a non-Canadian, or attempts to do so, is guilty of an offence and liable on summary conviction to a fine of up to CA$10,000.9 Furthermore, if a corporation or entity commits an offence, its directors, officers, managers, supervisors, agents, and others who have directed authorized, assented to, acquiesced in, or participated in the contravention may be personally liable.10This broadly-worded offence provision will have a wide reach. Liability could arise not only for non-Canadian purchasers but also for developers and vendors, assignors, lawyers and professional advisors, and others involved in the contravention. For instance, a vendor who enters into an impugned contract or consents to an assignment of a contract to a non-Canadian may be “aiding” or “abetting” the impugned purchase. Furthermore, services ordinarily offered in connection with residential conveyancing by real estate agents, notaries, lawyers, mortgage brokers, and other professional advisors may constitute “counseling” or “aiding” in a purchase by a non-Canadian. An issue may arise where it is later discovered that a purchaser under a binding contract is a non-Canadian. Completing the conveyance in accordance with the purchase contract, and providing services in connection with the conveyance, may be an offence under the Act. At the same time, refusing to complete or advise in the completion of the conveyance may be a breach of contractual and possibly professional obligations.In addition to imposing penalties, the Minister may apply to the court for an order to sell a property that has been purchased in contravention of the Act.11 The manner and conditions for this type of sale remain to be set by the Future Regulations. The Act provides that in no event may the seller recover more from the sale of the property than what they paid for it.

Next steps

People participating in the residential real estate market may wish to consider whether purchase and sale contracts ought to include protective provisions, such as representations and warranties from purchasers regarding whether they are non-Canadians under the Act, restrictions on assignments to non-Canadians, and other remedies (for example, indemnities or termination rights) that apply if the purchaser is a non-Canadian. Developers, in particular, should train sales staff regarding the requirements of the Act and should ensure that sales staff undertake reasonable inquiries as to whether purchasers are non-Canadians. This will protect developers from being found to have entered into contracts with non-Canadians knowingly or with wilful blindness.Many key details remain to be determined by the Future Regulations, and I will continue to monitor further developments relating to the Act. For more information, please reach out any time.***

Prohibition on the Purchase of Residential Property by Non-Canadians Act, SC 2022, c 10, s 235 [Act]. The Act is repealed on the second anniversary of its in force date: see Bill C-19, An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures, 1st Sess, 49th Parl, (assented to June 23, 2022), ss 236 and 237.
As discussed further below, this is subject to how the Future Regulations will apply to conditional contracts that become unconditional after January 1, 2023.
See Act, s 4(1).
Ibid, s 2, definition of non-Canadian.
Ibid, s 2, definition of residential property.
Ibid, s 4(2).
Ibid, s 5.
Ibid, s 4(5).
Act, supra 1, s 6(1).
Ibid, s 6(2).
Ibid, s 7.

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New regulations were published in the Canada Gazette on December 21, 2022, and clarify key aspects of the Act:1. Foreign corporations and entities – A corporation, partnership, trust or other entity (that is not traded on a designated stock exchange) will be deemed to be controlled by a non-Canadian and subject to the prohibition, if a non-Canadian has:(a) Direct or indirect ownership of its shares or ownership interests representing 3% or more of the value of its equity or voting rights; or(b) Control in fact, whether directly or indirectly, through ownership, agreement or otherwise.This 3% threshold established by the regulations is anomalous when compared to control and foreign-ownership tests already familiar to those in the real estate industry, and will prohibit a broader range of entities from purchasing residential properties.2. Residential / mixed-use properties – The prohibition will apply to properties within a Census Metropolitan Area or a Census Agglomeration1 that are zoned for residential-use or mixed-use, but do not have any habitable dwelling units. This may capture vacant land as well as developed properties that are seemingly non-residential, but which have zoning that allows some residential use. For example, a strip mall that happens to be located in zoning district that also allows for single-family housing may be considered residential property.3. Rural properties – Residential properties outside a Census Metropolitan Area or a Census Agglomeration are exempt from the prohibition.24. Exceptions and exclusions – The regulations establish some exceptions for temporary residents working or studying in Canada, individuals fleeing international crises, and foreign nationals with diplomatic, consular or other special statuses, provided that such individuals satisfy the criteria for exemptions. Further, the following transactions will be excluded from the prohibition: (i) transfers to an individual arising from a death, divorce or separation or a gift, (ii) transfers under the terms of a trust created prior to the Act coming into force, (iii) rentals to tenants occupying the residential properties and (iv) transfers resulting from exercise of a security interest or secured right by a secured creditor.5. Purchases – The "acquisition, with or without conditions, of a legal or equitable interest or a real right in a residential property” will constitute a purchase. This suggests that entering into a contract, assigning rights under a contract and completing a transaction will be prohibited while the Act is in force. A “purchase” is not limited to acquisitions of fee simple interests in land, and can include the acquisition of interests under leases, easements and mortgages. For instance, a non-Canadian business may be prohibited from leasing a commercial unit in a building zoned for mixed-use. Contractual obligations that arose prior to January 1, 2023 will not be subject to the Act.The Act and new regulations will have impacts across Canada’s real estate industry and beyond.In particular, buyers with complex ownership structures may consider updating their internal due diligence processes to ensure that they will not contravene the Act. The extension of the prohibition to certain mixed-use zoned properties may also have implications for business transactions involving seemingly non-residential properties, which may require review for compliance with the Act and its accompanying regulations. As well, the prohibition is not limited to acquisitions of fee simple interests, and applies to the acquisition of any legal or equitable interest in residential property (including interests under leases, mortgages and easements). Vendors, real estate professionals and other parties involved in transactions may be found liable for offences under the Act and subject to penalties if they knowingly provide services to non-Canadian buyers or otherwise support a .

[1] These terms are defined in Statistics Canada’s Standard Geographical Classification (SGC) 2021: https://www12.statcan.gc.ca/census-recensement/2021/ref/dict/az/definition-eng.cfm?ID=geo009 [2] Ibid, for definition of Census Metropolitan Area and Census Agglomeration.

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February 8, 2023

Last year the federal government enacted the Prohibition on the Purchase of Residential Property by Non-Canadians Act (the Act), which imposed a two-year ban on any direct or indirect purchase of residential property by a non-Canadian commencing on January 1, 2023.[1]The government recently published the accompanying Prohibition on the Purchase of Residential Property by Non-Canadians Regulations (the Regulations).[2] These Regulations have greatly expanded the original scope of the Act, including who is considered to be a “non-Canadian” for the purpose of the Act, what constitutes a “residential property” and what is considered to be a “purchase.” Pending further clarification from the government, it appears that, as a result of the Regulations, the Act may now effectively prohibit a broad range of commercial transactions by corporations and other entities which have a degree of foreign ownership or control.

Key risks to be aware of

1. The foreign homebuyer ban may apply to commercial real estate. A “residential property” is not limited to traditional residential real estate such as homes, townhomes and residential condominiums, nor is current use determinative – the Regulations deem it to include any land (whether vacant or developed) that meets the following criteria:

The land does not contain any habitable dwelling;
The land is zoned for residential use or mixed use; and
The land is located within a census agglomeration or a census metropolitan area.

That could conceivably include commercial real estate assets (such as office buildings, shopping centres and industrial buildings) if situated on land with zoning that permits a residential use, even if that asset is currently being used for an entirely commercial purpose, and there is no intention to introduce residential use. Farmland within a census agglomeration or metropolitan area (which often includes areas ordinarily thought of as rural areas) may also be considered residential property, as agricultural zoning designations frequently permit the construction of a single detached dwelling unit.2. The foreign homebuyer ban may apply to leases and mortgages. The Regulations deem the “purchase” of a residential property to include the direct or indirect acquisition of any legal or equitable interest, subject to certain exceptions. This means that the acquisition of a lease, mortgage or any other real property interest in a residential property by a non-Canadian could be prohibited. Entering into a contract of purchase and sale, even if conditional and ultimately not performed, could potentially give rise to an equitable interest in the residential property and may be prohibited. The Act applies to direct and indirect purchases, so the ban may catch share purchases as well as asset purchases.3. Even a minor element of foreign ownership or control may result in a corporation or entity being deemed to be a “non-Canadian.” The Regulations define “control” such that a corporation or other entity that has even a small degree of foreign ownership or control (effectively 3% or mo604.307.9448re) will be deemed to be a “non-Canadian” for the purpose of the Act, even if it would ordinarily be thought of as being under Canadian control. This does not apply to Canadian corporations whose shares are listed on a designated stock exchange in Canada.

Potential impacts on foreign investment

Due to the factors noted above, the Act and Regulations could lead to significant adverse impacts upon foreign investment into Canada (and not just investment in real estate). By way of hypothetical example:

The Act could prohibit a European clothing company (a “non-Canadian” by virtue of its incorporation outside Canada) from entering into a lease for space in a shopping centre in Toronto, if the land upon which that shopping centre is situated happens to be zoned for residential use or mixed use.
The Act could prohibit a Canadian subsidiary of a US energy company (a “non-Canadian” by virtue of being controlled by a corporation incorporated outside Canada) from acquiring farm land to construct a new refinery, if that land is within an official census metropolitan area or agglomeration.
The Act could prohibit a Canadian private equity fund with a minority Chinese investor (deemed a “non-Canadian” by virtue of that Chinese minority investor having more than a 3% ownership stake) from acquiring the shares of a Canadian pipeline business, if the assets of that pipeline business included leases of land and/or easements across land that is considered to be residential property for the purposes of the Act.
The Act could prohibit the Canadian subsidiary of a foreign sovereign wealth fund (deemed to be a “non-Canadian” by virtue of being controlled by an entity formed outside of Canada) from acquiring a vacant city block to construct a new office tower, if that land happens to be zoned for residential use or mixed use.
The Act could prohibit a US-based private lender (a “non-Canadian” by virtue of its formation outside Canada) from taking a debenture or mortgage as security for a loan, if the charged assets include residential property.

Looking ahead

The scope of these new Regulations has come as something of a surprise to the business community, which is only now beginning to appreciate the potential commercial implications. Work is underway to seek clarification of the new rules from the federal government, as presumably they did not intend the foreign buyer ban to have such far-reaching impacts. In the meantime, it is important for vendors, purchasers, lenders and their advisors to understand this new legislation and how it may impact their commercial transactions.For the time being, businesses and their advisors should exercise a heightened degree of caution and consider additional due diligence when dealing with transactions involving real property assets and a buyer, lessee or mortgagee which has an element of foreign ownership or control.or more information, please contact me, Kevin Lynch at 604-307-9448.