Real Estate

Overview

With the combined expertise of more than 20 accomplished lawyers and notaries, Lavery’s real estate professionals  advise clients ranging from small to large businesses on all issues related to real estate law.

In addition to advising its clients on their usual operational needs, Lavery also supports them in the milestones of their development, for example:

  • drafting or negotiating commercial leases
  • real estate financing
  • purchase transactions and real estate sales
  • the development and co-development of real estate projects of all sizes.

Lavery regularly represents buyers and vendors, lessors and lessees, as well as lenders and borrowers. The team’s expertise extends to commercial, industrial and multi-residential properties, including residences for seniors.

Several members of Lavery’s real estate team have additional recognized expertise in the area of networks, such as railways, fibre optics and telecommunications networks, and the distribution and transportation of electrical energy. This expertise allows Lavery to provide targeted legal opinions for its clients on the validity and extent of real rights and dismemberments of the right of ownership that may affect these particular immovables. In addition, the professionals on the team draft agreements and deeds relating to dismemberments and the terms of ownership rights.

Lavery’s real estate team also includes several notaries specializing in real estate title searches and registration. These professionals are commonly asked by the firm’s clients to give opinions on the validity of real estate and mining titles, as well as on charges and other real rights encumbering immovables.

In addition to its services in the field of real estate titles, the Lavery team is frequently called upon to negotiate and put in place title insurance policies in various types of cases, whether in the context of real estate financing or real estate acquisitions. 

Select recent mandates

  • Represented Broccolini for the acquisition, lease, construction and construction financing and syndicated long-term loan in connection with the new Maison de Radio-Canada.
  • Represented the Selection Group:
    • as part of a consortium for the acquisition of the approximately 1.2 million sq. ft. site of the Molson Brewery located in Old Montréal, as well as the financing of the operation;
    • in the establishment of a consortium for the construction of the largest mixed-use real estate project in Laval, Espace Montmorency. Valued at more than $450 million, this brand new urban centre will be located in the heart of Laval and will be directly connected to Montréal’s underground network, via the Montmorency subway station;
    • in the establishment of District Union, a billion dollar multi-generational megaproject comprising 3,500 units, in the Lachenaie district of Terrebonne, at the intersection of highways 40 and 640.
  • Represented CDPQ Infra Inc. and the corporations in its group in the setting up of the Réseau express métropolitain (REM), one of the largest automated transportation networks in the world with 67 km and 26 stations, for the acquisition of infrastructure and the transactional, real estate and regulatory aspects subsequent to the transactions.
  • Represented and advised Freestone International LLC, a California-based natural resource development company, and GNL Québec Inc., a company formed for the development, financing and operation of a US$7 billion development project for a liquified natural gas (LNG) export facility at the Port of Saguenay. In particular, Lavery participated in the drafting and negotiation of the land option agreement with the Saguenay Port Authority, in legal opinions related to several aspects of the project, and more particularly with regard to real estate matters.
  • Representing Owl's Head Resort and Fred Korman for the sale of the Owl's Head Resort to a group of investors.
  • Represented a Canadian bank in the $76 million financing for the construction of the two towers located on Maisonneuve Boulevard West in Montréal. This mandate also included a negotiation component with the Canada Mortgage and Housing Corporation (CMHC) for the transformation of one of the two towers into a divided co-ownership.
  • Represented a Canadian entrepreneur, a leader in the restaurant industry, during the acquisition of the Hôtel St-James in Old Montréal and the negotiation of a long-term lease for the hotel in its historic building on Saint-Jacques Street.
  • Represent three of the co-owners of the Îlot Wilder project which will house Espace Danse in the Quartier des spectacles in Montréal, an innovative project whose legal structure includes emphyteusis and divided co-ownership 
  • Advised AP Wireless Investments ULC in setting up the agreements required for the expansion of its business in Quebec, and we represent this corporation for the acquisition of leases from cell phone service providers.
  1. Cannabis legalization | Lessors : what steps should you take?

    Subject to many restrictions, the possession and production of cannabis were legalized in Canada following the coming into force of the Cannabis Act1 (the “Cannabis Act”) on October 17, 2018.  In this context, a guide for employers was previously published by our team in Employment and Labour. To consult it, click here.  Beyond the area of employment, the entire legislation concerning cannabis legalization in Canada affects the business community, including cannabis producers, lessors of residential or commercial buildings, associations of co-owners, financial institutions and others. The cultivation, production and use of cannabis raise a number of serious questions arising from real estate law and public law. Residential Leasing For lessors, certain legal considerations regarding the use of cannabis in residential rental properties require specific actions in the short term.  What are they? On June 12, 2018, the Quebec government adopted the Cannabis Regulation Act2 (hereinafter referred to as the “Act”) to complement the Cannabis Act. Section 107 of the Act states the following: 107. A lessor may, until 15 January 2019, modify the conditions of the lease of a dwelling by adding a prohibition against smoking cannabis. [Our emphasis] To that end, the lessor must give the tenant a notice of modification describing the prohibition against smoking cannabis applicable to the use of the leased premises.  The tenant may refuse the modification for medical reasons. The tenant must do so by informing the lessor of the refusal within 30 days after receiving the notice of modification. In such a case, the lessor may apply to the Régie du logement, within 30 days after receiving the notice of refusal, for a ruling on the modification of the lease. In the absence of a refusal, the prohibition is deemed entered in the lease 30 days after the tenant received the notice of modification. In light of this provision, any lessor may take the necessary measures to prohibit the use of cannabis on the leased premises of residential rental properties before January 15, 2019. More specifically, what steps must lessors, who wish to assert their right to modify a lease unilaterally, take before January 15, 2019, under section 107 of the Act? 1. Draft a clause amending the lease. Lessors must first draft an amendment clause for the leases that they wish to amend to include the prohibition against smoking cannabis on leased premises, including, without limitation, balconies. The amendment clause need not extend the prohibition against smoking cannabis to common areas such as halls and lobbies, given that such a prohibition is already provided for under section 12, paragraph 8 of the Act.   2. Send a notice of modification to the tenants. Once this amendment clause is drafted, lessor must send a written notice of modification to all tenants, to the address indicated in the lease, before January 15, 2019.  The notice of modification should include the following: Name and surname of the tenant or tenants concerned; Section 107 of the Act (full text); The exact text of the modification to the lease; and The lessor’s signature and the date on which they have signed the notice of modification. Although no specific requirement in this regard is provided for in either the Act or the Civil Code of Québec, it is recommended that lessors indicate the consequences that tenants face if they fail to comply with the prohibition against smoking cannabis in the notice of modification. These consequences may include the resiliation of the lease in a case where the other tenants’ right to the peaceable enjoyment of the premises has been violated3. 3. Use an appropriate delivery method The lessor will have to choose a means of transmission that will ensure that the notice of change is transmitted AND received before January 15, 2019, and that physical and enforceable proof of receipt by the tenant is kept. The most appropriate means of transmitting the notice of change may vary depending on the circumstances and the means of communication agreed upon between the lessor and their tenant and/or used by them in the past. The methods of transmission provided for in the Code of Civil Procedure include, among other things, delivery by the bailiff, sending by registered mail, personal delivery and sending by technological means. In any event, the lessor must ensure that they choose the method of transmission that provides the most convincing evidence that the tenant has received the notice. When will the amendment clause come into effect? In the absence of a refusal by the tenant (the tenant may, for medical reasons, refuse the modification proposed by the lessor under section 107 of the Act), and following a 30-day period from the receipt of said notice, the prohibition against smoking on leased premises will be deemed to have been entered in the lease.   What happens if a lessor fails to assert their right to unilaterally modify a lease under section 107 of the Act before January 15, 2019? Any lessor who does not send the notice of amendment before January 15, 2019 will have to wait until the expiry of the current lease and will be subject to the general provisions of the Civil Code of Québec for the amendment of a residential lease, unless an agreement is reached with the tenant. Commercial Leasing Are lessors of commercial rental properties, like lessors of residential rental properties, required to take a particular action before a given date? Lessors of commercial rental properties cannot benefit from the right to modify leases unilaterally set out in section 107 of the Act. However, paragraph 17 of section 12 of the Act provides that smoking is prohibited in enclosed spaces that are open to the public, such as office buildings and shopping centres. Moreover, it is possible for the owners of commercial buildings to consider an amendment to the rules and regulations of the buildings in order to prohibit the use of cannabis on leased premises as well as in common areas.  In this regard, lessors of commercial buildings would be well advised to immediately adopt a policy in line with the policy adopted regarding the use of tobacco on leased premises and in common areas, if appropriate.   Cannabis Act, S.C. 2018, c. 16 Cannabis Regulation Act, CQLR, c. C-5.3 Chartier v. Chassé, 2018 QCCQ 2823  

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  2. Artificial Intelligence and the 2017 Canadian Budget: is your business ready?

    The March 22, 2017 Budget of the Government of Canada, through its “Innovation and Skills Plan” (http://www.budget.gc.ca/2017/docs/plan/budget-2017-en.pdf) mentions that Canadian academic and research leadership in artificial intelligence will be translated into a more innovative economy and increased economic growth. The 2017 Budget proposes to provide renewed and enhanced funding of $35 million over five years, beginning in 2017–2018 to the Canadian Institute for Advanced Research (CIFAR) which connects Canadian researchers with collaborative research networks led by eminent Canadian and international researchers on topics including artificial intelligence and deep learning. These measures are in addition to a number of interesting tax measures that support the artificial intelligence sector at both the federal and provincial levels. In Canada and in Québec, the Scientific Research and Experimental Development (SR&ED) Program provides a twofold benefit: SR&ED expenses are deductible from income for tax purposes and a SR&ED investment tax credit (ITC) for SR&ED is available to reduce income tax. In some cases, the remaining ITC can be refunded. In Québec, a refundable tax credit is also available for the development of e-business, where a corporation mainly operates in the field of computer system design or that of software edition and its activities are carried out in an establishment located in Québec. This 2017 Budget aims to improve the competitive and strategic advantage of Canada in the field of artificial intelligence, and, therefore, that of Montréal, a city already enjoying an international reputation in this field. It recognises that artificial intelligence, despite the debates over ethical issues that currently stir up passions within the international community, could help generate strong economic growth, by improving the way in which we produce goods, deliver services and tackle all kinds of social challenges. The Budget also adds that artificial intelligence “opens up possibilities across many sectors, from agriculture to financial services, creating opportunities for companies of all sizes, whether technology start-ups or Canada’s largest financial institutions”. This influence of Canada on the international scene cannot be achieved without government supporting research programs and our universities contributing their expertise. This Budget is therefore a step in the right direction to ensure that all the activities related to artificial intelligence, from R&D to marketing, as well as design and distributions, remain here in Canada. The 2017 budget provides $125 million to launch a Pan-Canadian Artificial Intelligence Strategy for research and talent to promote collaboration between Canada’s main centres of expertise and reinforce Canada’s position as a leading destination for companies seeking to invest in artificial intelligence and innovation. Lavery Legal Lab on Artificial Intelligence (L3AI) We anticipate that within a few years, all companies, businesses and organizations, in every sector and industry, will use some form of artificial intelligence in their day-to-day operations to improve productivity or efficiency, ensure better quality control, conquer new markets and customers, implement new marketing strategies, as well as improve processes, automation and marketing or the profitability of operations. For this reason, Lavery created the Lavery Legal Lab on Artificial Intelligence (L3AI) to analyze and monitor recent and anticipated developments in artificial intelligence from a legal perspective. Our Lab is interested in all projects pertaining to artificial intelligence (AI) and their legal peculiarities, particularly the various branches and applications of artificial intelligence which will rapidly appear in companies and industries. The development of artificial intelligence, through a broad spectrum of branches and applications, will also have an impact on many legal sectors and practices, from intellectual property to protection of personal information, including corporate and business integrity and all fields of business law. In our following publications, the members of our Lavery Legal Lab on Artificial Intelligence (L3AI) will more specifically analyze certain applications of artificial intelligence in various sectors and industries.

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  3. Overview of the Canadian Public-Private Partnerships market

    The Public-Private Partnership delivery model (“PPP” or “P3”) is now well established in Canada, where more than 177 of such projects were closed between 1993 and 2015 (source: InfraAmericas). The great majority thereof (166) have been closed since 2004, and the current trend indicates the number of projects is on the rise. Thus, considering the projects already completed in 2016 as well as projects currently engaged in the tendering process, according to the Canadian Council for Public- Private Partnerships “CCPPP”, the total number of completed and pending PPP projects in Canada currently stands at 247. Canada is often described as the most active PPP market in the world, and is certainly one of the most mature. The life cycle of infrastructures, the Canadian geography and the current economic context are all convergent factors that favour this market. Also, the improvement of public infrastructures through the use of private capital is a concept which has always benefited from the support of the federal government. The Liberal government elected in October 2015 made infrastructure a major pillar of its economic platform with the campaign promise to double the country’s infrastructure investments. On November 1, 2016, Finance Minister Bill Morneau announced the creation of the Canada Infrastructure Bank (“CIB”) in 2017, whose mandate will be to invest in large infrastructure projects by attracting capital from institutional investors. Taking into account existing infrastructure programs ($91 billion), the investments announced last March in the government’s first budget ($14 billion), and additional investments included in the economic and financial update last November 1 ($81 billion), the federal government estimates that the country’s total infrastructure investments will reach $180 billion between 2016 and 2028. According to the CCPPP’s data, the Canadian P3 industry is still dominated by social infrastructure (58%) and civil infrastructure projects (24%). The health sector remains the largest subsector within social infrastructure, with 37% of the completed transactions. However, we note an increase in transportation-related projects, particularly suburban highways and light-rail transit projects. Other types of projects are also being developed, such as wastewater treatment and waste management plants and power transmission lines, all of which are new asset classes offering alternative investment opportunities for investors. Provincial bodies such as Infrastructure Ontario, Partnerships BC, SaskBuilds, Alberta Infrastructure, Partnerships New Brunswick and the Société québécoise des infrastructures are at the heart of the Canadian PPP programs and are directly responsible for the majority of infrastructure projects. Infrastructure Ontario remains the largest agency in terms of size and the number of completed transactions. It also serves as a reference for documentation and processes. At the municipal level, about 15 municipalities have also undertaken to develop their own projects, although they are often implemented in partnership with the provincial agencies. Federally, seven projects have been launched to date in PPP mode, notably the Confederation Bridge and the new Champlain Bridge. Another recent example is the Gordie Howe International Bridge connecting Windsor, Ontario to Detroit, Michigan, which is currently engaged in a call for tenders process. The 177 PPP projects completed since 1993, as reported by InfraAmericas, represent an aggregate value of $79 billion, or an average project value of $482 million. If we consider the aggregate of projects identified by the CCPPP as completed and currently underway (247), this represents a total value of $118 billion. It is generally acknowledged in the industry that a project must have a minimum value of $50 to $75 million to be viable for the PPP delivery model. To date, Ontario and British Columbia have been the most active Canadian provinces in terms of PPP, together contributing 121 out of a total of 177 projects (68%) by the end of 2015. Ontario has completed 90 projects to date, or 51% of the Canadian market. This is followed by Quebec with 10%, New Brunswick with 6%, Alberta with 6% and Saskatchewan with 5%. Canada remains a market open to international competition and foreign capital, and continues to attract numerous players from Europe and the United States. In terms of risk, this is a relatively conservative market that is not so open to projects exposed to volume (or traffic) risk. However, this has the advantage of attracting the interest of institutional investors for Canadian infrastructure debt, which actually benefits from high-quality risk ratings. In terms of financing, the Canadian pension funds and life insurance companies are the main actors involved in investments in the form of private placements. Their interest in this class of assets has made private placements the primary financing solution for the Canadian P3 market. Most of the projects resort to bank credit during the construction phase, which is then refinanced on the bond market once the project has been completed. However, some projects have been financed solely through bond issues. Thus, according to InfraAmericas, of the 177 projects that were financed by the end of 2015, 125 (71%) were financed solely with bank debt, 37 (21%) were financed solely in the capital markets, and 15 (8%) were financed with hybrid forms, i.e., through a combination of bank debt and long-term bond financing. More recently, a secondary market for PPP projects has developed which has some potential throughout Canada. While most institutional investors such as pension funds and insurance companies view PPPs as long-term investments, there are also some promoters who potentially wish to assign their interests in certain projects after a relatively short time, in order to redeploy their capital in other projects or sectors.

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  4. Renewable energies: the trend is toward hybrid financing

    For about two years now, most renewable energy projects, particularly wind farm projects, have been financed using a so-called “hybrid” model, i.e. a combination of medium-term bank debt and long-term financing or private placements. The term “hybrid” is derived from the vocabulary of the Public-Private Partnerships industry, particularly projects involving an operational and maintenance component as part of a long-term concession. Indeed, during the construction phase, these projects generally involve a bank construction loan with a term of 2 to 5 years, combined with a long-term bond issue. In most cases, the bank financing is to be repaid upon project completion by payments from the Public Authority, while the bond financing is amortized over the duration of the project’s operational phase. Until not so long ago, renewable energy projects were financed through one of two different models: medium-term bank financing of 5 to 7 years, or more rarely 10 years (i.e. “mini-perm financing”), or long-term financing (or a private placement) whose term was as close as possible to the term of the power purchase agreement — generally 18 to 20 years. Bank type loans were primarily granted by the large Canadian banks, while long-term financings were generally the hallmark of the insurance companies and foreign banks. More recently, particularly for the wind farm projects stemming from the latest call for tenders for community projects in Quebec, we have witnessed the emergence of hybrid financings which allow for the optimization of the project’s financial cost and benefit from a lower interest rate on the mini-perm tranche, while still enabling the financing to be secured over the full duration of the project. One of the features of this type of financing is that the long-term lenders must agree to grant a capital repayment holiday for the duration of the amortization of the bank’s tranche. Indeed, if the two tranches were required to be amortized at the same time, the burden of repayment would have an excessive impact on the project’s cash flows. Also, the long-term lenders generally prefer the bank’s tranche to be fully amortized over its initial term to avoid any risk of refinancing at maturity. It is technically possible using modeling to work up a plan to simultaneously amortize the two financing tranches that could be absorbed economically by the project. However, this would require a substantial reduction in the amount of the bank’s tranche, and therefore minimize the financial benefits of the hybrid structure. Other technical issues must also be addressed, such as, for example, how disbursements are to be made during the construction phase. The simplest way is to proceed in a similar fashion to PPPs, i.e., by fully disbursing the long-term financing at the start of the construction and starting the progressive payouts on the bank’s tranche once the funds of the long-term tranche have been fully spent. Another way of proceeding is to pay out the two tranches at the same time with progressive payouts made pro rata to each other. This method is sometimes less suitable for institutional lenders for administrative and cash management reasons.

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  1. Lavery announces return of Carole Gélinas as partner

    Lavery is pleased to announce the return of Carole Gélinas as a partner. Carole, who practiced law at Lavery from 2012 to 2019 on the real estate team, is returning to her roots. She has more than 30 years of experience in this field and is known for assisting corporations with mandates relating to the leasing, acquisition, sale and financing of real estate assets. She also has extensive experience in mining law. “I am delighted to be back with the Lavery family. The firm’s strength lies in its ability to offer a complete range of services, to manage major cases and to maintain a proximity to the business reality of its clients. I am pleased to once again be able to put my expertise in real estate and mining law,” says Carole Gélinas.

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  2. Lavery welcomes Marie-Lou Beaumont, a new lawyer in the Business Law group

    Lavery is pleased to announce that a new lawyer, Marie-Lou Beaumont, has joined the Business Law group. Marie-Lou was admitted to the bar in 2013 and has focused her practice on real estate law in the Quebec City region. One of the fields that Ms. Beaumont has been particularly active in is energy. She has worked on a number of wind projects, by examining property titles, drafting documents, and determining the legislative characterization of the work done when wind parks are created. She has also represented clients in a number of major cases involving the interpretation of affiliation agreements, corporate finance, and the sale of woodlots. Anik Trudel, Lavery’s Chief Executive Officer, said: “The strength of Marie-Lou’s profile and the qualities she has demonstrated are in part the result of her seven years working as a paralegal, from which she gained unique expertise in real estate law. Having Marie-Lou join us will consolidate the real estate services we offer.”

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  3. Richard Burgos publishes an article on Canadian real estate law

    Richard Burgos, a partner of our Business Law Group, penned a doing business in Canada guide in real estate law in Practical Law, published by Thomson Reuters. The document is part of a global guide as to real estate law and provides a high-level overview of the real estate market in Canada, with a focus on investment, financing structures and the sale and lease of real estate. Click here to read the full document.

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