Condo Assignment Glossary of Terms
Please contact me if you have any questions or suggestions or for a free, no-hassles, by-phone (416-399-5832) consultation.
Assignment - transferring all the rights and obligations of the Assignor (original buyer) of a bonafide Sales and Purchase Agreement with the current owner (usually the builder/vendor) to a new buyer, the Assignee, prior to the Assignor taking the title at final closing. The Assignee "steps into the shoes" of the Assignor.
Note: Builders reserve the right to keep the Assignor responsible for the Assignee fulfilling their obligation to close the deal if the Assignee fails to do so.
Assignment Agreement - a Purchase and Sales Agreement between the Assignor and Assignee to transfer all the rights and obligations from the Builder Agreement to the Assignee specifying the price and conditions. Since 2012, there has been a standard form available for Assignments: Form 150 from OREA (Ontario Real Estate Organization) and TREB (Toronto Real Estate Board).
Note: Form 150 is used to place/accept Offers and when Accepted by all parties (Assignee(s) & Assignor(s) becomes a Conditional Agreement and when conditions are removed, becomes the Final or Firm Agreement.
Caution: Do not use the standard condo resale Form 101 for Assignment Offers/Agreements. There are major differences to Form 150 (condo assignments). Note: Form 145 is used for freehold assignments.
Assignor - Original Buyer/Purchaser from the Builder assigning their Builder Purchase and Sales Agreement.
Assignee - New Buyer/Purchaser of the Builder Purchase & Sales Agreement.
Note: With Condo Assignments, it is important to remember the "Seller" is the Builder/Vendor as the Assignor does not own the unit but owns the right to purchase as per their Purchase & Sales Agreement which they are assigning to the Assignee. It is easy to get these terms confused with the usual meaning as it pertains to a resale transaction.
Agreement in Principle (from Builder) - must be the first item of business BEFORE you start the assignment sales/marketing process. Builders may not be allowing assignments at the time you are interested in doing this. This is true despite what is written in your Purchase Agreement. They have the final and absolute right to decide when they are ready to formally start the assignment process.
Service Tip: Contact me for a free, no-obligation, form letter/fax/email to make this request to the Builder.
Selling Tip: Check your Agreement for the terms and conditions with regard to Assignments. But remember you can meet all the criteria and restrictions but they can still refuse to allow assignments. They cannot stop you from seeking a buyer and even getting into an Agreement with a third party but they can stop you when you request they accept the new buyer as a substitute for you.
Breach of Agreement (for assignment ads) - this is a risk for Assignors to take seriously as you could potentially lose your deposit(s) and your Agreement declared null and void. See Listing Agreement (MLS).
Builder or Developer or Vendor or Seller. Owner of the pre-construction condo unit being assigned.
Note: Buyers (original or assignee) do not have ownership or title of the unit until the Final Closing/ Unit Transfer Date. This date cannot occur until the condo becomes registered and the formal closing is completed. Do not confuse the term "Seller" with Assignor when you read the Agreements that use this term).
Builder (Original) Purchase and Sales Agreement - documents developed by the Builder/Developer of a pre-construction condo to create a binding contract between the original buyer of one of their condo units. Easily 100 pages or more. These documents have much in common between different builders but there is no regulated standardized form. This is what the Assignor is transferring (selling) thru the assignment process. It becomes in its entirety Schedule "C" of the NEW Assignment Agreement Form 150. Purchase and Sales Agreement
Builder Assignment Form - Builders have their own paperwork developed for the formal process of amending their sales agreements with regard to assignments. For example, see Reports. Once they are notified by the Assignor that they wish to make an assignment they will send out this form, assuming they have agreed to do the assignment in principle. Some builders prefer to have the parties come to a place of the Builder's choosing to sign these forms. The form will state their conditions and requirements (like payment of assignment fees) and require the assignor and assignee to sign. This form is submitted to the Builder and is subject to their review and approval which often takes a week or two. Once the Builder accepts this new buyer, all future dealings are between the builder and the Assignee. The Assignor is no longer considered the buyer and is not treated as such for notices etc.
Tip: It is important that the Assignment Agreement contain clauses stipulating "undertakings" for the assignee's lawyer to keep the Assignor and Assignor's lawyer "in the loop" providing copies of all notices and other communications from/to the Builder.
Capping or Capped fees or Caps - some closing costs like levies can be "open-ended" as opposed to "capped" at a maximum amount. Capping is something a good buyer realtor will advise a new condo buyer to seek prior to signing a Builder Agreement. These caps can save buyers several thousand dollars. Costs. Builders can be offering these caps up-front as a standard offering at times but this changes as the market becomes more or less competitive favouring the buyer and sometimes the seller.
Tip: Get your Agent to ask for them as part of the Agreement negotiation with the Builder before you accept the Builder Agreement. These are not negotiable with assignments; they either are part of the Builder Agreement (as possibly amended) or not. Be sure to check that they can be transferred to an Assignee. Same rule as with Cashbacks (see next item, below).
Cashback - a buyer incentive provided by the Builder that may be part of the Agreement that provides a credit to the buyer at final closing. Caution: In some cases, Builders stipulate in their Agreements that this credit is "not transferable to the Assignee upon assignment". If the cashback is allowed to be transferred, the Agreement can usually stipulate that it goes to the Assignee (not the Assignor).
Closing aka Final Closing/Unit Transfer Date/Completion - Builders have not standardized the meaning of this word in their Agreements and thus you will find some referring to a date that is actually the Interim Occupancy Date. This is always the date on page one of the Agreement. See Tarion Critical Dates.
Comparative Market Analysis (CMA) - is a report usually done by your realtor prior to signing a Listing Agreement, to establish Market Value and thereby establish a Listing/Asking Price.
Note: pre-construction condo units are rarely listed on MLS (prohibited by Vendors) and have no sales history. Market Value is established using techniques different from those used for resale condos. It requires added experience and skill to do this well as compared to a standard resale.
Completion aka Closing/Final Closing/Unit Transfer Date - see Closing above
Condominium Act (Ontario) 1998, as revised - are the rules and regulations that govern condominiums - both new and resale. It is currently (as of 2013) under review with the objective of simplifying and adding more consumer protection. Services Ontario.
Condominium Corporation or Association - the legal entity that is registered under the Condominium Act that represents all the owners thru an elected board of directors.
Condominium Documents - see next item, below
Creating Documents aka Condominium Documents or Declaration & Disclosure Documents are documents regulated by the Condominium Act which are intended to be registered against Title to the Property and which serve to create the Condominium Corporation.
Critical Dates (Tarion) - see Tarion
Declaration & Disclosure Documents- the Condominium Act requires all condo sellers for new and resale condos to provide purchasers with these important documents that disclose many details about the site, building, and suites, including proposed by-laws (daycare centre, energy management systems, etc), rules (pets, parking, etc) and financials (for the one year following the registration date in the case of new condos/assignments). These documents along with the Builder Agreement must be provided by the Assignor to any potential new buyer (Assignor) to facilitate their due diligence.
Decor Package Selection - choice of colour and options usually confined to pre-selected packages to prevent unsightly combinations. Depending on the timing of the assignment, some options might be changed but usually, the assignee must accept what the Assignor has agreed to with the Builder and modify the decor where possible, e.g.; paint colours, upon taking possession.
Delayed Occupancy Date - See Tarion Critical Dates
Deposits - There are two different deposits involved in Assignments, namely; Builder and Assignment:
1. Builder Deposit(s) are made initially with the purchase of the condo from the Builder/Vendor/Seller and are usually spread out over a scheduled number of dates (see page 1 of the Builder Agreement). Typically, these deposits will be 5% of the original sales price. Often there are four deposits of 5% and will be scheduled within a year or less of signing with a final 5% due on Interim Occupancy. The final deposit is usually due at Interim Occupancy and is paid by the Assignee when the Assignment occurs prior to this date, otherwise, it is paid by the Assignor. Deposit schedules and amounts will vary by Builder or even by the same Builder on different projects or at different times. Negotiable by the Assignor at the initial sale but not afterward.
Tip: Regulations require that deposits be held in trust and that interest be paid on these amounts. Be advised that the prescribed rates (bank rate minus 2%) have been so low since 2008 that NO interest has been paid since the year 2008.
Caution: Warranty on Builder deposits for new condos is limited to $20,000. The deposit on the Assignment Agreement carries the same maximum. Freehold (non-condo) homes have a $40,000 maximum. Be aware that builder deposits are typically well in excess of this maximum coverage, so the reputation and financial strength of the Builder/Vendor are important to check.
Service Tip: have your realtor do a check on any relatively new or unknown builders. There have been very few "failures" in recent years involving new condo development in the GTA where buyers have lost their deposits.
2. Assignment Deposit is paid by the Assignee to the Assignor to bind the Assignment Agreement and typically is 5-7% of the new purchase price.
Note: These assignment deposits are not governed by the Condo Act but are regulated by the Real Estate Council Ontario (RECO) and must be disclosed by each Real Estate Brokerage and attached to Offers/Agreements as schedules. Typically, the interest rates are too low to create any interest the amount is less than the minimum amount often set in these clauses.
Disclosure Documents - See Creating Documents or Condominium Documents
Exclusive Listing (MLS) - since Builder rarely allows Assignors to advertise their units for sale on MLS (or anywhere else), the only Listing Agreement that can be signed is the Exclusive version. It simply means that the Assignor does NOT authorize the realtor to post this offering on MLS.
Caution: Builders will often exclude ANY form of public media (online or print), such as; Kijiji, Facebook, or newspaper ads, etc., and include these restrictions in their Assignment Agreements. They usually threaten serious consequences if they determine you have violated these terms.
Warning: They do not have to give you a chance to rectify by removing the ad(s) but usually do. YOU COULD BE HELD IN BREACH OF YOUR AGREEMENT AND LOSE YOUR DEPOSITS AND YOUR RIGHT TO PURCHASE!
Final Closing (date and costs) aka Closing/Unit Transfer Date/Completion- refers to when the condo's title is transferred to the owner from the Builder. In an assignment, the title would transfer to the Assignor. There are closing costs for both Assignor and Assignee.
Final Tentative Occupancy Date - See Tarion Critical Dates
Firm Occupancy Date - - See Tarion Critical Dates
First Tentative Occupancy Date - See Tarion Critical Dates
Floor Plate - the layout of the suites on a particular floor of a condo and will usually vary within the same building. Indicates the suites exposure using a compass heading. Should indicate the location of stairwells, elevators, electrical closets, fire hose cabinets, garbage chutes, etc on a given floor.
Tip: there is a small version included on the floor plans. Suggest you review the full-scale version that will be attached to the Builder Agreement as a Schedule.
Form 150 - a relatively new (2012) standard form in Ontario for Purchase and Sales Agreements for condo assignments.
Caution: do not use the standard Condo Resale Agreement Form 101 as assignments have many unique features and conditions not required for resale transactions.
Note: Form 150 is used to place/accept Offers and when Accepted by all parties (Assignee(s) & Assignor(s) becomes a Conditional Agreement and when conditions are removed, becomes the Final or Firm Agreement.
Caution: Do not use the condo resale Form 101.
GST - A General Sales Tax (5%) was a federal tax replaced by HST (Harmonized Sales Tax) that combined the GST with the PST (provincial sales tax) in most provinces across Canada in 2008.
In Ontario, the PST is 8% so the HST is 13% in Ontario. (5% + 8%)
Holdbacks (property taxes) - often required/recommended to create a temporary trust account that will pay for adjustments to the property taxes collected during interim occupancy that may have been more or less than required as determined by a tax assessment usually several months AFTER final closing.
HST - For Ontario, 13% and almost always included in the purchase price as quoted by the Builder/Vendor. Always verify this.
Note: HST applies to new homes, and vacant land but not resales.
HST Rebate - For Ontario, with the introduction of HST, the provincial government provided two HST rebates to soften the impact of this new cost of buying new homes. These rebates are almost always transferred to the Builder/Vendor by being "included in the purchase price".
Service Tip: See Reports for free, instantly downloadable reports on this topic.
HST Rebate Requirements - For Ontario, Buyers/Assignees must either occupy the unit as a primary place of residence or rent the unit for at least One Year from the date of the Final Closing
HST Rebate Disqualification - If you do not meet the requirements above the Builder/Vendor may choose to have you pay the rebate to them at final closing. This amount can be up to $27,000 for a condo in the $400,000 price range. At today's prices, the usual amount of the Rebate is $24,000.
HST Rebate Reclaiming - If you do have to pay the rebate to the Builder/Vendor and actually do qualify for the rebate by not selling for at least one year from Final Closing/Title Transfer. You can apply for it after the final closing. A signed one-year lease on the unit is usually sufficient proof to warrant a refund.
Warning: Builders usually arbitrarily decide that in the case of an assignment, the assignee will have to pay the rebate to the builder at final closing regardless of whether they state their intention to qualify for the rebate or not. This is a large amount (up to $27,000) that an Assignor would need to have available for final closing. It is a good idea to be sure all parties to any assignment transaction are aware of this potential large cash outlay.
Tip: Seek professional tax advice on this.
Interest on Builder Deposit(s) - this is based on a prescribed rate (2% below the bank rate) is so low that since 2008 when the bank rate fell to 1% the rate was negative (so, zero) and has remained in negative territory to date no interest is accumulated on these deposits. Note: given projected bank rates/prime rates this is not expected to change for the foreseeable future, e.g.; well into 2016 or longer.
Service Tip: To be safe, a clause should be in the Assignment Agreement covering who gets any interest should there be any. By default, it will go to the buyer on record with the Builder at the time of final closing - the assignee.
Interim Occupancy Date - Scheduled date(s) when the unit/suite can be occupied that is set by the Builder and often revised (many times!). Actual occupancy is optional (you can leave it vacant) but deposit (often the final one) & fees are not optional (see below). This date is a moving target but there are Tarion New Home Warranty regulations about proper notice, compensation, and conditions that the Builder needs to heed or be subject to penalties (compensation to the Buyer). These terms are disclosed in the Tarion Warranty that should be attached to the Builder Agreement as a schedule. There are seven legal-size pages of details for what is collectively called "Critical Dates".
Note: occupancy matters are unique to pre-construction real estate sales. The resale critical date is "the closing date" and it is always specified in resale agreements subject to any mutually agreed amendments.
Three variants of Occupancy Dates:
a) First Tentative Occupancy Date - often the only date the builder provides at the time of purchase. This can be followed by a series of Occupancy dates from delayed (or even accelerated) Tentative dates until they provide;
b) Firm Occupancy Date.
c) Outside Occupancy Date - the very latest date the builder agrees to meet for occupancy at the time of signing. Typically this is at least 3-4 years away from when units begin to be offered for sale by the builder and will be stipulated under the Tarion Warranty.
Interim Occupancy Fees - Payment of the final deposit (usually 5%) and the interim occupancy fee are not optional. Builders often require post-dated cheques to cover the estimated period until the final closing/unit transfer date. The fee is based on three factors 1. the balance owed the builder (price fewer deposits less any optional extra payments) x a condo act prescribed rate); 2. estimated property tax; 3. estimated condo maintenance fees. Typically, a 1 bed plus den would have an occupancy fee of $1,200 - $1,400 per month.
Interim Occupancy Deposit - is paid by the Assignee when the Assignment occurs prior to this date. The assignment deposit is paid by the Assignee to the Assignor to bind the Assignment Agreement and typically is 5-10% of the new purchase price.
Interim Occupancy Period/Duration - the period from the commencement of Occupancy to Final Closing that is typically 4-6 months but can be much longer. Under the Tarion Warranty, this cannot exceed 16 months.
Tip: check the Builder Agreement for the duration committed to by the Builder for your unit/project as it may be less than 16 months, i.e.; 12 months is often stipulated.
Levies - Newly constructed sub-divisions and condo developments are charged by the municipality and other authorities (regional, provincial, and school boards) with infrastructure and/or service costs. There are four main groups:
1. Development Levies - The builder gets a lump sum bill from the municipality for the use of roads, and services such as fire and emergency (and much more) which the builder then allocates across all the condo units. It is a cost-recovery only and the builder is not allowed to add any profit or other costs, e.g.; administration, etc. Allocation is done on a unit-specific base as per unit size (square feet).
Caution: development costs can increase (seldom decreases) from the time the units are sold to the final closing and this "increase" can be passed on as well.
Tip: have these fees "capped" before you agree to buy. If you are assuming the Agreement thru assignment it is too late to cap but you should be able to get the final amounts from the builder and/or the assignor at this time. Typical fees range from $3,000 - $5000.
2. Educational Levies - Similar in concept to Development Levies except, of course, applies to the support of schools. These are usually much smaller than the Development Levies and are in the range of $500-$800. These also can and should be capped. Often they are capped as a total for the two or individually.
3. Utility Levies - These are for the hook-up of municipal utilities to the condo building (hydro, gas, sewage, smart meters, etc) and are usually in the range of a few hundred dollars but vary. Typical - $200 - $500
4. Other Levies - never leave money on the table, the authorities have become very creative with levies for parks, subways, arts, libraries, etc.
Note: See Capping
Listing Agreement (exclusive) - for assignments this is almost always an exclusive Listing Agreement meaning that the listing is not placed on MLS. This does not prevent the assignor from accepting offers from cooperating buyer agents unless specifically added as an exclusion for a period of time within the Agreement. The form for Assignments and Resales are the same (TREB Form 200A).
Note: Builders almost always exclude the use of MLS or any other advertising (Kijiji, etc) or print media by the Assignor or their agents.
Tip: Builders check MLS diligently and less so the other media. They can evoke their rights to have any violations mitigated/reconciled.
Caution: some Builder Agreements use the term "unreconcilable breach" with regard to breaking Assignment restrictions and that implies that they will/may give you the warning to reconcile by removing the ads before they enforce the breach. On the other hand, some Builders use the stark warning: "the unilateral right and option of terminating this Agreement effective immediately upon notice of termination." In other words, no warning or second chances are provided- OUCH!
Tip: get the advice of your condo assignment lawyer as there is a risk that you will breach and thus lose your deposit and your Agreement is declared null & void.
Personal Note: From my experience, I have had several warnings from Builders to remove listings from MLS and never had a breach. In my opinion, it is not the preferred choice of builders to re-possess the unit and have to sell it again. However, it is your money, no one else's, so assignors must decide whether to authorize this, or not.
Listing Price: based on Market Value (see below) as are resales but must be approached differently as there is no sales history available (never sold before and not on MLS).
Maintenance Fees or Condo Fees - are paid by the owners and are pro-rated by unit size, e.g.; square feet - SF (including unit, parking, and locker), plus special assessments*, if any, to cover the cost of common elements. Prior to the registration/final closing/unit transfer date, this cost is merely an estimate and is often revised within two years of registration usually they go up by 5 - 10% but not always.
*Note: "Special Assessments" are only possible after registration but noted here for readers who are also involved with established condos, i.e.; resales.
Market Value - is established thru a specialized Comparative Market Analysis or CMA that cannot rely on historical data from the building involved as none of these have been sold at the time of doing an assignment listing.
Net Proceeds - this report is developed as part of my service on behalf of the Assignor by taking the new price (assignment list price or an estimated actual sale price that may be different than the list price) less the original purchase price and subtracting the cost of the sale (assignment fees, realtor fees, legal fees, etc). This process allows the Assignor to decide on a Listing Price.
Caution: this is an estimate and your actuals will likely vary.
Service Tip: my assignment service includes this Net Proceeds Report prior to the Assignor committing to signing a Listing Agreement. The Comparative Market Analysis (CMA) is a companion report to the Net Proceeds Report that establishes the Market Value of the unit.
Occupancy - aka Interim Occupancy
Outside Occupancy Date - See Tarion Critical Dates
Pre-Delivery Inspection (PDI) - the first opportunity to see your condo unit - bring your camera, and perhaps a professional home/condo inspector. You get to tour your unit looking for any shortcomings or defects. You will be walked-thru this process by a builder representative who will make a list of the items needing attention and provide you with a signed copy of the report. Plan on about one hour to do the inspection. They will also provide you with your Tarion New Home Warranty. This event is performed several weeks prior to Occupancy and is usually completed prior to Assignment and therefore done by the Assignor, not the Assignee.
Property Taxes - can only be estimated at the time of assignment as the property has not yet been assessed for property taxes. Builders often use estimates in their sales literature at the time they are selling these units to the original buyers (Assignors) but remember these are just guesses. Toronto/GTA Builders use a figure between 0.75% and 1.0% of the Original Purchase Price. See Holdbacks
Registration (condo) - A process and date when a condo is recognized as a condominium corporation and can begin transferring title to the unit purchasers. Shortly after this process, which can take several weeks as they transfer title/close floor by floor starting at the lower floors, there will be an election of the board of directors by the owners at the first General Meeting.
Sale and Purchase (S&P) Agreements - there are two different SPAs involved in an Assignment transaction:
1: Builder's S&P Agreement signed originally by the Assignor as the original buyer with the builder. This is what is being assigned/sold. It is attached as a schedule to the Assignment Agreement.
2. Assignment S & P Agreement signed by the Assignor and the Assignee to transact the Assignment. The Builder is not a party to this Agreement and does not see it or care about it. See Form 150
Caution: This is why it is important to have clauses in the Assignment Agreement that create "undertakings" that make sure that what is agreed in this document is carried out at closing by the lawyers involved, especially when it comes to the distribution of funds. It is also a good example of why you need to hire an experienced realtor and lawyer for assignments.
Schedules - attached to Assignment Agreements on Standard Form 150.:
a. Schedule "A" - custom terms and conditions like "undertakings".
b. Schedule "B" for Calculation of Funds
c. Schedule "C" Builder's Agreement and all related documents (e.g.; amendments, notices, schedules from Builder) - this is what the Assignor is buying and "stepping into".
Seller aka Vendor/Builder - this is not the Assignor as they only "own" the agreement from the Builder, do not have a title, and are assigning the agreement, not the title.
Status Certificate - is a report on the current state of a condominium corporation, prepared by the Board of Directors, which offers a financial snapshot of the well-being of the building and information on those who run it.
Note: a status certificate is NOT available at the time of assignment as by definition assignments occur prior to the final closing/unit transfer date when these documents become available. What is available for pre-construction and during interim occupancy is the "Condominium Documents" aka "Creating Documents".
Tip: these initial rules and regulations will usually be amended by the newly elected board of directors after the final closing. However, they should be studied by potential assignees (new buyers) to determine such things as pet policy (allowed, restricted, not allowed), etc.
Tip: when buying a resale condo, it’s extremely important you obtain a copy of, and carefully review, the status certificate with your lawyer before being locked into your purchase.
Typically, a status certificate is part of a package that also includes the condominium declaration (outlining the building’s by-laws, rules, and regulations), a copy of the insurance certificate, financial statements, and a summary of the most recent reserve fund study.
Tarion New Home Warranty - This benefit/service will be transferred to the Assignee at Final Closing and provide coverage for one, two, and seven years at declining levels of protection.
Tip: take the time to learn about this service as many of the items covered have exclusions or limitations based on what you do or do not do while occupying or owning your condo. You have responsibilities here as the condo owner. The cost varies by the original purchase price (not the assignment price) net of all taxes (HST and other taxes). e.g.; at $400,000 (original net price) the warrant fee is $1,130 paid at final closing.
Note: Warranty coverage starts on the unit at the beginning of Interim Occupancy and at Final Closing for the common elements. So your one-two-and-seven-year terms are measured from these dates for these two parts of your ownership.
Tarion Critical Dates - are established under their New Home Warranty program and attached to the Builder's Agreement. There are seven legal-size pages worth of details for what is collectively called "Critical Dates":
1. First Tentative Occupancy Date - this date is provided in the Builder's Sales Agreement on page 1.
2. Tentative Occupancy Date (the second or subsequent date provided by proper notice from the Builder).
3. Final Tentative Occupancy Date (means the next notice will be Firm Occupancy Date and not another revised tentative date).
4. Firm Occupancy Date - unless delayed (holy smokes).
5. Delayed Occupancy Date - the buyer may be eligible for delayed occupation compensation.
6. Outside Occupancy Date - the latest date the Builder/Vendor agrees to at the time of purchase by the Buyer that Occupancy will be provided. This Date cannot be modified and if not met can allow the Buyer to terminate without penalty or loss of deposit Agreement.
7. Final Closing/Unit Transfer Date - cannot be greater than sixteen (16) months after the date of Firm Occupancy Date, as per Tarion.
Undertakings - no, not about funerals, this is a legal term that binds a named party like the assignee's lawyer to be responsible for certain actions like the proper distribution of funds to the assignor as per the Assignment Agreement.
Service Tip: My experience with these Agreements has allowed me to collect a number of key undertaking clauses that will be inserted in a Schedule (usually "A") in your Assignment Agreement.
Warranty - See Tarion New Home Warranty