musings on life, on law , and on life in the law
There is an area of the BC coast roughly centred around Johnstone Straits that has been described as the “Serengeti of the Coast” for its abundant wildlife values.
To visit during monsoon season is a special treat, as the real coast, now devoid of summer people, Read More
Nowhere is the adage ‘knowledge is power” more applicable than in the marketing of real estate.
Simply knowing what is available on the market, and for what price, has always been a chore for buyers. In pre-internet days, the only efficient way to research the market was to use a printed MLS listing catalogue, access to which was tightly controlled by realtors. If you wanted access, you became a realtor’s client!
The advent of the internet made much more information available to the consumer, but even internet listings often withhold vital information (like price) which is available only by contacting the listing realtor.The real estate industry as a whole has always sought to keep for itself the treasure trove of data found in both MLS listing documents and previous sale histories. This resulted in a seven year court battle with the Federal Competition Bureau, which has only just now concluded, with the Supreme Court of Canada refusing to hear the appeal of the Toronto Real Estate Board, the proxy for the industry.
In the result, the Toronto Board has been ordered to abandon all restrictions on the display and use of data from its Multiple Listing Service, and the rest of the county’s real estate boards are expected to fall quickly in line.
This court decision paves the way for internet entrepreneurs to unleash their creativity and begin designing new and disruptive models for the delivery and analysis of real estate market information, and could lead to some exciting experiments in new ways of marrying up the buyers and sellers of real estate.
Whether exciting experiments on the bleeding edge of technology will prove beneficial to the consumer in the long run remains to be seen, since an experienced traditional realtor brings more to the table than just insider market data; they bring an entire skill set, as investigators, negotiators and even as life counsellors.
Like it or not however, the Supreme Court has opened the barn door wide, and disruptive change is on the way, so buckle up for the ride.
Was the successful campaign slogan adopted by Joseph Chamberlain back in the 1880’s to describe his radical ideas concerning land reform, which came to fruition in the Small Holdings Act of 1892 and the Small Holdings and Allotments Acts of 1908 to 1925. These Acts created the County Council Farms which have been a mainstay of British agriculture ever since.
The institution of the County Council farm is something that we in BC might want to turn our minds to, given the pressure being exerted on our agricultural land and resources. The concept is that tracts of farmland are returned to public ownership (in the UK they are owned by the local council) and then rented out to aspiring farmers, typically young families with the desired energy to work the land but not the capital to buy a farm.
Across Great Britain over 3100 tenants lease farmland from local authorities, generating significant revenues for the municipalities, and providing an important first rung on the ladder for would-be farmers. The leases also act as a form of control. ensuring that best practices are followed in farm activities, and mandating things such as wildlife protection and public access to rural pathways.
Consider the challenges we face presently in British Columbia. The average age of our farmers is creeping up, and now hovers around 58 years, with precious few young farmers entering the ranks, for the simple fact that they can’t afford to purchase farmland. Some of the most valuable and productive farmland in the province lies fallow, or worse converted to luxury estates for the very rich, yet the need for food sufficiency has never been greater, and will likely get worse as global warming disrupts traditional patterns of agriculture.
The British system is far less than perfect, and has seen many upheavals in recent years, but it represents an innovative way of approaching the problem. it’s long since time for us to start thinking outside the box when considering our land use policies.
spending your money never used to be so hard
Who would have thought that it would be the CBC in court defending the likes of the now disgraced General Cornwallis, Father of Confederation Sir John A McDonald or even our first judge, Sir Matthew Baillie Begbie, while the rest of politically correct society is demanding that they be removed from public view because of their racist views. Given the mother corporation’s penchant for political correctness, I’m sure this defence was quite inadvertent, but the precedent the CBC has set may well help these historical figures now branded as pariahs to retain at least some of their legacy.
The case was one of criminal contempt against the Corporation, brought against the CBC by prosecutors in Alberta for the broadcaster’s refusal to remove a previously published story from its website. The story, and accompanying photograph, concerned a 14-year-old girl who had been killed. At the time of publication the story was completely legal and proper; the sort of story aired every day by the CBC, and simultaneously posted to its online edition.
The trouble began a few days later when a man was charged with her murder and the Crown, as it was required to do by the Youth Criminal Justice Act, sought, and was granted, a publication ban on the girl’s identity. That Act protects the identity of under-aged victims as well as youthful accused persons.
The Crown then demanded that the CBC essentially ‘un-publish’ its earlier story, by removing it from its online archive. The CBC refused, resulting in the Crown requesting a citation for criminal contempt against the Corporation.
The decision of the Supreme Court of Canada was a unanimous 9-0 ruling in favor of freedom of expression. After all, the Crown wasn’t asking print newspapers to destroy their archives, or to attempt to retrieve their printed stories from their subscribers, or from libraries.
On one level the CBC case can be confined to its particular facts, but on another perhaps stands for the proposition that you cannot order the rewriting of history by demanding the “un publishing” of historical material. So where does that leave Cornwallis, McDonald and Begbie? Well, it appears they may be safe for the time being from being excised from the history books, – but their statues ? Ah, that is something else entirely- they shouldn’t sit too comfortably upon their pedestals!
According to Wikipedia “the trust is considered to be the most innovative contribution of the English legal system. Today, trusts play a significant role in most common-law systems, and their success has led some civil law jurisdictions to incorporate trusts into their civil codes.”
So, it may come as a surprise to some that our British Columbia government is considering running amok through the venerable law of trusts, a centerpiece of the English common-law system since sometime in the 12th century, in order to close a perceived tax loophole enjoyed by a few foreign investors. Exactly what the Legislature intends to do isn’t clear, but their rectnt rhetoric suggests that they view the use of trusts in real estate transaction as somehow evil and sleazy.
At issue is the fact that our land title office records only the legal, or registered ownership of a property and does not identify “true” or “beneficial” ownership, which may rest with someone else entirely, if trusts, ( or even corporations) are involved. In a trust, one person, the “trustee”holds title to a property for the benefit of another person – the “beneficiary”. Such arrangements are private and unrecorded, so can easily disguise the actual ownership of property by a non-resident.
It is somewhat ironic that the concept of a trust was initially developed precisely to safeguard the rights and property of a group of non-residents – the crusaders, who needed a mechanism to have their estates held and managed for them while they were off in the Holy land chopping off heads, and, equally as importantly, later reliably handed back upon their return.
When BC imposed its 15% foreign buyers tax, I’m guessing it took most lawyers on average less than three minutes to figure out that the judicious use of a trust arrangement could completely avoid the imposition of the tax, and a year or so behind, the government has now belatedly come to the same conclusion, referring to bare trust arrangements as a heinous “loophole.”
I find “loophole” to be a rather pejorative description of one of the foundations of our legal system, There is nothing shady or nefarious about Trusts. They are used daily, often employed for the protection of the young, or the disadvantaged, as well as for wealth preservation, and tax planning. They are a tool, like any other, capable of use by both good guys and bad
I worry that, in attempting to stem the tide of diry money washing into the Province the governmnet may foolishly start tinkering with the law of trusts, rahter than tackling the probelm directly such as by banning the recipt by casinos of hackey gags stuffed ful lof smal ldenomination bank notes.
Lately I’ve taken to having my blood pressure monitor at my side when watching the evening news, just so I’ll be able to know when to mute the sound or change the channel before I blow a gasket.
As a lawyer, pretty much my entire universe Read More
