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. 2024 Review of Real Estate Law Highlights in Quebec

    As we keenly usher in 2025, we thought we would have a quick recap on changes affecting real estate law in Quebec in 2024. Let’s have a look back on the past year and on news deserving some attention and follow-up in 2025. This is not a comprehensive list, but a reminder that much has happened in the real estate sector. In terms of rental housing construction, the Real Property (GST/HST) Regulations introduced an enhanced GST rebate for residential rental properties, for construction beginning between September 14, 2023 and December 31, 2030, and whose end date is set no later than December 31, 2035. The procedure for authenticating a Canadian document to be used in a foreign country has been standardized for countries that are party to the Hague Apostille Convention Abolishing the Requirement of Legalisation for Foreign Public Documents. Bylaw 20-20-20 was amended to lighten the financial burden on real estate developers for the construction of affordable social housing in Montréal until the end of 2026. In terms of housing rental, the Act to limit lessors’ right of eviction and to enhance the protection of senior lessees has imposed a moratorium on the eviction of lessees by lessors who want to subdivide, expand or change the use of a dwelling, until June 2027, in addition to providing more protection for lessees aged 65 or over against eviction or repossession of a dwelling, when they have been living at the dwelling for at least 10 years and their income is equal or less than 125% of the income that would qualify them for low-rental housing based on applicable regulations. The Competition Act was amended to further regulate property controls, including the use of exclusivity clauses and restrictive covenants in existing commercial leases. The Competition Act was also amended to fight greenwashing. In the real estate industry, developers now have the burden to prove the environmental claims in respect to their properties. The increase in the inclusion rate for capital gains was announced in the federal budget in April 2024. The inclusion rate will go from 50% to 66.66% on all capital gains realized by corporations and trusts, in addition to individuals for the portion of capital gains exceeding $250,000 in a given year. Considering the potential change in government and the fact that these measures have no force of law, stay tuned for developments on this matter. Tax authorities plan to increase applicable withholding rates for the sale of a taxable Canadian property by a non-resident of Canada starting January 1, 2025. As a result, the withholding rates for disposals made as of that date have increased significantly further to the increase in the inclusion rate for capital gains. Again, there is, however, still uncertainty on whether this measure will come into force. Bill 86 amending, among other things, the Act respecting the preservation of agricultural land and agricultural activities and the Act respecting the acquisition of farm land by non-residents was tabled and introduced to the National Assembly of Quebec by the Minister of Agriculture, Fisheries and Food, André Lamontagne. The amendments aim, in particular, to control the acquisition of farm land and fight against the acquisition of farm land by foreign investors. Stay tuned for changes in this bill. The Act to amend various legislative provisions with respect to housing has “opened the door” for municipalities to authorize housing projects before February 21, 2027, that deviate from local planning bylaws, provided that established conditions are met. Municipalities have been granted discretionary power they can use to fast-track construction projects in 2025. Following this year full of developments in the real estate sector, our real estate law team is motivated and ready to answer all your questions and requests. Do you have any other topics in mind? Share them with us and feel free to contact us for a further discussion. Have a great 2025!

    Read more
  2. Sales without legal warranty at the buyers’ risk: Clarity is key

    On July 15, 2022, Justice François Lebel of the Court of Québec rendered a decision1 confirming that, in the case of the sale of immovable property, a clear and unambiguous exclusion clause, whereby the warranty is waived at the buyer’s risk, results in a break in the chain of title preventing the buyer from taking any legal action under such warranty against the seller and previous sellers. Justice Lebel thus declared the originating application against the defendants Marshall and Bergeron inadmissible and dismissed the call in warranty. This decision is consistent with the recent decision of the Court of Appeal of Quebec in Blais,2 rendered in May 2022, which clarified the state of the law on the consequence of waiving a legal warranty where successive sales are involved. The facts In March 2009, the defendant Bergeron sold an income property (hereinafter the “Property”) to the defendants, the Marshalls, with a legal warranty of quality. In May 2012, the Marshalls in turn sold the Property to the defendants Hamel and Drouin, still with a legal warranty of quality. In December 2016, the defendants Hamel and Drouin resold the Property to the plaintiff, but this time [translation] “without legal warranty of quality, at the buyer’s risk, but with warranty of ownership”. In the fall of 2020, the plaintiff had work done to repair the drain tile system. It was at that point that it discovered the presence of petroleum hydrocarbons in the soil under the Property’s foundation, rendering the soil unsuitable for residential use. According to an expert report, the alleged contamination stemmed from a heating oil tank once located in a shed behind the Property. The tank was apparently removed before the sale in December 2016. The plaintiff was seeking a reduction in the sale price and to have the defendants Hamel and Drouin, as well as the two previous sellers, the defendants Marshall and Bergeron, held solidarily liable. The plaintiff referred to the warranty of quality provided for in articles 1726 and following of the Civil Code of Québec (C.C.Q.) and the warranty against public law restrictions provided for in article 1725 C.C.Q. The plaintiff also claimed to be the victim of fraud on the part of the defendants Hamel and Drouin. After being called in warranty by the defendants Hamel and Drouin, the Marshalls moved to dismiss the substantive claim and the action in warranty. They claimed that the sale of the Property between the defendants Drouin and Hamel and the plaintiff was made at the buyer’s risk and that such a clause in a subsequent deed of sale irrevocably breaks the chain of title, thereby preventing the plaintiff from taking any legal action against the seller and previous sellers. The law and the importance of a clear clause According to article 1442 C.C.Q., which codifies the principles arising from the decision in Kravitz,3 buyers may seek to have the sellers previous to their own seller held liable. However, for such an action to be deemed valid, it must be established that: The defect existed at the time that the previous sellers owned the immovable; and The right to the legal warranty was transferred to the plaintiff through subsequent sales. Indeed, the buyer of an immovable may take legal action directly against a previous seller in accordance with article 1442 C.C.Q. However, this article presupposes that the right to the legal warranty was passed on from one owner to the next, right down to the current buyer seeking to file a claim for latent defects. In other words, the legal warranty must have been transferred to each owner through the chain of title. In Blais, the Court of Appeal confirmed that an unambiguous warranty exclusion clause results in a break in the chain of title. Such a clause prevents the buyer of an immovable from taking legal action directly against the former owners who sold the immovable with a legal warranty. Given the decision in Blais, it is now clear that such a clause waiving the legal warranty closes the door to any direct recourse against a seller’s predecessors, even if such predecessors sold the immovable with a legal warranty.4 In these circumstances, a buyer who acquires an immovable at their own risk will be deprived of their right to take legal action directly against the previous sellers, insofar as the warranty exclusion clause in the deed of sale is clear and unambiguous. In this case, Justice Lebel considered that the wording of the warranty exclusion clause in the deed of sale, which was binding on the plaintiff, was clear and unambiguous, and that a sale at the buyer’s “risk” excludes both the warranty of quality and the warranty of ownership, which covers the public law restrictions of article 1725 C.C.Q. Justice Lebel indicated that there was a break in the chain of title resulting from the sale at the buyer’s risk and that the plaintiff could not claim that it was still entitled to take legal action directly against any sellers other than the defendants Hamel and Drouin. He therefore ruled in favour of the defendants Marshall and Bergeron and declared the originating application against them inadmissible. Key takeaways A warranty exclusion clause in a deed of sale will only be deemed valid if it is clear and unambiguous. The mention that a sale is made “at the buyer’s risk” completely eliminates the warranty of quality provided for in article 1726 C.C.Q. and the warranty of ownership provided for in article 1725 C.C.Q. A deed of sale containing a valid warranty exclusion clause AND a mention that the sale is made “at the buyer’s risk” precludes any recourse by the buyer against the seller, but also against previous sellers. With the current state of the Quebec real estate market, the decision in Hamel, which ties in with the Court of Appeal’s teachings in Blais, certainly clarifies how case law established in recent years should be applied, in particular as concerns the effect of a warranty exclusion clause on successive sales. The members of our Litigation and Dispute Resolution group are available to advise you and answer your questions. 9348-4376 Québec inc. c. Hamel, 2022 QCCQ 5217 Blais c. Laforce, 2022 QCCA 858. General Motors Products of Canada Ltd v. Kravitz, [1979] 1 S.C.R. 790 Supra note 1, paras. 6 and 8.

    Read more
  3. 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  

    Read more
  4. 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.

    Read more
  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.

    Read more
  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.”

    Read more
  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.

    Read more