Areas of
Practice
Michael Drouillard, Drouillard Lawyers

B.C. sees new year changes to estate planning, real estate laws

Tuesday, January 10, 2023 @ 2:06 PM | By Ian Burns


The new year often can bring new changes — and that is something that is true for lawyers in British Columbia at the beginning of 2023, with the province making pandemic-era tweaks to how certain estate planning documents can be witnessed permanent, as well as implementing new rules aimed at protecting homebuyers in B.C.’s hot real estate market.

Amendments to both the Power of Attorney Act and the Representation Agreement Act are now in place to permanently allow for remote electronic witnessing of the signing of enduring powers of attorney (EPAs) and representation agreements. The amendments, which were passed in fall 2022 but came into effect Jan. 1, are similar to temporary measures which were adopted in response to the COVID-19 pandemic and require a lawyer or notary to be in the electronic presence of the person signing the agreements, which also require a statement saying they were signed in accordance with the alternative process.

Stephen Hsia, a lawyer with Miller Thomson LLP in Vancouver who specializes in charities law and estate planning, said practitioners usually recommend clients get what he characterized as the “holy trinity” of estate planning documents — a will, a power of attorney and a representation agreement — and now they have a range of options for signing them, including an additional choice of having wills signed and stored completely digitally with no printed original, paper copy or even wet ink signatures required. But he added lawyers will likely continue to follow the “tried and true” approach that has been used in the past.

“Lawyers always want to make sure what we do for our clients works, and so I think with that in mind is that a lot of lawyers will gravitate to the way it works where they can meet someone in person, can assess their capacity to make sure that they are capable of making these documents — because if they are not these documents are void,” he said.

Hsia said the remote approach would be of interest for certain individuals, such as “snowbirds” and people who are ill, but for the most part remote execution “is a bit of a pain.”

“It certainly saves a trip, but the person making these documents remotely still has to print out a copy, sign it and have it couriered over to their lawyer’s office, and then you have an original signed copy of the document and a counterpart,” he said. “So, a lot of lawyers see that and say I don’t know how that really saves you time or money — if you can’t make the trip in we can do it, but if the next time you are in let’s just sign it in person and in one sitting.”

And another new change that real estate lawyers should be aware of is the coming into force of the province’s mandatory homebuyer protection period, or “cooling-off” period, in most residential real estate sales, including private sales. The period provides buyers with a time frame of three business days after an offer has been accepted to consider and withdraw from a purchase agreement, subject to a recission or cancellation fee of 0.25 per cent, or $250 for every $100,000 of the purchase price.

“Housing remains a top concern for people in B.C. and a top priority for this government,” said B.C. Finance Minister Katrine Conroy. “Buying a home is one of the biggest decisions of people’s lives. This is an important milestone as we lead the way in protecting people and strengthening public confidence in the real estate market.”

Michael Drouillard, Drouillard Lawyers

Michael Drouillard, Drouillard Lawyers

Michael Drouillard of Vancouver’s Drouillard Lawyers said legal practitioners need to be aware that the protection period is an option for their buyer clients who may be entering into a real estate transaction.

“Lawyers need to be mindful how the cooling-off period may change how buyers enter into transactions with sellers — perhaps a buyer may enter into transaction knowing they are likely going to invoke the cooling-off period,” he said. “And knowing that is a possibility is something that lawyers will want to keep in mind when they advise their client about someone who is going to make a subject-free offer, because that subject-free offer may not be what one thinks it is until the cooling-off period has passed.”

But Drouillard also said he felt the homebuyer protection period is not directly responsive to a big issue in the British Columbia real estate market — that people are not doing their due diligence, such as having a home inspection done.

“If the problem is we want buyers to do more due diligence, they would need to bring in legislation that does that directly,” he said. “Don’t bring in something that just indirectly touches on the subject.”

B.C. is the first province to implement a homebuyer protection period for resale property and newly constructed homes. Cooling-off periods for pre-construction sales of multiunit development properties, such as condominiums, are in place under the Real Estate Development and Marketing Act.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.