Have you found a dream property on Westbank First Nation (“WFN”) lands and want a rundown on the differences between buying on leasehold native land vs freehold land? You’ve come to the right place! In this blog article we will discuss some of the differences you can expect between leasehold and freehold land as well as some additional requirements and policies you can expect.
Freehold and leasehold land have one big fundamental difference – with freehold, you are purchasing the “land” as well as the structures affixed to the land whereas leasehold land, you are purchasing the structures and the right to use the land under a term lease. With leasehold this means you will not be purchasing the land outright. On the outset one might wonder why you would purchase the structures knowing you don’t own the land they are on… There are a few reasons a person may consider this:
- The remaining term of the lease is lengthy (often with optional extensions to add further years)
- The price is right
- The property is exceptional (land size/view/whatever motivates you)
Besides whatever feature motivated you to consider a purchase on leasehold land, there are a few other “perks”, namely most leasehold WFN lands do not carry the requirement to pay Property Transfer Tax and WFN lands are exempt from the BC Speculation Tax. WFN lands are also governed by Westbank First Nation directly so you have a municipal feel with a government office and traditional municipal services.
There are additional considerations to be made for WFN leasehold lands, which are, but not limited to, the following:
- Additional Insurance Requirements.
Each Head Lease and Sublease contain different insurance requirements. It is important to review these as early on in the purchase process as possible, and advise your insurer what the additional requirements are. If you aren’t sure, it’s always a good idea to check with your lawyer. It’s also a good idea to provide your insurer with copies of the Head Lease and Sublease directly so they can review the requirements to make sure they can in fact provide you with adequate insurance coverage. There is nothing worse than coming up to your closing day and finding out last minute that the agent you picked can not insure you properly! It is our job to make sure your insurance complies with the Head Lease and Sublease requirements on behalf of your Lender, so there are no ways around this.
- Covenants and Responsibilities in the Sublease.
These covenants and responsibilities are usually generic and cover things such as ensuring your yard isn’t covered in waste and that you won’t be a nuisance (ex. excessive noise, etc.)
- Resale Requirements in the Sublease.
There are typically clauses which speak to resale requirements and whether consent is required for any new owners. Some subleases also carry “assignment fees” payable at the expense of either the buyer or seller, depending on the terms of the sublease.
- Document Signing Requirements.
WFN lands are not like our BC Land Title Registry that can now accept electronic registrations and virtually witnessed signatures. WFN still requires wet ink signatures on every registration. This means when picking your completion date, it’s important to consult with your lawyer to make signing arrangements early on and let us know if you are leaving town, unable to physically sign in person, etc. The options are limited with this. You would either have to be available to attend your lawyers office in person, or you will have to make arrangements with a notary public that is local to you, sign the documents, and courier the originals back, all before your completion date. Your lawyer would still need adequate time to receive the original documents and get them up to WFN for registration prior to the completion date. Their process seems a little bit old school, but with proper timing and cooperation we always make it work!
- Additional Homeowner Associations with rules which must be followed.
Each “neighbourhood” has its own set of rules and regulations. Some neighbourhoods more than others. It is prudent to fully research the specific requirements for each neighbourhood and never assume that this is a one size fits all purchase.
We do need to stress that this is not an exhaustive list of everything to consider, and each neighbourhood may operate under a different sets of rules and requirements. If you have a specific property you are interested, feel free to contact a realtor or reach out to our office. We have the knowledge and experience to guide you through the process.
If you have any questions regarding the above or if you would like to discuss your purchase/acquisition, please contact us at (778) 940-3768. We would be happy to help!
Ashley Versteeg, Legal Assistant to Jennette Vopicka
Tracy Lerfold, Designated Paralegal to Jennette Vopicka and Danielle (Dani) Brito
This information is general in nature only and written by a Legal Assistant/Conveyancer and Designated Paralegal under the direct supervision of a lawyer. You should consult a lawyer before acting on any of this information. This information should not be considered as legal advice. To learn more about your legal needs, please contact our office at (778) 940-3768 or any of our lawyers practicing in the area of corporate/commercial and real estate at the following:
Jennette Vopicka: [email protected]
Danielle (Dani) Brito: [email protected]