An assignment sale is a unique transaction in the real estate market where the property’s original buyer (assignor) transfers their rights and obligations under a purchase contract to a new buyer (assignee) before the property’s completion. Particularly common in pre-construction projects in Ontario, this type of sale offers flexibility for investors and those whose circumstances may have changed. This article explores the definition, legal framework, and process of assignment sales in Ontario, providing essential insights for buyers and sellers engaged in these transactions.
What is an Assignment Sale?
An assignment sale is a transaction in the real estate market where the original purchaser of a property, known as the assignor, transfers their rights and obligations under a purchase agreement to another party, called the assignee, before the completion of the property. This type of sale is usually associated with pre-construction homes or condos that are yet to be built or are under construction at the time of the sale. The assignee takes over the rights and obligations of the original buyer, including any remaining payments to the developer and all other terms originally agreed upon in the contract.
The primary benefit of an assignment sale is its flexibility. It provides an exit strategy for buyers willing to complete the purchase. It offers potential for profit or entry into a property that might otherwise have been unavailable on the open market. For the assignor, it can be a way to liquidate their investment without waiting for the property to be completed. It can be particularly advantageous if their financial situation changes or market conditions favour such a move. Meanwhile, assignees can purchase a new property without waiting for a new phase of development to be launched, potentially benefiting from price appreciation since the original sale.
What do the terms Assignor and Assignee mean?
The assignor is the person or entity that originally purchased a property and holds the rights and responsibilities under the initial purchase agreement. This individual or entity may have entered into a contract to buy a property before its construction but decided to transfer this agreement to another party before the property was completed.
The assignee is the person or entity who accepts the transfer of the property purchase agreement from the assignor. By assuming the assignor’s agreement, the assignee agrees to fulfill the original contract’s terms, including any payments to the developer and adherence to any conditions specified in the agreement.
Who Pays HST on Assignment Sale?
When a property is sold through assignment, the assignor is responsible for paying the Harmonized Sales Tax (HST) on the sale price, which includes the original price and any profit made on the transaction. To ensure clarity and avoid any legal issues, it is recommended that a Real Estate lawyer prepare the assignment agreement with all necessary information.
Is Builder’s Consent Required for Assignment Sale?
The builder’s consent is usually a requirement for assignment sales. The builder’s contract will specify if it is allowed and under what conditions. This clause is necessary because it lets the builder maintain control over who is becoming a part of the development and ensures that the assignee has the financial capability to complete the purchase.
Acquiring the builder’s consent can come with additional fees, and approval procedures can vary depending on the developer. Some builders may charge a flat fee, a percentage of the sale price, or a combination of both to grant permission for the contract assignment. Additionally, the builder may have specific requirements that must be met before approving the assignment, such as the construction status or payment of a certain percentage of the original purchase price. It is advisable to review the terms of the original agreement carefully and prepare for any financial or procedural requirements that obtaining such consent might entail.
It is often possible to obtain a builder’s consent to assign an agreement, even if such consent was not included in the original contract. Many builders will waive the clause prohibiting assignment from the agreement, provided that certain criteria and forms are followed and any required fees are paid. The builder’s sales office can determine if consent is possible and under what conditions. Different builders have varying processes for property assignment.
Summary
Assignment sales involve complex legal and financial considerations requiring thorough understanding and careful handling. Potential participants in assignment sales should consult with real estate professionals and legal advisors to navigate the process effectively and ensure compliance with all relevant legal requirements.
How We Can Help
Insight Law Professional Corporation is a real estate law firm located in Toronto. If you need more information on real estate transactions, contact us today and learn how a real estate lawyer can help you.
The information provided above is of a general nature and should not be considered legal advice. Every transaction or circumstance is unique, and obtaining specific legal advice is necessary to address your particular requirements. Therefore, if you have any legal questions, it is recommended that you consult with a lawyer.
