Pre-Con Insider: What You MUST Know!

Are you planning on building a brand-new home or investing in pre-construction properties? 🎙️ This is your ultimate guide to navigating the world of pre-construction real estate as an informed buyer!
In this episode, we break down the key details every buyer and investor must know, including:

✅ The Three key pointers to consider
✅ Understanding the Agreement of Purchase and Sale
✅ What to expect at the Sales center
✅ 10 days Cooling off period
✅ The importance of negotiation and transparency
✅ The importance of Legal advice
✅ Red flags and common mistakes to avoid
✅ Why choosing the right Realtor and Lawyer is critical
✅ Navigating occupancy, assignments, and the closing process

We’re thrilled to welcome Joseph Berljawsky, Lawyer, Co-Founder, and Managing Partner at The Property Law Firm LLP, as our special guest. With years of experience in real estate law, Joseph shares invaluable insights to help you make informed decisions.
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Transcript

there are three things I always uh touch point on the basics are you're buying in today's market something in the future so that's why the legal advice is very important you know one of the biggest surprises I find is there any red flags just to warn everybody the unknown factor is high to me it makes no sense yeah no that's true welcome to the Stellar talk show it's your platform powered by experts insights we're here to explore the questions and topics that matters most to you whether it's achieving home ownership investing or elevating your lifestyle let us know what you want to hear and we'll bring industrial experts to dive deep and provide the answers you deserve thank you for tuning in don't forget to share this podcast with anyone who could benefit from this valuable insights let's dive in and Elevate together hi and welcome to Stellar talk show it's your platform powered by experts insights today we are joining with Joseph breski who is a lawyer co-founder and managing partner of property law La Fromm welcome to the show thanks for having me you're most welcome before we dive deep into today's topics uh Joseph why don't you let let us know a little bit about yourself and why property law uh well I've been a real estate lawyer for about 10 years um and uh in in that time we've done I can't even I can't even say how many tens of thousands of transactions um and uh and you know we we founded the firm uh because we think that it's it's important to focus on uh doing a real estate transaction well um and and that's just our mission do it better uh and um and and do it the best that we can um it's such a significant part of people's lives when they're buying a house um and yeah our mission is to elevate the closing process to match the significance of that uh transaction that's amazing that's a great mission to have um so today's topic we're going to dive a little bit deep into to the new bills and preconstruction so with the uh The Boulders mortgage reforms that came into play on December 15th and the budget 2024 the federal government of Canada is actually focusing on delivering fairness for every generation by including nearly 4 million new bills coming into play I just want to break it down to everybody what it entails for them when it comes to purchasing a preconstruction home or a new build so so when you're buying uh preconstruction um you're buying in advance so the the basics are you're buying in today's market something in the future um and I always thought that's a very important point for people to understand um cuz the the whole idea is that you're you're going to get a deal now if the prices go up that's true so so but if if you're buying one of the problems that we've seen in Toronto in particular is that that's not what ended up happening there was all these crazy high prices for preconstruction and then the market went down that's completely the opposite of what you want in a preconstruction uh situation you're always you're always trying to get a deal now because um one of the main things is when you uh when you're buying pre construction there's a lot of unknowns that's true whether it's fees whether it's timelines whether it's uh you know is the property value going to go up um so so you know that's what what you should be thinking about when you when you first start out on your journey that's true so when you when you actually compare buying a preconstruction and a resale home the unknown factor is high on the pre-construction in other words so that's why the legal advice is very important just to make sure that you're very informed in making that purchase like normally when my clients come to me and you know ask me about hey let's buy a preconstruction um there are three things I always uh touch point on first is like what's the goal behind the purchase are you going to be the end user or is it going to be an investment property the second is the location because the location location plays a big part on return on your investment right and third is choosing your Builder or the developer wisely so when it comes to the choosing your Builder or developer wisely what are you what are some advice that you would like to input so that's probably one of the most important things not all Builders are the same that's true by a long shot um so so it's important to to do your research um and to to see what else they've built uh you know if there's reviews you can read online Google it definitely do your research into it um cuz one of the things that Builders tend to do is you tend to go into these uh like centers and they make it seem like a store like like there's it's not real estate you're you're buying a product um but that's just sales it's still real estate um and and all the things that you you worry about in real estate are still true when you're buying uh preconstruction so it's important not to get kind of caught kind of lost in the process yeah yeah there are a lot of Builders out there in today's market who's giving a lot of incentives buy Downs on the pricing and um and also like cashbags and things like that um but it's apart from all that the the the the main focus should be on the reputation on of the Builder and how well they have done in the past and the history so definitely do the research find the best builder or the developer that you want to invest your money with yeah and and remember it's it's a real estate deal you're buying real estate you're negotiating a price same as if you're buying from a seller Builders are just a seller and they make it seem like it has to be this price and they'll give you a discount on the price that that that's just a fallacy right it's you're negotiating a real estate deal that is true that is true um so I want to also talk about the um when it when you are buying the uh preconstruction project the agreement of purchase and sale the aps you call it um is like this thick it's a lot of information but in reality when you when you are in the sales center with be the developer you actually don't go through every single page every single word um to to capture like what are the essence or like what it really means and what are you agreeing to like you know in other words you're only focusing on the down payment and the incentives closing date and the and the flow plan yeah right everybody talks about the finishes I got all the finishes so wa what what what what are the actual terms you know in the contract exactly exactly what are some of the um some of some of the key pointers on the apas that you have seen that buyers overlook so when I do a review of an APS I almost always start off the same way it's relatively typical for a builder APS um and and what that means is it's relatively one-sided uh it it's these Agreements are made to protect the builders um so so it's that's important to keep in mind um and there's a lot of like standard builder stuff that they put in there um that that I think are most people should be mindful of um you know for example uh Builders always have broad rights to change design things um and you know some people think okay so that means my my counter is going to be you know black instead of you know marble that's not what I mean I mean they'll move doors so that uh you're you you know you might think you have a a door to your garage and now you suddenly don't or balconies now no longer exist um you know walls and things like that ceiling Heights uh you think you paid for a 10t CE ceiling and you get an 8ft ceiling and they have every right to do that um so that would be an example of something that's sort of standard um and also probably not negotiable so there's there's a lot of that um I'd say another big one is is if the buyer defaults the builders have pretty broad rights to cancel deals um which is very different than a regular purchase and sale where it's kind of you know both sides have similar rights yeah um and then there's the the the stuff that that we can negotiate um so that's uh there's a whole bunch of stuff in in the schedule B of the terion addendums um that lists or it's required to list all of the additional costs um that that the buyer can incur um and um and you know you can follow the schedule it references you know all the points in the agreement where those extra charges are um but those are things like those Infamous de veler fees um development fees Park levies um you know a lot of the time they charge for hydr connection and uh yes um which I always thought was funny cuz you know are they selling you the building without electricity Does it include a roof you know like yeah no but they have they actually have a price tag for everything right so often yeah so often and you know it's quite surprising because some some of the uh buyers in the preconstruction they they're not aware about all this because they don't take the time to review the um APS um or agreement of purchase and sale and it is all a surprise when it comes to closing yes so when it comes to that big document like it's about this St um where where are some of the um these information that they should be like you know paying attention to when it comes to like the hidden cost the amendment rights um and what the closing is going to look like I'll say there's also a schedule a and that one lists all of the things that uh that the Builder can do to get out of the deal like U to to to to end the deal before it even starts so like if if they decide they don't have the financing that they wanted they can say here's your deposit back we're done here okay um so so that you know is is an important one to just be aware of this the the um the how far along in the development cycle the Builder is so if you're buying really really early before they've even put a shovel in the ground um just know that there might just not be a deal and they can totally get out of it I just I just want to ask you sorry to interrupt but I I just want to ask you uh in a situation like that uh what are the guidelines in protecting their clients down payment so so there's terion terion protects your deposits um but that's about it you don't get any you know uh in real interest or anything like that interest or know it's just like you know it just protects your deposit and make sure in case if something like that happens you refunded yeah yeah to up to a certain amount and there's like you know a few uh uh small print things that that you should you should ask your lawyer about when when the time comes okay that's good to know and um when it comes to the aps one more time is there any red flags that people should be looking at when they're reviewing the aps yeah so so everybody your first step is to go to the schedule B of the tan addendum and look at those charges um and and sometimes they're worded very inclusively like the Builder can charge you if they you know decide that they want to um so obviously that would be something you want to go back to them and say listen that's not fair um and depending on the demand and depending on the Builder they'll come back to you and they'll maybe give you a cap on on those things um that that to me is always the best solution yeah fine you want to charge for everything as long as you limit it to $20,000 or whatever you feel comfortable with at least you have some certainty going in you'll probably get charged that full $20,000 but at least it's not going to be $80,000 yeah so you have like a like a maximum amount that it may be yeah exactly that that to me is the most is like the first stop yeah um and then the second big one less these days but I just because it's not true today doesn't mean it's going to be not true in 5 years those assignment Clauses yeah um or amendments or however the Builder um kind of sets them sets up their agreements um an assignment is where you basically can sell the deal to somebody else before it closes yes or even during occy which we can talk about later but it's very important to have the conditions for allowing that clear in the agreement That's True Builders all want to keep all the power so their default is going to be they have to approve it and they can they have complete say and so like I said depending on the situation and you're negotiating power you want to um try to get some of that either a list of things that they can unreasonably deny you if you've met those things um or even better an unconditional right by the buyer to assign that's true that's true and again it's just mitigating your future risk that if you know in 5 years you're not in a position to close you have a way out instead of having to give up your deposit and get sued that's true that's that's good information that you're sharing there so that's why um the 10 10day cooling off period is very important for the buyer so I know in 1998 it was first introduced to by the on the Condominium Act but right now uh for the condominium corpor uh Condominiums at that time but right now they have expanded it to Freehold uh preconstruction homes as well in 2024 yeah the importance behind that is to take your time to sit down with a lawyer and go through that thick document that you just agreed on the purchase to make sure that you are protected on your end as well I mean the truth is depend it depends you know you get these situations where there's a lineup at the door and you have to sign on line then take it to the lawyer yes luckily these days that's not so true right um so sometimes now they'll give you the agreement in advance and negotiate that's always better um because then you can walk into the sales center with actual advice and it's it's always the salesp people that are more likely to negotiate with you like they're looking for a commission um you know they they get a commission for every sale so they're more likely to give you those concessions yes after the fact when you're in your 10 cooling off period and it's very important to review the agreement during that period and go see a lawyer and all that kind of stuff but 10 days goes by quickly you've got to get your lawyer to take a look that's a day or two um and then and then you got to negotiate are you going to go back to the sales Center to negotiate are they going to give you the runaround and go to their lawyer is the lawyer going to respond in those 10 days what do you do if it's day nine and their lawyer hasn't responded to your lawyer's requests you just like go ahead it creates a bit of ambiguity um so again the the if you can do it in advance and get a copy of the agreement that's better and and I think in today's market that's something that's actually possible that we're seeing more frequently that's true and also like I need to say like the build is they're giving a lot of incentives um and you know free assignment for for an example and you know cap development charges we need to make sure those things that is displayed on their marketing material is also reflecting on the agreement as well 100% if it's not in the agreement doesn't exist exactly just because they say it to you and it's not there for any reason could be a human mistake but we still need to make sure it actually gets added because that's what you're agreeing to I've gotten into this argument with Builders a 100 times client shows up I have a free assignment oh it's not in your agreement no I got this flyer I said not a legally binding contract you know I know I know many conversations surrounding that you know and so it's very important to get that advice from your realt and also especially from your um lawyer when it comes to like reviewing the documents down with you and going through it in detail to understand your rights and also you know your responsibilities in the purchase yeah I'll give you one more trick also the lawyers are great at giving you the advice um they're not good at negotiating that's true um and and it's not that uh lawyers are bad negotiators it's just that lawyers take positions um and then their lawyer has to take a position that's true um versus I think in more of a sales Center environment with your agent um and their agent you can negotiate a little bit so I think you're going to have a lot more success in getting some of those things than if you have your lawyer do it yeah um so and I think that's important if your agent says just let your lawyer do it I think the agent is not doing you a service I think it's better uh if if they go back and and and help you that's true that's true it's very important that your the realtor is or the salesperson is holding their hand throughout the process not only when you're signing the aps but you know getting like you know amendments done you know if needed and also making sure like you know you're prepared for the closing when the closing comes closer so it's a it's a long relationship for you to have with your realtor from the beginning till the till the end till you get your keys most definitely yeah yeah and um I want to also um ask you um Joseph so just let's say hypothetically um there was a situation for a client that within that 10 days cooling off period for some reason he was not happy with the review that he had with the lawyer and now he wants to step back and he's he doesn't want to proceed with the purchase uh what are the consequences or like what are the rights that he can exercise there um yeah you just let them know they give you back uh your deposit if you gave it um there's sometimes a you know a form they make you sign a cancellation form or whatever but um but yeah you can just walk away that's good and you know as you mentioned before like just in case there was a delay in in one party responding within that 10 days period um and you know if it overlaps that time is there a way to get that extended or like is there the consequences there yeah often they'll agree to Extended um often that's an email chain or something like that that I mean it's not ideal better to you know get things in writing and and proper amendments um but you know not strictly legal advice uh but I've never actually had a problem with an Ono negotiation that ended up being past the 10day cooling off period where people you know wanted to walk away and then the Builder didn't um like that's just bad faith so so generally it's not a problem but but technically don't do that yes no i' I've seen a lot of builders that I I worked with they're very like uh um open-minded they are willing to work with the buyers to make sure the transaction is smooth and no not stressful so like you know they are like in the process of having that relationship built with them as well because as I mentioned it's not it's not like a resale that you're closing in a few months or a couple of weeks it's a preconstruction it's a relationship that you're going to have with them for a couple of years yeah it's the beginning of the relationship you didn't get to the end and you're screaming because you know you didn't get the countertop that you wanted and and they're they're annoyed and you're angry that they didn't paint the wall or whatever at the beginning everybody's friends so that's the time to to ask for things yeah yeah most definitely and a lot of people are excited because the fact that they get to choose everything um and that's that's the interesting part about preconstruction because basically not not only that you're choosing the location and you're seeing it being built in your in your within your eyes but you also get to like you know design and take the aspect of it and as you mentioned before like it all comes into play what's in the paper right so let's talk a little bit about um occupancy um and assignments um what have you seen in the recent past when it comes to assignments and u occupancies um okay well one at a time first of all occupancy for those of you who don't know is is the time when the building is is ready to be moved into uh like they have their occupancy permit from the city so the city thinks the building is fine um and but they haven't registered the condo declaration yet um so they haven't turned it over to all the new owners it's still owned by the Builder um in that period they let everybody move in or some people they do it in stages depends on the building um and during that time you'll you'll pay kind of like a phantom mortgage rent which is going to be u a combination of interest on the balance that you owe the builder at the prescribed condo act rate um it'll be the current uh condo fees and the idea is it's supposed to reflect your actual costs uh of of ownership yes um in reality you know the prescribed interest rate is usually more than you can get with the bank um you always have the option of paying the balance um to the Builder you know within certain time periods depending on what the agreement says um in which case you would get a a lower occupancy fee um so that that's occupancy um and just to warn everybody the state of completion that allows for occupancy is usually very disappointing for people um it's it's often the elevators aren't all you know know working the hallways aren't painted things like that like it's it's literally depending on the Builder Bare Bones yeah the construction is still on in certain areas of the building right the pool won't be ready the fitness center won't be ready which which is really annoying to a lot of people who just want to move into their brand new condo um or even rent it out right you can't get a good tenant during that period yeah that's true so so that's you know just something to keep in mind it's it's it's part of those unknown things that that you you don't think of when you're signing the contract but then when the time comes it's really annoying yeah no that's true like you know I had the experience I have bought a couple of pre-construction uh homes myself and um when it when it comes to the time of renting like you know the tenants has to Bear the noise for some time because they're still doing some work as you mentioned the pool and the amenities are still not done so they need to bear that for some time till the building get completely done exactly and and you know one of the things we didn't mention at the beginning but it's worth mentioning now is along with assignments um is also being able to rent out the unit during occupancy um the default is you're not allowed so if you want to you need to make sure that that's in the agreement and that the terms and conditions of how you're allowed to rent it out how you're allowed to advertise these things for rent um all that has to be uh in the agreement that's your intention so definitely be mindful of that yeah that's very important especially if you're purchasing this as an investment property um having that in your paperwork is very important so you you're not you don't have to pay that occupancy fee by hand but you can get the tenants to actually you know pay that for you and and watch it sometimes sometimes they put a fee that's like uh $220,000 to rent it out during occupy and you're thinking oh is occy 6 months am I going to make that back in rent you know so but people do that M yes I have seen that like you know not recent in the recent past because right now you can see a lot of Builders are giving that um free lease during occupancy uh but just make sure that is in your agreement agreement of purchase sale not only in the marketing material yeah in other words yeah so assignments is um it's a big topic these days when it comes to pre construction a lot of people who bought uh a couple of years ago or like an year ago um due to interest rate and manufacturers um they are thinking of maybe getting his assigned because they're not in a position to close it at this time in other words right um so when it comes to assignment some of what are the the key factors uh in the in the agreement of purchase and sale they they should be aware about and also in the process what they should be mindful mindful of um okay so I mean we we spoke about getting the the Amendments that allow it and and you know C making sure there's no fees or whatever yeah um I would say the most important thing to understand when you're assigning is that you're not off the hook um so even if you have uh found somebody to buy that contract off of you you're still joint cly liable to close so if that buyer um ultimate buyer doesn't close the build is coming after you um and uh and so that's why it's very important to to you know get a big deposit from that person um make sure that that um that you're safe um and and that you have a lawyer review the assignment agreement um a lot of Agents don't do a lot of assignments some do a lot of assignments um but just because you had a buyer's agent who helped you buy the preconstruction doesn't mean that they know how to do the assignment so it's very important to go to a lawyer um does like you know we see all the assignments right um and and so we have a little bit more I think experience uh to to advise on those contracts um and and so yeah so like those those key elements in there are like a big deposit when the deposit gets released um those are very important factors um in an assignment um also important is uh how you assign uh usually um I'd say almost always They Don't Really allow you to just ad verti the assignment um you can't just post it on realtor.ca or or on kiji or whatever um and and so that leaves you selling it kind of like on the agent's Network that's true kind of um so it's important to know that you're you're not necessarily guaranteed to assign it um and you know not least of which now people are assigning things for less than they bought them for uh you know so that's a whole other uh you know situation now yes the current market that's true yeah right where the B where the the assigners are are paying the ultimate buyer the close their deal for them right yes yes no that's happening right now but hopefully that will change with we know what with with what we are seeing in their in the recent past happening with the changes and so forth um yeah so let's hope for the best because you know we know like it's um there's definitely a gap when it comes to the housing market that the federal government is trying to now bridge and you know get um Everybody motivated about investing into uh new bills you know and preconstruction um so let's hope that that will actually fill out and hopefully the that will change in the near future I mean unless you're buying off an assignment you probably get a good deal now that's true that's true when it comes to assignments that was one of the main um I would say challenges for the for for the new buyer because you know they need to come up with that big deposit or the down payment to make sure that the seller is comfortable too as you mentioned because to protect the seller they need to have that big deposit um not all buyers uh have that right now uh especially right so that's kind of a challenge for realtors in finding that perfect buyer for the right assignment especially given the fact that you know we're not able to advertise it everywhere um so it has to go through the networking and you know making sure it it is out there for people to see yeah I will say though there are some some agents who've made it their specialty to do assignments yes and they tend to have very big networks that's true true and you know that's not to say that you have to use them but but you know your agent might know them and and be able to spread the word like that um so finally but just um to continue the conversation um let's talk about uh the end game the closing of the preconstruction uh what are some of the challenges that you have seen the bias phases or like some some um topics that they should be aware about when it comes to closing and what to expect yeah so so that's often a very disappointing part of the process for people um and and frustrating for me as a lawyer cuz we're always the bearer of bad news and you know not necessarily the cause but we take the brunt of it um the uh so so often closing will happen very quickly uh faster than you're ready for um you know I i' I've seen people go from occupancy to final closing in a day and they say well why don't you have your mortgage ready of course we don't have your mortgage ready you know U but some Builders are just a little bit brutal like that um again you know highlighting that you have to choose a good Builder yes um but all to say you know you you you want to be ready especially once you've gone into occupancy to be re ready with your financing to close um at any time um so you know if you have to get your your approvals updated and things like that definitely do so um and then there's all the surprises that happen on closing you know all if you haven't capped all of those fees you get all these you know charges for Park levies and development charges and things like that m um and and you know that that could add up very quickly and be very costly that's true um and and you know one of the biggest surprises I find uh that you know i' like to warn people of when they sign their contract even is the condo fees are not going to be what the Builder promised 100% of the time um the they're they're estimating based on today's prices what the cost of running a condo they haven't built yet is going to be they have no idea um and and even though they write it in agreement that they're going to be $200 a month or something like that they they aren't really obligated to deliver that I see um and so people are very surprised how high the condo fuse are at the beginning um and then they go up for the next 5 or 10 years drastically as the building figures out oh it's costing us a lot more we're running a deficit um so so that's a big surprise to people when they move in um and along with that is also the reserve fund um when you when you buy a construction condo there is zero Reserve fund um the the Builder is obligated to kick in the first 3 months that's um they often pass that along to the buyers in the agreement so the buyer has to kick in 3 months on closing um and then it's never enough uh the the the engineers are going to say well you have a hundred million building here and your your your uh contingency fund is a few hundred, so you guys all have to contribute significant amounts every year for the next 10 years watch your kind of Skyrocket um so so just just know that that that's something uh that will happen yes yes that's good information that you share because you know that is the unknown factor that you're expecting to face in a couple of years or in a year based on your closing date right and preparing yourself uh you know as you mentioned financially and also the unknown um to get prepared and have a hopefully smooth closing that's the goal um towards the end of it yeah I mean you know if if you made $200,000 cuz the condo appreciated then you don't care um but but if you paid you know something that's you know at Market when you finally close yes you know those costs are are really annoying to pay that's true that's true like you know I have seen lot of examples like in the in in this year like in a lot of people who closed um the the condo morage um uh condo and got the ownership they didn't close um based on what they were expecting for the equity to be build up for right so that was a disappointment because of the market conditions but hopefully like based on history the it fluctuates it goes up and it goes down but it goes up again so hopefully like we'll hope in the future Market warms up a little bit to me it makes no sense you know you've got a housing crisis where not enough people have homes and yet the condo Market is is at a stand still you you know if you have the people and you have the units that should you know solve itself but yes yes no no I agree with with you on that because um you know I probably believe that's what the federal government is now trending towards because they want to make sure it's affordable for any generation right for an example with the the bullers mortgage reforms that came into play on December 15th that was one of their goals because they want to make sure it's more at reach for the young generations and genes so hopefully we I think we are on the right path but definitely there's more things needs to be done um and you know it comes hopefully comes with time um but is there anything else Joseph that you would like to share when it comes to purchasing a preconstruction some are some maybe key pointers to keep top of mind uh no I I think we've mostly covered it you know uh just just uh reach out to your friendly neighborhood lawyer uh and and and make sure that uh you get some advice amazing amazing I hope that we answered most of your questions uh that you had when it comes to buying that preconstruction or the new built home if you have any other questions feel free to bring bring on to us so we'll do our best to bring the experts like Joseph on this stage to answer your questions to inspire and Elevate our lives together I'll see you on the next episode thank you for spending your time with us on the Stellar talk show we hope you found value in today's episode and gained insights to help elevate your lifestyle if you enjoyed the discussion please like subscribe and share it with anyone who could benefit it means the world to us until our next episode stay inspired and I'll see you soon on our next Stellar talk show