Land Title Practice Manual

8 First Time Home Buyers’ Program—obligations Of Transferee

In This Volume

8 (1) A transferee who has applied for an exemption under section 5 or 6 or a refund under section 7 must establish a qualifying residence on the property within the meaning of subsection (2) of this section.

  • (2) For the purposes of subsection (1), a transferee establishes a qualifying residence on a property if, on the registration date,
  • (a) the property contains a residential improvement that the transferee inhabits as the transferee’s principal residence
    • (i) beginning on a date that is not more than 92 days after the registration date, and
    • (ii) continuing to a date that is not earlier than the first anniversary of the registration date, or
  • (b) the property does not contain a residential improvement but, before the first anniversary of the registration date, there is established on the property a residential improvement
    • (i) that the transferee inhabits as the transferee’s principal residence
      • (A) beginning at the time it is completed, and
      • (B) continuing to a date that is not earlier than the first anniversary of the registration date, and
    • (ii) if the total costs incurred to establish the improvement, when added to the fair market value of the property at the registration date, do not exceed the sum of the qualifying value of the property and $25,000.

1987-15-3.24; 1994-14-4, effective March 23, 1994; 1996-9-13, effective May 1, 1996; 1998-5-23, effective March 31, 1997; 2003-3-34, effective February 19, 2003; 2005-16-34, effective February 16, 2005; 2005-16-35, effective February 16, 2006; 2007-1-17, effective February 21, 2007; 2008-10-91, effective February 20, 2008; 2016-3-51, effective February 17, 2016.

CASE LAW

In October 2016, the petitioners purchased a residential property in Pemberton. They paid property transfer tax of $6,920 and did not then apply for a first time home buyers (“FTHB”) exemption. At the time of the purchase, the property was leased to a tenant until June 2017. The petitioners initially continued to live in their rental property in Whistler and then moved to France for about 10 months, granting an extension of the lease to the tenant. In January 2018, the petitioners applied for the FTHB refund. The administrator refused their application, and the Minister later affirmed the refusal on the basis that the petitioners failed to meet the requirement in s. 8(2)(a)(i) of the Property Transfer Tax Act that transferees inhabit a residential improvement on the registered property as a principal residence no later than 92 days after the registration date. The petitioners first moved into the property in June 2018. They appealed the Minister’s decision under s. 21 of the Act. Held, appeal dismissed. Notwithstanding that the Act provides for a petition to be filed, it was clear from s. 21 that the proceeding was in the nature of an appeal. Accordingly, the standard of review was correctness. The petitioners came within the statutory definition of “first time home buyer”. However, the exemption in s. 5(1) is subject to, among other provisions, s. 8. Where there is a residential improvement on a property, s. 8(2)(a)(i) obliges a transferee to establish they inhabited the residential improvement as a principal residence within 92 days of registration. The wording is clear on its face. Even assuming that the FTHB provisions were, as argued by the petitioners, benefit conferring, social policy provisions that should be liberally interpreted, that objective could not be used “to create an unexpressed exception to clear language” (at para. 26, citing Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 SCC 20 at para. 23). The petitioners never had any intention of moving in to the property within 92 days of registration. They bought the property with full knowledge that it was leased until June 2017. They ultimately moved in some 18 months after registration, far beyond the 92 days set out in s. 8(2)(a)(ii) (Voroney v. British Columbia, 2020 BCSC 853).