Did you purchase a pre-construction condo in Ottawa, and are looking for a way to sell before your closing? You might have heard the term assignment, or seen units that are being sold as “assignments”. While not an easy task, an assignment can provide you with the ability to sell your “condo” without needing to close on it.
What is an assignment?
An assignment is a transfer by the Assignor (original purchaser) of the original Agreement of Purchase and Sale to the Assignee (new buyer). This means that they are not selling or buying the actual condo, but rather their interest in the deal. The Assignee is buying the ability to become the Assignor. You often hear assignments referred to as selling “paper” or selling the deal.
Why do condo assignments occur?
Condominium assignments typically occur for a few reasons. Often, the original condo buyer has had a change in circumstance and no longer wishes to close on the condo. a.k.a. partners, babies, pets, jobs, etc. The buyer might not have the funds to close or be able to secure a mortgage. Sometimes the original purchaser was a speculator who purchased with the intention of assigning the contract to profit from the increase in price or value.
Why can it make sense to assign my condo?
Money. One of the largest reasons it makes sense to assign your condo is that you don’t have to close on it. You don’t need to secure a mortgage and you don’t need to pay the closing costs. The new buyer will take on the builders adjustments or development charges. We have seen builder APS that states an additional 5% deposit payment on occupancy. If occupancy has not yet occurred, it would be the responsibility of the new buyer. The new buyer would also be responsible for the Land Transfer Tax, any interim occupancy fees, etc.
HST. You don’t have to worry about the HST rebate qualification.
First Time Buyer? If you are a first-time buyer, you would retain your status for the next purchase and be entitled to the credits when you do buy and take possession on some other property.
Why might it NOT make sense to assign my condo?
Restrictions. Marketing restrictions are often put in place by the developer when they allow the assignment. This can include restrictions to marketing the condo assignment on the MLS or even advertising it online. This alone can make the process very difficult. Thinking of advertising anyway? Builder contracts often state that if the assignment is advertised online, the builder can cancel your contract and keep your deposit. Not worth the risk.
Cost. Even though you are not closing on the property, there are still fees that you are responsible for. A builder will often impose a fee to allow you to assign your condo. This can range up to $8,000, plus charge their solicitors' fee’s (we have seen up to $2,000). You will likely have to pay a real estate commission (unless you find a buyer yourself). Plus your lawyer will charge slightly higher legal fee’s since the process is more complicated.
Tax. Any profit made will be taxed as a capital gain unless you are in the business of buying and selling real estate, in which case it will be treated and taxed as income. Yes, there was a time when you could get away with this, however, CRA has cracked down and is paying attention to real estate transactions. While these do not get registered on a title, assignments are still handled by the builder and are able to be caught by CRA.
Responsibility. Builders will always include a clause that states the original buyer is still responsible if the new buyer does not close. While it might originally seem like you are completely off the hook, the last thing you want is to find out that you need to close, or are responsible for the default of the assignee.
Top Dollar. While every project and unit is different, selling a unit without the ability for the buyer to see inside, or while a building is not fully finished can hold back the full value of what you can sell your condo for. For example - It is really hard for a buyer to get an idea of what exactly they can expect if the amenities are not finished, especially if the buyer will be an end-user. As well, there might be increased competition due to a surge of units.
Important things to know about condo assignments
Builder Approval. The first step in assigning your condo is finding out if the builder is allowing assignments. This is necessary because most original purchase and sales agreements have restrictions regarding assignments (or listed separately in a schedule). If the builder will consent to an assignment, the builder will need to provide written consent. This consent is usually a condition of the assignment agreement.
Deposit. Assignors typically want their money up front (this includes the original deposit(s) paid plus any profit) and wish to be out of the deal once the assignment agreement is firm. This is usually not practical because most buyers require a mortgage to fund the purchase and they will not get their mortgage until the building is registered and title can pass to the property. Expect the deposit to be held in trust until closing.
Time. Aside from the time, it will take to find a buyer and negotiate the details, you should plan for a number of days before the assignment deal is firm. Both lawyers (yours and the new buyer) will have a condition to review the documents - usually five business days or so. The buyer will want a condition for financing, which can be five business days or longer. Keep in mind that convincing an institutional lender to lend based on an assignment price is not as straight forward as normal financing. There are few sales for appraisers to base the new value on. And finally, you will need developer consent, which could take up to two weeks (or longer sometimes!), regardless if you had already asked before you started or not!
The world of condo assignments is a difficult and tricky one. If you are looking to get more information about assigning your pre-construction condo in Ottawa, fill out the form below and let’s chat.