Prohibition on the Purchase of Residential Property by Non-Canadians Act – Frequently asked questions

General

• When will the Prohibition on the Purchase of Residential Property by Non-Canadians Act come into effect?
• Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to non-Canadians who made offers of purchase before January 1st, 2023, even if the sale is finalized during the prohibition period?
• Who does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to?
• What kinds of purchases does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to?
• What documentation can be used by non-Canadians to demonstrate that they are compliant with the Prohibition on the Purchase of Residential Property by Non-Canadians Act?
• What happens if a non-Canadian violates the Prohibition on the Purchase of Residential Property by Non-Canadians Act?
• Do third parties, like real estate agents or lawyers, have a role in enforcing the Prohibition on the Purchase of Residential Property by Non-Canadians Act?
• Who was consulted during the development of the Prohibition on the Purchase of Residential Property by Non-Canadians Act and the accompanying regulations?
• Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to Indigenous Peoples and communities?
• Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to spouses or common-law partners of Canadian citizens or permanent residents?
• What is the Quebec ruling related to the Act and Regulations from January 2023?

Immigration and labour market

• Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to temporary residents who have studied in Canada and are now working after completing their studies, if they have been physically present in Canada for several years?
• Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to Ukrainians who came to Canada under the Canada-Ukraine Authorization for Emergency Travel (CUAET) program?

Geography and property

• What types of residential property does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to?
• Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to residential properties located outside of a Census Metropolitan Area (CMA) or a Census Agglomeration (CA)?
• Can non-Canadians acquire vacant land?
• Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to recreational property?
• Can non-Canadians purchase residential property for development purposes?
• What is meant by the term “development”?
• What would not be considered “development”?
• If a Non-Canadian Purchases Residential Property and Undertakes Development with Respect to the Land on which the Residential Property is Located Without Altering Existing Structures on the Property, can this Constitute “Development” for the Purposes of this Exception?
• If a non-Canadian has good faith intentions to pursue a development and purchases a residential property in reliance upon the development exemption but is later unsuccessful at obtaining the required approvals or otherwise decides in good faith not to pursue the development, has the non-Canadian committed an offence?
• Does the prohibition apply to properties that are purely commercial in nature (e.g. office towers or grocery stores containing no dwelling units)?
• Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to the rental of residential property by a non-Canadian?
• Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to modular and mobile homes?

Financing and investment

• Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to Real Estate Investment Trusts (REITs)?
• Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to non-Canadians purchasing a residential dwelling unit if the unit is rented out, or if existing tenants remain within that unit?
• Can a non-Canadian who owns residential property grant or renew a mortgage or hypothec (as borrower) of that residential property while the Prohibition on the Purchase of Residential Property by Non-Canadians Act is in effect?
• Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act prohibit non-Canadian lenders from taking mortgages or hypothecs over residential property?
• Could making a loan to a non-Canadian who owns, or is purchasing, residential property be an offence under the Prohibition on the Purchase of Residential Property by Non-Canadians Act?

General

Q. When will the Prohibition on the Purchase of Residential Property by Non-Canadians Act come into effect?

The Prohibition on the Purchase of Residential Property by Non-Canadians Act and the accompanying regulations came into force on January 1, 2023. The prohibition will be in effect for a period of 2 years.

Q. Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to non-Canadians who made offers of purchase before January 1st, 2023, even if the sale is finalized during the prohibition period?

No. The Act doesn’t apply to non-Canadians who entered into binding offers of purchase and sale before January 1st, 2023 even if the sale is finalized during the prohibition period.

More specifically, the Prohibition on the Purchase of Residential Property by Non-Canadians Act does not apply if a non-Canadian becomes liable or assumes liability under an agreement of purchase and sale of a residential property before January 1, 2023.

The prohibition applies to all purchase offers concluded after the Act came into force.

Q. Who does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to?

The Prohibition on the Purchase of Residential Property by Non-Canadians Act applies to anyone who is neither a Canadian citizen nor a person under the Indian Act nor a permanent resident. Certain exceptions for specific groups of non-Canadians are outlined in the Regulations.

The Act also applies to corporations and entities formed under the laws of Canada or a province, not listed on a stock exchange in Canada and controlled by someone who is a non-Canadian, as outlined in greater detail above.

Q. What kinds of purchases does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to?

The Prohibition on the Purchase of Residential Property by Non-Canadians Act applies to direct or indirect purchases of residential property.

There are some situations where this doesn’t apply, including:

• when a non-Canadian acquires an interest in a residential property because of a divorce, separation, gift, or death
• when a non-Canadian rents a dwelling unit for the purpose of occupying the dwelling unit – in other words, a non-Canadian who is renting and occupying the dwelling unit does not constitute a purchase
• when a creditor exercises a security interest or secured right, such as the seizure and foreclosure of a residential property, or
• when a non-Canadian purchases residential property for the purposes of development

Q. What documentation can be used by non-Canadians to demonstrate that they are compliant with the Prohibition on the Purchase of Residential Property by Non-Canadians Act?

The following documents can be used to demonstrate compliance with the Act:

• work or study permit issued by Immigration, Refugees and Citizenship Canada
• verification of status issued by Immigration, Refugees and Citizenship Canada
• other documents that show they reside in Canada and can establish the length of time they have resided in Canada to meet an exception to the prohibition (for example, rental agreements, utility bills, or records of travel in and out of the country)

Q. What happens if a non-Canadian violates the Prohibition on the Purchase of Residential Property by Non-Canadians Act?

The Prohibition on the Purchase of Residential Property by Non-Canadians Act provides that a breach of the prohibition is a criminal offence. Under this framework, enforcement of the Act relies on the expertise and discretion of local law enforcement to investigate complaints and lay charges, prosecution of those charges by the Attorney General’s office and ultimately obtaining a conviction through the court.

Put simply, the Act makes it a crime to violate the prohibition.

The Act imposes a fine for people who violate the prohibition. Non-Canadians that violate the prohibition, or any person or entity that knowingly assists, can be fined up to $10,000.

If a non-Canadian is convicted of violating the prohibition, a court can order the sale of the residential property. Any court-ordered sale will result in the non-Canadian receiving no more than the price paid to purchase the residential property.

The Act also establishes that, if a corporation or entity commits an offence, officers, directors, senior officials and other representatives of the corporation or entity can be a party to and liable for the offence.

Q. Do third parties, like real estate agents or lawyers, have a role in enforcing the Prohibition on the Purchase of Residential Property by Non-Canadians Act?

No. It’s the responsibility of the person buying the home to make sure they respect the Act. The Act doesn’t make real estate agents, lawyers, or others responsible for ensuring people respect it.

Non-Canadian buyers themselves are responsible to ensure they are eligible to purchase a residential property while the Prohibition on the Purchase of Residential Property by Non-Canadians Act is in force.

The Act provides industry professionals with the flexibility to manage compliance within their respective circumstances and does not impose information collection, processing or reporting requirements for lawyers, notaries, real estate agents or other professionals.

It is for these professionals to determine what, if any, measures may be required for them to meet their professional responsibilities and duties to their clients.

Q. Who was consulted during the development of the Prohibition on the Purchase of Residential Property by Non-Canadians Act and the accompanying regulations?

The Government committed to bring forward a prohibition in Budget 2022 and the legislation was deliberated on in Parliament as part of the Budget Implementation Act, 2022 No. 1.

Although the Regulations were exempted from pre-publication in the Canada Gazette, the federal government consulted with government and non-government stakeholders for feedback.

This included publishing a detailed consultation document outlining the specific policy proposals intended for the regulations on the CMHC website for 4 weeks in August-September 2022. CMHC invited provinces and territories, Indigenous governments and organizations, industry and other partners in the housing system to comment directly on the consultation document.

The consultation process received approximately 200 written submissions from stakeholders.

Q. Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to Indigenous Peoples and communities?

No. This Act doesn’t apply if it conflicts with the rights of Indigenous peoples of Canada that are recognized in Section 35 of the Constitution Act, 1982.

Section 35 recognizes and affirms the existing Indigenous and treaty rights of Indigenous peoples of Canada. These may include ownership rights to land, rights to occupy and use lands and resources, land to be set aside for First Nation use only, self-government rights and cultural and social rights.

Q. Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to spouses or common-law partners of Canadian citizens or permanent residents?

No. The Act doesn’t apply to non-Canadian spouses and common-law partners, if they purchase residential property in Canada with their spouse or common-law partner who is a:

• Canadian citizen, or
• person registered under the Indian Act, or
• permanent resident, or
• non-Canadian for whom the prohibition does not apply

Q. What is the Quebec ruling related to the Act and Regulations from January 2023?

On January 31, 2023, the Superior Court in Quebec ruled in the following case (9357-4010 Québec Inc. v. Yi-Fang Tai et al., N°500-17-123410-220) that non-Canadians who entered into a promise to purchase and sale prior to January 1, 2023 could still buy a residential property, even if such a sale is finalized during the prohibition period.

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Immigration and labour market

Q. Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to temporary residents who have studied in Canada and are now working after completing their studies, if they have been physically present in Canada for several years?

The Act and Regulations provide exceptions for the following temporary residents:

1. Temporary residents studying in Canada, if they:
   • are enrolled in a program of authorized study at a designated learning institution as defined in the Immigration and Refugee Protection Regulations, and
   • have filed income tax returns for each of the 5 taxation years preceding the year in which the purchase was made, and
   • have been physically present in Canada for a minimum of 244 days in each of the 5 calendar years preceding the year in which the purchase was made, and
   • have not previously purchased a residential property in Canada while the prohibition is in effect, and
   • purchase a property for a price not exceeding $500,000
2. Temporary residents working in Canada, if they:
   • hold a valid work permit or are authorized to work in Canada, and
   • have 183 days or more of validity remaining on their work permit or work authorization at time of purchase, and
   • have not previously purchased a residential property in Canada while the prohibition is in effect

The prohibition does not apply to temporary residents that satisfy all the conditions outlined in a) or b).

Q. Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to Ukrainians who came to Canada under the Canada-Ukraine Authorization for Emergency Travel (CUAET) program?

No. The Act doesn’t apply to people who have been granted temporary status because they are fleeing a crisis, including Ukrainian nationals who came to Canada under the CUAET program.

The Regulations clarify that the prohibition does not apply to individuals fleeing international crisis, if they have been granted temporary resident status in accordance with the Immigration and Refugee Protection Act based on humanitarian public policy considerations to provide a haven to those fleeing conflict.

In March 2022, the Minister of Immigration, Refugees and Citizenship granted temporary exemptions from the requirements of the Immigration and Refugee Protection Act and the Immigration and Refugee Protection Regulations pursuant to his authority under Section 25.2 of the Immigration and Refugee Protection Act for Ukrainian nationals who meet the conditions set out in the temporary public policy.

Ukrainians coming to Canada under the CUAET program are exempt from the Act while the temporary policy granting exemptions to Ukrainian nationals is in effect per decision by the Minister of Immigration, Refugees and Citizenship.

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Geography and property

Q. What types of residential property does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to?

The Prohibition on the Purchase of Residential Property by Non-Canadians Act defines residential property as buildings of up to 3 dwelling units and parts of buildings, like semi-detached houses or condominium units. The Act doesn’t prohibit the purchase of larger, multi-unit buildings containing 4 or more dwelling units.

The Regulations clarify that the prohibition applies to residential property located in a Census Metropolitan Area (CMA) or a Census Agglomeration.

Q. Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to residential properties located outside of a Census Metropolitan Area (CMA) or a Census Agglomeration (CA)?

Non-Canadians can purchase residential property located outside of a Census Metropolitan Area (CMA) or a Census Agglomeration (CA).

The Regulations include an exception for any residential property found outside of a CMA or CA as identified in Statistics Canada’s Standard Geographical Classification 2021.

Both CMAs and CAs are formed by one or more adjacent municipalities centered on a population centre, or the core.

Q. Can non-Canadians acquire vacant land?

Yes, as of March 27, 2023, the prohibition does not apply to vacant land.

Q. Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to recreational property?

No, if the residential properties, including recreational properties such as summer cottages and vacation homes, are located outside of a Census Metropolitan Area (CMA) or Census Agglomeration (CA), they are exempt from the prohibition.

Yes, if the residential properties, including recreational properties, are located within a CMA or CA, they are subject to the prohibition.

Q. Can non-Canadians purchase residential property for development purposes?

Yes, as of March 27, 2023, the regulations provide an exception for non-Canadians purchasing residential property for purposes of development.

Q. What is meant by the term “development”?

Development means the process of evaluating, planning and undertaking of alterations or improvements (with or without a change in use) to a residential property or the land on which the residential property is located and, for greater certainty, includes redevelopment of an existing building.

An alteration or improvement does not have to result in the property being used for its highest and best use in order to constitute “development.” The application of the development exemption does not depend on the character of the development or the resulting use, provided it is a true development or redevelopment, as opposed to mere repairs, renovations, remodeling or other similar modifications.

Some non-exhaustive factors that may indicate that an alteration or improvement constitutes development include the following.

• The alteration or improvement engages the applicable review and approval processes of the relevant municipality or other land use planning regulator.
• The alteration or improvement is accompanied by a change of use resulting in commercial, industrial, residential, retail, office, agricultural, resource extraction or other recognized and permitted land uses.

The above factors are not determinative and must be read in conjunction with the following Q&A regarding what would not be considered “development”.

Q. What would not be considered “development”?

• A non-Canadian cannot purchase residential property in reliance upon the development exemption for the mere purpose of leasing or renting the property out to tenants or otherwise managing it as a rental property as part of its portfolio.
• Undertaking repairs, renovations, remodels or other similar modifications to an existing residential property generally does not rise to the level of what would constitute development. The following is a non-exhaustive list of some examples of alterations whose construction does not constitute “development”: expanding an existing dwelling unit; remodelling an existing dwelling unit; re-demising interior space; adding a porch, deck, or patio; and finishing an unfinished basement. However, where an expansion or remodel is so extensive that it is tantamount to the construction of a new building or a change of use, for example because it creates a new residential property or other types of new and independently usable premises, this would constitute “development”.

Q. If a Non-Canadian Purchases Residential Property and Undertakes Development with Respect to the Land on which the Residential Property is Located Without Altering Existing Structures on the Property, can this Constitute “Development” for the Purposes of this Exception?

Yes. The construction of a new building or the undertaking of other forms of development could be considered “development” for purposes of this exception even without any alteration of existing structures on the purchased property.

Q. If a non-Canadian has good faith intentions to pursue a development and purchases a residential property in reliance upon the development exemption but is later unsuccessful at obtaining the required approvals or otherwise decides in good faith not to pursue the development, has the non-Canadian committed an offence?

No. However, the non-Canadian should be prepared in those circumstances to demonstrate (a) the existence of a good faith intention at the time of the purchase to undertake a development and (b) a subsequent change in circumstances leading to a good faith decision not to pursue the development. The following is a non-exhaustive list of some examples of supporting documentation in connection with the proposed development which would assist with the foregoing: copies of reports by consultants, such as real estate agents, architects, engineers, planners, lawyers, etc.; copies of correspondence with prospective lenders, investors, or customers; copies of correspondence with the relevant municipality or other land use planning regulator; etc.

Q. Does the prohibition apply to properties that are purely commercial in nature (e.g. office towers or grocery stores containing no dwelling units)?

No, the prohibition is not intended to apply to existing property that is purely commercial in nature.

Q. Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to the rental of residential property by a non-Canadian?

No, the rental arrangement between a landlord and a tenant of a dwelling for the purpose of its occupation by the tenant does not constitute a purchase by the tenant.

Q. Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to modular and mobile homes?

Yes, the Act applies to modular and mobile homes that are affixed to land. Whether a modular or mobile home is affixed (i.e. not a chattel) is a question of mixed fact and law, the determination of which will depend on whether or not they were meant to be temporarily affixed or permanently affixed to the land.

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Financing and investment

Q. Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to Real Estate Investment Trusts (REITs)?

No, if:

• they are formed under the laws of Canada or a province, are publicly traded on a stock exchange in Canada and, are controlled by a non-Canadian;
• they are formed under the laws of Canada or a province, are not publicly traded on a stock exchange in Canada and, are controlled by less than 10% by a non-Canadian; or
• they are purchasing residential property for the purposes of development irrespective if they are privately held or publicly traded

Yes, if:

• they are formed under the laws of Canada or a province, are not publicly traded on a stock exchange in Canada and, are controlled by more than 10% by a non-Canadian; or
• they are formed otherwise than under the laws of Canada or a province

Q. Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act apply to non-Canadians purchasing a residential dwelling unit if the unit is rented out, or if existing tenants remain within that unit?

Yes. Non-Canadians cannot purchase residential property while the Act is in force. This includes purchasing residential property for the purposes of renting out to tenants.

Q. Can a non-Canadian who owns residential property grant or renew a mortgage or hypothec (as borrower) of that residential property while the Prohibition on the Purchase of Residential Property by Non-Canadians Act is in effect?

Yes. Non-Canadians who have already purchased residential property before January 1, 2023 can still grant or renew mortgages or hypothecs of that residential property while the prohibition is in effect.

Q. Does the Prohibition on the Purchase of Residential Property by Non-Canadians Act prohibit non-Canadian lenders from taking mortgages or hypothecs over residential property?

No. The taking of a mortgage, hypothec or other security by a non-Canadian lender over residential property does not in itself constitute an offence under the Act. However, lenders should also take note of the following question and answer.

Q. Could making a loan to a non-Canadian who owns, or is purchasing, residential property be an offence under the Prohibition on the Purchase of Residential Property by Non-Canadians Act?

It depends. Making a loan to a non-Canadian who owns residential property does not in itself constitute an offence under the Act. However, a loan, whether secured or unsecured and whether made by a Canadian or a non-Canadian, made to a non-Canadian which assists the non-Canadian to purchase, directly or indirectly, any residential property while the Act is in force would be an offence under the Act if the lender knows that the purchase is contrary to the Act.

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