14 Payments held in trust
(a) "common property" includes facilities and property that are
intended for common use by the owners notwithstanding
that the facilities or property may be located in or comprise
a unit or any part of a unit;
(b) "cost consultant" means a person who meets the
requirements of the regulations to be a cost consultant or is
otherwise designated as a cost consultant pursuant to the
regulations;
(c) "developer" includes any person who, on behalf of a
developer, acts in respect of the sale of a unit or a proposed
unit or receives money paid by or on behalf of a purchaser
of a unit or a proposed unit pursuant to a purchase
agreement;
(d) "financial institution" means a bank, treasury branch, credit
union or trust corporation;
(e) "substantially completed" means, subject to the regulations,
(i) in the case of a unit, when the unit is ready for its
intended use, and
(ii) in the case of related co mmon property, when the related
common property is ready for its intended use.
(2) A reference in this section to "related common property" is, in
relation to a unit, a reference to the following:
(a) the common property or a portion of the common property
that is necessarily incidental to the completion of the unit;
(b) the common property or a portion of the common property
that is necessarily incidental to the intended use of the unit;
(c) in the case of a unit other than a bare land unit, the common
property or a portion of the common property consisting of
(i) utilities required to service the unit and the common
property,
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(ii) a facility providing for reasonable access to or entrance
into the unit,
(iii) a facility providing fo r reasonable access to highways,
municipal roads or streets,
(iv) waste removal facilities or other facilities for handling
waste, and
(v) any other improvements or areas
(A) designated by the regulations, or
(B) required under any other Act or regulations,
that are necessarily incidental to the intended use of the unit;
(d) in the case of a unit other than a bare land unit, in addition
to the common property referred to in clauses (a) to (c), any
common property or any portion of the common property
that has been represented in the purchase agreement by the
developer as being or as going to be available for the use of
the owner of the unit and, without limiting the generality of
the foregoing, may include one or more of the following:
(i) roadways, parking areas and walkways;
(ii) fences or similar structures;
(iii) landscaped areas and site lighting;
(e) in the case of a bare land unit, the common property or a
portion of the common property consisting of
(i) a facility providing for reasonable access to or entrance
into the unit,
(ii) a facility providing fo r reasonable access to highways,
municipal roads or streets, and
(iii) any other improvements or areas
(A) designated by the regulations, or
(B) required under any other Act or regulations,
that are necessarily incidental to the intended use of the unit;
(f) in the case of a bare land unit, in addition to the common
property referred to in clauses (a), (b) and (e), any common
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property or any portion of the common property that has
been represented in the purchase agreement by the
developer as being or as going to be available for the use of
the owner of the unit and, without limiting the generality of
the foregoing, may include one or more of the following:
(i) utilities required to service the unit and the common
property;
(ii) roadways, parking areas and walkways;
(iii) fences or similar structures;
(iv) landscaped areas and site lighting;
(v) waste removal facilities or other facilities for handling
waste.
(3) A developer or prescribed trustee, as the case may be, shall
hold in trust all money, other than rents or security deposits, paid
by the purchaser of a unit up to the time that the certificate of title
to the unit is issued in the name of the purchaser in accordance with
the purchase agreement.
(4) Notwithstanding subsection (3), if a unit is not substantially
completed, the developer or prescribed trustee, as the case may be,
shall hold in trust money, other than rents or security deposits, paid
by the purchaser of the unit so that the amount of money held in
trust will be sufficient, when combined with the unpaid portion of
the purchase price of the unit, if any, to pay for the cost of
substantially completing the construction of the unit as determined
by a cost consultant.
(5) Notwithstanding subsection (3), if the related common
property is not substantially completed, the developer or prescribed
trustee, as the case may be, shall hold in trust money, other than
rents or security deposits, paid by the purchaser of the unit so that
the amount of money held in trust will be sufficient, when
combined with the unpaid portion of the purchase price of the unit,
if any, to pay for the proportionate cost of substantially completing
the construction of the related common property as determined by a
cost consultant based on the unit factors of the units sharing the
same related common property.
(6) A developer who receives money that is to be held in trust
under this section shall, within 3 days of receiving it, exclusive of
holidays and Saturdays, deposit the money into a trust account
maintained in a financial institution in Alberta.
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(6.1) A trust account referred to in subsection (6) must be
maintained by a prescribed trustee.
(7) A developer or prescribed trustee, as the case may be, who is in
possession or control of money that is to be held in trust under this
section shall ensure that the money is kept on deposit in Alberta.
(7.1) A developer or prescribed trustee, as the case may be, who is
in possession or control of money that is to be held in trust under
this section shall comply with the requirements respecting trust
accounts established by the regulations.
(8) If money is being held in trust under this section and the
purchaser of the unit takes possession of or occupies the unit prior
to the certificate of title being issued in the name of the purchaser,
the interest earned on that money, if any, from the day that the
purchaser takes possession or occupies the unit to the day that the
certificate of title is issued in the name of the purchaser is to be
applied against the purchase price of the unit.
(9) Subject to subsection (8), the developer is entitled to the
interest earned on money held in trust under this section.
(10) Subject to subsection (11), this section does not apply in
respect of money paid to a developer under a purchase agreement if
that money is held, secured or otherwise dealt with under the
provisions of a plan, agreement, scheme or arrangement approved
by the Minister that provides for the receipt, handling and
disbursing of all or a portion of that money or indemnifies against
loss of all or a portion of that money or both.
(11) Where
(a) money is to be held, secured or otherwise dealt with under
the provisions of a plan, agreement, scheme or arrangement
referred to in subsection (10), and
(b) an amount of that money that is to be held, secured or
otherwise dealt with exceeds the limits of the protection
against loss provided for under the plan, agreement, scheme
or arrangement,
that amount that exceeds the limits of the protection against loss
under the plan, agreement, scheme or arrangement is to be held in
trust under this section.
(12) Notwithstanding subsections (3) to (11),
(a) where in relation to a unit or related common property, or
both, a developer is required to provide security under
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another enactment for the purpose of completing
construction, and
(b) that construction referred to in clause (a) is the same or
substantially the same construction with respect to a unit or
related common property in respect of which money is to be
held in trust under this section,
the developer may, subject to the regulations, reduce the amount of
money to be held in trust under this section by the amount of the
security provided under the enactment referred to in clause (a).
(13) Where, with respect to a unit or related common property, or
both,
(a) money is held in trust under this section or held, secured or
otherwise dealt with pursuant to the provisions of a plan,
agreement, scheme or arrangement approved under
subsection (10), and
(b) the developer has not met the requirements under which that
money is to be paid out of the trust or otherwise disbursed,
the corporation or an interested party may apply to the Court for an
order for that money to be paid out for the purposes of substantially
completing the unit or related common property, as the case may
be, or to be used as directed by the Court.
(14) On hearing an application under subsection (13), the Court
may do one or more of the following:
(a) give directions as to whom the money is to be paid;
(b) give directions as to how the money is to be used for the
purposes of substantially completing the unit or related
common property, or both, as the case may be;
(c) give directions as to how the money is to be used or
otherwise disposed of if it is not to be used for the purposes
referred to in clause (b);
(d) appoint an administrator, a receiver or a receiver and
manager for the purpose of carrying out any matters dealt
with pursuant to the application;
(e) give any other directions, not referred to in clauses (a) to
(d), that the Court considers appropriate in the
circumstances;
(f) award costs.
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(15) Once the unit or the related common property, or both, as the
case may be, in respect of which money is being held in trust under
this section are, as determined by a cost consultant, substantially
completed, any money remaining in trust may be paid to the
developer.
RSA 2000 cC-22 s14;2014 c10 s7