BYLAW NO. 1898: City of Langford Housing Agreement (948 Starling Pl) Bylaw No. 1898, 2020

Appendix “A” – Housing Agreement

TERMS OF INSTRUMENT – PART 2

SECTION 219 COVENANT AND HOUSING AGREEMENT

THIS AGREEMENT dated for reference the ___ day of ____, 2020 is

BETWEEN:

Linda Grace Ellwood, 948 Starling Court, Victoria, B.C. V9C 0B4

(the “Owner”)

AND:

CITY OF LANGFORD, a local government incorporated pursuant to the Community Charter and having a business address of 2nd floor, 877 Goldstream Avenue, Victoria, B.C. V9B 2X8

(the “City”)

WHEREAS:

A. The Owner (hereinafter defined) is the registered owner of the Lands (hereinafter defined);
B. The City of Langford (the “City”) may, pursuant to section 483 of the Local Government Act, enter into an agreement with an owner of land that includes terms and conditions regarding the occupancy, tenure and availability of dwelling units located on the lands of the owner;
C. Section 219 of the Land Title Act permits the registration of a covenant of a negative or positive nature in favour of the City in respect of the use of land or construction on land;
D. The Owner and the City wish to enter into this Agreement to provide for the construction and occupation of Affordable Housing Units for low-income families, and agree that this Agreement is both a section 219 covenant under the Land Title Act and a housing agreement under Section 483 of the Local Government Act; and
E. The City has, by bylaw, authorized the execution of this Agreement and the Owner has duly authorized the execution of this Agreement.

THIS AGREEMENT is evidence that in consideration of $2.00 paid by the City to the Owner (the receipt of which is acknowledged by the Owner), and in consideration of the promises exchanged below, the City and the Owner agree, as covenants granted by the Owner to the City under s. 219 of the Land Title Act, and as a housing agreement between the Owner and the City under s. 483 of the Local Government Act, as follows:

1. Definitions – In this Agreement:

• “Affordable Housing Committee” means the City of Langford's Affordable Housing Committee, which will oversee the purchase and sale of all Affordable Housing Units on behalf of the City, without expectation of any fee or charge;
• “Affordable Housing Unit” means several rooms in a building that are used, or constructed so as to be capable of being used, for the residential use of a single household by a Qualified Purchaser and that person's immediate family, and containing a common access, one kitchen, and eating, sleeping and living areas, with a gross floor area between 83 square metres and 91 square metres exclusive of garages, carports and decks, on a lot not larger than 300 square metres;
• “Lands” means the lands in the City of Langford legally described in Item 2 of Part 1 of the Land Title Act Form C to which this Agreement is attached and which forms part of this Agreement;
• “Lender” means a mortgagee or holder of a financial charge that is registered against the title to the Affordable Housing Unit;
• “Mortgage Co-signer” means a person who signs a mortgage for the purpose of facilitating a Qualified Purchaser to obtain financing from a Lender sufficient to purchase an Affordable Housing Unit;
• “Owner” means the Transferor described in the Form C to which this Agreement is attached, and any subsequent owner of the Lands; and
• “Qualified Purchaser” means a low-income individual or family, as determined by the criteria of the Affordable Housing Committee, who wishes to purchase an Affordable Housing Unit, and has been approved by the Affordable Housing Committee,

2. Construction – The Owner covenants and agrees:

(a) that the Lands must be used only in accordance with this Agreement;
(b) that the Lands must be used only for the construction, use and occupation of Affordable Housing Units; and
(c) that the Affordable Housing Unit on the Lands, which as of the date of this Agreement is a three-bedroom unit, must remain a three-bedroom unit, and the position of the walls defining the existing three bedrooms must not be altered.

3. Occupancy Restrictions – Each Affordable Housing Unit:

(a) may only be used as a permanent residence;
(b) must be occupied as a permanent residence by at least one Qualified Purchaser; and
(c) may only be occupied by a Qualified Purchaser, except that the immediate family, which includes a spouse, children, parents, grandparents, and siblings, of the Qualified Purchaser who occupies the Affordable Housing Unit as a permanent residence may also occupy the Affordable Housing Unit.

4. Mortgage Co-signers

Co-signers are permitted provided that the Mortgage Co-signer signs a Statutory Declaration, in the form attached as Schedule “B” whereby the Mortgage Co-signer declares that the Mortgage Co-signer:

(a) has a maximum 1% undivided interest in the Affordable Housing Unit and Lands,
(b) will not reside in the Affordable Housing Unit, and
(c) waives any future claim and equity to the Affordable Housing Unit and Lands.

5. Subagreements

The Owner shall not rent or lease the Lands or any Affordable Housing Unit on the Lands.

6. Maximum Sale Price

(a) The Owner covenants and agrees that the Owner may only sell an Affordable Housing Unit and the land upon which it is located:
(i) to a Qualified Purchaser; and,
(ii) for up to the greater of $176,000, plus GST if applicable, or the purchase price the Owner paid for the Affordable Housing Unit, excluding GST if applicable (the “Maximum Sale Price”).

(b) Despite subsection 6(a)(ii) above, if the Owner of an Affordable Housing Unit purchased the Affordable Housing Unit as a Qualified Purchaser, and has owned the Affordable Housing Unit for at least five years, the Owner may sell the Affordable Housing Unit and the land upon which it is located to a Qualified Purchaser for the Maximum Sale Price plus $2,000.00 for every full year of the Owner's ownership of the Affordable Housing Unit after the first five years of ownership.

(c) The Owner must disclose in every purchase and sale agreement for the Affordable Housing Unit the existence of this Agreement and the occupancy and resale price restrictions applicable to the Affordable Housing Unit, and provide each Qualified Purchaser with a copy of this Agreement.

7. Order to Comply

If the Owner is in default of the performance or observance of this Agreement, the City may give the Owner a notice of default requiring the Owner to comply with this Agreement within the time stated in the notice.

8. Specific Performance of Agreement

The Owner agrees that the City is entitled to obtain an order for specific performance of this Agreement and a prohibitory or mandatory injunction in respect of any breach by the Owner of this Agreement. Further, the Owner agrees that the foregoing provision is reasonable given the public interest in restricting the occupancy and disposition of each Affordable Housing Unit on the Lands in accordance with this Agreement.

9. Mortgages and Mortgage Insurers

If required by the Qualified Purchaser and his/her mortgagee and mortgage insurer (if any), the City will enter into an agreement regarding a mortgage of the Affordable Housing Unit on the terms set out in Schedule “A”, including that if for whatever reason, an Affordable Housing Unit is sold for fair market value, the Owner agrees to assign the excess revenue from the sale, being the fair market price less the maximum sale price in this Agreement, to the City for its affordable housing fund.

10. Bylaw Infraction

The Owner acknowledges that a breach of the occupancy restriction in paragraph 3 of this Agreement may be a breach of the City’s Zoning Bylaw which is punishable by fine and imprisonment under the Offence Act.

11. No Public Law Duty

Wherever in this Agreement an act, determination, consent, approval or agreement of the City is provided for, such act, determination, consent, approval or agreement may be done or made in accordance with the terms of this Agreement and no public law duty, whether arising from the principles of procedural fairness or the rules of natural justice, shall have any application.

12. No Waiver

No condoning, excusing or overlooking by the City of any default under this Agreement, nor any consent, approval, or agreement whether written or otherwise shall be taken to operate as a waiver by the City of any subsequent default or of the necessity for further consent, approval or agreement in respect of a subsequent matter requiring it under this Agreement, or in any way to defeat or affect the rights or remedies of the City.

13. Notice on Title

The Owner acknowledges and agrees that this Agreement constitutes both a covenant under section 219 of the Local Government Act and a housing agreement under Section 483 of the Local Government Act, and agrees that the City must file in the Land Title Office a notice that the Lands are subject to this Agreement, and that, once the notice is filed, this Agreement is binding on all persons who acquire an interest in the Lands.

14. Covenant Runs with the Land

Every obligation and covenant of the Owner in this Agreement constitutes both a contractual obligation and a covenant granted by the Owner to the City in accordance with section 219 of the Land Title Act in respect of the Lands and this Agreement burdens the Lands and runs with it and binds the Owner’s successors in title and binds every parcel into which it is consolidated or subdivided by any means, including, by subdivision or by strata plan.

15. Limitation on Owner’s Obligations

The Owner is only liable for breaches of this Agreement that occur while the Owner is the registered owner of the Lands.

16. Amendment and Termination

This Agreement may not be modified or amended except by bylaw of the City, upon an agreement in writing between City and the Owner. This Agreement may be terminated or discharged by the City without the consent or agreement of the Owner.

17. Notices

Any notice required to be given pursuant to this Agreement shall be in writing and shall be given to the Owner or the City, as the case may be, at the address first above written, or to any other address of which either the Owner or the City may advise the others in writing in accordance with this paragraph. Notice to the City must be addressed to the Affordable Housing Committee. If given in person or by facsimile transmission, such notice will be deemed to be received when delivered and, if mailed, such notice will be deemed to have been received on the tenth business day after the date of mailing except in the event of an interruption in mail service, when such notice will be deemed to be received only when actually received by the party to whom it is addressed.

18. Enurement

This Agreement shall enure to the benefit of and be binding on the City and its successors and on the Owner and its heirs, successors, personal representatives, administrators, assignees, and successors in title.

19. Remedies Cumulative

The remedies of the City specified in this Agreement are cumulative and are in addition to any remedies of the City at law or in equity. No remedy shall be deemed to be exclusive, and the City may from time to time have recourse to one or more or all of the available remedies specified herein or at law or in equity.

20. Severability

Each covenant and agreement contained in this Agreement is, and shall be construed to be, a separate and independent covenant or agreement and the breach of any such covenant or agreement by the Owner shall not discharge or relieve the Owner from its obligations to perform. If any term or provision of this Agreement, or its application to any person or circumstance shall to any extent be invalid and unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected, and each term and provision of this Agreement shall be valid and shall be enforced to the extent permitted by law.

21. Joint and Several

In the case of more than one Owner, the grants, covenants, conditions, provisions, agreements, rights, powers, privileges and liabilities of the Owner shall be construed and held to be several as well as joint.

22. Included Words

Wherever the singular or the masculine is used in this Agreement, it shall be deemed to include the plural or the feminine, or the body politic or corporate, where the context or the parties so require.

23. Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the province of British Columbia.

24. Joint Venture

Nothing in this Agreement shall constitute the Owner as an agent, joint venturer or partner of the City or give the Owner any authority or power to bind the City in any way.

25. Time of Essence

Time is of the essence in this Agreement.

26. Further Assurances

The parties shall execute and do all such further deeds, acts, things and assurances as they reasonably require to carry out the intent of this Agreement.

27. No Fettering of Statutory Discretion

No consent or approval given by the City under this Agreement shall derogate from or bind the City in the exercise of any statutory duty, power or discretion.

28. Priority

The Owner agrees to do everything necessary at the Owner’s expense to ensure that this Agreement is registered against title to the Lands with priority over all financial charges, liens and encumbrances registered or pending at the time of application for registration of this Agreement, except those specifically approved in writing by the City or in favour of the City.

29. Deed and Contract

By executing and delivering this Agreement each of the parties intends to create both a contract and a deed executed and delivered under seal.

30. Expiration

This Agreement expires and is of no future force and effect on or after March 6, 2032

As evidence of their agreement to be bound by the terms of this instrument, the parties hereto have executed the Land Title Office Form C, which is attached hereto and forms part of this Agreement.

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CONSENT AND PRIORITY AGREEMENT

WHEREAS NORTHERN SAVINGS CREDIT UNION (the “Chargeholder”) is the holder of a Mortgage (the “Charge”) encumbering the lands (the “Lands”) described in item 2 of the Land Title Act Form C attached hereto, which was registered in the Victoria Land Title Office under number CA478172.

THEREFORE THIS CONSENT AND PRIORITY AGREEMENT IS EVIDENCE THAT IN CONSIDERATION OF $1.00 AND OTHER GOOD AND VALUABLE CONSIDERATION PAID BY THE TRANSFEREE TO THE CHARGEHOLDER:

1. The Chargeholder hereby consents to the granting and registration of the Section 219 Agreement attached hereto (the “Agreement”) and the Chargeholder hereby agrees that the Agreement shall be binding upon its interest in and to the Lands.
2. The Chargeholder hereby grants to the transferee described in item 6 of the Land Title Act Form C attached hereto priority for the Agreement over the Chargeholder’s right, title and interest in and to the Lands, and the Chargeholder does hereby postpone the Charge and all of its right, title and interest thereunder to the Agreement as if the Agreement had been executed, delivered and registered prior to the execution, delivery and registration of the Charge.

IN WITNESS WHEREOF, the Chargeholder has executed and delivered this Consent and Priority Agreement by executing the Land Title Act Form D above which is attached hereto and forms part of this Agreement.

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SCHEDULE A – MORTGAGE and MORTGAGE INSURER AGREEMENT TERMS

In the event that an Owner, who is a Qualified Purchaser, enters into a mortgage in respect of an Affordable Housing Unit, the Owner, the Lender, the Insurer, and the City agree to the following terms:

1. In this agreement:
   (a) “Lender” means a mortgagee or holder of a financial charge that is registered against the title to the Affordable Housing Unit;
   (b) “Insurer” means a company or organization that has entered into a mortgage default insurance agreement or mortgage loan insurance arrangement with a Lender and an Owner; and
   (c) “Owner” means the current Qualified Purchaser in possession of the Affordable Housing Unit;
   (d) “Property” means the Affordable Housing Unit and real property upon which it is located.

2. In the event of default by the Owner under the mortgage:
   (a) the Lender must advise the Insurer and the City that an event of default has occurred no later than 90 days after the default; failure to deliver the notice within this period postpones the Lender’s ability to enforce its rights under the mortgage until such notice has been delivered;
   (b) following the notice of mortgage default, the City will have an exclusive right, until that day that is sixty days after the Lender delivers notice as set out in section 2(a) to the City to locate a new Qualified Purchaser who will buy the Property from the Owner. If the City is able to find a new Qualified Purchaser in this time period, the City will make arrangements between the Owner and the new Qualified Purchaser to purchase the Property for the maximum sale price in the Housing Agreement, close the transaction within a reasonable time (not more than two months), and pay the Lender the outstanding mortgage amount, and upon receipt of such funds the Lender will agree to discharge the mortgage so that the sale can take place;
   (c) if the City is not able to arrange a sale under (b) above, the Lender and/or Insurer may take the usual steps to enforce the rights under the mortgage and sell the property for fair market value for the Property. During this time, the City may bring forward to the Lender and/or the Insurer a purchaser who does not meet all the Affordable Housing Committee guidelines to purchase the Property for the maximum sale price in the Housing Agreement. The Lender and/or Insurer will agree to sell the Property to this purchaser after the order absolute, and if this purchaser purchases the Property, the Housing Agreement will continue to be a charge against title to the Property;
   (d) if the City is unable to bring to the Lender and/or the Insurer a purchaser for the Property under (c) above by the time the Lender and/or the Insurer has signed a sale agreement with an arm's length purchaser for fair market value for the Property, then the Lender and/or the Insurer will sell the Property at fair market value and the City will discharge the Housing Agreement and Section 219 Covenant from title to the Property; and
   (e) if the Property is sold for fair market value under paragraph (d) of the Schedule A, the Owner will agree to assign the excess amount from the fair market value sale, being the fair market price less the maximum sale price in the Housing Agreement, to the City for its affordable housing fund. Upon receipt of the appropriate documents of assignment from the Owner, the Lender agrees to pay that excess amount to the City. The parties agree that this is provision is fair having regard to the City discharging the Housing Agreement from title to the Property and having foregone the community benefit of making the Property available as part of the affordable housing program.

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SCHEDULE B – STATUTORY DECLARATION

WHEREAS _______(the “Mortgagor”) has applied to ______ (the “Lender”) for mortgage financing to complete the purchase of 948 Starling Place Langford, BC (the “Property”) and the Lender has agreed to provide such financing on the terms and conditions contained in the mortgage instructions dated [INSERT DATE HERE] and the City of Langford (the “City”), through the City’s Affordable Housing Program has agreed to allow [INSERT NAME OF CO-SIGNER HERE] to be added to the title of the Property on the condition that [NAME OF CO-SIGNOR] provide this Statutory Declaration:

AND WHEREAS it is a condition precedent to the financing and the purchase of the Property that the undersigned give this Statutory Declaration:

I. [INSERT NAME OF CO-SIGNER HERE] of Victoria, BC, DO SOLEMNLY DECLARE that:

1. I am [INSERT STATE THE RELATIONSHIP (e.g. friend, father, mother, etc.) HERE] of the Mortgagor and I will be registered on title to the Property as owner in fee simple of a 1% undivided interest to the Property only for the purpose of assisting the Mortgagor to obtain financing from the Lender in order to purchase the Property.
2. I will not live, either part time or full time at the Property
3. I waive any future claim to the Property and any future claim on the equity in the Property.

DECLARED before me at _______, Province of British Columbia, this __ day of _______, 20

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PRINT NAME OF CO-SIGNER

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A Commissioner for Taking Affidavits within British Columbia

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SIGNATURE

END OF DOCUMENT