Selling a home in U/D
As the University of Calgary holds the underlying fee simple title to University District, residents of University District hold subleasehold title rather than traditional fee simple title. Given this ownership structure, in University District homeowners ‘sublease’ their units under a 99-year sublease term (the Residential Lease as defined below). To help facilitate the resale process, the resources below have been compiled to allow either counsel for the purchaser or the vendor of units an understanding of the process and required procedure to ensure a seamless sales process.
As noted above, the residential condominium unit titles of University District are legally subleasehold titles. These subleasehold titles are subject to the terms of: a) a head lease from The Governors of the University of Calgary to the University District Trust, by its trustee, the University of Calgary Properties Group Ltd. (the “Trust” and the “Head Lease” respectively); and b) a residential sublease from the Trust to the original developer of the residential project (who assigned its interest in this residential sublease to the original owner of each residential condominium unit) (the “Residential Lease”). The Head Lease applies only to a particular parcel of land in University District. Having the Head Lease allows the Trust (as sublandlord) to then sign a sublease with a developer (as subtenant) for that parcel, so that the developer can build their project and then sell off individual condominium units in the project to third-party purchasers.
Pursuant to the Residential Lease, each sale of a residential unit in University District requires the purchaser and vendor of the unit to sign a Condominium Unit Assignment Agreement to assign the vendor’s interest in the Residential Lease for the unit to the purchaser (this agreement will also be signed by the Trust).
In order to facilitate financings of the residential condominium units in University District, the Residential Lease provides that the Trust will grant a Condominium Unit Tripartite Agreement to the lenders of the residential condominium unit owners. The Condominium Unit Tripartite Agreement provides certain comforts to the lenders with respect to the Residential Lease, defaults under the Residential Lease and mortgage enforcement by the lender.
The Non-Disturbance Agreement (“NDA”) is an agreement among the University, the purchaser(s) of the condominium unit (the “Purchaser”) and the condominium corporation (the “Condo Corp”). It gives comfort to the Purchaser regarding ownership of their condominium unit. Namely, that the Purchaser’s ownership will not be disturbed during the term of the lease, if the University enforces the Lease against the Trust. Via the NDA, the Purchaser gets assurances that it can continue to live in and validly own its interest in the condominium unit without being disturbed (i.e. having its lease terminated) by the University, as head landlord.