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Condo Assignment - A Guide for Buyers & Sellers

What are assignments all about?

As a purchaser, you will usually wait a couple of years after signing an Agreement of Purchase and Sale (APS) for a condo in the pre-construction phase before actually moving in and taking possession of the unit. Typically, a realtor that specializes in pre-construction will ensure that an ‘assignment clause’ is drafted into your contract, giving you various options closer to the completion date. Why? Your situation may change – nobody knows what will happen between the time you sign the contract and when the building is ready for occupancy. Life happens. The assignment clause allows the original purchaser(s) to sell (assign) the Agreement of Purchase and Sale (contract) and all of its legal rights to a potential buyer. In the assignment world, selling is called assigning, the buyer is the assignee and the seller is the assignor. Assignments can get a little overwhelming for both assignees and assignors, but with the right lawyer/realtor combo, the transaction is a breeze. Let’s dive a little deeper into how you can assign your newly purchased condo unit below.

Who can assign?

Only the purchasers who’s names are listed on the original APS and have a legally valid assignment clause drafted into the agreement have the right to assign their suite. Unfortunately, those purchasers who did not request that the right to assign be written into the agreement at the time of purchase will not be able to get the builder’s approval to assign. Often times, builder consent must be granted before you are able to begin advertising your assignment sale. In order to obtain consent, the developer may have certain criteria that has to be met:

• a percentage of the building has to be sold firm (typically 80% plus) - at this point, the builder has most likely received their construction financing and you are not competing with the sales of their remaining inventory;
• a predefined portion of your deposits must have cleared (for example 3/4 (15%) of an agreed 20% deposit) - we have also seen builders request that any remaining deposits be paid in full and some even ask for futher deposits;
• the builder’s lawyer must grant you approval;

The criteria may vary per developer, but the above is what you should generally expect if you plan on assigning your unit. Make sure that you are aware of your rights and obligations, before committing to an agreement.

How do you assign?

Once you are ready and the builder gives you the go ahead, you can begin advertising your unit. Keep in mind that builders usually do not permit listing the suite on MLS since as a pre-construction purchaser, you do not have title to the unit until final closing. Also, a lot of MLS boards do not allow a property to be listed on the service if the property cannot be physically shown. The best way to gain the most exposure for your listing as an assignor is to contact a realtor who specializes in pre-construction condos. Pre-construction experts have access to different Realtor networks that focus on marketing exclusive "off-market" properties, such as assignments. At inCondo, we also have a dedicated section for our assignment listings . Most developments sell out of inventory quickly upon launch and a lot of buyers are not willing to wait a couple of years to take possession of their investment. These two factors set the stage for the condominium assignment market. Pre-construction professionals have a database of buyers who prefer to purchase a brand-new, never-lived-in unit and since there is most likely no remaining inventory available from the builder, they take to assignment sales.

What are the costs associated with assigning?

The fees associated with assigning your unit vary per developer and can depend on the incentives available at the time of signing the original APS. Builders may charge a fee if you decide to assign your unit – anywhere from free to $5,000+, in order to cover lawyer and administration fees on their end. The assignment transaction between assignor and assignee is separate from the original transaction with the developer. A commission should be paid to the Realtor that brings a client (assignee) and your listing Realtor will charge a marketing fee as well. Commissions are always negotiable. The only recommendation we can make here is to use the services of an agent that understands condo assignments and deals with pre-construction condos. Another fee you will encounter is your lawyer fee. Although assignments are increasing in popularity, most real estate lawyers do not work on assignments and it can be tricky to find an expert. David Feld & Sonia Kalia’s office ( wearelaw.ca ) is an excellent resource for legal assistance with regards to your assignment sale. When you find an assignee and accept an offer, or vice versa, always have your Assignment Agreement of Purchase and Sale reviewed by a lawyer to avoid complications upon closing and title transfer. Fees typically range from $2,000 - $2,500 since there are more contractual elements to inspect (including the original APS) compared to re-sale.

What should I expect while looking for an assignment?

As the assignee in an assignment sale transaction, we highly recommend that you fully read through the original APS with your lawyer to ensure a smooth transfer process. Keep in mind that you will be bound to the terms and conditions set out in the original contract – all of the risks, but also the rewards are passed on. Some of the liabilities include paying HST upon closing (unless you purchase for personal use), disbursing Land Transfer Tax (though first-time home buyers qualify for a rebate), providing the assignor with their deposits paid to date (potentially profits vs. original purchase price as well), and development/educational levy costs (these may be capped in the assignors original APS). You would usually encounter these same liabilities if you were to purchase the unit at the pre-construction phase years prior regardless, but at the assignment stage, there is little to no room for negotiation – all of the original contractual obligations transfer to the assignee. However, there are plenty benefits to purchasing an assignment sale, which include: selecting colours, upgrades and finishes (an assignee would have this opportunity if the purchase occurs approximately 1 year prior to construction completion), enrollment in the Tarion Warranty Program (legislated by the provincial government to protect the buyers of new construction), as well as access to brand new units located in the most desired areas and not available on the re-sale market, while eliminating the threat of other contesting buyers.

Overall, assignment sales are extremely intricate transactions which require your Realtor and lawyer to carry the utmost professionalism and expertise but can be very lucrative for both assignees and assignors. If you are currently searching for an assignment, would like to explore assignment opportunities, or have any questions, we are always happy to help!

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1 thoughts on "Condo Assignment - A Guide for Buyers & Sellers"

Really liked how you explained it all. Very well-articulated!

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What You Need to Know About Condo Assignment Selling and Buying

By Condo Culture

9 Primary Steps Involved in Selling a Condo Assignment

• Review the Terms of Your Agreement of Purchase and Sale
• Get Approval From the Builder to Ensure Your Unit Can Be Assigned
• List Your Assignment For Sale (Advertising on MLS is typically prohibited by the Developer)
• Have Your REALTOR® Field Buyer Offers and Negotiate the Best Deal Possible
• A First Deposit Is Collected and Held In Trust By Your Real Estate Brokerage or Lawyer
• Work Through the Conditions Of An Offer With Your Selling Team
• Builder Approval Needed From the Purchaser On Proof Of Financing
• A Second Deposit Is Collected - Typically the original 15% to 20% Deposit
• Remaining Money Is Received Once the Unit Closes - the Difference Between Your Original Purchase Price and the Assignment Sale Price

There are all sorts of intricacies with condo assignment sales and purchases, so it’s important to first connect to a brokerage and REALTOR® with lots of assignment transaction experience under their belt.

We have helped hundreds of clients with their assignment buying and selling needs, and our client’s excitement and enthusiasm when a transaction is completed is incredibly rewarding! We are the area’s premier condo selling and buying team and walk hand-in-hand throughout the entire assignment process with our clients. We have a few exciting condo assignment listings available right now at Station Park and Garment Street Condo, each one includes a detailed floor plan so you can understand what the final product will look like. If one or more of those assignments interest you, be sure to click on the “TALK TO A CONDO CULTURE EXPERT” button and provide your information so one of our specialists can reach out to you.

Before getting into the nitty-gritty details of condo assignments, let’s first touch on the basics of them, so you have a sound understanding of the terms and how they work.

Outlining What a Condo Assignment Sale Is

In its purest form, a condo assignment is a unit that was originally purchased by a buyer during the pre-construction phase and that buyer wants to sell it prior to the building’s construction being completed, before an occupancy date reached and the building has been officially registered. The original buyer may want to sell the condo due to changing financial circumstances, he or she originally intended to move into the unit but plans have changed, it’s an investor who has too many units and wants to sell one off, or for a variety of other reasons.

Each condo developer handles assignment options differently, and some don’t allow them at all, so it’s important that if you’re buying a pre-construction unit, you understand the circumstances around them in case you need or want to sell prior to the completion date.

When a pre-construction is first purchased by a buyer, an Agreement of Purchase and Sale (APS) is drafted which outlines the purchaser’s legal rights and obligations. The person who is selling a condo assignment is named the assignor and the buyer is designated to be the assignee. An assignment clause is typically included in the APS and the fee is usually in the $5K to $15K range, but every developer has its own fee and terms.

How An Assignment Deal Gets Finalized

A conditional offer and agreement between the assignor and assignee becomes legally binding once the first deposit is made by the assignee, and that amount is negotiable. The assignee has 10 days after making the first deposit to have his or her lawyer review all original documentation to ensure everything looks solid. One common clause to be aware of is unit upgrades and unpaid unit upgrades, so there are no financial surprises as the condo moves through its construction process. The assignee is typically responsible for any outstanding costs including unpaid upgrade expenses, but like most aspects of assignment deals, everything is negotiable. Once the lawyer review is completed and deal conditions have been met, the next deposit by the assignee is required - typically 15% to 20% of the sale price or whatever the assignor originally paid as a deposit. Once the developer approves the transaction or when the assignee receives a mortgage once the building has been registered and occupancy begins, then the difference in price between the pre-construction price and assignment sale price will be paid to the assignor. The assignee is also responsible for the typical real estate closing costs at this point including Tarion warranty enrolment fees .

Benefits for Assignors

Most notably, the seller of an assignment is often making some sort of a profit - how much that ends up being varies depending on current market conditions, how far along the development is, what the assignment fee was, HST and tax implications, and other factors.

The next benefit is that there are no closing costs because the sale is happening before the building has wrapped up construction, so no mortgage is involved and closing costs are non-existent.

Once the assignment is sold and the APS belongs to the new owner, the assignor receives money as outlined above and can use it as he or she pleases for real estate or otherwise. Want to sell your condo assignment? Be sure to connect with us to leverage our deep experience with selling assignments as we have thousands of active buyers engaged on the region's top condo specific search site: CondoCulture.ca, do email marketing to thousands of subscribers through our One List and weekly newsletter , promote listings on our social media accounts, feature listings in our Uptown Waterloo store windows, plus so much more to ensure the success of our condo assignment sellers.

Benefits for Assignees

A big benefit to buying a condo assignment is that you can get access to a development that’s likely already sold out. Station Park is one example - the first two towers sold out extremely quickly in 2019, but we have sold dozens of assignments in Tower 1 and Tower 2 to buyers who couldn’t get their hands on a unit initially, but got their opportunity through an assignment.

With the condo resale market white-hot and multiple offers on almost every listing, assignments provide a fantastic buying opportunity as there’s often less competition for this type of real estate purchase. Assignments typically can’t be listed on traditional marketing channels such as MLS so you tend to see that fewer potential buyers are aware of them. This means that Assignment Units can often be purchased for their list price or at least in that general range. At any given time, Condo Culture has a number of off-market, exclusive listings that cannot be found on MLS, Realtor.ca, or coming soon listings. Bottom line - working with our team of REALTORS® gives you an unfair advantage for tapping into these exclusive listings as they first become available.

There can also be some outstanding value buying opportunities if assignors need some capital relatively quickly and are extra motivated to sell fast. There might be some room to negotiate on the list price and a unit can even potentially be purchased below the current estimated market value. This sort of scenario is especially attractive if the occupancy date is just a few months away and the asset can be used to live in or lease out in the not too distant future. Be sure to leverage our condo assignment buying experience - we have literally sold dozens of them over the past few months, and hundreds throughout our company’s history.

Assignments and HST

The assignor will need to pay HST on the profit that he or she makes on a condo in addition to the deposit money that gets returned - on average, roughly 78% of those amounts are taxable, but each and every assignment deal is unique and should be supported by experienced professionals including lawyers and accountants.

Real estate is often a numbers game, and what we are increasingly seeing is the list price being adjusted to essentially bake in the HST expense that will need to be paid. So if an assignor wants to clear $x from the sale, our experts are calculating the estimated HST that will need to be paid and adding it in. Every assignment sale and situation is unique, and that’s where our team’s specialized expertise comes in handy, so an assignor won’t be surprised when it comes time to pay the government their fair share. However, we strongly recommend working with professional accountants who have significant assignment deal experience - we can provide you with a shortlist of our favourites should you decide to list yours for sale through Condo Culture. We can almost always provide a breakdown of financial insights to our clients, but again, we strongly encourage working with a professional accountant who is well versed in assignment transactions to receive the most accurate numbers.

End-users who are looking to buy assignments can potentially get a break when it comes to paying the HST, but as we outline below, every deal is different, assignment laws are evolving, and it’s so important to have an experienced accountant and lawyer on your team to know what potential options are at your disposal.

Top Legal Considerations and Clauses For Assignment Deals

Every assignment deal is different and unique in its own right, so it’s vitally important to hire a lawyer who has extensive experience with these types of transactions. Laws regarding assignments may change over time, so again, a lawyer who has this specific expertise will be key to your assignment selling and buying success. Our team has worked with several lawyers to help bring assignment deals to the finish line, and we are more than happy to make recommendations when the time comes for legal representation.

A big part of each assignment deal is that the deal isn’t officially completed until the project’s developer has given formal approval in writing, and during this time, the seller has the ability to cancel the sale if he or she decides to (this is a very rare occurrence). One of the most common reasons for this happening is the condo’s value is increasing rapidly and the seller may feel that he or she can get a better deal elsewhere to realize a larger profit. No profit is made on an assignment sale until the building is registered, and the deal officially closes. The assignor will get the first deposit and his or her 15% to 20% deposit back, but won’t get the additional money until the building’s registration event takes place. Legal terms such as these mentioned here are typical assignment deal standards, but each agreement certainly has its own, and your lawyer will need to go through every clause and sentence with a fine-tooth comb.

In most cases, MLS / Realtor.ca can’t be legally utilized for assignment listings (unlike resale properties), so the buyer has to come from elsewhere. Again, that’s why Condo Culture is incredibly valuable when it comes to assignments since we have a large buyer database to pull from and the region's most active condo search site, along with many different marketing channels to ensure our sellers can connect with quality buyers to maximize the final sale price.

You need a complete team between a real estate professional, lawyer, and accountant to support you whether you’re selling or buying an assignment. This type of real estate product is much different from a resale property as you’re essentially buying and owning an agreement until the condo is registered and reaches its occupancy date.

We have created resources on this important topic in the past, we outlined the benefits of condo assignments and provided information on what they are and how to manage the assets, and also how to assign a pre-construction condo .

We are the area’s condo assignment expert, so if you’re looking to sell or buy one of these units, be sure to reach out to us so we can explore potential options with your exciting goals at the forefront of it all. Also, feel free to stop by our Waterloo office (pictured above) right below Bauer Lofts at 191 King Street South in Waterloo for a conversation, our team would love to speak to you about any of your condo goals.

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What you need to know about buying an assignment condo

An assignment sale isn’t a typical real estate transaction and there are many important factors you need to know before buying an assignment condo. Regardless of the market conditions, assignment condos are usually difficult to sell, in part because they have much higher upfront requirements than regular sales. For the same reason, it presents a great opportunity for a buyer to purchase without facing overwhelming competition. Below is what you need to know about buying an assignment condo.

What is an assignment sale?

An assignment sale is a transaction in which a buyer (the “Assignor”) has purchased a property and then sells their interest in that property to another buyer (the “Assignee”) prior to the property closing. Essentially, the Assignor is not actually selling the property; they are selling their contract along with the rights and obligations of the original agreement with the Builder or original seller. While it is possible to have an assignment sale of a pre-construction house or a resale property, assignment sales in Toronto are most common in pre-construction condos.

The assignor is the original buyer of the condo unit in the pre-construction phase. In an assignment sale, the assignor is the seller.

The assignee is the buyer of the assignment condo and takes over all rights and responsibilities of the original contract.

Cons of buying an assignment condo

• You, as the buyer (assignee), require a substantial amount of cash in order to buy an assignment condo. Typically in the range of 30% to 40% of the purchase price, see the cost breakdown below for details.
• You may be approved for a mortgage when you make the purchase of an assignment condo, but the transaction closes much later. While you can occupy your unit prior to the final closing in the interim occupancy phase, you only get your final mortgage approval at the final closing. The interim occupancy phase may last for many months and requires you to pay the interim occupancy fee ( Tarion provides a great explanation on interim occupancy ). If your financial circumstances change in this period you could have a hard time getting a mortgage.
• Usually, there is only one assignment sale permitted. So you cannot resell the condo until the final closing and registration of the building.

Pros of buying an assignment condo

• You can buy a brand-new condo without having to wait many years for it to complete.
• There is usually a good amount of inventory to choose from and you can get a better price than comparable resale properties. This is especially important if the market is super hot, as there is less competition.
• You don’t have to worry about a project being canceled, leaving you out to dry. Once assignments are allowed by the builder, the building is usually already well underway.

Looking to buy an assignment condo?

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Costs Breakdown

Payment terms vary from one agreement to the next but the chart below will give you some insight.

Assignments and renting

If you are buying an assignment condo in order to rent it out be sure to mention that to your lawyer. The builder’s contract may have very specific conditions concerning when and if you can rent the unit out during the interim occupancy period. Also, the builder may not qualify for a portion of the HST rebate if you’re an investor. However, subject to certain limitations the assignee may qualify for an HST rebate after closing. To get exact details on this I would strongly recommend speaking to a lawyer and an accountant before you start searching for assignment condos.

All assignment sales should be conditional upon your lawyer reviewing the entire assignment agreement. Part of that will be all of the contents and disclosures of the original agreement of purchase and sale between the Assignor and the builder.

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10 Essential Things to Know About Real Estate Assignment Sales (for Sellers)

What’s an assignment?

An assignment is when a Seller sells their interest in a property before they take possession – in other words, they sell the contract they have with the Builder to a new purchaser. When a Seller assigns a property, they aren’t actually selling the property (because they don’t own it yet) – they are selling their promise to purchase it, along with the rights and obligations of their Agreement of Purchase and Sale contract.  The Buyer of an assignment is essentially stepping into the shoes of the original purchaser.

The original purchaser is considered to be the Assignor; the new Buyer is the Assignee. The Assignee is the one who will complete the final sale with the Builder.

Do assignments only happen with pre-construction condos?

It’s possible to assign any type of property, pre-construction or resale, provided there aren’t restrictions against assignment in the original contract. An assignment allows a Buyer of a any kind of home to sell their interest in that property before they take possession of it.

Why would someone want to assign a condo?

Often with pre-construction sales, there’s a long time lag between when the original contract is entered into, when the Buyer can move in (the interim occupancy period) and the final closing. It’s not uncommon for a Buyer’s circumstances to change during that time…new job out of the city, new husband or wife, new set of twins, etc. What worked for a Buyer’s lifestyle 4 years ago doesn’t always work come closing time.

Another common reason why people want to assign a contract is financial. Sometimes, the original purchaser doesn’t have the funds or can’t get the financing to complete the sale, and it’s cheaper to assign the contract to a new purchaser, than it is to renege on the sale.

Lastly, assignment sales are also common with speculative investors who buy pre-construction properties with no intention of closing on them. In these cases, the investors are banking on quick price appreciation and are eager to lock in a profit now, vs. waiting for the original closing date.

What can be negotiated in an assignment sale?

Because the Assignee is taking over the original purchaser’s contract, they can’t renegotiate the price or terms of the contract with the Builder – they are simply taking over the contract as it already exists, and as you negotiated it.

In most cases, the Assignee will mirror the deposit that you made to the Builder…so if you made a 20% deposit, you can expect the new purchaser to do the same.

Most Sellers of assignments are looking to make a profit, and part of an assignment sale negotiation is agreeing on price. Your real estate agent can guide you on price, which will determine your profit (or loss).

Builder Approval and Fees

Remember that huge legal document you signed when you made an offer to buy a pre-construction condo? It’s time to take it out and actually read it.

Your Agreement of Purchase & Sale stipulated your rights to assign the contract. While most builders allow assignments, there is usually an assignment fee that must be paid to the Builder (we’ve seen everything from $750 to $7,000).

There may be additional requirements as well, the most common being that the Builder has to approve the assignment.

Marketing Restrictions

Most pre-construction Agreements of Purchase & Sale from Toronto Builders do not allow the marketing of an assignment…so while the Builder may give you the right to assign your contract, they restrict you from posting it to the MLS or advertising it online. This makes selling an assignment extremely difficult…if people don’t know it’s available for sale, how they can possibly buy it?

While it may be very tempting to flout the no-marketing rule, BE VERY CAREFUL. Buyers guilty of marketing an assignment against the rules can be considered to have breached the Agreement, and the Builder can cancel your contract and keep your deposit.

We don’t recommend advertising an assignment for sale if it’s against the rules in your contract.

So how the heck can I find a Buyer?

There are REALTORS who specialize in assignment sales and have a database of potential Buyers and investors looking for assignments. If you want to be connected with an agent who knows the ins and outs of assignment sales, get in touch…we know some of the best assignment agents in Toronto.

What are the tax implications of real estate assignment?

Always get tax advice from a certified accountant, not from the internet (lol).

But in general, any profit made from an assignment is taxable (and any loss can be written off). The new Buyer or Assignee will be responsible for paying land transfer taxes and any HST that might be due.

How much does it cost to assign a pre-construction condo?

In addition to the Builder assignment fees, you will likely have to pay a real estate commission (unless you find the Buyer yourself) and legal fees. Because assignments are more complicated, you can expect to pay higher legal fees than you would for a resale property.

How does the closing of an assignment work?

With assignment sales, there are essentially 2 closings: the closing between the Assignor and the Assignee, and the closing between the Assignee and the Builder. With the first closing (the assignment closing) the original purchaser receives their deposit + any profit (or their deposit less any loss) from the Assignee. On the second closing (between the Builder and the Assignee), the Assignee pays the remaining amount to the Builder (usually with the help of a mortgage), and pays land transfer taxes. Title of the property transfers from the Builder to the Assignee at this point.

I suppose it could be said that there is a third closing too, when the Buyer takes possession of the property but doesn’t yet own it…this is known as the interim occupancy period. The interim occupancy occurs when the unit is ready to be occupied, but not ready to be registered with the city. Interim occupancy periods in Toronto range from a few months to a few years. During the interim occupancy period, the Buyer occupies the unit and pays the Builder an amount roughly equal to what their mortgage payment + condo fees + taxes would be. The timing of the assignment will dictate who completes the interim occupancy.

Assignments vs. Resale: Which is Better?

We often get calls from people who are debating whether they should assign a condo they bought, or wait for the building to register and then sell it as a typical resale condo.

Pros of Assigning vs. Waiting

• Get your deposit back and lock in your profit sooner
• Avoid paying land transfer taxes
• Avoid paying HST
• Maximize your return if prices are declining and you expect them to continue to decline
• Lifestyle – sometimes it just makes sense to move on

Cons of Assigning vs Waiting

• The pool of Buyers for assignment sales is much smaller than the pool of Buyers for resale properties, which could result in the sale taking a long time, getting a lower price than you would if you waited, or both.
• Marketing restrictions are annoying and reduce the chances of finding a Buyer
• Price – What is market value? If the condo building hasn’t registered and there haven’t been any resales yet, it can be difficult to determine how much the property is now worth. Assignment sales tend to sell for less than resale.
• Assignment sales can be complicated, so you want to make sure that you’re working with an agent who is experienced with assignment sales, and a good lawyer.

Still thinking of assignment your condo or house ? Get in touch and we’ll connect you with someone who specializes in assignment sales and can take you through the process.

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Raj Singh says:

What can be things to look for, especially determining market value for an assigned condo? I’m the assignee.

Sydonia Moton says:

Y would u need a lawyer when u buy a assignment property

Gideon Gyohannes says:

Good clear information!

Who pays the assignment fee to the developer? Assignor or Assignee?

Thanks Gideon 416 4591919

Melanie Piche says:

It’s almost always the Seller (though I suppose could be a point of negotiation).

Fiona Rourke says:

If there are 2 names on the agreement and 1 wants to leave and the other wants to remain… does the removing of 1 purchaser constitute an assignment

Brendan Powell says:

An assignment is one way to add or remove people from a contract, but not the only way…and not the simplest. Speak to your lawyer for advice on what makes the most sense for your specific situation. For a straightforward resale purchase you could probably just do an amendment signed by all parties. If it’s a preconstruction purchase with various deposits paid, etc it could be more complicated.

Katerina says:

Depends on the Developer. Some of them remove names via assignments only.

Haroon says:

Is there any difference in transaction process If assigner or seller of a pre constructio condo is a non resident ? Is seller required to get a clearance certificate from cRA to complete the transaction ?

Nathalie says:

Hello , i would like to know the exact steps for reassignment property please.

Amazing info. Thanks team. I may just touch base with you when my property in Stoney Creek is completed in. 2020. I may need to reassign it to someone Thanks

Victoria Bachlowa says:

If an assignor renegs on the deal and refuses to close because they figured out they could get more money and the assignment was already approved by the builder and all conditions fulfilled what can the Assignee do. I have $33,000 dollars in trust in the real estate’s trust fund. They sent me a mutual release which I have not signed. The interim occupancy is Feb. 1 and the closing is schedule for Mar. 1, 2019. I have financing in place, was ready to move in Feb. 1 and I have no where to live.

Definitely talk to your lawyer right away. They’ll want to look at your agreement of purchase and sale and will be able to advise you.

With assignment sales, there are essentially 2 closings: the closing between the Assignor and the Assignee, and the closing between the Assignee and the Builder. With the first closing (the assignment closing) the original purchaser receives their deposit + any profit (or their deposit less any loss) from the Assignee. Can I assume that these closing happen at the same time? I’m not sure how and when I would be paid as the Assignor.

What happens to the deposits or any profits already paid if the developer cancels the project after an assignment?

Hi, Did you get answer to this? I did an assignment sale last year and now the builder is not completing apparently and they are asking for their money back. Can they do that? After legal transactions, the lawyer simply said “the deal didn’t go through”. Apparently builder and the person who assumed the assignment agreed on taking out the deal. What do I have to pay back after it was done a year ago

This is definitely a question for your lawyer – as realtors we are not involved in that part of the transaction. I would expect that just as the builder would have to refund your deposits, you would likely need to do the same…but talk to your lawyer. As to whether the builder can cancel a project, yes they always reserve that right (but the details of how and under what circumstances would be in your original purchase agreement). It’s one of the annoying risks in buying preconstruction!

I completed the sale of my assignment in Dec 2015 however the CRA says I should be reporting the capital income in 2016 when the assignee closed his deal with the developer in July 2016. That makes no sense to me since I got all my money in Dec 2015. Can you supply any clarification on that CRA policy please?

You’d have to talk to the CRA or an accountant – we’re real estate agents,so we can’t give tax advice.

Hassan says:

Hello, You said that there are two closings. The first one between the assignor and the assignee and the second one between the builder and the new buyer (assignee). My question is that in the first closing does the assignee have to pay the assignor the deposit they have paid and any profit in cash or will the bank add this to the assignee’s mortgage?

The person doing the assigning usually gets their money at the first closing.

Kathy says:

What is the typical real estate free to assign your contract with the builder ?

Hi Kathy While we do few assignments (as they are rarely successful, and builders do not make it easy), in past we have charged more or less the same as we do for a typical resale listing. While there are elements to assignments that should be easier than a resale (eg staging), many other aspects of assignments are much MORE time-consuming, and the risk much higher since attempts to find a buyer for assignments are often unsuccessful. It’s also important to note that due to the extra complication, lawyer’s fees to assign are typically higher than resale as well–although more $ for the purchase side vs the sale side.

Mitul Patel says:

If assignee has paid small amount of deposit plus the original 25% deposit that the assignor has paid to the builder and gets the Keys to the unit since interim possession has been completed, when the condo registration is done and assignee is getting mortgage from the Bank or Pays the remaining balance to the Builder using his savings and decides not to pay the Balance of the Profit amount to Assignor, what are the possibilities in this kind of scenario?

You’d need to talk to a lawyer to find out the options.

David says:

How much exactly do brokers get paid at sale of Assignment? i.e. Would the broker’s fee be a % of your assignment selling price or your home’s selling price? I’m really looking for a clear answer.

I am using this website’s calculator associated with selling your home in Ontario. But there is no information on selling assignments. https://wowa.ca/calculators/commission-calculator-ontario

Realtors set their own commission, so there is no set fee- that website is likely the commission that that agent offers. We often see commissions of 4-5% for assignments. The fee is a % of the price of the assignment – for example, you originally bought for $500K; you’re now assigning for $600K – commission would be payable on the $600K.

Candace says:

Question: if i bought a pre construction condo, can i sell it as soon as it closes or do i have to live in it for 1 year after closing in order to avoid capital gains taxes?

Or does the 1 year start as soon as you move in?

I would suggest you talk to your accountant re: HST credit implications and capital gains, but if you sell it for more than you paid for it, capital gains usually apply.

You mention avoid paying HST when you assign your property. What is the HST based on? It’s not a commercial property that you would pay HST. Explain. Thanks.

HST and assignments are complex and this question is best answered specific to your situation by your accountant and real estate lawyer. In some cases HST is applicable on assignment profits – more details can be found on the CRA website here:

https://www.canada.ca/en/revenue-agency/services/forms-publications/publications/gi-120/assignment-a-purchase-sale-agreement-a-new-house-condominium-unit.html

If you are a podcast listener, the true condos podcast is also a great resource.

https://truecondos.com/cra-cracking-down-on-assignments/

heres one for your comment, purchase pre construction from builder beginning of 2021, to be finished end of 2021, (semi detached) here we are end of 2022, both units are now ready. Had one assigned but because builder didnt accept within certain time frame(they also had a 90 day clause wherein we couldnt assign prior to 90 less firm closing date (WHICH MOVED 4 TIMES). Anyrate now we have a new assinor but the builder says we are in default from the first one and wants 50k to do the assignment (the agreement lists the possibility of assigning for 12k) Also this deal would include us loosing our whole deposit and paying the 12k(plus fees) would be in addition too the 130k we are already loosing. The second property we are trying to close but interest rates are riducous, together with closing costs(currently mortgage company is asking that my wife be added to that one, afraid to even ask this builder. Any advice on how to deal with this asshole greedy builder? We are simply asking for assignment as per contract and a small extension for the new buyer(week or two) Appreciate any advice. Thank you

Dealing with builders/developers can be extremely painful, much worse than resale transactions in our experience. Their contracts are written to protect THEM. Unfortunately all I can say is follow the advice of your lawyer.

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A Comprehensive Guide To Selling Your Assignment Condo

Trying to resell your preconstruction condo before closing? This blog is for you. Assignment sales are more complicated compared to their resale counterparts, but with some guidance, the process is easy. 

An assignment sale is a sale where the original buyers of a condo or home resell their contract to another buyer before closing. The most common type of assignment is a preconstruction condo assignment. Preconstruction condo assignments are prevalent because of the time lag between purchasing the home and the move-in date. While condo assignments might be the most popular type of assignment, any real estate contract is assignable. This blog is going to discuss condo assignments since they are the most prevalent, but *most* of the details apply to assigning a home or commercial preconstruction property as well.

In the GTA, our preconstruction market is booming. Toronto alone sees around 30,000 new home completions a year. Around 70% of preconstruction purchasers are investors. The remaining 30% of buyers are end-users who plan to use the property themselves. However, many investors, and end-users, might decide to sell the property before the final closing. Since there is no title to transfer, these buyers have to assign their contract to the next buyer. 

What is a preconstruction condo assignment sale?

An assignment is when the original buyers of a preconstruction condo decide to sell their contract with the builder to another buyer before the home is complete. This differs from a regular real estate transaction because we are not buying or selling a home, rather we are buying or selling an interest in a contract to purchase a home once it’s complete. Essentially, the buyers are taking over the seller’s place in the contract with the builder. The new buyer pays the seller their deposits back, as well as any profit. In trying times, there might not be profit, and in extreme cases, the sellers might walk away from their deposits.

Assignments are like the wild-west equivalent of real estate. The buyers are called assignees, the sellers are called assignors, and there is no fixed closing date! You heard that right, the buyer purchases the contract not knowing whether it will close in 4 weeks, 6 weeks, or 8 weeks. In many cases, the buyers only have a rough estimate for the final closing of the property as well.

Every builder’s agreement of purchase and sale is different, so every assignment sale is different. You need legal and accounting advice before, during, and after an assignment sale. A real estate agent’s job in the transaction is to find a buyer, negotiate the contract, and coordinate the sale from start to finish. Your real estate agent might also connect you with accountants, and lawyers who can help make the necessary legal and tax declarations.

The Builder’s Role In Assignments:

Sellers often misinterpret their rights to assign in their purchase agreements with their builder. In the showroom, builders are quick to say their contract is assignable if you want to flip your contract before closing. However, builders can control when, how, and to whom you sell your contract.

It’s important to follow the rules set out by your builder when marketing your assignment. Deviating from the builder’s purchase contract can result in you losing your deposits!

Since all preconstruction home assignments require the builder’s consent, it’s important to prepare the file for their consent at your earliest convenience. The builder will want the same information they collected from you when you first purchased the home: full names, current address, sin, IDs (front and back), telephone number, emails, mortgage pre-approval letter,  lawyer information… they will also want the buyer to replace all your cheques. Those could be cheques for future deposits, or cheques for interim occupancy fees. It’s important to advise the buyers to prepare all of this information before submitting the file to the builder, so there is limited delay assigning the property.

How do you sell an assignment condo?

The first step to selling your assignment is to review your original purchase agreement. The builder’s purchase agreement outlines restrictions and fees associated with assignments. An experienced realtor or lawyer can also review the contract with you. Next, email your builder’s customer service account and ask for permission to advertise the property for sale.

It’s important to thoroughly understand your preconstruction agreement, because some incentives offered to you might not be transferable to the buyer. Builders often offer incentives to direct buyers to stimulate sales. However, they sometimes make these incentives non-transferable. That could mean the free design dollars, or the capped development levies might not be available to the next buyer. It’s important not to advertise incentives that aren’t transferable.

The second step is to hire a Realtor to advise you on current market conditions. Your realtor will discuss marketing options as well as help you decide on a market price. There is a strong chance the builder will prohibit MLS listings of their properties. However, many builders will allow online marketing in places like Facebook, Instagram, WhatsApp, and brokerage websites.

While Realtor.ca is the best marketing platform out there, buyers looking for assignments know to look elsewhere. Don’t worry if you cannot market on realtor.ca. One of the advantages of Sotheby’s International Realty Canada is our vast marketing platform outside of Realtor.ca

Important Dates:

The first date you need to consider is the assignment closing date. This is the date the assignee officially takes over the contract from the assignor. On average, assignment closing happens within 3-6 weeks after an offer is accepted. This is when the assignee becomes the new owner of the property, and the assignee receives some of their deposit/profit back.

The second date to consider is the interim occupancy date. When buying preconstruction condos, there is usually a period between when the unit is ready for occupancy and before the building has registered with the city. Since no title exists yet, you cannot get a mortgage. Instead, during this time, you move in and pay the builder rent until final closing. Interim occupancy can last from months to years. During interim occupancy, buyers have the chance to view the unit which could help sell the home. Interim occupancy is when most assignment sales take place.

The third date you need to know is the final closing date. This is the date that the building registers with the city and the assignee pays the builder the balance of the purchase price, land transfer taxes, closing costs etc. Sometimes, assignees will negotiate to pay some of the assignors profit on final closing date, so they can roll it into the mortgage.

What Is Negotiable During An Assignment Sale:

Since the contract with the builder is already firm and binding, there can be no changes to that contract. The buyer is merely stepping into the seller’s shoes, in exchange for their deposits and profits. The assignment contract negotiates the purchase price and the deposit structure. The purchase price will indicate how much profit (or loss) the assignor receives in the transaction.

The payment schedule of an assignment is dependent on whether there is a profit or not. If the seller is making a profit or breaking even, then the buyers are expected to refund the full deposit paid-to-date by the sellers. In many cases, that is 20% of the original purchase price. If the seller is losing money on the assignment, then the buyers will bring a deposit for less than the deposits already paid to the seller. The deposit is due upon acceptance of the offer.

If there is profit, the assignee and assignor will negotiate when that profit is paid out. Remember when we mentioned the three important dates? the assignment closing, the interim occupancy date, and the final closing date? well, when it comes to negotiating when to pay the assignor their profit, we usually pick one of these dates to pay out the assignor’s profit.

The expected final closing is an important consideration for buyers when negotiating when to pay the assignor’s profit. The longer the final closing date, the more risk for the buyer. The reason? there is always a small risk the condo developer cancels the project. If a condo developer cancels the project, the buyers are returned their deposits paid-to-date. However, if a buyer has paid an assignor $100,000 in profit, that money is gone. So if there is a long closing, expect buyers to protect their final deposits by delaying it till interim occupancy, or final closing.

Conditions In Assignment Sales

After finding a buyer, the first hurdle to overcome is negotiating a fair deal. Once both parties are satisfied with the terms of the contract, we make the deal conditional on the lawyer’s review. This gives both the buyer and seller a chance to have the assignment contract, as well as the original purchase agreement, reviewed by a lawyer. Once both parties have spoken to their lawyers and are happy to continue, we put the deal to the developer to approve the new buyer. This condition usually lasts around 30 days. If the developer does not approve the new buyer within 30 days, the deal will become null and void, unless the buyer and seller both agree to extend that condition.

Once the developer accepts the buyer, the assignment will happen within a few days. Most contracts outline an assignment closing within 5 business days after the developer gives their consent. Some buyers will also include financing conditions in their assignment offer, so they have time to run the deal past their mortgage broker. However, most assignments are purchased with only lawyer review and developer consent conditions.

Here’s an example of selling an assignment for profit vs selling an assignment for a loss:

Below are four examples of the deposit/profit payment schedule for assignments.

Example 1 is a fantastic example of a preconstruction condo that appreciated $100,000. In this typical example, the assignee and assignor agreed to a deposit big enough to return all of the assignor’s deposits, as well as some extra profit to cover Realtor commissions. This deposit is usually transferred to the listing brokerage within 1 day of the offer being accepted and is released to the assignor on assignment closing. In this example, the assignor and assignee also agreed to pay the seller the rest of their profit at the final closing.

Example 2 shows the same conditions for the sale, except the assignee agreed to pay the assignor their full deposit and all their profit on the assignment closing date, instead of the final closing date.

Example 3 looks at an assignment where the assignor is taking a $100,000 loss. Instead of being paid their whole deposit on assignment closing, they are paid their deposit minus the difference between the purchase price and the sale price.

Example 4 is a rare case, where the market has turned significantly and the assignor is looking to transfer their assignment for $0. This means the assignor is walking away from all their deposits and will take no money to transfer their contract to the assignee.

What is the commission on an assignment condo sale:

The major fees when selling an assignment include the builder’s assignment fee, real estate commissions, and tax on the profit. Builder’s assignment fees usually range from $1500-$25,000 (in some extreme cases they go as high as $80,000). The assignor usually pays both the assignor and the assignee’s realtor commissions. The commission is something to negotiate with your agent. The total commission is usually 5% or less of the final sale price (which in some cases is more than the original purchase price, but sometimes it’s less than the original purchase price).  There are likely taxes such as income tax, capital gains tax, or HST on the sale as well. Speak to your accountant about taxes due on the assignment sale.

Do you pay taxes on an assignment sale?

The taxes on assignments are simple, however, buyers and sellers often confuse the HST taxes. That’s because there are two different HST taxes when talking about preconstruction assignments. Let’s clarify this! All new homes are subject to HST, however, end-users don’t notice the HST tax because the builder pays it and claims a $24,000 rebate on the end-user’s behalf. Alternatively, investors who purchase a pre-construction home are charged around $24,000 in HST, and are then able to claim a rebate for the HST they paid, if they rent the property out for one year. There are situations where an assignment will lose its eligibility for the HST rebate. If someone has lived in the home during interim occupancy, it will no longer be eligible for the end-user HST rebate.

The second HST tax we discuss when selling an assignment is the HST due on the profit. In many cases, the profit is subject to a 13% HST tax. In some cases, even the return of deposits is subject to HST.

The third tax is the income or capital gains tax on the profit. Any real estate property that is not your primary residence, as well as any business venture, is taxable as either a capital gain or as income. It’s really important to speak to an accountant before selling your assignment. Only an accountant can advise you whether you owe HST, capital taxes, or income taxes on your assignment sale.

Is it better to sell an assignment or wait till the condo is ready?

The pros to assigning a condo:

• Receive your deposits and profit sooner
• Avoid market risks. Savvy investors might look to assign their property if they sense the market might depreciate in the coming months/years.
• Avoid paying closing costs (land transfer taxes, development levies, utility hookups, and more). These usually come to a little more than 5.5% of the purchase price
• No mortgage or financing required
• Minimize holding costs (if you sell before interim occupancy or before final closing, there are no property taxes, maintenance fees, utility fees, insurance, mortgage, etc)

Cons to assigning a condo

• Developer restrictions (limiting the marketing of the property, limiting when they are accepting assignments)
• Market perception and buyer’s hesitancy when buying a property sight-unseen
• Market fluctuations suppressing buyer demand
• Limited buyer pool and most of the buyers are investors who want a good deal
• Usually sell for a lower price than comparable resale properties
• Financing challenges for the buyer if the property does not appraise at the new purchase price
• Potentially more taxes compared to closing and reselling

The most common mistakes when selling an assignment:

Hiring the wrong representation, or not relying on professional advice:.

As active realtors in the assignment market, we come across quite a few mistakes. But most of them could be avoided if the buyers and sellers were represented by experienced realtors and lawyers. The agreement of purchase and sale for an assignment is very different compared to an agreement of purchase and sale for a resale home. One of the most common mistakes we see from buyers and sellers is assuming the paperwork their realtors drafted is correct, and forgoeing their right to have their lawyer review the assignment paperwork.

Poor communication/understanding:

This happened to my assignment buyers recently. They purchased a home where the seller’s representative told us the finishes had not been chosen yet. We protected our buyers by including clauses to that degree. However, a few days after the assignment closing, we learned the sellers chose the finishes a few days before closing. Luckily, the developer allowed the buyer to make changes to the finishes at an additional fee.

Ignoring deadlines or dragging your feet:

Assignments come with a lot of moving deadlines, and there are a lot more parties involved compared to a resale property. Always return paperwork and signatures as soon as possible. Compared to a resale property where the only parties are the buyer, seller, and their agents and lawyers, an assignment involves the developer, the developer’s lawyers, the buyer and seller agents, and the buyer and seller lawyers. If everyone took 3 days to return paperwork, the conditional period would lapse and the deal would become null and void.

Incomplete Buyer Vetting:

Buying an assignment requires the assignee to have their mortgage preapproval, as well as their purchase funds available very shortly. If the assignee does not have a mortgage preapproval on hand, it could delay the developer accepting the assignment. If they do not have their funds available it could delay the quick closing as well.

It’s important to thoroughly vet buyers because some builders require the assignor to close in the rare chance the assignee cannot close.

Misunderstanding fees:

Builder’s contracts are not standard forms, and their deposit structures and closing fees can vary from site to site. There are a lot of potential fees when buying and selling assignments and they include, but are not limited to: deposits, seller’s profits, upgrades, lawyer’s fees, interim occupancy rent, utility set-up fees, development levies, realtor commissions, accountant fees, HST, and income taxes. These fees can vary from deal to deal, and when they are payable is different in every assignment. For example, some developers require the homeowner to pay for upgrades when they are chosen, and others charge for the upgrades at final closing.

If you have a preconstruction condo or home that you are thinking of assigning. Feel free to reach out to us for some advice and insight.

Related posts.

Everything you need to know to sell your preconstruction condo assignment

6 important facts to consider when selling a preconstruction condo.