By Martin Rumack

The HST New Housing Rebate was established and is governed by the federal Excise Tax Act and is aimed primarily at those who buy a new or substantially renovated home from a builder. As with all tax rebate programs, there are certain eligibility requirements; many of these are found in s. 254 of the Excise Tax Act.

For example, one of these requirements in section 254(2)(e) mandates that there must be a transfer of “ownership” of the home to the particular individual who is claiming the rebate after the construction or renovation is substantially completed; normally this would be the same person who signed the Agreement of Purchase and Sale.

But on at least two recent occasions the courts have had to consider unique scenarios that called into question whether the rebate is still available if title to the property is transferred not to the person signing the Agreement of Purchase and Sale, but to someone else.



The most recent case is Kandiah v. The Queen, 2014 TCC 276, where the Tax Court of Canada considered a somewhat unusual scenario. The husband had signed an agreement to buy a new home, but for various reasons the title to the home was put only in his wife’s name on closing.  The husband nonetheless applied and received $24,000 in the New Housing Rebate, which was credited to the developer.  However, his eligibility for the rebate was later re-assessed by the Minister of National Revenue. He was declared ineligible and it was requested that the money be returned.

In evaluating these facts against the rebate eligibility requirements, the court considered its own prior decision in a case called Rochefort v. The Queen, 2014 TCC 34.  That case had different and unique facts, but it remained relevant because the court endorsed what it called an “expansive view” of the concept of ownership and differentiated between “title” and “ownership” for rebate eligibility purposes.

Specifically, the court established that although the question of who has legal title remains a significant factor in determining ownership, the two concepts are not identical:   whether someone has ownership must be determined in each case by looking at the factual context and the wording of the legislation.  More to the point, the court in Rochefort concluded that neither entering into an Agreement of Purchase and Sale nor receiving title to a property is sufficient on its own to constitute ownership for the purpose of qualifying for the rebate under s. 254(2)(e) of the Act.

Returning to the scenario in Kandiah and applying the criteria in Rochefort, the court decided that the husband had not obtained sufficient rights in the property to constitute ownership, and this included the fact that his name did not actually go on title.  As such, he could not claim the rebate under s. 254(2)(e).

It should be noted that one of the key distinguishing factors in Rochefort – and one that was not present in Kandiah – was that the home purchased was intended to be a matrimonial home occupied by both husband and wife.  Even though the wife was not put on title, she and the husband both had certain rights in connection with it, arising under the Ontario Family Law Act, including some right to convey the property.  The Rochefort court also concluded, based on certain background facts, that the husband had attained a “beneficial” interest in the property even though his name was not on title, and this factored into the court’s decision as well.

What’s the take-away from all this?   It’s simple. In order to be eligible for the New Housing Rebate, make sure that each person who signs the Agreement of Purchase and Sale is also listed on title to the property.  It sounds basic, but it doesn’t always happen this way, and being unaware of the distinction may cost the chance to claim a rare and hefty rebate from the government.

2 COMMENTS

  1. LOSING THE REBATE

    As this decision shows, Buyers who have others take title with them for mortgage purposes may disqualify themselves from receiving the entire HST rebate.
    Angela owned a Mississauga property and wanted to buy a new house which she was to occupy as her primary place of residence with her daughter. She and her aunt signed an APS with the builder but her income was too low to qualify for the mortgage. The APS was amended by replacing her aunt, due to credit issues, with her uncle; Angela and her uncle became the registered joint owners of the house. She made all the mortgage payments and house expenses and the uncle was on title merely for mortgage purposes. They did not have a written trust agreement. As the bank insisted, the uncle was not merely a guarantor but was a primary debtor of the mortgage on the home; he did not live there but lived in a nearby home.
    Section 254 of the Excise Tax Act deals with the new housing rebate. Each individual purchaser must satisfy the requirements of intending to acquire the home as his/her primary place of residence.
    Since the uncle was not using this as his primary place of residence, or otherwise exempt, Angela was not eligible for any part of the rebate.
    Heneao v. The Queen 2015 TCC 81

    MERV’S COMMENTS

    Such are the intricacies of our tax laws and how people can get trapped by banking requirements as to who must be registered on title rather than just be a guarantor. That could also create inheritance issues if Angela dies before her uncle.
    Before signing an APS, applying for their loan and closing the transaction, Buyers should use the services of their knowledgeable acquisition team. That includes their REALTOR®, lawyer and tax advisor. However, in my experience many new home buyers go through the buying and lending process without any professional advice. That can be an expensive oversight.

  2. Great reminder. No doubt many of us in the field will encounter this very situation so be careful “guaranteeing” that a purchaser will get a rebate.

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