There are various forms of ownership structures, some involving single purpose corporations, partnerships, joint ventures, co-tenancies or trusts. Mixed use developments often require more complicated ownership structures, particularly where the various elements of the development will be retained or operated by different parties. For example, if the objective of the purchase is for development and sale, a simple ownership structure might be most appropriate whereby a bare trustee or nominee owns the land (with or without significant assets) holding the land for an underlying (usually undisclosed) beneficial owner.
However, when purchasing the land but retaining all or part of the developed property as an income source, a multi-layered ownership structure where the beneficial owner is “buried” under different entities for tax purposes, as well as for lower risk exposure, may be more appropriate. Further, where the purchaser is interested in certain types of business operation, a partnership or joint venture structure may be more appropriate to bring the experienced developer client together with the additional resources needed for that particular type of project.
From a risk tolerance perspective, it is important to consider the position of each entity in the ownership structure and how it may be exposed to financial or other risks through its involvement in the development. Distinct from contractual or financial liabilities or obligations under the lender’s security documentation, there may be other legally binding or statutory obligations that arise under legislation applicable to the development to be considered, such as for example, under the Construction Lien Act, the Condominium Act, 1998, employment or planning legislation and/or other applicable legislation. All of these issues should be canvassed thoroughly with your solicitor when planning your next development. In summary, before finalizing the purchase agreement, give careful consideration to the proposed ownership structure and the financial status and business nature of the entity(ies) that will act as title holder, beneficial owner, borrower, guarantor or business operator. Consider these four points for each entity involved in the ownership structure:
- What is this entity’s financial strength and assets – will these be sufficient? Do the assets need protection?
- What are its present and future borrowing needs – how will these be impacted by its involvement in this development?
- What are the entity’s risks if involved – financial or otherwise? Are these risks appropriate or reasonable?
- Consider the business of each corporate entity – how will its relationship in this project affect its business objectives.