With over 20 years of Real Estate experience and over ten thousand deals closed, we have come across most of the issues that come up in closing a Real Estate deal. To help our clients we publish a newsletter “Title Tips” to answer questions and keep closings smooth. Below are the most common questions and issues we find.
Disclaimer: The information provided on this website is not intended and should not be relied on as legal advice. Feel free to call John Zinati to discuss your particular situation today.
Even though the housing market has slowed during the global COVID-19 pandemic, the industry has adapted to the challenges and is taking advantage of online tools to accommodate people who are still interested in buying or selling. Buyers who already own a home will need to decide whether to buy a new house before selling the old one, or vice versa.
Here’s what you need to know about how to buy a house while selling your own in Canada.
Firstly, we hope you and all of your families are doing well and observing as much as possible the directive to stay home and work from home as much as you can. These are difficult times and this is the best way to get through them.
However, although most of us are home as much as possible, many of you have questions about the impact of Covid-19 measures on existing or new closings. Below is the essential information that you need to know. The Bottom Line is that Real Estate transactions are still closing:
- The Land Registry Office and Teraview system are digital and there is no expectation that they will be shut down at this time.
- Lawyers have been declared an essential service and as such can remain open to complete real estate closings, although many are adjusting to working from home.
- The Law Society has relaxed rules on Commissioning Affidavits and Declarations so lawyers are allowed to Commission sworn documents and Identify clients remotely using digital signatures and video interviews. Lawyers are signing clients remotely and banking online as much as possible. Also, the current circumstance has people thinking about estate planning and Wills, which often requires making sure title is held in joint tenancy so that if one person passes away the property automatically passes to the survivor. The Ministry of the Attorney General has advised that an emergency Order In Council has been made under s. 7.1 of the Emergency Management and Civil Protection Act with respect to the virtual commissioning and execution of wills. This means that people can both have their Wills and any Title Transfer required completed virtually.
- Lenders are allowing lawyers to sign their documents through digital signature and remotely on mortgages for purchases and refinances, although some lenders are not or are doing so on an ad hoc basis.
- Title Insurance companies have confirmed that their fraud coverage will apply to cover buyers and lenders accepting digital signatures and remote signing.
- The law is not clear on whether Covid-19 measures can excuse the performance of a Residential Real Estate contract. The two most likely elements or doctrines of law to apply to the situation are Force Majeure clauses and Frustration of Contract.
- Force Majeure: Unlike most Commercial agreements there are no Force Majeure clauses in the standard Orea Residential Resale forms. These are clauses which allow parties to be discharged from the obligations in the event of serious unforeseen circumstances.
- Frustration of Contract: This applies to discharge parties from their obligations when through no fault of their own unforeseen events make completing the contract something almost completely different than what they had bargained for. Essentially, the parties’ reasons for entering into the contract have to be destroyed by the unexpected event. It would be difficult to establish this in a Residential Real Estate transaction. Frustration of Contract is a final options which require the parties to almost have no other alternatives or workarounds to limit or avoid losses. Given that registry systems, law offices and banks remain open it is unlikely to apply to residential real estate transactions.
- Cooperation between the Parties and Lawyers: Given that the law is not clear, lawyers and clients are being advised not to take hardlines in instances where Covid-19 measures impact a party’s ability to close, as it is expected that courts will not look favourably on a party who is not reasonable or takes advantage of the current circumstance.
- Covid-19 Clauses: Covid-19 clauses have been drafted to factor this reality into an greement:
- Covid-19 Clause – more ways out, better for buyers as they are more likely to need a way out- although it does give both the buyer and seller more ways out: The parties agree and acknowledge that in the event that either the BUYER, SELLER, or any of their respective lawyers/notaries, relevant service providers, branches of Canadian Banks or other Lenders, Land Registry Offices or other Government Agencies become the subject of a Voluntary or Mandatory Covid-19 virus quarantine, closure or travel restriction prior to the time of completion herein which results in the Buyer or Seller being unable to complete the transaction on the completion date stated herein, the completion date herein shall be automatically extended at the request of either party for a period of up to ten (10) business days after such quarantine, closure or travel restriction order is lifted. Such extension shall be up to a maximum delay of sixty (60) days unless the parties otherwise mutually agree to further extensions. Upon the expiration of the maximum 60 day extension period either party may elect to terminate this Agreement, in the event of which both parties will be released from any liability or obligation to each other.
- Covid-19 Clause -less ways out, better for sellers as the are less likely to need a away out- although it does give both buyers and sellers less ways out and confirms an obligation to Close: The parties herein acknowledge and agree that they are required to close this transaction notwithstanding any impacts of Covid-19, save and except the closing of the Land Registry Offices and all financial institutions. In the event that the closing herein cannot happen because of a shutdown/disruption in the operation of the Land Registry System and/or financial institutions, the completion date herein shall be automatically extended to the fifth business day following the date upon which the said shutdown/disruption ends and the Land Registry System and financial institutions reopen.
- With many law offices closed, or lawyers working from home, clients should expect to have to wire funds to lawyers and key exchange arrangements to be made between buyers and sellers, perhaps with the help of agents.
- Tarion has amended its rules about times for extensions and many builders are using the “Unavoidable Delay” provision to extend transactions.
- Lawyers and all participants in the industry are being advised to be on high alert for possible instances of fraud because of the relaxed rules and video signing.
The situation is fluid with regular updates from the Law Society, Title Insurance, Lenders, and Governments so all of this is subject to possible change. We wish you good luck, health and safety during these difficult times.
Title Tips is not intended and should not be relied on as legal advice. For specific questions or situations, please feel free to call John Zinati for assistance.
If you are wondering what to do when buying a house for the first time, there is a lot of information available. Thanks to the Internet, there is no limit to the advice and resources you can find to help you make one of the biggest purchases of your life. But sometimes, the information can seem overwhelming. That’s why we’ve put together a first-time home buyer 101, so you’ll know what to look for when buying a house and can get plenty of valuable first-time home buyers tips. Keep reading for things first-time home buyers should keep in mind when buying property in Canada.
Selling your home can be a stressful process but you can avoid it by selling directly to a real estate investor. These sales often allow sellers to skip steps like inspection contingencies and avoid appraisal concerns or issues with financing from the buyer. In some cases, even if you choose to sell to a traditional buyer, you may get a better offer from an investor, perhaps someone with limited contingencies and assurance of a quick close. Should you sell your house or property to an investor? The answer really depends on the situation you want. However, it is important to understand the pros and cons of selling your house to an investor compared to a traditional buyer. Here’s what you need to know, so you make the best decision.
Are you wondering if you should sell your house for an all-cash deal? Chances are you want to sell it quickly and may need the money to pay off a debt or make another big purchase. Or, you may be wanting to avoid the contingencies of going through with a traditional mortgage. Whatever your reasons may be, it is important to fully understand what an all-cash house offer is, and how it may benefit or hinder you as you sell. Here’s all you need to know, plus some helpful advice.
It’s no secret that people have been scammed by fake house buyers and/or sellers in the past. Even if you are desperately searching for a new place to live or really want to sell your house quickly, you need to keep your eyes our for scammers and protect yourself from making a grave mistake. Here are some important warning signs to determine if a house buyer or seller is fake. Keep these in mind as you house hunt or list your house for sale and be sure to hire a real estate lawyer to protect you and your assets through this process.
Most real estate transactions tend to fall apart because of the buyer, but there are cases where sellers influence these failures. Some sellers may request additional time to move out before the buyer physically assumes the property, but there are also those who change their mind about selling at the eleventh hour. This may be because they want to sell to someone else after being offered a better price, or simply because they got cold feet. Although they may attempt this, it’s important to know that there are laws that protect buyers. These laws enable buyers to sue the seller and force them to follow through with the deal. If you’re wondering what happens if a seller delays or notice that the seller is stalling, here are your options and how you can get help from a real estate lawyer.
After a lengthy search for the right home for you, endless mortgage application forms, and tiring negotiations with the seller, you have purchased your dream home and are excited to move in! You signed your part of the purchase agreement, prepared your down payment, and are ready to celebrate your big purchase. However, you’re not out of the woods…yet. Until the deal has gone through, there is still the potential that this arrangement could fall through. Various closing problems could still arise, some which you can control, so you need to do your due diligence to prevent them from happening. Meanwhile, other closing problems could be out of your control. Here are some of the most common closing problems when buying a home, so you can prepare for anything.
A motivated seller is someone who desperately wants to sell their home. Whether they have big plans to move far away or are stressed with the workload it takes to maintain the property, a motivated seller is looking to get out of the mortgage and move on. As a buyer, this could be good news for you. For one, it might mean the seller is willing to negotiate the price and offer a quick closing. On the other hand, it could signal red flags. Before you get excited and sign the papers at this new opportunity, have your agent talk to the selling agent. Here are some important questions you should ask a motivated seller.
Condominium sales are skyrocketing in Canada’s biggest housing markets—especially the Greater Toronto Area—which is why many people are looking for the opportunity to invest in a pre-construction condo (a condo that is planned and approved to be built in the future) in hopes of gaining a future profit.
While it may seem like a lucrative opportunity upfront, experts say there are some important factors to consider before dishing out the cash. Buying a property, whether it’s your first or not, is a big step, so that’s why you should always consult with a lawyer before buying a pre-construction condo to ensure you get what you signed for. Here’s how to buy a pre-construction condo, as well as some important things to check before you make the investment.
For most people, the biggest and most significant purchase they will ever make is buying a home. While it is common for buyers to seek a real estate agent to help them with the process, there are also many reasons to hire a real estate lawyer. A real estate lawyer can help you with the legal aspects of taking on a property and dealing with any issues that may arise. Here’s what you need to know about hiring a real estate agent and lawyer.
The family home is a special place full of years—sometimes even decades—of memories from each generation. When it’s time to retire or consider moving into a more manageable space, deciding what to do with the family home can be an emotional and difficult choice to make. Many homeowners choose to pass their home down to the next generation—one of their adult children. However, this is not a decision that should be taken lightly. Any time you deal with making a real estate transaction, it’s important to put emotions aside and think carefully about making the right choice. If you are wondering how to transfer a house title or property from a parent to a child in Canada, here’s what you need to know so that you make the right decision for you and your family.
RULE NUMBER 1 – THINK TAXES!
YOU MUST BE VERY CAREFUL IN MAKING THESE TRANSFERS TO GET PROPER TAX ADVICE AS A MISTAKE COULD BE VERY COSTLY. TALK TO YOUR LAWYER, ACCOUNTANT, OR TAX LAWYER BEFORE YOU DO ANYTHING.
At a certain point, most people start their search for a more permanent living arrangement, as they choose to leave renting behind and look for buying opportunities. Condominiums and houses allow homeowners many benefits such as owning their own property and building equity as they make their mortgage payments. Condominiums have the added advantage of low maintenance: there are no driveways to shovel, no leaky roofs to repair, and no broken HVAC systems to deal with. However, whether you choose to live in a condominium or a house, sometimes things go wrong. Before you consider signing any papers and buying a condo or house, there are some important things to keep in mind. Conducting a house/condo inspection before you purchase the property is extremely important to ensure that the residence is in good condition before you move in. Although these inspections can be an added expense you may not have considered, they are far more affordable than moving into a house and being stuck with serious repairs.
Refinancing your mortgage can be a great way for you to gain finances to consolidate debt, complete a home renovation, or pay for your children to attend post-secondary school. For many homeowners, refinancing can be cost-effective; however, to find out if refinancing your mortgage is the best option for you, you need to first consider the interest rates and other mortgage refinancing fees involved, and compare these costs with other options available to you. Here’s what you need to know about mortgage refinancing costs and how you can avoid them.
The Toronto area is one of the most sought-after spots to work, and new condo developments are ideal for people needing to move into the city. Condos in the Toronto area have been the primary choice for new homeowners, as housing prices have been on a steady incline over the past decade, however prices have not always been affordable. The good news is that condo prices are moderating in 2019, according to analysts and developers, meaning prices and rent amounts are expected to slow down soon. While there are many great communities in the city, owning a condo in CityPlace provides you with many great opportunities Why should you seek real estate in CityPlace? Here are a few reasons to consider.
If this is your first time considering refinancing your mortgage, there are some important things you should know. There are several mortgage refinance myths circulating that make it difficult to know what to expect in the process. Here you can see the most common mortgage refinancing myths busted and stay informed as you move forward with the refinancing process.
What began as abandoned railway land has now transformed into a vibrant downtown community—today, CityPlace is home to thousands of Torontonians, and it is constantly growing. Located west of Bathurst Street in Downtown Toronto, CityPlace is considered one of the city’s finest areas. It is just a short walk away from Toronto’s financial district and has been growing and maturing thanks in large part to an increasing population and more available amenities and services.
The biggest draw to the area is the fact that it is booming in development, making it a great place to settle. Would-be homeowners find CityPlace’s location desirable—it is nestled between Union Station and the Gardiner Expressway, and close to King Street West and Liberty Village. There are many reasons to consider real estate investment in CityPlace and if you are seriously considering moving to the area, the professional real estate lawyers at Zinati Kay – Real Estate Lawyers can help. Here’s what CityPlace is a good real estate investment.
Tax Treatment for Investment Properties and Primary Residences
Most people are aware that the sale of an investment property is generally subject to capital gains tax on disposition and that the sale of a principal residence is generally tax free. What a lot of taxpayers don’t realize is that when you have a change in use from personal property to income producing property or vice versa, the property is deemed to have been disposed of at fair market value and acquired immediately after for the same price. This can result in unwanted tax consequences in many cases and there are two optional elections that can be made that in many cases are very beneficial to the taxpayer. The problem is that most taxpayers are not aware of these elections and they cannot be made retroactively.
Are you considering buying a new house in the near future? Congratulations! There are many exciting aspects about buying a property and having a place that is truly yours. However, it’s important to have a solid homebuyers’ plan and to do your research before you begin contacting mortgage lenders and start the house hunting process. Do you have questions about the homebuying process? Check out our first-time homebuyers FAQ for questions to ask before buying a new house in Canada.
One of the most complicated adventures in life is buying a new home. It’s also one of the most rewarding experiences! If you’ve purchased a home before, you’re likely an expert on all the ins and outs. But if this process is new and confusing for you, our home buyers’ checklist includes important steps to take throughout the process. When buying a condo or home, here’s what you should consider.