Legal Real Estate Advice

Rented vs leased fixtures and how it can affect your home purchase

When preparing a listing agreement or an Agreement of Purchase and Sale a real estate agent must ensure that rental items (for instance, a hot water tank and heater, water softener, furnace or air-conditioner) are in fact true rentals and not the subject matter of a lease or other agreement which includes an obligation, as opposed to an option to purchase the piece of equipment.  The agent should ask his client or the other agent for evidence that it’s a true rental agreement. A useful starting point is the seller’s Enbridge bill which may disclose rental amounts being paid to Direct Energy or other lessors/sellers of equipment.  Unless the Enbridge bill clearly discloses the payment to be a true rental, … Read More

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Mortgage Down Payment Help From Parents: Is It a Gift, Loan, or Trust?

My mom gave me $50K to help with my down payment: is it a gift or is it a loan or did a trust just get thrown at me? Many parents are financially assisting their adult children to purchase real estate. Sometimes it’s a few thousand dollars; sometimes significantly more. Is this financial assistance a repayable loan,  a gift with no strings attached or will a court imply a (resulting) trust between the child and parent i.e. is the child holding the funds/property in trust for his parent? Succinctly put, unless there is clear evidence to the contrary, there is a presumption of resulting trust i.e. the adult child is holding the property in trust for his parent (which means … Read More

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What’s So Important About A Condominium Status Certificate?

The purchase of a condominium differs in many regards from the purchase of a house. Condominiums are created by statute and the Declaration, Rules and By-Laws of each condominium differ. Here are some of the questions that you and your agent should be asking each other: Are pets allowed? What kinds of pets? How many? Do I have to keep them on a leash? If you don’t have a pet now, do you intend to have pets? – More Here Can I BBQ? Are the common expenses disclosed by the listing agent in the MLS listing accurate? What if they’re higher? What’s included in the common expenses? Are the utilities extra? Is the seller in arrears of payment of common … Read More

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Is There a Duty to Act in Good Faith?

Is there a duty to act in good faith? Did you know that sole and absolute discretion financing, home inspection or even a lawyer’s approval conditions won’t let a buyer terminate for buyer’s remorse! Here’s the bottom line: In Canada, there is no independent stand alone duty to act in good faith, neither in the negotiation nor performance of resale residential agreements of purchase and sale however the case law illustrates that there is an implied (as opposed to statutory) duty of good faith in the performance of a contract “not to act in a way that defeats or eviscerates the very purpose and objective of the agreement”. This means that during negotiations you can bargain hard and in your … Read More

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What Is A “Survive Closing Non Merger” Clause?

Does this sound familiar? “I just bought my new home yesterday and the furnace is broken. My real estate agent told  me that the seller guaranteed that everything would be working on the closing date and afterward.  Is he right? What does ‘which representation and warranty shall survive closing’ mean?” Here’s the Bottom Line: if your agreement contains a good working order warranty which expressly provides that it will survive closing, then the seller is promising that the furnace will be working on closing, but not that it will continue to work for a minute after closing.  If the furnace isn’t working on closing, whether you discover it before or after closing, then the seller is responsible to repair it. … Read More

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The Buyer Won’t Close! #FinancingFail – What To Do!

The seller just called me. What can a seller do when his buyer refuses to close? This could be due to money issues or simply that the financing has fallen through. Here’s the short answer: The seller’s remedies are: (i)         Extend the closing if the seller still wishes the transaction to close; (ii)        Accept the breach, terminate the transaction, keep the deposit without having to account to the buyer and walk away (this is prudent in an escalating market); (iii)       Accept the breach, hold the deposit in abeyance, determine your damages (by reselling the property) and sue the buyer for those damages, but you must account to the buyer for the deposit i.e. if your damages are less than the … Read More

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Death In Real Estate: Do I Need to Probate the Will Before I Sell the House?

As a real estate lawyer, I am often asked if the Will of a deceased client must be probated before his real estate may be dealt with. There are a few issues to consider before the aforementioned question can be answered (and in this blog I will only address situations where the deceased has made a Will).   Usually most spouses own their property as joint tenants which means that the property is owned by both of them, at the same time, and upon the death of the first of them, the survivor becomes the sole owner of the property. So if your parents’ house is owned by them as joint tenants, and if one of your parents passes away, … Read More

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Land Transfer Tax, Rebates, and Exemptions For First Time Buyers

When it comes to answering these questions and deciphering their answers, consulting a real estate lawyer is often a good first step for potential homeowners. Generally speaking, the Ontario Land Transfer Tax Act and the Municipal Land Transfer Tax Act of Toronto provide that buyers are obligated to pay a land transfer tax upon the purchase of a property and the amount of the tax is based upon what is called “the value of the consideration”, which in most cases is the amount of money paid. Land transfer tax, like income tax, is charged on a marginal increasing scale and once the value of the consideration exceeds $400,000.00, the land transfer tax on the overage is charged at 2% for each … Read More

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The Importance of a Home Inspection

You shouldn’t purchase a home without having it inspected by a competent and qualified home inspector. Many people feel that they are qualified to do the home inspection themselves, however this is not the case. If after closing you discover problems with the house and attempt to pursue your seller in court for compensation, the court will attribute to you the knowledge that if the property had been inspected by a qualified home inspector – in other words, if a home inspection would have disclosed the very item which is in issue, the court will take the position that had the inspection been conducted, you would have known about this item and that you have accepted its status and condition. … Read More

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Can you Hold Back Funds on Closing When an Appliance is Broken?

Holding Back Funds

The simple answer is: No. As in any contractual situation, the agreement of purchase and sale is the first document that should be reviewed. Unless your agreement of purchase and sale gives you the right to holdback a specified sum of money, other than in certain situations where there is material damage or a material failure, you cannot refuse to complete the transaction nor can you holdback money. Your only remedy would be to complete the agreement of purchase and sale and then pursue your seller for compensation in court. From the purchaser’s perspective, it is prudent to include the right to holdback funds however you will need a stellar negotiator acting on your behalf in order to convince your … Read More

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