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, …

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City of Toronto Residential Property Owners: Front Yard Parking

Front Yard Parking permits are not transferable. Each new owner of the property must apply to the City for his/her own permit, which, if granted will include the payment of certain fees. It is the responsibility of the new owner to ensure that the existing front yard parking pad is legally installed. By calling 416-392-2489, one can determine the legal status and validity of any parking pads that may exist within the front yard and adjoining boulevards of the subject property. If you are concerned about parking, you should make it a condition of your Agreement of Purchase and Sale. Please call me with any questions that you may have at (647) 476-2262. No solicitor-client or other relationship is created …

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Pets: Are they allowed in rental apartment buildings and condominium buildings?

Although pets cannot be prohibited in rental apartment buildings in Ontario, they can be regulated and prohibited in condominiums where the condominium declaration so provides, BUT service animals must be allowed for owners/residents with a disability. The Ontario Human Rights Code trumps the condo Declaration. The condo corporation can ask for medical confirmation of the disability. In Ontario, service animals do not need to be certified and in fact there is no government body that certifies service animals. Although the Human Rights Code trumps the condo Declaration, the pet prohibition remains in full force and effect; it’s just not enforced against the occupant with the disability for so long as he/she remains disabled. No solicitor-client or other relationship is created …

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Tree Law – Overhanging Branches and Who Can Cut Them Down?

Unless there is legislation or restrictive covenants to the contrary, the current common law regime allows “each property owner, within the boundaries of his or her own property, to do as they wish. This is so both with respect to planting trees, which may tomorrow block a neighbour’s view or spill onto a neighbour’s property, and with respect to pruning or cutting the overhanging branches or roots of trees that cross a property line”. In other words, your neighbour may simply cut any part of a tree (with its trunk on your land) that crosses over the property line and overhangs onto his property. Pursuant to the Ontario Forestry Act  a “boundary tree” (a tree whose trunk straddles a property line) …

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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 …

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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 …

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The APS calls for my seller to terminate the tenancy so the buyer can move in. The buyer is a corporation. Is it legal?

Here’s the bottom line: Section 49 of the Residential Tenancies Act allows a seller/landlord to terminate a tenancy within a residential complex that contains no more than three (3) residential units, or a condominium unit; if: (i) The seller/landlord has entered into an agreement of purchase and sale to sell the residential complex; and (ii) The buyer, in good faith, requires possession for the purpose of residential occupation by the buyer, his spouse, or a child or parent of one of them, or a caregiver who will be living in the same building and providing such service to the buyer, spouse, child or parent. Corporate Buyers and Shareholders Can a corporate buyer terminate a tenancy so that it’s shareholder, or …

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Acting in Good Faith – What does this mean in a real estate agreement?

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 …

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What Is A “Survive Closing Non Merger” Clause?

In real property law, all promises merge (i.e. end) on closing when the purchase price is paid by the buyer and the deed is delivered by the seller unless the agreement of purchase and sale otherwise provides, expressly or impliedly, or unless a new agreement is made by the parties. In order to ensure that certain promises continue (or survive, and don’t end (or merge) on closing), express provisions to that effect are inserted in the Agreement of Purchase and Sale. The usual provision reads something like this: The seller represents and warrants that the chattels, fixtures, systems and equipment (including heating, ventilating, air conditioning, plumbing and electrical) are now and on closing will be in good working order, which …

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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 …

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