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Tag: agreement of purchase and sale

Can a borrower redeem their mortgage under power of sale?

The answer to this question is constantly evolving, with new and conflicting case law addressing specific facts released almost yearly.  The old adage of being able to redeem your mortgage (payout your mortgage) during a power of sale proceeding so long as the mortgagee in possession (being the seller) has not yet entered into a firm or unconditional agreement of purchase and sale with a buyer is no longer clear cut.Today the way I understand it is that there are two issues once the mortgagee in possession (being the seller/mortgage lender) enters into an agreement of purchase and sale with a potential buyer, and whether or not the borrower/mortgagor can still redeem (payout) his mortgage and keep his property:Agreement of purchase and sale has conditions that must be satisfied prior to the agreement becoming “firm”; and

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Buying or Selling a Home with an Oil Tank

What you need to be aware of when buying or selling a home with an oil tankOn June 28, 2001, the Ontario Legislature enacted the new Technical Standard and Safety Authority (TSSA) Act, 2000, which outlines appropriate procedures for homeowners of buried or free standing fuel tanks on removal and maintenance.  Old underground oil tanks and poorly maintained or defective heating systems are the leading cause of oil spills and leaks, leading to costly cleanup in the hundreds of thousands.How does this affect you in selling or buying a home?A recent decision of the B.C. Supreme Court shows that you should be concerned about residential fuel tanks when buying and selling land, because the cost implications can be in the hundreds of thousands of dollars.In the case, a building inspector reported evidence of a buried oil tank because there was a vent and fill pipe and the inspector recommended locating the tank and testing for oil products. The homebuyers, Colbecks, did not act on the inspector’s recommendation until after they

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Realtors; learn how to save a deal when spouses are feuding and being uncooperative over the sale of a property!

This article applies to legally married couples and not those in common-law arrangements.  The long and the short of it is that IF both spouses are on title of the property [that means they are both registered owners in one capacity or another (commonly as Joint Tenants or even Tenants In Common)], then you will need them BOTH to sign the listing agreement, representation agreement, the offers in between, any other required Realtor documents/amendments, and the finally accepted Agreement of Purchase and Sale and its amendments.  So long as that is the case, the two FINAL documents you should ask their lawyer to produce while signing the listing agreement is, first an Un-revocable Direction to the lawyer (presuming he/she will be the one closing the deal) as to how the Proceeds of Sale are to be divided and that he/she is to be the closing lawyer.  This ensures that the two spouses cooperate and do not hold each-other hostage on the eve of closing threatening not to close unless one spouse gets what they want out of the deal.  It also ensures that the lawyer who holds this direction will be able to use it because he/she will be closing the deal.  Second, and at the same time ask the lawyer to also draft and provide a declaration that both spouses will be providing vacant possession on the day of closing before 4:00 pm.  This will help the scenario where one spouse is being

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CONDOMINIUM LAW: 10 Day Cooling Off Period and Giving Proper Notice of Rescission

The condominium market in Toronto is and has been hot over the past few years for a variety of reasons such a seeming stable Canadian economy, foreign investment, growth in Toronto’s financial services industry, low interest rates and lack of supply in desirable neighbourhoods.  Condominium Developers market new projects as sexy investments, and for the most part, over the last many years, Purchasers in desirable projects have seen a return on their  investment either through rent or resale.  Condominiums are out selling any other type of dwelling in Toronto and Toronto is North America’s leader in new condominium project starts.  During a hot condominium market, it is easy for Purchasers looking to invest  for themselves, their children or as an income property, to rush into a deal and a project without knowing all the pertinent facts.  Therefore It was good thinking by the government of the day to provide statutory rescission rights under the Ontario Condominium Act, 1998 (the “Act”) .  This article will briefly examine the rescission rights under the Act and discuss the proper methods of delivering the Purchaser’s intention to rescind if they do not wish to proceed with purchasing a condominium unit.

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Breached Agreements of Purchase and Sale: Can I Recover My Losses?

Many Real Estate transactions wind up breaking down between the point where an Agreement of Purchase and Sale has been signed and the transaction is completed (“closed”). In such cases there are very often financial losses for both parties.Depending on who is at fault, there are avenues for the vendor or purchaser to recover damages from one another. In some cases, either party may also have other avenues to recover losses from somebody else.In most transactions, the parties are represented by Real Estate Agents. Depending on the level of sophistication of the person being represented, the agent has certain fiduciary obligations which, if breached, may cause the agent to be liable for the client’s damages.Your agent has an obligation to act with reasonable skill and care in reviewing the terms of a purchase agreement with you [Wemyss v. Moldenhauer [2003] S.C.J]). If you were forced to breach your Agreement due to some misunderstanding that was caused by an act or omission by your real estate agent, then you may wish to seek legal advice about your various potential avenues to recover your losses.

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Real Estate law: Can You Refuse to Close if Your Condominium Square Footage is Less Than You Bargained For?

In real estate law, representations are very important elements to any agreement of purchase and sale.  Typically the party selling the property will represent things such as the size of the land, the size of the dwelling, that the chattels and fixtures included in the purchase price are free and clear of encumbrances and in working order, etc.  In law, a representation is defined as a statement of past or present fact without the statement necessarily also being a promise, although the law has recognized that a representation can be both a promise and a representation.  While the topic of representations in contracts is extremely comprehensive, 756289 Ontario Limited et al. v. Milan Harminc, (1998) CarswellOnt 1577, 98 G.T.C. 6206 (“Harminc”) is one example of where a representation affected a real estate transactions with respect to the representation of square footage.Harminc is a case wherein a buyer purchased a commercial condominium property from a builder.  The buyer refused to close and the builder sued the buyer for breach of contract and sought damages.  While the defendant buyer advanced a number of arguments for his defence, the case turned on whether the builder misrepresented to the buyer the square footage of the property and if so, whether that misrepresentation was material enough to entitle the buyer to rescind the contract and refuse to close.

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Real Estate Law: What the Difference is Between a Condition and a Warranty and Writing the Agreement of Purchase and Sale

One of the most important things I stress to Realtors and purchaser clients is to make sure it is very clear in the agreement of purchase and sale that everyone knows exactly what is being bargained for and the agreement is structured and contains clauses towards that intent.  An older case, Jorian Properties Ltd. v. Zellenrath (1984 CarswellOnt 1376; 46 O.R. (2d) 775, 26 B.L.R. 276) (“Jorian”) is a helpful guide that illustrates some these issues.In Jorian, the Purchaser entered into an agreement of purchase and sale with the vendor to purchase a legal five-plex (“Property”).  Upon the Purchaser’s lawyer’s search to the relevant zoning authority, it was discovered that the Property was only a legal triplex.  The Vendor who had represented that the property was a legal five-plex did not know that the Property did not comply with zoning.  After some negotiation with respect to an abatement of the purchase price, the Purchaser refused to close the transaction and then sued the Vendor for damages.  Evidently the Purchaser strongly desired the Property because the Purchaser wound up purchasing the same Property from a subsequent purchaser that the Vendor sold the Property to for a higher price, .

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Real Estate Law: Easements Affecting Your Property

Simply defined in the Blacks law dictionary, an easement is an interest in land owned by another person, consisting in the right to use or control the land or an area above or below it, for a specific limited purpose.  Often, easements are registered on title thereby granting or assigning rights to use the subject lands for a specific limited purpose.  A common easement registered on title grants access to utility companies and municipalities onto a subject property in order to service and maintain a specific utility or the lands, whether its cables for phones and internet or pipes for gas and water.  An easement could potentially hinder the enjoyment and use of a property and therefore can become a contentious issue during the course of a real estate transaction.The standard OREA agreement of purchase and sale (“Agreement”) contains a clause called “Title” and it states:

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Real Estate Law: Provisions in the Agreement of Purchase and Sale: Time for Searches, Future Use, Title, Schedules

Time for searchesBefore closing a real estate transaction, a real estate lawyer will need time to search title, executions and make off-title searches or inquiries.  The title search date in the OREA Agreement sets out the date in which a lawyer has time to do the searches and request that the Vendor’s lawyer rectify any on title or off-title deficiencies.   Should the contract fail to provide a specific time period for submitting requisitions, there a statutory date set in Section 4 of the Vendors and Purchasers Act which prescribes a 30-day period from the date of the contract.  It is important to give lawyers on both sides enough time to make and reply to requisitions because if there is a matter that cannot be resolved such as a lien that cannot be satisfied, the contract can be terminated or delayed.  Sometimes, lawyers will disagree as to whether the requisition is a valid one and whether failure to satisfy the requisition can terminate or delay a deal.  In these cases, there is recourse under the  Vendors and Purchasers Act.

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Real Estate Law: Closing a Real Estate Transaction

Choosing a closing date The closing date can be whenever the parties agree upon, however selecting a closing date on a weekend or statutory holiday will prevent your transaction from being registered because the land registry offices and the electronic registration system are unavailable.  If parties so choose to close on those days, alternative arrangements such as closing in escrow can be made with caution.  Other days such as the last day of the month or Fridays are typically very busy for real estate transactions for various reasons such as having the weekend to move in and concluding payment cycles.  Therefore, if possible, avoiding those days may be prudent especially if someone is planning on selling and buying on the same day.

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