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Tag: property

The Holdover Period, Real Estate Commissions and Listing Agreements

Sellers should be weary and concerned with agreeing to a holdover period as defined in a typical listing agreement to offer to sell a property.  The same can be said about Realtors (real estate sales representatives, brokers and brokerages) who take over a listing immediately upon its expiry or termination, that was previously listed with a different Realtor.  For illustrative purposes a typical commission and holdover clause found in the Ontario Real Estate Association (“OREA”) listing agreement available for the Toronto Real Estate Board (“TREB”) members is as follows:”COMMISSION: In consideration of the Listing Brokerage listing the Property, the Seller agrees to pay the Listing Brokerage a commission of……% of the sale price of the Property or…for any valid offer to purchase the Property from any source whatsoever obtained during the Listing Period and on the terms and conditions set out in this Agreement OR such other terms and conditions as the Seller may accept.  The Seller further agrees to pay such commission as calculated above if an agreement to purchase is agreed to or accepted by the Seller or anyone on the

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MICs: The Technical Aspects of a Mortgage Investment Corporation

TYPE OF ENTITY FOR A MORTGAGE INVESTMENT CORPORATIONA Canadian Corporation throughout the taxation year where its business only undertakes to invest its funds, and thereafter qualifies as a MIC, is deemed to be a public corporation under the ITA, and therefore must have its financials audited. Depending on which province your MIC is registered, it will have to comply with securities legislation in that province;Depending on which province your shareholders or investors are, it will have to comply with securities legislation in that province;TYPE OF ACTIVITY & INVESTMENT/ASSET BASEMortgages secured against real estate in CanadaMortgagors can be individuals or corporateMortgagors can be Canadian non-residents

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What Is A Heritage Building in Toronto, Ontario?

The City of Toronto has been experiencing a shift of rapid development, and the scarcity of property resources accessible for further growth have led developers to be creative with readily available structures such as heritage properties. The Ontario Heritage Act governs the provincial and municipal identification and protection of properties with what are considered as “heritage attributes”. These “attributes” are described in Section 1 of the OHA as characteristics of certain properties that contribute to the “cultural heritage value or interest” of the municipality. The general guidelines for designation can be found under s.29 of the OHA, and more detail-specific guidelines can be found in the Ontario Regulation 9/06 titled “Criteria for Determining Cultural Heritage Value or Interest”. If you’ve recently moved to Toronto, make sure you have a list of local contractors such as absolutedp.com in case of emergencies.Heritage Preservation Services (HPS) is the authority that protects heritage designated properties and guides the Toronto Preservation Board and City Council on matters relating to the OHA. The HPS typically manages heritage designation applications, the review of proposals regarding the development of heritage sites, maintenance of designated properties, and providing the policies, as well as

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CONDOMINIUM LAW: Too Many Loud Parties in Your Condominium Building?

Recently a Client who owned a condominium unit in a condominium building, came into my office and complained that he was being a target of an unjust campaign by members of his condominium corporation’s (“Corporation) board of directors (the “Board”) to drive him out of the condominium building.  The Corporation alleged that, amongst other things, the Client was lighting fireworks off of his balcony on holidays, having loud parties at all hours of the night, and allowing guests to run rampant all over the condominium building.  The Client admitted that on the occasion he would host small parties and get togethers but denied the Corporation’s version of his alleged activities. Initially, the Corporation began issuing letters through the property manager demanding that the client cease the alleged activity on every occurrence in which he would have visitors to his unit.  The client attempted to address the matter with the Corporation by asking for proof of the alleged conduct and for a meeting with the complainants to discuss their issues directly with him.  His attempts fell on deaf ears and the relationship between the Client and the Board deteriorated.The final straw came when the Client received a letter from the Corporation’s solicitor threatening legal action and charging him legal fees for the said letter as they were entitled to under the condominium’s declaration and rules.  The Client was furious because he felt that the Board

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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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ESTATE ADMINISTRATION: Advising the Surviving Spouse

The precise nature of the executor/trustee/personal representative’s obligation to advise the surviving spouse is not clear. If the estate trustee is responsible only to the estate and its beneficiaries, he or she should not be required to tell the surviving spouse of the potential rights he or she may have under the Family Law Act (“FLA”). However, if it is the duty of the personal representative to help the surviving spouse, then how far does that duty extend?Recently, the Superior Court of Justice decided in Webster v. Webster Estate, where the surviving spouse missed the six-month period, within which to file an election in favour of an equalization of Net Family Property (“NFP”). It was argued, in the application to extend the time to elect, that the personal representatives of the deceased husband’s estate had a duty to advise the surviving spouse of her entitlement to make an equalization claim. Although Robertson, J. rejected this argument, the facts were somewhat unusual:

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Real Estate Law: Buying Real Estate with Other Parties or Trying to Sell Real Estate Owned with Others?

Often individuals and companies purchase property together either as a means to secure financing, registered ownership or as a business venture.  For various reasons, often financial, one or some of the parties need to relinquish their interest in the property.For example, Joan and Bob purchased a multiplex as tenants in common with a fifty (50) percent interest each in the property.  After a few years, Bob’s financial circumstances change and wants to either sell his share of the property for fair market value to Joan or sell the property to a third party buyer.   Joan cannot afford to buy Bob’s share of the property because she just invested in another multiplex however she really wants to keep the property because it is in a great location and the tenants are never a problem.  Can Bob compel Joan to sell the property?

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ESTATES & NFP: Income Tax and Family Law considerations at death

Income Taxes at DeathClaims arising on the death of a spouse are not many, nor is there much jurisprudence dealing therewith. But claims arising on marriage breakdown are not uncommon and a frequently litigated issue is whether, for the purpose of computing a spouse’s Net Family Property (NFP), property owned by him or her should be valued at its after tax amount in the spouse’s hands. For a time after the enactment of the Family Law Act (FLA), cases were all over the place on this point, some suggesting that income tax costs of disposition should be taken into account (with or without a discount for the likelihood of the disposition taking place relatively soon), while others suggested that in the absence of a clear indication that property would be sold by the owner spouse, no tax costs should be taken into account on the grounds that such a calculation was too speculative.When the valuation date is one day before the death of the deceased spouse, the argument that income tax costs should be taken into account is more compelling than in the case of marriage breakdown. As the Income Tax Act (ITA) deems that the deceased spouse immediately before death:

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ESTATES & EQUALIZATION: How the Courts can enforce your Family Law rights

Court OrdersThe court has extensive powers to enforce the equalization order, Family Law Act (FLA) section 9. It can order:Money to be paid;Security to be given;Payment to be deferred for, or made in instalments over a period of up to 10 years;Transfer of property in specie; orPartition and sale of property. If deferred or instalment payments are ordered, subsequent variation orders are permitted provided the court is satisfied that there has been a material change in the circumstances of the paying spouse. However, the amount of the equalization payment previously determined cannot be varied, FLA, s. 9(3).

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