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Common Real Estate Terms

Terms that come up in your real estate home purchase or sale closing. Condition Date/Day – The date by which the conditions for the buyer and seller must be met for the deal to proceed. In real estate, conditions may include obtaining financing and a property inspection approval. If these conditions are not waived or met by the respective condition date, then the contract effectively ends, and there is no transaction. Closing Date – When the ownership of land is transferred to the new owner. The Transfer of Land is registered at the Land Titles Office. By this date, the payment of the purchase price needs to be fulfilled. At the closing date, the real estate transaction is considered complete. This is also, typically, the same date as the possession date. The Closing Date is not the day the conditions are removed which is called the Condition Date. Completion Date – same as the Closing Date.   Possession Date/Day – When the physical possession of the property (through the transfer is keys) is transferred from the seller to the buyer. Keys are usually received between 12pm [...]

Common Real Estate Terms 2019-09-15T19:23:35+00:00

Problems After Possession

Can you sue the seller if you discover problems with your house after moving in? This article addresses problems at the time of possession and problems discovered after possession. Problems arising after Possession You’ve bought your first home and surprise your first spring there is flooding in the basement causing thousands of dollars of water damage. After speaking with the neighbours, you learn that there had been instances of flooding in the basement with the previous owner as well. You are upset! The house seemed to be in great condition without any apparent damage or structural issues when you first viewed it. You had a home inspection conducted by a professional, who stated that there are no notable plumbing or electrical defects or evidence of previous water damage. Neither the seller nor the realtor disclosed that there were any issues. Now what? Can you sue the seller?It depends. (Typical lawyer answer, right?) Suing the Seller for Breach of ContractAccording to the current standard residential purchase contract in Alberta, the seller provides a warranty to the buyer that they must disclose any known Material Latent Defects to [...]

Problems After Possession 2019-09-15T19:11:43+00:00

What are property tax adjustments?

How are property taxes adjusted when you buy a home? When buying or selling a property, a portion of the annual property tax will be factored into the amount that you are paying or receiving, called the property tax adjustment. Property tax adjustments are for the purpose of ensuring that the buyer and seller are only paying for the property taxes for the time that they own the property. Real estate purchase contracts include clauses that note that property taxes will be adjusted to credit the buyer or seller, to ensure that the parties are aware. Property taxes are calculated according to the Adjustment Date, which may or may not be the same as the possession date. The Adjustment Date is when the buyer begins to assume responsibility for the property taxes. The City does not adjust taxes between the seller and buyer.  This is done by the lawyers on the closing of the real estate transaction. When calculating the adjustment, the first thing to understand is that taxes are assessed for the period of Jan 1 to Dec 31 of each year. This means that, [...]

What are property tax adjustments? 2019-07-09T17:59:18+00:00

What is a Hold back in a Real Estate transaction?

What is a Holdback? An agreed upon dollar amount that is not released to the seller on the closing of a real estate transaction until a certain item is completed/provided.  For example, the seller may agree to complete the landscaping, and agrees to hold back $5,000.00 until the landscaping is complete.  The terms of the agreement to hold back these funds are usually agreed to in writing by the buyer and the seller, or agreed on between their respective real estate lawyers. When is a holdback negotiated? Sometimes a holdback is addressed at the time of negotiating the purchase and sale contract.  Other times, issues arise after the completion of the purchase contract and a holdback needs to be dealt with by either a written addendum to the purchase and sale contract, or between the lawyers. Outstanding items and holdbacks are often not anticipated during the negotiation stage and not addressed in the offer to purchase. This leaves the realtor or lawyer to negotiate a holdback once the purchase contract has already been signed.  At this point, there is generally no obligation on the part of [...]

What is a Hold back in a Real Estate transaction? 2019-10-17T02:00:06+00:00

What is “Dower Consent”?

What is Dower? Dower rights are meant to protect the property interests of a spouse who is not legally registered on title. Originally, dower rights were created to ensure that widows could continue to use the family home after their husband’s death, even if they were not the registered property owners.  When does the Dower Act apply? In Alberta, if you are married and own property (that is registered in your name alone), you are required to obtain your spouse’s consent if you choose to mortgage, sell or lease the property for longer than 3 years. Dower rights protect the interests of a spouse of a property owner, ensuring that the property is not sold or burdened without their consent. Why do you need to sign a Dower Consent? To avoid legal sanctions that come from neglecting dower rights, signing a dower consent during a sale transaction or signing a dower release, are potential solutions. Signing a dower consent is also necessary in some circumstances, to obtain a mortgage, because the mortgagers try to avoid circumstances where the absence of consent bars them from enforcing their [...]

What is “Dower Consent”? 2019-06-20T01:22:36+00:00

Joint Tenants vs. Tenants-in-Common

Different types of co-owned property, such as real estate, can be held as either joint tenancy or tenancy in common. Whether the ownership structure is of joint tenancy or tenancy in common signifies whether the parties are essentially treated as the same party, or as distinct co-owners. Conceptually, in a joint tenancy, the parties are united in their possession, interests, title, time and intention. In comparison, for a tenancy in common, the only unity required between the parties is the unity of possession. The Unities Broken-down The unity of possession means that all co-owners have an identical right to possess and use the property. Through both joint tenancy and tenancy in common, neither party can disallow the other from using or possessing the property. The unity of interest means that all co-owners have the same rights and obligations in respect to the property. This is present for joint tenancies, but for a tenancy in common, the parties may own unequal shares of the property. The unity of time refers to the fact that the joint tenancy started and ended at the same time for both parties. [...]

Joint Tenants vs. Tenants-in-Common 2019-10-17T02:07:13+00:00

My #1 (and #2) piece of advice if you are considering buying a home

As Real Estate Lawyer, my # 1 piece of advice if you are considering buying or selling a home: Choose experienced professionals that you are comfortable working with - this includes your realtor, mortgage representative and real estate lawyer.  They will help guide you through the process. Most stress and issues in the home ownership process comes from not having the right people working with you from the beginning. And my #2 piece of advice: If you have a question or are concerned about anything, ASK.  Lawyers offer a professional service.  We are here to serve you.  Our job is to make sure you that understand and are comfortable with your transaction. Our lawyer looks forward to answering your questions. Real Estate Law is all we do and we love talking about it! Watch this video to hear top real estate professionals offer their tips about the home buying process. https://youtu.be/PC22KLLIOLg

My #1 (and #2) piece of advice if you are considering buying a home 2019-10-17T02:08:32+00:00

What questions should you ask your Real Estate Lawyer?

Your lawyer will anticipate most of your questions and provide you with most of the information you need when you first start working with them. There are at least 3 questions you should ask: Fee - You should ask your lawyer: What their legal fee is, How the fee will be calculated, When and what type of payment is accepted. GIARDINO LAW charges FLAT FEES - this means we provide you the total cost at the beginning of your transaction. No hidden or surprise legal fees. Communication - You should ask your lawyer who to contact if you have any questions and what the best way is to contact them. Some prefer phone calls, some prefer emails, some will even text messages or have a client portal – your lawyer should tell you what they prefer. You may not always deal with directly with the lawyer. Your point of contact may be their legal assistant. Your lawyer should be able to answer your questions – don’t be afraid to ask. Your lawyer may not be able to respond to you immediately – a lawyer usually deals [...]

What questions should you ask your Real Estate Lawyer? 2019-10-17T02:25:24+00:00

What can you expect in working with a Real Estate lawyer?

Your lawyer represents you and will advocate for your interests above the interests of others, and even above their own.If there is an issue with your closing transaction, you can be assured that your lawyer will provide you with an evaluation of the issue, including any risks, so that you can make an informed decision that is best for you.Your lawyer is usually competent in all aspects of the home ownership process, so you can usually turn to them to answer any questions you might have. With Giardino Law, you can expect us to... Be responsive and communicate with you effectivelyGive you clear information about:Fees: we will explain to you how you will be charged and when and how payment is expected.Services: Your lawyer will explain the service that they offer, what is included and not included.The steps involved in the process. Be accessible. Your lawyer is open to answer any questions that you have throughout the process. Be competent. If you choose a lawyer experienced in real estate conveyancing, they will be knowledgeable about all aspects of your transaction and they will be able to [...]

What can you expect in working with a Real Estate lawyer? 2019-10-17T02:14:51+00:00

Why do I need a Real Estate Lawyer to handle the closing of my home sale or purchase?

A Real Estate Lawyer handles the closing of your home sale or purchase. The seller's and buyer's real estate lawyers lawyers will work with the real estate agent and mortgage lender to handle the transfer of the property ownership from the seller to the buyer, and the payment of the purchase price to the seller according to the terms of your purchase and sale contract.  This usually includes making sure that: The property title is transferred to you free of any financial encumbrances, Municipal property taxes are current, Condominium fees and home association fees are current. The lawyer will prepare all of the documentation required to complete the closing process, meet with you in person to sign the paperwork, and explain the process to you as well as answer your questions. Your lawyer will explain their role to you including what services they provide and don’t provide.  It is important to understand what services your lawyer will provide to you.  You may expect your lawyer to, for example, do a complete search of municipal permits related to your property but this may not be included in [...]

Why do I need a Real Estate Lawyer to handle the closing of my home sale or purchase? 2019-10-17T02:23:52+00:00

Sale of a Property by a Non-Resident

IMPORTANT:  This is not tax advice. Talk to an accountant. Do not delay addressing this issue with an accountant as it will delay receipt of the proceeds of your sale.  This information is provided by me for information only so you can understand why there may be a hold back from the sale proceeds.   Canadians who purchase Taxable Canadian Property (TCP) from non-residents of Canada could be liable for taxes of up to 50% of the purchase price if the Purchaser and the Seller fail to comply with the reporting and withholding requirements governed by section 116 of the Income Tax Act (Act). This applies where the Seller of a property is Non-Resident of Canada.  Eg the seller lives in the USA and is selling their vacation home in Canmore.  The Seller is to pay the tax but the Purchaser is liable to the CRA if the Seller does not pay them. TCP defined TCP includes: Real property that is situated in Canada. The Canadian government has the right to tax a non-resident's sale of TCP. The tax is calculated on either capital gain or [...]

Sale of a Property by a Non-Resident 2019-03-29T19:04:28+00:00

Closing Process for Buying a New Condo from a Builder

The process for taking possession and title for a new condominium differs from most home purchases.  The major difference is that the purchase funds cannot be released to the builder until the property title is transferred to the buyer's name.  This means that the closing cannot occur using the Western Conveyancing Protocol which is a time saving way to close real estate transactions that allows the seller to be paid before the title is registered in the buyer's name.  Title Insurance also cannot be used to expedite the closing. So what this means for you is that the timeline to close from the lawyer side of things is longer. As soon as you receive notice of your possession date, you must notify your lawyer and your mortgage lender.   You then must arrange a meeting with your lawyer as soon as possible to sign the paperwork that transfers the condo to you.  Your lawyer can then send the title to be registered at the Land Titles Office.  The timeline for registration can be 2 to 4 weeks depending on the volume of documents the Land Titles [...]

Closing Process for Buying a New Condo from a Builder 2019-10-17T01:56:57+00:00

Mortgages 101

The Financial Consumer Agency of Canada provides a lot of useful information for new home buyers and mortgages.  You can visit their site here. Some of the topics they cover are: Down payment Find out how much money you need to put down to be able to get a mortgage. Home Buyers' Plan See how you could use RRSPs for the down payment. Mortgage payments: understanding interest versus principal Learn how your mortgage payments are applied to the loan. Choosing a mortgage type Learn about the differences between open and closed mortgages Choosing an amortization period See how this affects how much interest you pay. Choosing a mortgage term Look at your options before making your choice. Understanding fixed and variable interest rates Read about the differences and how the decision will affect your payments. Frequency of payments See how accelerated payment options can save you thousands of dollars. Mortgage default insurance Get the details and examples of how this works. Home equity lines of credit (HELOC) Learn about an option for borrowing on your home's equity. Before you start shopping around for a mortgage Make sure your [...]

Mortgages 101 2019-06-27T17:00:16+00:00

2 critical things to know if your mortgage is insured

What is Mortgage Loan Insurance? Mortgage loan insurance is an insurance policy that protects your mortgage lender in case you default on your mortgage. Mortgage loan insurance is usually required where your downpayment is less than 20% of your purchase price.  Mortgage loan insurance is offered by Canada Mortgage and Housing Corporation ("CMHC") and Genworth Financial Canada ("GE").  There are different types of insurance available and you must be approved for an insured mortgage (your lender arranges it). If you default on your mortgage, the mortgage loan insurance will kick in and pay the amount that you owe on your mortgage to your mortgage lender. How much is it and who pays for it? You pay the mortgage lender's insurance premium and this amount is usually added to the principal amount of your mortgage.  The insurance premium is based on a percentage of your home's purchase price. Mortgage Loan Insurance is not Mortgage Life or Critical Illness Insurance which is insurance that may pay out your mortgage when you die. 2 Critical Things to know if your Mortgage is Insured If you default on your mortgage, [...]

2 critical things to know if your mortgage is insured 2019-10-17T02:26:48+00:00

Title Insurance – Known Defects

Does title insurance provide coverage for known defects? For example, if you are aware of a encroachment (where a portion of a structure goes onto neighbouring property or violates the setback requirements of the municipal bylaw) will title insurance provide coverage if you are forced to remedy the encroachment? First Canadian Title insurance (the company I order title insurance policies from) deals with known defects on a case by case basis.  FCT underwriting will ask questions about the type of property, how long the encroachment has existed, whether anyone is aware of a complaint with respect to the encroachment and so on. Most times FCT is able to provide full coverage over encroachments for a mortgage lender lender. FCT is also able to usually provide enforced removal, limited marketability coverage for a homeowner as well. This means that the homeowner would be fully covered by FCT if during their period of ownership they are forced to remove the encroachment. In addition, FCT would agree to provide that same coverage to subsequent purchasers for a new premium with the limitation that coverage would not be provided in the event a prospective purchaser raises [...]

Title Insurance – Known Defects 2019-10-17T02:48:04+00:00

Things to Know regarding Landscaping of your New Home

When you are buying a new home from a Builder, you may be required to complete the final grade or landscaping.  Here is an explanation of some terms that you should know. Rough Grade Approval:  Usually this is applied for by your Builder once backfilling of the foundation walls and shaping of the lot is completed according to the Surface Drainage Plan.  The lot is surveyed by a land surveyor, architect, or professional engineer who prepares a Plan of Certification of As-Build Grades/Lot Grading Certificate.  It is submitted to the City and the City will conduct a lot grading inspection.  If the lot is graded properly, the City will issue a Rough Grade Approval.  You cannot start your landscaping or install things like a shed until the Rough Grade Approval is obtained. Final Grade Approval:  The Final Grade Approval is usually applied for after the Rough Grade Approval.  Sometimes the Builder provides the Final Grade Approval, but most times it is the Buyers responsibility. The application for Final Grade Approval is made once the lot is graded to where the final product needs to be placed.  The City [...]

Things to Know regarding Landscaping of your New Home 2019-10-17T02:46:56+00:00

Should I use the same Lawyer as my Builder?

A commonly asked question I get is, My Builder has agreed to pay my legal costs for the purchase of my new home if I use their Lawyer to complete the transaction.  I want to save money, but I’ve heard it might not be a good idea to use the same Lawyer because it is a conflict of interest.  What does this mean and what should I do? What is a Conflict of Interest?  Although the purchase of your new home might appear to be one transaction it is actually two transactions – the sale of the home to you by your Builder and your purchase of the home from your Builder.  A Lawyer who represents both of you has 2 separate clients – you and the Builder and each of you has separate interests.  This difference in interest is referred to by Lawyers as a “Conflict of Interest”. The reference to “Conflict” doesn’t mean “Dispute”.  It means a situation where the parties have different interests but there is no actual dispute between them. Can a Lawyer act for the Buyer and the Builder? A Lawyer can [...]

Should I use the same Lawyer as my Builder? 2019-10-17T02:45:18+00:00

Examples of Mortgage Fraud

Incidents of real estate title and mortgage fraud are very real in Canada and cost property owners and mortgage lenders millions if not billions annually.  Even though you are buying a new home from a builder, you may still be at risk of real estate title or mortgage fraud. Mortgage Fraud is any scheme designed to get mortgage financing under false pretences. It can be a simple act of falsifying information on a loan application or more complicated schemes among several parties to obtain financing on a property that exceeds the market value of the home. Once you become the owner of your new home or lot, you may be at risk of Real Estate Title Fraud.  Real Estate Title Fraud usually involves the use of stolen identify or forged documents to transfer the property owner’s title to the fraudster.  The fraudster then obtains a mortgage on the property, keeps the mortgage funds, and the property owner is left to pay. Fraud schemes come in many creative forms and new schemes are constantly being discovered.  Often these frauds are committed by organized groups, but sometimes an [...]

Examples of Mortgage Fraud 2019-10-17T03:11:32+00:00

Title Insurance – Claim Examples

Claim Examples I strongly recommend title insurance to all my clients who are purchasing a home.  Almost every real estate transaction I do now is title insured. You should know that -  Lawyers are responsible for ensuring the property is transferred to you without any financial encumbrances registered on title (liens, caveats, mortgages that you are not responsible for) but there are things that we don't typically check for - like building and development permits for work inside the property including renovations, lot grading, work orders or stop orders. Here are is an example of what title insurance has covered: Regarding Gap Coverage - Intervening Registration/Financial Interest on Title  - Example provided by First Canadian Title Insurance In Lewis and Dayo v. FCT,  a home owner sued the title insurance company for coverage when a mortgage was registered on their property title just before closing. The lender policy was purchased for $179 but the homeowner declined the $50 homeowner policy. Shortly after closing, a claim was made to FCT regarding a gap registration issue in the amount of $21,000, which had priority to the transfer and mortgage. What is important to note is [...]

Title Insurance – Claim Examples 2019-10-17T03:09:20+00:00

What you need to know about Real Property Reports (RPR)

What is a Real Property Report? A real property report (RPR) is a document that illustrates the location of visible improvements (for example, a house, garage, shed, deck, or fence) located on a property relative to the property boundaries.  Click here to see what a Real Property Report looks like. A Real Property Report includes the following: The legal description of the property; Dimensions and directions of all property boundaries; Designation of adjacent properties, roads, lanes; Location and description of all relevant improvements situated on the property including dimensions and distances from the property boundaries; Right-of-way or easements as noted on the title to the property at the date of the survey; Location and dimension of any visible encroachments onto, or off of the property; and A certificate and opinion by an Alberta Land Surveyor. Because it includes a statement detailing the surveyor’s opinions or concerns, the RPR is often relied on by the buyer, seller, lender, and the municipality as an accurate representation of the improvements located on the property. If you are a Seller, you need a Real Property Report because: It may protect [...]

What you need to know about Real Property Reports (RPR) 2019-10-17T02:56:39+00:00