Fee Simple Conveyance with Conditions - 07/31/11 10:11 PM
 
Ontario Real Estate Source
 
By Brian Madigan LL.B.
 
Question
William Jones transferred title to his son Bob.  The deed was to "Bob Jones so long as the said land and premises are used as a farm" .
William Jones, the father, died two years later.  His Will gave everything to his son Bob and his daughter Margaret.
Bob continued to farm the land until a few months ago at which time he listed the property with XYZ Realty and the property was sold to a Developer.  After the deal closed, Bob got his money, XYZ Realty received their … (2 comments)

Fee Simple Conveyance? - 07/31/11 10:03 PM


Ontario Real Estate Source

By Brian Madigan LL.B.

Question
William Jones transferred title to his son Bob.  The deed was to "Bob Jones so long as the said land and premises are used as a farm" .
William Jones, the father, died two years later.  His Will gave everything to his son Bob and his daughter Margaret.
Bob continued to farm the land until a few months ago at which time he listed the property with XYZ Realty and the property was sold to a Developer.  After the deal closed, Bob got his money, XYZ Realty received … (1 comments)

Which is Presumed: Joint Tenancy or Tenancy in Common? - 07/31/11 02:39 PM

Which is Presumed: Joint Tenancy or Tenancy in Common?
Ontario Real Estate Source
By Brian Madigan LL.B.
Originally, in accordance with the common law properties conveyed to two people were presumed to be held in joint tenancy (with right of survivorship). Over the years, it was thought that this might be somewhat unfair, in the sense of “winner (survivor) take all”.
Consequently, the presumption was changed in the case of real property, such that a conveyance to two people was presumed to be tenants-in-common, unless there was a clear intention that joint tenancy was intended.
But, that new default … (5 comments)

Is Dual Agency the Worst Kind of Swine Flu? - 07/29/11 10:23 AM

 
Is Dual Agency the Worst Kind of Swine Flu?
 
Ontario Real Estate Source
 
By Brian Madigan LL.B.
 
A consumer association in the United States known as “CAARE” otherwise known as “Consumer Advocacy in American Real Estate” is rather opposed to the concept of dual agency.
 
Among other concerns this is what they say about the development of dual agency:
 
"The Worst Kind of Swine Flu 
Dual agency (aka "Hoggers") exist to enable real estate brokerage firms to double in size and to unfairly collect double commissions. 
It's greedy, dishonest and anti-competitive.  … (14 comments)

Mortgage Rates ~ 28 July 2011 - 07/28/11 02:05 PM
… (0 comments)

Why Should Realtors have Dual Agency when Lawyers Don’t? - 07/28/11 01:44 PM

Why Should Realtors have Dual Agency when Lawyers Don’t?
Ontario Real Estate Source
By Brian Madigan LL.B.
A consumer association in the United States known as “CAARE” otherwise known as “Consumer Advocacy in American Real Estate” is rather opposed to the concept of dual agency.
Among other concerns this is what they say about realtors and the comparison to lawyers:
“Compare to Attorneys
Attorneys possess incomparably superior education and licensing standards as compared to Realtors. 
In addition, attorneys are trained in how to manage conflicts of interest. Realtors are not.
Attorneys must have a post graduate doctorate degree and … (8 comments)

Should Dual Agency Result in Lower Fees? - 07/27/11 11:42 AM

Should Dual Agency Result in Lower Fees?
Ontario Real Estate Source
By Brian Madigan LL.B.
A consumer association in the United States known as “CAARE” otherwise known as “Consumer Advocacy in American Real Estate” is rather opposed to the concept of dual agency.
Among other concerns this is what they say about fees:
“Should Less Service Equate to a Lesser Fee?
The Consumer Federation of America came up with a recommended fee schedule that suggests a sliding downward scale to align the degradation of services that results from dual agency with a lowering of the fee Realtors charge. 
According … (5 comments)

Is Dual Agency Truly a “Bait and Switch” - 07/26/11 09:56 PM

Is Dual Agency Truly a “Bait and Switch”
Ontario Real Estate Source
By Brian Madigan LL.B.
A consumer association in the United States known as “CAARE” otherwise known as “Consumer Advocacy in American Real Estate” is rather opposed to the concept of dual agency.
This is what they say:
“Dual Agency is the Ultimate "Bait and Switch."
Dual agency is when real estate agents claim to represent both the buyer and the seller on the same transaction, creating an impossible conflict of interest.
It is branded (even marketed) and legalized under different names depending on the state. It is … (18 comments)

Evicting Tenants with Pets in Ontario - 07/25/11 09:42 PM

Evicting Tenants with Pets in Ontario
Ontario Real Estate Source
By Brian Madigan LL.B.
Are tenants allowed pets? And, if they have them, can you evict them?
Have a look at the relevant provision under the Residential Tenancies Act:
“No pet” provisions void
"14.  A provision in a tenancy agreement prohibiting the presence of animals in or about the residential complex is void."
So, any clause in a residential lease under the Act would be void.
What about boisterous, unruly and objectionable pets? Can a landlord terminate the lease?
Have look at s, 76 of the Act:
 
"Application based on … (6 comments)

Mortgage Rates ~ 25 July 2011 - 07/25/11 11:40 AM
Ontario Real Estate Source
… (0 comments)

Would you Sign this Listing Agreement? - 07/23/11 04:49 PM
By Brian Madigan LL.B.
You will have to have a look at this agreement in "pdf" format.
It's drafted to protect the consumer and make the listing agreement somewhat more fair, compared to the present agreements drafted by the real estate industry.
http://caare.org/sites/default/files/caarelistingcontract_ver_5_generic_july_22_2011_add_your_states_disclures.pdf
The document has been drafted by CAARE, a Consumer Advocacy in American Real Estate.
While the agreement seems well-intentioned, I really don't think too many brokerages are going to agree to its terms.
Ontario Real Estate Source
… (6 comments)

Seller Leaving Country after he sells his House - 07/23/11 01:43 PM
By Brian Madigan LL.B.
Seller Leaving Country after he sells his House
Question
What red flags and obligations do I as the listing agent have?
Answer
There are two main issues: residency and warranties.
Residency
If the seller is a non-resident at the time of the sale, that is, on the closing date, then there are obligations placed upon the buyer to withhold funds, usually 25% of the purchase price, not 25% of the equity and remit same to Canada Revenue Agency, unless there is a s.116 Certificate.
Naturally, it would be best to see that the seller leaves after the … (4 comments)

Cottage Sale By a Vendor Leaving the Country - 07/23/11 01:14 PM
By Brian Madigan LL.B.
 
Question
What happens in the case where the seller is a resident, but wants to leave the country after he sells the house?
If I were the listing agent should this appear in the listing or should I inform other agents?
 
Answer
What the seller plans to do after he sells, and where he plans to go, and whether he chooses to change his domicile are not relevant.
Just don't have him leave the same day or have it apparent that he is either leaving or in the process of leaving.
He can leave afterwards and … (0 comments)

Lease Options can be Risky! - 07/23/11 09:41 AM
By Brian Madigan LL.B.
Lease options are not simple transactions. They can be difficult and complex. Many promoters have attemoted to underestimate the problems.
Have a look at a recent article by Bob Aaron, a Toronto lawyer who practices in the real estate field:
http://www.thestar.com/article/1026616--aaron-rent-to-own-deals-can-be-risky-business
It is important to have a qualified real estate agent and lawyer to protect your interests.
Brian Madigan LL.B., Broker is an author and commentator on real estate matters, if you are interested in residential or commercial properties in Mississauga, Toronto or the GTA, you may contact him through Royal LePage Innovators Realty, Brokerage 905-796-8888www.OntarioRealEstateSource.com
… (3 comments)

Home Inspector Not Exempt from Liability - 07/23/11 09:33 AM
By Brian Madigan LL.B.
Ellen Roseman provides commentary on the proper role and limitations of a home inspector.
See her recent article published in the Star:
http://www.thestar.com/business/article/1029240--home-inspection-didn-t-find-costly-mould
In that case, a home inspector failed to discover the presence of mould. The home onwner was offered $500.00 being the cost of the report as a refund.
However, a home owner is not limited to recovery of the price of the report, where there has been negligence on the part of the home inspection firm.
Brian Madigan LL.B., Broker is an author and commentator on real estate matters, if you are interested in … (1 comments)

Seller Property Information Statement ~ Agent at Triple Risk of Lawsuits - 07/23/11 09:25 AM

Ontario Real Estate Source
By Brian Madigan LL.B.This was a case in the Supreme Court of British Columbia in 1997 involving the use of the Property Condition Statement.Mr. and Mrs. Lance purchased a property from Mr. and Mrs. Wright. Subsequent to the purchase, they claim that the water supply was inadequate and that there were misrepresentations contained in the Property Condition Statement signed by the Wrights.This was not an actual trial. It was a procedural motion before trial. The trial date was less than one month away.The purchasers sued both the Wrights and the Wrights' real estate agent, Miller. Miller … (4 comments)

New Tecumseth Real Estate - 07/22/11 05:10 PM
There is an attractive opportunity to acquire property in New Tecumseh. This is the area near Alliston Ontario and is accessible off Hwy 89 and 400.
It is now home to Honda, so there are plenty of jobs available in the manufacturing industry.
There has been substantial growth over the years, and the community is nicely positioned to take advantage of longer term markets trends.
… (3 comments)

Seller Property Information Statement ~ Agent Cannot Assume Vendor's Warranties - 07/22/11 05:04 PM
 
 By Brian Madigan LL.B.This is another interesting case involving the use of the Seller Property Information Statement (SPIS), not for the purpose for which it was intended, but for other purposes.This particular matter came on by way of appeal from a lower court, to the Divisional Court of the Superior Court of Justice of Ontario in December 2005.Briefly, the plaintiff in this case is a realtor and sought payment of a commission for a transaction which was never completed. At issue, was the offer itself and 1) whether it was ever properly presented, and2) whether it met the terms of the listing … (0 comments)

Mortgage Rates ~ 21 July 2011 - 07/21/11 03:27 PM
Ontario Real Estate Source
Please call me if you require a referral to a mortgage broker.
… (0 comments)

Mortgage Rates ~ 18 July 2011 - 07/18/11 09:45 AM
Ontario Real Estate Source
Mortgage Rates

* available to qualified applicants
If you require a referral to a mortgage broker, then please call me at 905-796-8888.
… (3 comments)

Seller Property Information Statement ~ Used for Contempt of Court - 07/17/11 11:23 AM
Zadegan and Zadegan

Ontario Real Estate Source
 By Brian Madigan LL.B.This is a very unusual case involving the use of a Seller Property Information Statement. Actually, the SPIS formed part of the evidence in a contempt of court matter in Superior Court of Justice (Family Division) before Justice Mackinnon in Ottawa in October 2003.Briefly, the Zadegans were involved in a series of legal proceedings that arose out of the breakup of their marriage. Issues of child support, the division of net family property and the sale of the family home were brought before the Court and resulted in a number … (4 comments)

Bankruptcy Trumps Family Law - 07/14/11 12:01 PM
Ontario Real Estate Source
By Brian Madigan LL.B.
The Supreme Court of Canada ruled today tha the provisions of the federal Bankruptcy Act take precedence over the provincial Family Law Act.
Effectively, the husband was able to declare bankuptcy and treat his former spouse as an ordinary creditor. The Court expressed the view that the result was "unfair".
Parliament will have to make appropriate changes to the Bankrupcy Act.
 
… (6 comments)

Matrimonial Home Protection in Ontario - 07/13/11 06:44 PM
Ontario Real Estate Source
Question:
I left the matrimonial home which was jointly owned by my spouse and her mother.
We have only been married for two years. It has gone up in value. Do I have any rights? What can I do to protect myself?
Answer:
You should immediately contact a lawyer and register a designation that the property is a matrimonial home. That will preserve your rights in part.
However, there are two separate matters:
1) your right to occupy, and
2) your right to a division of the equity upon a sale or disposition.
 
… (1 comments)

Mortgages for Student Investment Properties - 07/13/11 06:34 PM
Mortgages for Student Investment Properties
Ontario Real Estate Source
By Brian Madigan LL.B.
Here is a recent announcement by RBC:
"RBC expands mortgage programs for student tenanted properties
Recognizing the need for investor-owned housing in communities with post secondary institutions, RBC Royal Bank recently expanded its mortgage programs for student tenanted properties. Universities often have insufficient student housing and rely on this type of accommodation for incoming students.
Financing these properties can be challenging as many financial institutions have policies that restrict lending on student tenanted properties. RBC Royal Bank® has responded to this need by creating solutions for clients who … (0 comments)

World Wealth Builders - 07/13/11 06:26 PM
I will be speaking at the World Wealth Builders' real estate education seminar to be held this Friday. Saturday and Sunday July 15, 16, and 17 in Ottawa.
The program is designed for sophisticated real estate investors.
If you wish to attend, then please let me know?
Brian Madigan LL.B., Broker is an author and commentator on real estate matters, if you are interested in residential or commercial properties in Mississauga, Toronto or the GTA, you may contact him through Royal LePage Innovators Realty, Brokerage 905-796-8888www.OntarioRealEstateSource.com
… (2 comments)

Seller Property Information Statement~ Cartwright v. Fournier - 07/13/11 06:15 PM
SPIS ~ Cartwright and Fournier
 
Ontario Real Estate Source
By Brian Madigan LL.B.This is another in the series of Property Disclosure Statements giving rise to litigation after closing. The parties entered into an agreement in November 2003 to close 14 April 2004.The matter came on for trial in the Provincial Court in Calgary, Alberta.The purchaser claims damages for alleged misleading and fraudulent statements regarding basement water leakage.As part of the agreement, the following provision was included:Vendor to supply Property Disclosure Statement satisfactory to Buyer's approval."A Property Disclosure Statement was in fact executed by the vendors and the information contained in … (2 comments)

Mortgage Rates ~ 13 July 2011 - 07/13/11 06:07 PM
Mortgage Rates ~ 13 July 2011
Ontario Real Estate Source

… (0 comments)

ORES Real Estate Index for June 2011 - 07/12/11 01:53 PM

ORES Real Estate Index for June 2011
Ontario Real Estate Source
By Brian Madigan LL.B.Here is the "ORES REAL ESTATE INDEX" which tracks the average resale prices of single family homes and condominiums in the Greater Toronto Area (GTA). It also tracks certain benchmark comparisons such as the price of oil and gold, as well as the Consumer Price Index.In addition, the stock market indices for Toronto, and the three largest US markets are also compared.For ease of comparison, everything we look at is worth 100 points on the Index as of 1 January 2005. That time period compares favourably … (6 comments)

Property too Small ~ Buyer's Remedies - 07/11/11 06:16 PM

Property too Small ~ Buyer's Remedies
Ontario Real Estate Source
By Brian Madigan LL.B.
So what happens if the size of the property is a little short?
Here's something that the Ontario Court of Appeal stated in Bouskill v. Campea (1976):
 
Comment
In this case, the Court ruled that the purchaser did not have to disclose his intention to develop the property. That was his business and he could keep it secret, because it might effect the negotiations,
The Court was led by Madam Justice Bertha Wilson and this has been the basis of the legal rules on this … (2 comments)

Mortgage Rates ~ 11 July 2011 - 07/11/11 12:50 PM
Ontario Real Estate Source
Here are the rates for 11 Juky 2011

 
If you require a referral to a mortgage broker, then please call me at 905-796-8888.
… (0 comments)

Property too Small ~ Is there any Liability? - 07/10/11 07:15 PM
Ontario Real Estate Source
By Brian Madigan LL.B.
Question:
After the closing is done, what If the buyer finds out the actual lot depth is 5 ft shorter than states on the listing agreement and offer, who is going to be liable on this? Or there will be no claim at all by the buyer?
Replywith responses noted in bold.
There are several issues here.
1)    Was the 5 feet material?
Maybe not, if the property were 10 acres, it wouldn't seem that 5 feet is significant or material.
2)    Was the property properly described in the listing, and subsequently the … (2 comments)

My Blog was Hijacked - 07/10/11 06:49 PM
My Blog was Hijacked
Ontario Real Estate Source
Brian Madigan LL.B.
With a little bit of investigation it turns out that my blog hosted on Blogger (owned by Google) was hijacked.
I suppose it seemed innocent enough. The culprit took my entire blog including the hyperlink to my website and posted it. The problem was that this was a "link farm" and eventually Google blocked my blog.
Mine has now been gone for 6 months.
They went to my original article and changed it so that it contained hyperlinks to other sites that they were pushing.
So, you have to be … (13 comments)

Seller Property Information Statement ~ Macdonald v. Robson - 07/09/11 07:32 PM
 
Ontario Real Estate Source
By Brian Madigan LL.B.This was an application in the Superior Court of Justice of Ontario for an order rescinding an agreement of purchase and sale.The purchaser Mr. Macdonald had submitted an offer to acquire certain property owned by the vendor Robson. The transaction was to close on 28 April 2008 and the matter proceeded to Court 3 days before closing.The property comprised 2 acres of rather picturesque property backing onto conservation lands in Flamborough, Ontario.As it turned out, there was an easement in favour of the Township over one half of one acre or 25% of … (1 comments)

The Beginning of Products Liability in Tort ~ McPherson v. Buick - 07/08/11 08:01 PM
The Beginning of Products Liability in Tort ~ McPherson v. Buick
Ontario Real Estate Source
By Brian Madigan LL.B.                
The law related to products liability could not stay as it was stated in Winterbottom v. Wright (1842) in the Exchequer Appeals Court in England. That case essentially precluded the right of an injured party to sue the person who caused the injury. Some kind of a contract would be needed in order to bring the parties within legal proximity.
Mr. McPherson bought a Buick automobile from a dealer in 1910. Literally, the wheels fell off. Remember that in 1910, they … (0 comments)

No Products Liability in Tort ~ Winterbottom v. Wright - 07/07/11 10:16 PM

No Products Liability in Tort ~ Winterbottom v. Wright
Ontario Real Estate Source
By Brian Madigan LL.B.                
The case of Winterbottom v. Wright (1842) in the Exchequer Appeals Court in England was instrumental in dealing with the issue of products liability in tort.
Winterbottom operated a carriage contracted by the Postmaster. Wright was contracted to keep the carriage in repair. You guessed it. Wright was negligent and Winterbottom was injured.
The Court was called upon to consider whether Winterbottom had a legal claim as against Wright. The Court in 1842 concluded "no". If there was to be any liability … (3 comments)

Liability for Negligent Statements ~ Hedley Bryne v. Heller & Partners - 07/06/11 09:05 AM

Liability for Negligent Statements ~ Hedley Bryne v. Heller & Partners
Ontario Real Estate Source
By Brian Madigan LL.B.                
Hedley Byrne v. Heller & Partners was a very important turning point in the law of torts. The case was decided by the House of Lords in England in 1964.
Hedley Byrne, an advertiser, sought assurances that it could extend credit to one of its existing customers through the facility of the customer's banker, Heller & Partners.
The defendant banker advised that the customer would be "good for its ordinary business operations".
This statement turned out to be untrue, and … (1 comments)

Liability for Fraudulent Statements ~ Derry v. Peek - 07/05/11 09:16 PM

Liability for Fraudulent Statements ~ Derry v. Peek
Ontario Real Estate Source
By Brian Madigan LL.B.                
The House of Lords in England dealt with the tort of "deceit" in 1889.
The case was Derry v. Peek and it now stands as the basic common law principle of fraudulent misrepresentation.
The directors of a company issued a false prospectus. They operated a tram and said that it would be pulled by a steam engine rather than horses. This seemed technologically advanced at the time so shareholders bid up the price of the stock. When the prospectus turned out to be … (2 comments)

The Beginning of Modern Tort Law ~ Donoghue v. Stevenson - 07/04/11 09:49 PM
 Lord Atkin (House of Lords)
The Beginning of Modern Tort Law ~ Donoghue v. Stevenson
Ontario Real Estate Source
By Brian Madigan LL.B.                
This was the case which "opened the floodgates", so to speak. This case was a turning point in the law of torts and established new grounds for liability.
To a large extent the law of negligence was redefined in this case. Up until Donoghue v. Stevenson the law of torts had been developing slowly. And, since the case, the law of torts has expanded to include products liability, medical malpractice, environmental liability and professional negligence.
So, here … (7 comments)

Judicial Sale in Ontario - 07/04/11 09:51 AM
Judicial Sale
Ontario Real Estate Source
By Brian Madigan LL.B.
Foreclosure is a process initiated by a mortgagee who wishes to obtain possession and title to the property.
Upon completion of the process the mortgagee can either keep the property or sell it. There is no further accountability.
A remedy available in Ontario, in order to keep the mortgagee "honest", is the right of the mortgagor to convert at any stage of the process a foreclosure into a judicial sale. That sale is monitored by the Courts and conducted by the Sheriff.
The remedy is available until there is a Final … (7 comments)

Mortgage Rates ~ 4 July 2011 - 07/04/11 09:04 AM
If you require a referral to a mortgage broker, then please call me at 905-796-8888.
Ontario Real Estate Source
… (1 comments)

Deed Restrictions and Buyer's Rights - 07/03/11 11:49 AM
Deed Restrictions and Buyer's Rights
Ontario Real Estate Source
By Brian Madigan LL.B.
 
Questions:
A buyer puts an offer to purchase a property and the seller accepts it.
Later during title search buyer finds out that the deed has restriction regarding parking RV or boat in the garage.
There may or may not be compliance. Assuming that the RV may not be placed it the garage, then the seller can remove it and now is in compliance. Note that "compliance" was the exception.
Can the buyer back out from the offer citing this as an issue because there was nothing … (2 comments)

Vacant Land ~ One Spouse on Title - 07/03/11 11:06 AM
Vacant Land ~ One Spouse on Title
Ontario Real Estate Source
By Brian Madigan LL.B.
Question
If an individual who is married owns a piece of land and he is the sole owner of that land, would the consent of his spouse be required?
Answer
The spousal consent is only required under the Family Law Act with respect to a matrimonial home.
Since this a vacant piece of land, then the spousal consent would ordinarily not be required.
There may be an exception if there was a matrimonial home under construction which replaced an earlier matrimonial home. This situation would be … (1 comments)

Seller Property Information Statement ~ Whaley vs. Dennis - 07/02/11 10:48 AM
 
Ontario Real Estate Source
By Brian Madigan LL.B.Mr. and Mrs. Whaley purchased a small house from the vendors Mr. and Mrs. Dennis in 2002 . The property was located in the Niagara Peninsula and was intended to be the retirement home of the purchasers.The matter came on for trial in the Superior Court of Justice in October 2005 before the Honourable Mr. Justice Quinn. A matter in issue were false statements made pursuant to the Seller Property Information Statement.Mr. and Mrs. Dennis purchased this property in 2002. They decided to list the property for sale and in that connection executed … (4 comments)

 
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Brian Madigan LL.B.

Toronto, ON

More about me…

RE/MAX West Realty Inc., Brokerage (Toronto)

Address: Toronto, Mississauga, Oakville, Brampton, Caledon, Thornhill, Greater Toronto Area, http://www.iSourceRealEstate.com

Office Phone: (416) 745-2300

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