ontario law: Sellers: How to Avoid Lawsuits!
- 01/02/15 12:03 AM
Sellers Avoid Lawsuits: Factor Defect into Price!
Everyone wants to negotiate and get a good price for their house. But, when the deal is closed and the sellers have moved on, they really want to be DONE with the house.
So, what’s the point in concealing a defect?
It just may come back to haunt them, even after the deal has closed.
The sale of houses without new home warranties is subject to the doctrine of caveat emptor, “let the buyer beware”. It’s essentially the buyer’s responsibility to protect himself. This he does by:
1) Specific warranties and representations in the … (4 comments)
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ontario law: Agency Created By Estoppel
- 07/26/13 02:39 AM
By Brian Madigan LL.B.
Ontario Real Esate Source
The very difficult issues raised in the area of agency are the ones that are not quite so clear. Here, the agent is not appointed by an express written agreement. If that were the case, then the position of the parties would be clear and the rights and responsibilities would fall into place.
And, it’s not even verbal, which poses its own issues. This agency appointment arises simply out of the conduct of the parties.
In this case, there is nothing in writing. The agency appointment comes as an … (0 comments)
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ontario law: Can You Do an End Run Around the Agent?
- 03/21/13 10:55 AM
Brian Madigan LL.B., Broker
From time to time, a seller will think that the agent didn’t really earn their commission. It may be that a neighbour or friend approaches them after they have signed a Listing Agreement.
The Listing Agreement will cover a certain time period, and if the property sells during that time (or the holdover period), the agent is entitled to his commission.
That’s fairly straightforward. But, it’s often difficult to find cases right on point since it is really so obvious.
The agent also needs protection since the seller and the neighbour might agree … (4 comments)
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ontario law: Does a Commercial Tenant have the Right to Assign the Lease?
- 03/12/13 12:30 PM
Ontario Real Estate Source
By Brian Madigan LL.B.
Most people seem to know that commercial landlords are tougher and often don’t want to agree.
The right to assign a lease is provided to residential tenants under the Residential Tenancies Act.
But, what about commercial tenants? Do they have similar rights?
Actually, they do! Have a look at s.23 of the Commercial Tenancies Act:
Licence to assign not to be unreasonably withheld
23. (1) In every lease made after the 1st day of September, 1911, containing a covenant, condition or agreement against assigning, underletting, or parting with the possession, or disposing … (2 comments)
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ontario law: Renovation Contract (Standard Form - Ontario)
- 03/10/13 01:11 AM
Renovation Contract
Ontario Real Estate Source
By Brian Madigan LL.B.
Below you will find a sample contract which appeared for many years on the CMHC website. It is now no longer available. More recently, CMHC published a disclaimer concerning its use. So, you should use it only as a starting point and not as a full and complete document.
CMHC Sample RENOVATION CONTRACT
Renovation Contract
Between
Contractor (name of company) ______________________________
Address _______________________________________________
______________________________________________________
Project manager _________________________________________
Telephone __________ Fax ___________ E-mail _______________
Business Number ________________________________________
Municipal Business License #, if applicable _____________________
and
Owner(s) … (2 comments)
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ontario law: Hiding Something? ~ Be a FSBO!
- 03/02/13 08:53 AM
By Brian Madigan LL.B.
Ontario Real Estate Source
Basically, it seems pretty clear, if you are selling your property and want to hide something, then you had better be a FSBO.
FSBO is the acronym for the term “For Sale By Owner”.
So, let’s say you have a former marihuana grow house, infested with rodents, a former crack house raided by police; two of your tenants were shot and one was killed. This is not a good story to pass on to the next buyer, even if it wasn’t your fault. You just had … (6 comments)
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ontario law: OREA FORM 225 and the “LAW”
- 02/18/13 12:01 AM
Ontario Real Estate Source
By Brian Madigan LL.B.
In OREA’s new Form 225, there are two statements made about the law of disclosure in real estate:
"Whether or not the seller completes an SPIS, the law requires a seller to disclose known hidden material defects to a property. In addition, the Real Estate and Business Brokers Act, 2002 requires registrants to determine and disclose “material facts” when a buyer is purchasing a property. The Seller Property Information Statement can be useful in fulfilling these obligations."
1) The Seller’s Obligation
The statement here is that the seller must disclose … (0 comments)
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ontario law: Agent Disciplined ~ Failed to Require “Home Inspection”
- 02/17/13 01:24 AM
Ontario Real Estate Source
By Brian Madigan LL.B.
Recently, the Court of Queen’s Bench in New Brunswick was called upon to review a discipline decision of the New Brunswick Real Estate Association.
Brent Sawler acted on behalf of Todd and Nicole Burgess in the purchase of a house. The property was listed by his father, another agent with the same real estate brokerage.
Essentially, this placed both agents is a conflict since the brokerage was now acting on behalf of both the seller and the buyers in the same transaction.
Facts:
· The first offer of $320,000 contained a … (6 comments)
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ontario law: Continuing Mandatory Education Changes (RECO)
- 02/13/13 12:29 AM
Ontario Real Estate Source
By Brian Madigan LL.B.
It is important to note the new changes to the continuing education program as implemented by RECO.
For anyone requiring a renewal of their registration before 31 July 2013, the existing system applies.
The existing requirement is:
1) RECO Update offered by OREA (worth 6 credits), and
2) 18 additional elective credits offered by Approved Education Providers.
For anyone requiring a renewal of their registration commencing 1 August, the new system applies.
The new system is the completion online of a series of educational modules on the RECO website. This program … (2 comments)
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ontario law: OREA FORM 127 ~ Acknowledgement
- 02/11/13 12:43 AM
Ontario Real Estate Source
By Brian Madigan LL.B.
There is a recent new Form which has been published by OREA, (the Ontario Real Estate Association). It is Form 127, described as an:
“Acknowledgement Re: Condition(s) in Offer”
In large measure, it is an attempt to document the process of decision-making on the part of the buyer.
Perhaps, all too often, when something goes wrong with a transaction, and the buyer is disappointed, the buyer will become somewhat forgetful, and point fingers in the direction of someone close at hand; that could be the spouse, business partner, friend, real … (0 comments)
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ontario law: Furnace Rentals and the Sale of Property
- 02/07/13 09:18 AM
Ontario Real Estate Source
By Brian Madigan LL.B.
We could have a problem here!
Potential problems arise in respect to the mutual understanding of the parties and the manner in which the rental issue is documented.
The Furnace Rental
The leasing of furnaces by the furnace supply industry is a relatively recent phenomena. Until recently, it was just hot water heaters that were rented. However, they were modest in value.
Furnaces can easily cost about $6,000.00 installed in the average residential environment. That’s a lot of money for someone who has just had their older furnace “red-tagged” by … (6 comments)
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ontario law: Contract Start Time
- 02/05/13 03:49 AM
Ontario Real Estate Source
By Brian Madigan LL.B.
Question:
Precisely, when does a contract start to run?
When does the clause time actually start?
Assume an offer is going on via fax. The Seller is in a different city. The Buyer accepted the counter offer, acknowledged and signed confirmation of acceptance on the 2nd of November. The next evening, the seller signs the acknowledgement and sends the paperwork, which is given to the buyer on the 3rd of November.
When does the clock start for the clauses period?
Answer:
The strong preference would be to use a clause which … (4 comments)
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ontario law: History of Fee Simple Ownership of Real Estate
- 02/04/13 04:00 AM
Ontario Real Estate Source
By Brian Madigan LL.B.
It can be quite difficult to understand the concept of fee simple ownership when it comes to real property without looking at some of the history.
We have to go back to England in the pre-feudal days. That would be 1065 and earlier. At that time, there really was no well-established concept of private property. People definitely farmed the lands, but their rights were not yet established or well-recognized. Some contemporary historians might argue with this point, since there were pockets in England where property laws were evident as early as the … (5 comments)
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ontario law: Maintain Accurate Financial Records
- 01/29/13 09:55 AM
Ontario Real Estate Source
By Brian Madigan LL.B.
If you are in business you should keep good financial records. It just makes sense, but so many small businesses neglect this tedious and somewhat time-consuming task. Careful records take time!
And, if you don't really have the time yourself, then you should retain a bookkeeper and an accountant.
Why? It will simply pay big dividends in the future. I'm not really talking about all the tax deductions that you don't miss because you now have proper receipts, or even the warranty claims that you can present because (again) you have receipts. … (3 comments)
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ontario law: Waterfront Property: Who Owns it?
- 01/29/13 12:20 AM
Ontario Real Estate Source
By Brian Madigan LL.B.
If you are looking at waterfront property, you really want to know where your property ends and the lake begins. You definitely don't want a "gap".
So, where's the line?
First of all, you have to begin with the water. Let's assume that the body of water is sufficiently large that it is considered to be a navigable water. That basically means that it can accommodate boats, even very small boats. Obviously, this will include lakes, and numerous rivers, but certainly not all of the tributaries.
Second, you will have to figure out where … (0 comments)
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ontario law: Title Insurance: Is it Necessary?
- 01/23/13 12:40 AM
Ontario Real Estate Source
By Brian Madigan LL.B.
That's a good question. Prior to 1997, there was no commonly available title insurance in Ontario and yet it was the norm in the United States.
Solicitor's Opinion
Traditionally, purchasers sought a title opinion from a solicitor who undertook a search of the title to the property. This included checking the chain of title as well as completing searches to determine if there were any liens or whether the property complied with zoning and building by-laws. The solicitor would express an opinion as to whether the title was "good … (5 comments)
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ontario law: Ontario Tree Thieves Might Steal Your Property
- 01/14/13 11:43 PM
Ontario Real Estate Source
By Brian Madigan LL.B.
Now, you might think that I'm talking about people who steal trees. I'm not. I'm talking about trees that steal property for you!
Obviously, these are good trees to have! What they do is this. They take property that belongs to your neighbour and give it to you. They don't do it overnight, it takes a decade, but it works.
It doesn't work with a dog or cat. If you have a pet that goes next door and brings something that your neighbour owns back to you, you're stuck. You have to give … (5 comments)
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ontario law: Good Fences Make Good Neighbours (Ontario)
- 01/14/13 09:13 AM
Ontario Real Estate Source
By Brian Madigan LL.B.
From Hadrian's Wall to the Great Wall of China, thousands of years before Robert Frost's prophetic words, neighbours have struggled with the age-old problem of constructing fences.
Just where to put it, is answered by the Romans and the Chinese. You place it along the boundary on your side of the property line. This way, you own it, and whether you are fencing other people out or your people in, this location makes the most sense.
You have the legal right to construct a fence right on the property line, but if you … (1 comments)
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ontario law: Matrimonial Home ~ Special Rights in Ontario
- 01/13/13 11:54 PM
Ontario Real Estate Source
By Brian Madigan LL.B.
Matrimonial homes in Ontario are subject to special considerations.
In most cases, people believe that if a couple is married then the house is split 50/50. Others, usually older people think that the wife is entitled to the home. Both are wrong!
The Family Law Act came into force in Ontario in 1978. It changed the previous laws related to the division of property upon marriage breakdown quite drastically. It introduced a scheme of community property which had been popular in many of the States to the south of the border. … (2 comments)
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ontario law: Should You sign a SPIS (Sellers Property Information Statement)?
- 01/05/13 06:21 AM
Ontario Real Estate Source
By Brian Madigan LL.B.
The question is: “do you sign one or not?”
OREA says yes. RECO says yes. But, most Ontario lawyers would say “no”. So, who do you believe?
The real estate industry has created this great new form, it’s called the Sellers Property Information Statement, or “SPIS” for short. It is supposed to save the vendors from lawsuits.
So, that’s pretty good, if it works.
The Ontario Real Estate Association (OREA) drafted up this document in the first place. It’s a standard document which the Association encourages be … (0 comments)
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Sellers Avoid Lawsuits: Factor Defect into Price!
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