Real Estate

Real Estate

The lawyers at our Summerside law firm have acted in the past and will continue to act for both the vendors and purchasers in residential real estate transactions and real estate law. We have two highly trained and well experienced property paralegals that can take care of all the administrative aspects of your transaction. Because we are primarily a litigation firm, we have the skill and experience to protect your interests well if anything goes wrong, and invariably it does.

SERVICES PROVIDED BY THE LAWYER FOR THE VENDOR INCLUDE:

  • Review the Agreement of Purchase and Sale to determine the steps required to look after your interests
  • Answer your questions and give you advice
  • Provide the purchaser with the legal description and any title particulars that you have in your possession
  • Examine and answer any questions the purchaser may have about the title to your property
  • Assist you in clearing objections to title
  • If you have a mortgage or any other lien on your property, we will make arrangements to pay it out
  • Meet with you to review the statements and documents and have you sign the deed and other closing documents
  • Handle the closing on your behalf and deliver the deed and keys to the purchaser
  • Receive the purchase funds, pay out and discharge any mortgages or liens, pay property tax or other adjustments, pay any remaining real estate commission, and then pay to you the remaining balance of funds.

INFORMATION FOR THE PURCHASER(S)
Buying a property is a big investment. The following information will outline some of the issues that you should consider when buying property. If you have any questions, please feel free to contact us at 1-902-436-9211.

AGREEMENT OF PURCHASE AND SALE
All agreements with respect to land must be in writing. Through the process of offers, counter offers, and acceptances, an Agreement of Purchase and Sale is negotiated. It will state most of the conditions of the purchase, including the date that the purchase will take place, which is known as the closing date. You should be very careful that you know what you are signing, as this is a legally binding document. If you sign the Agreement of Purchase and Sale, you can be forced by a court to buy the property. It is a good idea to have legal representation when negotiating an Agreement of Purchase and Sale and to have a lawyer review it before signing. Unless the agreement states otherwise, or there is an undisclosed hidden defect, you will be buying the property on an “as is” basis and the property should therefore be thoroughly inspected before signing the agreement. A professional inspection is always a good idea, and highly recommended, to avoid later disappointment.

FINANCING
Before you sign the Agreement of Purchase and Sale, you should check with your lender on whether or not you would be approved for a mortgage and find out the maximum amount that you would be approved for. This is known as a pre-approved mortgage. If a pre-approval is not obtained, a condition should be added to the Agreement of Purchase and Sale allowing you to arrange financing within a reasonable time.

TITLE
You and the lender will want to be sure that you will have good or clear title to the property you are buying. “Clear Title” is defined as holding full ownership of real property without any claims by others on the owner’s title and no history of past claims which might affect the ownership. Also, the chain of your registered title must extend back to a warranty deed beyond forty years. Your lawyer will provide a certificate of title.

This requires a title search. The title search shows the history of every change of ownership on a piece of real estate, and any claims such as liens, mortgages, or judgments against the property. If there are title problems, you will want to have these corrected or removed before you buy the property.

SURVEYS AND PLOT PLANS
A survey outlines the boundaries of the property, while a plot plan shows the existence and location of buildings, easements (such as sewer or electrical easements), and encroachments (a building or structure which is in whole or in part on a neighbour’s property). A title search cannot do this and therefore, we recommend that purchasers obtain a survey and always have an updated plot plan. Financial institutions may require a plot plan for mortgage purposes. Alternatively, a title insurance policy issued by an insurance company can guarantee that the title to a parcel of real property is clear and properly in the name of the title owner, and that the owner has the right to deed the property (convey or sell) to another. Should a problem later arise with the title, a claim will be presented by the policy holder to the title insurer to correct the title or to compensate in damages.

OTHER CONSIDERATIONS

Water Test
The mortgage lender will require an independent water test if the property has its own well. Independent water tests must be arranged well in advance of the closing date, as it can take weeks to receive the first test results, and on some occasions a second or third test is required. It is the responsibility of the vendor to order the water test, from an independent tester, but it is a good idea to inquire with your realtor to confirm that a test has been ordered or taken. The water test includes both a bacterial and chemical analysis. In order for your property to be marketable, it must have potable drinking water that complies with national standards. It is a “no-no” for you to take your own water sample and take it to the lab for testing. That sample can be from anyone else’s tap and is therefore meaningless. This can actually delay or abort a sale.

Fire Insurance
Ensure there is adequate insurance in place on the date of closing and that loss is payable to the lender according to the term of the mortgage loan, if you have a mortgage. If you are selling a property, do not take your fire insurance off until the property has in fact closed and you have received your cheque for the closing first. In addition, do not cancel your insurance until the midnight after the closing, if the closing transpires, to ensure you are protected.

Hook-ups
Make arrangements for telephone, electricity, cable, water, and sewer prior to closing.

Leases
Leases for furnaces, water heaters, or any other equipment on the property will either be assumed by you, or paid out by the seller on closing. Any leased equipment on the property is usually addressed in the Agreement of Purchase and Sale.

Zoning Laws/Building Permits/Subdivision Approval/Coastal Areas/Buffer Zones
The above items should be looked into before you agree to buy a property so that you are sure that you can use the property for the intended manner (i.e., building a cottage on a property, or buying a part of a larger piece of land).

Non-Residents and Corporations
There are restrictions on the amount of land which can be purchased. The Agreement of Purchase and Sale should be conditional on such approval. For more information on their restrictions, go to Regulatory & Appeals Commission.

Your Deed
If there is more than one purchaser, you must decide how you want to own the property. The property can be conveyed to you as joint tenants (meaning if one party dies, the other automatically gets the property) or as tenants in common (meaning if one party dies, he or she can dispose of the property in their will, or it will pass to his/her heirs).

What to Expect on Closing
The lawyer will prepare the deed and mortgage on your behalf. He or she will make all the adjustments required on closing, such as water and sewer, property tax, and fuel. The mortgage lender will forward the mortgage funds to the lawyer and you are required to have available the balance of the funds to close, including your mortgage down payment, legal fees, document registration fees, and closing adjustments (such as fuel and taxes).

1% Land Transfer Tax
This Act came into force on May 16, 2005 and stipulates that “a tax computed at the rate of 1% of the greater of the sale price or the assessed value of the real property” be paid, prior to registration of the deed. Recently, the government has advised that the rate of 1% will be the greater of the sale price or the taxable value of the real property. Some purchases are exempt from this tax, including but not limited to the First Time Home Buyer Exemption, Low Cost Real Property Exemption, and Inter-Family Transfer Exemption.