SELLING REAL ESTATE PROPERTY: A SIMPLE CHECKLIST TO PREPARE FOR CLOSING
Please note all information shared herein is general information and not legal advice for which a lawyer must be retained. For more information about buying, selling or refinancing real estate in Kitchener-Waterloo or beyond, give us a call.
Although buying a real estate property, in Kitchener, Waterloo or Cambridge regions or beyond involves multiple steps, selling your real estate also requires you to be involved and organized to ensure that your lawyer has all the requisite information to complete the transaction.
If you decide to retain VRS Law to act on your behalf on the sale of your property, here is an example of what we may seek to obtain from you immediately in order to ensure a smooth closing:
☐ 1. Fax or e-mail
If you or your real estate representative has not already done so, we will need you to fax or email us a copy of the offer or the agreement of purchase and sale.
Please also email us all of your contact information including all cell phone numbers and all email addresses.
☐ 2. Mortgage pay-out statement
As part of the closing process, it is our job to ensure that we obtain an up to date pay-out statement from your bank or mortgage company so that we may pay-out your mortgage from the sale proceeds and discharge the mortgage from the title of your home, which is currently registered as a lien.
Accordingly, to ensure that we have accurate information such as an account number or a mortgage loan number when we write to your bank for a discharge statement, we will need you to fax or email us a copy of your most recent mortgage statement for references purposes. (If you cannot find one, just provide us with a contact name and phone number of your banker).
☐ 3. Property tax bill
We also need to adjust for your property taxes, especially if you have prepaid your taxes for the year or if you have paid taxes for a time period past the closing date.
Accordingly, please fax us or email your most recent property tax bill.
NOTE: If you are currently on a pre-authorized payment plan with the City whereby they automatically debit your bank account for your tax installments, monthly or otherwise, you will need to cancel this at the appropriate time to avoid any additional charges.
☐ 4. Condo fees
If the property you are selling is a condominium unit, we will also be adjusting for your monthly common expense payment with the buyers.
However, as in the case of property taxes, if you have arranged to pay your maintenance fees on a pre-authorized payment basis, you will need to cancel this immediately. (In case you have given post-dated cheques to the Management Office, you will need to get these cheques back).
☐ 5. Contact utilities
You will need to contact the utility companies, such as hydro, water and gas departments to give them your forwarding address so that they may send you the final bill after the meter reading on the closing date.
☐ 6. Appointment to see us
Our office will be setting up an appointment with you – usually a few days before the closing date in order to attend at our office to review and sign all closing documents.
It is important to note that all those who are currently on the title to the home must come in to sign.
Furthermore, if only one of the spouses is the owner and both spouses reside in this property, then the non-owner spouse must also come in to our office to sign.
Finally, if one or all of the owners are not present to sign these documents and an individual under a Power of Attorney will be attending our office for signing, please provide us with the original copy of this Power of Attorney along with the contact information of the Attorney. For more information on this issue, please contact us.
☐ 7. Meeting before closing
It is typical for us to meet 1-2 days before the actual closing date.
Please remember to bring one (1) set of keys to the property with you to the meeting to leave with us so that we may, in turn, forward it to the buyer’s lawyer on closing.
Also, you will also need to bring two (2) pieces of identification.
☐ 8. Pick up funds
Once we have received the closing funds from the buyer’s lawyer on the closing day, we will electronically message the deed to the property to the other lawyer. It is only when he or she has registered this deed in the buyer’s name can we then consider this transaction as having closed.
And once the deal has closed, we will notify you immediately so that you may attend at our office to pick up the balance of the closing funds, which will be in the form of a certified cheque or a bank draft.
You may provide us with a VOID cheque from a major financial institution so we can directly deposit the funds to you after closing is complete. This usually takes place the day of closing or the morning of the following business day.
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Do you need to obtain the Grant of Probate on Death?
NOTE: The article shared below is for informational purposes only and is not to be considered legal advice. For the correct advice pertaining to your situation, please contact a wills and estates lawyer in your area.
After the passing of a loved one, one of the key questions facing family members is whether they have to go to court in order to obtain the grant of probate. The short answer is, it depends on what is involved in the estate. In particular, one needs to know what type of assets exist in the name of the deceased individual and whether they can be transferred through other methods that may avoid the need for obtaining probate. In this short post, we will look at just some of these situations.
Where a grant of Probate may be required:
No will?
If the individual died without a Will, a situation known as an intestacy, a probate process must follow and the individual applying will obtain something called letters of administration. It is no wonder that lawyers stress the importance of having a Will prepared.
Deceased owned real property
If the deceased held real property (house, land, mortgages etc.), then it is likely that an application must be made to court in order to obtain the grant of probate. This is what the land registrar relies on in order to allow transfer or dealing with property in Ontario. There are some increasingly rare occasions that this may not be required if the property falls within the old Registry system.
Other property held by institutions
In a scenario where a bank or other third parties hold property under the name of the deceased, they may insist on the grant of probate. Why? Mainly so they are protected. The party acting as the Estate Trustee will have to obtain this grant through the court process in order to prove they have authority to deal with such assets. Most importantly, by insisting on such, the banks or institutions limit their liability by relying on this grant.
However, in the event that accounts are relatively small, a bank may not insist on the grant of probate particularly where indemnities are signed and parties are known to the bank – such as a surviving spouse.
Protection for the Executor and proving the validity of the Will
By following the process of obtaining the grant, the Executor limits him or herself from potential liability to a certain degree. This way, if another party makes a claim that they had authority to act under another will or document, the Executor can at least claim that they are acting under confirmation of the courts. Of course, this does not by any means lower the standard by which an Executor is expected to carry out his or her duties. Certainly, the grant itself can be challenged but there is no question that obtaining the grant is a method of protection for the Executor. Further, the act of obtaining a grant on it’s own is confirmation that a valid will exists – this is especially useful in a situation where there may be question regarding capacity of the deceased Testator.
Whether a grant of Probate may not be required:
Items that can usually be transferred from deceased’s name:
There may be property that is held by way of a right of survivorship that may be allowed to be transferred without the need for probate. However, recent cases in the Supreme Court of Canada put some of these joint accounts into question and legal advice should always be sought.
Additionally, an insurance company may transfer insurance proceeds to a listed under a beneficiary designation without the need for probate. The same may apply for registered plans such as RRSPs etc.
Depending on the jurisdiction involved, personal effects, cars and vehicles, Canada Pension Plan death benefits are usually transferred without the grant of Probate. Shares that the deceased held in a private corporation may also be allowed to be transferred without the grant.
Make a list and obtain legal advice
The main message here is that there may be a number of assets that require probate and a few that do not. As obtaining the grant of probate in an estate matter takes takes at least a number of months or more and requires patience from all involved. The key is to make a detailed list and gather information if you are acting as the executor and obtain legal advice from an estate lawyer as to what steps are to be taken.
Our office serves and assists with wills, estate, probate as well as real estate matters in Kitchener, Waterloo, Cambridge and surrounding areas such as the GTA .
NOTE: The article shared below is for informational purposes only and is not to be considered legal advice. For the correct advice pertaining to your situation, please contact a wills and estates lawyer in your area.
Read MoreReview of Real Estate agreement by a Lawyer
Do you need your real estate agreement reviewed by a real estate lawyer?
When you enter into an agreement to buy or sell a property, you are entering into something that may very well turn into a binding legal contract. A standard agreement of purchase and sale has all the necessary legal elements of a contract, such as the offer, acceptance, consideration as well as a meeting of the minds. In other words, entering into an agreement of purchase and sale is a serious legal commitment, not to be taken lightly.
It is a good idea to have this document reviewed by a lawyer that is experienced in real estate law. Particularly where the obligations and responsibilities are not well understood. In reality, however, buyers and sellers often rely on their real estate agent to start and complete the agreement of purchase and sale process and it is not until this contract is final and binding that the law office sees the paperwork for the first time.
Our suggestion is that if someone is unfamiliar with the process, or has any questions about what any of the terms of their agreement stand for, give us a call. As the law firm retained to close the transaction, the review of the real estate agreement is completely free – it is included in the lawyer fees as a part of the legal service provided for closing the property.
There can be numerous considerations that warrant a review of the agreement of purchase and sale. Some of these are included herein for general information.
Example 1: Issues with sellers’ capacity or authority to sell
Suppose you’re purchasing a property. You have been searching for quite some time and finally found the right place. You present an offer which the seller accepts. The conditions are now waived and it is time for closing and you now wait for the transaction to close. However, prior to closing it turns out that the ‘seller’ does not have the authority or capacity to sell. How can that be?
Is the seller is a corporation?
Have all the authorized signing officers agreed to the sale? Is the corporation identified correctly on the agreement? Was a corporate search conducted to validate the information shared by the seller or its respective agent. You can imagine the impact any of these situations may have on your transaction.
Is the seller selling by way of a power of attorney?
In this case, the buyer should be on alert to ensure that first, a power of attorney for property is presented and that the power of attorney is a validly executed copy that would stand in court. Is it a limited, general, or continuing power of attorney? Your real estate lawyer that also handles wills and estate matters should be consulted. Such documents have been the subject of fraud plenty of times. Last thing you want is a transaction subject to challenge and tied up in a court battle.
Are there multiple owners of the property ?
Have all the owners signed? If for some reason it is discovered later that all of the correct parties have not consented to the transaction, you may have your rights limited to the party that entered into the agreement with you – thereby hindering your ability to purchase.
Are you buying from an Estate?
Is there a certificate of appointment that allows the estate trustee(s) to sell the property? Essentially, is it an authorized sale?
Is the property a matrimonial home?
Family Law Act prohibits a spouse from selling a house where the subject property is considered a matrimonial home unless the other spouse has consented to the transaction. It is also possible that a power of attorney may be used by the spouse selling. The power of attorney itself needs to be reviewed to ensure that such authorization exists in the document.
Example 2: Conditions
Have you inserted the necessary conditions prior to the agreement becoming a binding agreement?
For example, just because a bank advisor once told you that you may be approved for a mortgage for $ 500,000 does not mean that you will be approved in this case and for this specific property.
Banks have a detailed process to ensure that the property they are providing the loan (security) for is actually worth what you say it is. In other words, if you have overpaid for the property, does not mean the bank will just accept the agreement as the actual price. They will conduct their own due diligence which may include obtaining a current appraisal on the property. You do not want to find yourself in such a situation. Therefore, it is advised that you consider negotiating a financing condition to allow your bank advisor or mortgage broker some time to have written confirmation from the bank that they will finance the property and will provide the amount that you will require to close the deal. However, in a hot market, the seller may not be willing to wait a long time for you to get your approval, if at all.
Needless to say, a home inspection condition is also often inserted to allow the buyer and his or her inspector be satisfied of the condition of the property.
There are a variety of conditions that may be suitable depending on the nature of the property and the type of transaction.
Example 3: Which items stay with the property?
Are there specific items on the property that you think the seller will leave after closing? If so, it is best to put this in writing and best to describe in detail what the specific item is. Typically, unless the chattel (item of personal property) is specifically listed, it goes with the seller. Therefore, unless stated in the agreement, you may find yourself surprised when you move in.
This also applies to the sellers as items considered as fixtures typically stay with the property. If there was an item that the seller wishes to take which can be considered a fixture, it is best this is negotiated and specified in the agreement.
Example 4: Is the seller a non-resident? Or, is the buyer subject to the NRST tax?
I am often surprised at how little thought goes into the seller’s status as a non-resident. There may be a holdback required under s. 116 of the Income Tax Act if there is concern that the seller is not a resident of Canada. If such a situation exists, an involvement of an accountant is crucial at the outset as a clearance certificate from the CRA need to be obtained and to avoid surprises.
If the buyer is not a citizen or permanent resident, there may be non-resident speculation tax payable at the time of closing. Often, parties are not aware of this relatively recent requirement imposed which amounts to 15 per cent tax on purchase of a residential property. If not discovered until the last few weeks or after an offer is “binding”, it can become immensely difficult to complete a transaction and may result in loss of deposit.
Example 5: Title search date?
Does your lawyer have enough time to conduct the necessary searches on title? Without adequate time, or sometimes, no time, your interests may be jeopardized.
The above are just some general examples of why and when a review of the agreement may be required by a lawyer. Not only do we assist potential buyers and sellers, but we also often assist local Kitchener-Waterloo realtors with clarifying the rules and laws in order to property advise their clients. There are numerous situations that can be present in any given transaction and as a result, it is a good idea to have a lawyer review the agreement upfront to avoid unnecessary surprises.
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