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Real Estate - Purchase and Sale


Disclaimer

The following is no substitute for advice provided by a lawyer specifically for you. It is intended only to help you understand that advice. No responsibility is taken for any problems arising except due to paid legal advice.

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Terms

The seller is the vendor. The buyer is the purchaser. The purchaser usually finances with a mortgage. In that role, the purchaser is the mortgagor and the creditor is the mortgagee.

Procedure

In Regina, the legal procedure is designed to guarantee possession, not necessarily payment, on time. It is based on reliance on the lawyers. The Law Society of Saskatchewan's liability insurance ensures a lawyer's ability to pay. It goes as follows:

  1. The vendor's (seller's) lawyer takes steps to ensure s/he will be able to give clear title.
  2. The vendor's lawyer gives the transfer to the purchaser's lawyer before payment, because the purchaser's lawyer becomes personally obligated to pay if it is used.
  3. The purchaser's (buyer's) lawyer takes steps to ensure s/he is protected and so is the mortgagee and the purchaser, then puts the documents into the Land Titles Office. As soon as this happens, possession can occur, even if there has not yet been payment.
  4. The documents are registered by the Land Titles Office, putting title in the name of the purchaser, even if there has not yet been payment.
  5. The purchaser's lawyer requests money from the mortgagee. The bank will pay, even though there may not yet be clear title, because the lawyer is personally liable to the bank.
  6. The purchaser's lawyer pays the vendor, even though there may not yet be clear title, because the vendor's lawyer is personally liable to clear the title.
  7. The vendor's lawyer clears the title and reports to the purchaser's lawyer.
  8. The purchaser's lawyer gets proof of the clear title and reports to the bank.

The Agreement

What is a Contract for Land

In law, a contract (agreement) is made when an offer is accepted. Normally, oral (not written) contracts are binding, but there are exceptions, and land is one of them. The law makes certain assumptions if the contract doesn't mention things, but it needs to have at least, parties (who), property (what), and price. The contract can override any of the assumptions, including the procedure to be followed.

The Form of the Contract

In Regina, the Realtors Association has standard forms, which are adequate, although omitting some things which our own Agreement for Sale includes. However, our Agreement costs $250.00 and theirs is free. They have set it up as an Offer by the purchaser, which may be accepted, or the vendor can use their Counter Offer. The purchaser can accept that, or can use another Counter Offer, etc., until somebody accepts. Often there are conditions which must be met before the agreement is final, and they have a further form for Removal of Conditions. All of the documents together form the Agreement.

Key Terms

Title

It is assumed that clear title must be provided. However, the meaning of 'clear title' is somewhat elusive. For instance, easements or caveats by utility companies or neighbours are usually acceptable, but other easements or caveats are not. Consult your solicitor.

Certain things which are not clear, are whether a breach of bylaws by the structure affects the title. Nor is it clear whether a work order against the property, or a structure which improperly is built over a gas line, affects title. Do all us lawyers a favour and litigate this, to settle it finally. Sadly, few clients are willing to spend the thousands of dollars to get a superior court verdict, when usually less than that is at stake.

Price

The price must be clear. However the method of payment varies. Sometimes the purchaser will take over debts (e.g. the mortgage). The purchaser will sometimes pay the realtor a deposit. Often the contract specifies a certain amount to be financed, but the law doesn't really care where the purchaser gets the money from, so that part isn't binding.

Parties

The purchaser is the one who can demand the land, but the purchaser can put the land into any names s/he chooses.

Adjustments

If the purchaser is taking over a debt or getting the benefit of something that is pre-paid by the vendor, there must be an adjustment of the price. Usually that is just the Property Taxes. In Regina, the property taxes are due on June 30, but that payment covers the period from the prior January 1, to the next December 31.

Fixtures

Anything attached to the land is considered to be part of the land and are called 'fixtures'. Unless otherwise stated by the contract, any fixtures are included and any non-fixtures are not. The contract will state some things which are included even though they are not fixtures, and some things which are not included even though they are fixtures.

Condition

Normally, the purchaser is entitled to receive the property as it stood at the time the offer was made. The realtor's forms, and ours, require that it be as it stood at the time the inspection was made by the purchaser.

The agreement may change that. It is common to give a warranty that there be no urea formaldaehyde insulation for example

Possession / Adjustment

The Adjustment date is the date at which the purchaser takes over the risk of the property and the responsibility and benefit of the property. The possession date is the date the purchaser actually begins to occupy and control the property. It is common and wise to make those the same.

Interest

Normally interest will be payable by the purchaser on the adjusted balance owing at the adjustment date, until paid in full.

What to do

We have set up a page to help if you are the purchaser, or if you are the vendor.

Please see the map of all our pages


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Office Kevin Jaques, B.A., LL.B.
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