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.
©1996 Jaques Law Office. All Rights Reserved.
This on-line real estate retainer is a work in progress. Eventually, we hope to present it as a form to be completed and submitted which will be more convenient.
Be sure you have reviewed the sale/purchase page, if appropriate, and the purchase tasks page or sale tasks page, as appropriate.
Submit information on the following (simply click on the party, fill out the form, submit it, and hit the 'back' button on your browser
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Designation
Full Names of those taking title (as it will appear on title (no initials!)
If you are taking title with another person, there are two ways to own it jointly. Most spouses pick joint tenancy and most business arrangements use tenancy in common. The former is like owning half of 100% of the property. You can't do anything with your interest without the signature of the other owner(s) and if you die, your Will has no effect, the other owners just get your interest. The latter is like owning 100% of half of the property. You can do whatever you like with your own half. Please indicate which type you prefer:
Property Taxes
We must tell the municipality which school board you wish your property taxes to fund, if there are more than one. In Regina, there are both Public or Separate (Catholic) Boards.
Interest Bearing Account
When the lawyer puts the documents into the Land Titles Office for registration, the lawyer becomes personally liable to pay. As a result, we insist that the estimated total remaining cost be guaranteed to us. That may be in the form of a letter of credit from a bank or lawyer (unconditionally promising payment of that amount upon demand or upon a particular date). More usually, the client will pay the amount to the lawyer and the lawyer will put it in a 'trust account'. Such accounts are monitored by the Law Society for the client's protection, but pay no interest. If we have written authorization, we can put the money in an interest bearing account specifically opened for that client. In this case, we charge $50 extra and you would not receive the protective monitoring. This authorization may be provided at any time.
Method of Payment
If you wish us to deposit the remaining funds with your bank, provide us with the account number, bank and branch. If you wish to come and pick it up, please indicate.
This section is for purchasers and/or mortgagors. When acting for vendors, we do only such searches as are required to assure us that we can meet our obligations to deliver clear title and get the proper payment.
In this section, we ask you to choose or reject certain optional steps which could be taken. Please indicate whether you want the search done 'before committed', or 'for info only'.
The client is 'committed' as soon as the documents are submitted to the Land Titles Office. Of course, the purchaser is bound by the purchase contract as soon as it is signed, but once the documents go for registration, the purchase price must be paid no matter what problems arise. The vendor may still be legally responsible to fix the problem, and steps may be taken to attempt to freeze the money once paid and even perhaps get it back, but it must be paid. So obtaining the information, 'for info only' is not useless, but it may be too late to avoid payment. In certain cases, the information may be so crucial, that it is better to break the contract and pay damages to the seller than to honour it.
If an item is marked as 'before committed', it may therefore delay putting the documents into the Land Titles Office. If it delays it beyond the possession date, that will break the contract. Usually the vendor would rather simply delay possession than search for a new purchaser however. If it is submitted before registration, then the vendor's lawyer will almost certainly authorize possession on the agreed date. However, the delay may mean that actual registration occurs after the possession date. Since the bank will not provide the money until the documents are registered, interest may be payable to the vendor. Since interest doesn't start running on the mortgage (typically a higher interest on a lower amount) until actually paid, the interest to the bank will be correspondingly reduced. Therefore, it may not result in a significant cost.
Standard Searches
The following searches are included as part of the standard fee. Where they are not required by a mortgagee, you may wish to waive them to save costs. Normally, that is not recommended
- Land Titles search of property
Shows owner of land (right to sell/mortgage) and encumbrances (obligations that come with the land). Mortgagee will usually require.
- Land Titles search of non-utility/municipal encumbrances
Shows exact obligations which are not normal (for determination of acceptability). Mortgagee will usually require.
- Land Titles Search of Purchaser names Shows claims registered at the Land Titles Office which will be placed on title after transfer to purchaser. Mortgagee will require any encumbrances be cleared or postponed. Purchaser's obligation to remove
- Land Titles Search of Vendor Names
Shows claims registered at the Land Titles Office which will be placed on title after transfer to purchaser (Vendor's obligation to remove). Mortgagee will require any encumbrances be cleared or postponed.
- GST Warranty
Free. Without this, if the vendor should have collected GST on the sale, the purchaser can be forced to pay it by Revenue Canada.
- Sask Energy Certificate
Free. This will certify whether any structures are improperly built over gas lines (otherwise, Sask Energy can force owner to pay to move the structure or line).
- Tax Certificate
Costs $25 in Regina. Written certification of amount and status of property taxes. New owner is liable if unpaid, and new owner should accurately adjust price to divide taxes to date of possession
- Fire Insurance Certificate
No additional cost besides the insurance itself. Reduces risk. Required by mortgagees. You should purchase immediately, but only have it take effect on possession date. Tell the broker to send the Insurance Certificate to me, and if it will take more than a few days, to fax confirmation of the insurance terms and when to expect the Certificate.
- Surveyor's Certificate a.k.a.Real Property Report
Costs $400 in Regina. Shows location of buildings, easements, and lot lines to ensure there are no encroachments. An encroachment, at the best, means obtaining and registering an easement. At the worse, it means tearing down the encroaching structure. Often required by mortgagee. It is recommended to have a current one. Advise if you know of its location.
- Duplicate Certificate of Title
Essential, if it exists, to register a transfer, mortgage, or certain other documents. Advise if you know of its location. If lost, there are legal and Land Title's Office fees to replace it, which are the vendor's obligation.
- Zoning Memorandum (a.k.a. Siting Certificate)
Costs $50 in Regina. The municipality can certify if the things shown on a surveyor's certificate comply with bylaws in that particular zone. Increasingly required by mortgagee. This is a new requirement by mortgagee's, so it is rare to obtain one from the seller. It is recommended to have a current one.
- Rural Items
- Certificate for Well Water
If a well on the land forms part of its value, this Certificate is recommended. Cost varies. (standard but optional). Mortgagee will usually require.
- Letter re septic tank
If a well on the land forms part of its value, this document is recommended. Cost varies. Mortgagee will usually require.
Condo Searches
The following searches are included as part of the standard condo surcharge fee. Where they are not required by a mortgagee, you may wish to waive them to save costs. Normally, that is not recommended
NOTE - The essence of a condominium is that a Condominium Corporation owns a Condo Plan, and owns the 'common areas', but that units within it (condos) may be owned by others. The corporation may impose 'levies' (like taxes) on the owners of the units and may restrict the uses of the common property or the units.
All of these searches are required by most mortgagees.
- Condo Title
Shows encumbrances against the corporation, which may be passed on to unit holders.
- Condo Unit Title
Shows encumbrances against the unit itself.
- Condo Plan
Essentially a registered architectural drawing. Shows 'unit factors' (basis upon which the levies are charged). Should check for any disproportionality between units. Too few, and you lose influence on the corporation, too many, and you pay too much in levies.
- Condo Bylaws & Resolutions
Ensure the rules and regulations are acceptable.
- Condo Insurance
Ensure the corporation protects itself and the unit-holders sufficiently from risks. Note, we cannot evaluate the sufficiency of the insurance, we can only obtain the Policies for you to evaluate.
- Certificate of Estoppel
Unless this is obtained, the Condominium Corporation can collect old levies or other obligations of the prior owner from the new owner
- Condo Financial Statements
Ensures that the corporation is solvent so it can maintain and repair the common property, without excessive levies. Note, we cannot evaluate the financial condition, we can only obtain the statements for you to evaluate.
Corporate Searches
The following searches are included as part of the standard company surchare fee. Most mortgagees will require them. If not, or if there is no mortgagee, you may wish to waive them to save costs. Normally, that is not recommended
Corporate notes
- A corporation is a distinct legal entity which owns its own property.
- **NOTE** - The Limitation of Civil Rights Act prevents a mortgagee from pursuing the balance owing after a foreclosure, among other things. A corporation can waive (give up) these rights and normally the bank requires it. If individuals are guaranteeing the mortgage, they lose the protection too.
- **NOTE** - The Land Contracts (Actions) Act imposes limitations and strict procedures to foreclose, among other things. A corporation can waive (give up) these rights and normally the bank requires it. If individuals are guaranteeing the mortgage, they lose the protection too.
- **NOTE** - The Interest Act controls how a mortgagee may charge and describe interest. A corporation can waive (give up) these rights and normally the bank requires it. If individuals are guaranteeing the mortgage, they lose the protection too.
- Corporate Status
This would ensure that the title is not placed in the name of a non-entity.
- Corporate Powers
This would mean a review of the Bylaws, Articles, and Resolutions of a company to ensure it had the power to borrow and give security
Other Available Searches
The following are searches which are available but are not routinely done by our office. They may be required by the mortgagee, especially in mortgages of high value or for commercial purposes.
- Land Titles search of utility / municipal encumbrances
Shows exact obligations. Not recommended since standard, doesn't affect value, and may be expropriated anyway.
- Zoning Opinion
Each zone in a municipality only permits certain uses of the properties. If you intend the property for a particular use, it is highly recommended to ensure it is a legal one. This is not recommended for residential purchases due to the low risk.
- PPSR Search
If chattels (property not attached to the land) are part of the value, this is recommended. It shows whether the chattels are encumbered so that they could be later seized. Cost $20/name or serial number searched.
- Bank of Canada Search
In certain industries, including agriculture, a Bank can take a special Bank Act security in chattels (property not attached to the land) which would allow the Bank to seize the chattel no matter who is the owner.
- Bankruptcy Search
This would show if a person was previously bankrupt, as a credit check. It would also show if a person was presently bankrupt, a much greater concern. This is not normally recommended for residential situations.
- Business Tax Certificate
If the vendor was liable to pay business tax, then the City can force the new owner to pay the arrears
- WCB Search
The Worker's Compensation Board can add its claims against the vendor to the Municipal Tax Roll. This search is not recommended because they must do so before registration of the transfer or mortgage. However, the Board may also make the owner liable for some claims against contractors who improved the land for the owner. If there is to be construction, this is recommended (and included in the standard advance surcharge).
- Fire Regulation Compliance - The fire department may order an Owner to perform repairs.
- Existing Orders
If there are existing orders, the vendor should be required to perform them.
- New inspection
An inspection may be desirable as a warning. However, the vendor might not be obligated to perform the repairs, as the sale agreement typically transfers the property as it was at the time of the offer.
- Labour Department Orders - The Labour department may order an Owner to perform repairs.
- Existing Orders
If there are existing orders, the vendor should be required to perform them.
- New inspection
An inspection may be desirable as a warning. However, the vendor might not be obligated to perform the repairs, as the sale agreement typically transfers the property as it was at the time of the offer.
- Heritage Property? (Actual or likely)
This would be mainly a warning. If a property is declared a Heritage Property, it restricts the uses and changes to which it may be put. That may increase or decrease the value. The vendor is probably not obligated (or able) to change this.
- Municipal Occupancy Certificate
This may be required to ensure the Municipality will permit Occupation
- Leases
If there are existing tenants, it is highly recommended to obtain the leases and an assignment of them
- Health Dept Compliance - The Health department may order an Owner to perform repairs.
- Existing Orders
If there are existing orders, the vendor should be required to perform them.
- New inspection
An inspection may be desirable as a warning. However, the vendor might not be obligated to perform the repairs, as the sale agreement typically transfers the property as it was at the time of the offer.
- Environmental (Sk Environment) - Sk Environment has the power to order clean-ups, which can be a major expense, in some cases, exceeding the value of the property. It is recommended except in the case of residential properties (due to the low probability of the risk)
- Existing Orders
This is the minimum search recommended for a commercial property.
- Ongoing investigations
This affords added protection, to see if there are existing investigations even though there is, as yet, no orders.
- New Inspection
Somewhat risky, as the vendor may not be liable, but it may be cheaper to break the contract of sale and pay damages than to be liable for cleanup. ($20)
- Audit
Expensive but thorough and risk free. An independent consultant is retained to provide a report.
- Boiler/Pressure Vessels Orders
This is the minimum search recommended for a commercial property.
- Parking rights
Parking rights may be included in the expected value, but provided by another party than the vendor (especially re condos)
- Possible Trusts - In certain cases, laws will 'deem' a trust. That means that the property of the trust (usually money) will not actually belong to the person who thought they owned it. Consequently, unusual rights to follow and collect it exist.
- Corp Capital Tax Act
- Education & Health Tax Act (Especially any retailer)
- Fire Prevention Act
- Fuel Tax Act
- Horse Racing Regulation Act
- Insur Premiums Tax Act
- Liquor Consumption Tax Act
- Motor Vehicle Insurance Premiums Tax Act
- Tobacco Tax Act
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