Saturday, October 22, 2011

Death of a Seller Prior to Closing

Sometimes after a series of unfortunate events the Buyer, or more likely the Seller of a parcel land dies after signing a binding contract for the purchase, but prior to completion (and signing the transfer).

At common law, where a contract was for “personal services”, the death of the party providing those services would “frustrate” the contract making it impossible to perform. For example, a man’s promise to marry was not held to be binding after his death (Mc Bride [1962] SCR 202).

This is not the situation for Real Estate Contracts. Real Estate Contracts are financial obligations and the foundation or subject matter of the contract, being real property, continues to exist after the death of any one of the parties. Canadian courts have consistently upheld the principal in Witicki v. Midley [1976] 6 WWR 471, wherein a contract for the sale of land was binding on the deceased’s estate despite the seller dying prior to signing the transfer document.

But… procedurally, the executor cannot sign the transfer until probate is granted… what happens? Usually, the parties (and their lawyers) will grant a pre-closing possession/ tenancy on the strength of having all the necessary documents (except the transfer) held in trust until such a time as probate can be granted.

Sunday, September 25, 2011

Saving Your Client Money in a Real Estate Transaction

This weeks blog post is definitely not legal advice, however growing up in the Real Estate industry for the past 34 years, there are definitely a few ways I have discovered that both Realtors and Lawyers can add value to their clients transaction:

Negotiate from a position of strength – in short, ensure that your client has done everything they can do to help a deal move forward. This includes obvious things like obtaining a pre-approval and limiting subject conditions only to “bare essential items” (like title review, strata docs, home inspection, financing). However, taking this to the next level means having this discussion with your client:
    1. What is the BEST outcome if the deal does NOT go through? And
    2. What is the WORST outcome if the deal does NOT go through?
These two questions very quickly get to the heart of your client’s motivation.

Setting good dates – everyone wants to close at the end of the month, this means that you client is just one of many people needing services from lawyers, movers, strata companies. The best advice here is to remove subject conditions at least 30 days prior to closing, and have closing occur on the "off-weeks" during a month (ie; those weeks that do not contain the 15th or 30th).

    Knowing the Local Area – there are many areas in the Central Okanagan where housing costs will be dramatically different for a number of reasons that are not immediately apparent from the listing, for example:
      1. Are you too far from a fire hydrant/ protection area to obtain cost effective fire insurance (Some parts of the Upper Mission)?
      2. Does the area you are in have such poor water quality which will necessitate you bringing in outside sources (ie; Glenmore – Ellison Irrigation District)?
      3. Does the smaller municipality mean that you property taxes are going to be markedly higher (ie; Lake Country, Peachland)

    Search out Hidden Costs
      1. Get a good home inspection, but then get a follow-up expert inspection if anything substantive arises (ie; roof, foundation, building envelope/ water, electrical, plumbing).
      2. Get to know your strata council – everyone reads strata docs, this is standard. However don’t be afraid to take the extra step of calling the Strata Council President, you’d be surprised what doesn’t make it into the minutes.

    Monday, September 19, 2011

    Dealing with Divorcing Clients - Fiduciary Obligations

    As a professional, dealing with clients who are undergoing a divorce is always very difficult. Recently there was a local news story highlighting some these issues (

    As Agents where we know a client is undergoing a divorce it is important to get clear and unequivocal instructions from "your client". Realtors and Lawyers owe a duty of care to their clients, this includes, in the context of a Divorce, duties of:

    1) Full Disclosure - to BOTH parties (for example, cc the other spouse on ALL emails)
    2) Undivided Loyalty - You cannot favor the interests of one spouse over another
    3) Confidentiality - Without your client's permission, you have to keep your conversations with both spouses confidential and not publicly disclose that information (ie; the fact that they are getting a divorce).

    A caveat - the fact that there is an ongoing divorce proceeding MUST be disclosed to the lawyer representing the separating parties (who also must keep the information confidential) as this effects the legal work that needs to be done at closing.

    Failure to ensure that both spouses are "on board" will quickly "scuttle" a real estate deal. For Realtors this means getting CLEAR and UNEQUIVOCAL instructions, preferably written, from both spouses. This is even true where only one spouse is "on title".

    At Pihl Law Corporation, upon file opening we always ask all our clients whether they are aware of a pending family dispute among the parties as this is such an important issue. Both spouses must sign and approve an "Order to Pay" which sets out all deductions from the purchase price (including commissions and legal fees).

    Friday, September 9, 2011

    A Commercial Landlords Remedies Under a Valid Lease

     A landlord has five basic options when a commercial lease goes into default:
    1. affirm the lease and sue for amounts due;
    2. affirm the lease and distrain the tenant’s goods on the premises for rent in arrears;
    3. terminate the lease and re-enter the premises;
    4. affirm the lease and relet the premises on the tenant’s account; or
    5. negotiate a surrender of lease.

    Importantly: Choosing one of these options will often foreclose the possibility of choosing another alternative, therefore it is often in your best interest to discuss these options with your lawyer prior to proceeding.

    1. Sue for Amounts Due:
    The landlord can refuse to accept the repudiation of the lease by the tenant and do nothing to alter the relationship of landlord and tenant. The landlord can then insist on performance of the terms under the lease and sue for rent or damages on the basis that the lease remains in force.

    2. Distress when rent has not been paid:
    If the lease has not been terminated and the tenant owes rent, the landlord may seize the tenant’s goods at the leased premises and hold them as security for payment of the outstanding rent.

    A landlord cannot distrain a tenants' fixtures or improvements. A fixture is personal property that is attached to land or a building and is regarded as an irremovable part of the building.  A landlord can then sell the seized moveable property (chattels) and apply the proceeds of that sale to the outstanding rent.

    A landlord must be careful not to commit an illegal distress. An illegal distress occurs when:
    1. there is no tenancy (if the possession is characterized as a mere license or other interest); 
    2. no rent is due; or 
    3. rent is due, but:
    a. the landlord has terminated the lease;
    b. the landlord or the bailiff break into the premises, or enter during a prohibited period;
    c. exempt goods are seized, such as personal property of someone who is not the tenant;
    d. the distress is made more than six months after the end of the term;
    e. the landlord continues the distress after the tenant tenders the rent and costs of the distress; or
    f. goods are seized off the premises when not permitted

    When dealing with large items, a landlord should have a bailiff state that the goods are seized, secure and sell the property on the premises rather than removing them. If the tenant retakes them, then the landlord can recover damages and costs.

    3. Re-entering and Terminating the Lease
    The landlord will have terminated the lease if the landlord's actions made it clear that the landlord had no intention of allowing the tenant to re-enter the premises again or to carry on with the lease unless the money owing was paid. Once a tenancy is terminated and the landlord has taken possession of the premises, the landlord is then only able to sue only for rent due or for damages for breaches of covenant committed before the date of termination.

    4. Affirming the Lease and Re-letting the Premises
    The landlord can refuse to accept the repudiation or abandonment of the lease, but advise the tenant that it will re-enter the premises and re-let the property “on the tenant’s behalf”. The landlord then holds the tenant liable for any deficiency in rental for the balance of the lease term.
    This is foregoing is generalized information only and not legal advice for any particular set of facts.

    For more information, please contact Peter Borszcz at PIHL Law Corporation:
    Twitter: @pihllawcorp

    Friday, July 22, 2011

    Higher Standards for Property Disclosure Statements

    In BC, Sellers have a choice with Property Disclosure Statements ("PDS"), they could either:
    a) simply cross them out and do not complete the questionaire and mark "as-is"; thus the principal of "buyer beware" would apply (Smith, 2005 BCSC 635); or
    b) they would have to fill out the PDS "to the best of their knowledge" (Curtin v. Blewett, 28 RPR 3d 115).

    Now, a recent Ontario Court of Appeal case, Krawchuk v. Scherbak 2011 ONCA 352, seems to impose a markedly higher standard on sellers who chose to fill out the PDS. The ONCA stated that Sellers, once they have chosen to complete a PDS have an obligation to "provide to the extent possible, accurate and complete information" and the Court went onto say that the Vendor was liable despite the fact that they "tried to be honest".

    Although not technically the "law" in British Columbia, this case will be compelling for BC Courts. Realtors should always advise Sellers that they have an obligation to "look further" if there are "issues" with a property of which they are aware. 

    Of note also in this case, the Realtor, who has a dual agent, was liable to both the Buyer and Seller and had judgement against them for over $100,000 for failure to a) emphasize the importance of a home inspection to the Buyer and b) emphasize the importance of making full and complete disclosure to the Seller.

    For those looking for the full text of the case it can be found here:

    The BC Real Estate Association in its July 2011 Issue of "Legally Speaking" discussed this case and came to the conclusion that "the outcome of the case would have been different had the case been decided in BC". With respect this ignores the fact that the Court on Ontario has changed the law in Ontario and this case now gives more traction to a BC Court wishing to similarly change the law in BC.

    But... stay tuned... this case has submitted for leave to appeal to the Supreme Court of Canada...

    Friday, May 27, 2011

    Who Should be on Title?

    When buying a house, you must decide whose name will go on title. Will you be the sole owner? Should you be on title at all? Will you and your spouse go on title together? If so, will you be joint tenants or tenants in common? What about your children?

    What is the difference between Joint Tenancy and Tenancy in Common?
    Joint Tenancy means that two or more people own property in equal undivided portions, with an equal right to use the whole property. When one joint tenant dies, the property is transferred to the surviving joint tenant immediately before the moment of death. This means the property does not become a part of the estate of the person who died and the property will not be subject to probate fees, will not be taxed as a part of the estate and will not be distributed among the beneficiaries of the estate.

    Joint tenancy is generally preferred for most spouses.

    If two or more people own property as a Tenancy in Common, it does not have to be divided equally. Tenants in Common can own different proportions of the property, for example ¼ and ¾, and they can sell or mortgage their portion as they please. If one tenant in common dies, that person’s share of the property becomes a part of the deceased’s estate. It is subject to probate fees and it will be distributed to the beneficiaries of the deceased’s estate. As you can imagine, property can be a difficult thing to “distribute”.

    Tenants is generally preferred for blended families and other unique arrangements (like a shared vacation cottage).

    Can I hold title in only one name, excluding my spouse or common law partner?
    Having title in your name does not always mean you are the only one with an interest in the property. If you are in a relationship and have been living together for at least two years, your partner may have a claim to part of the property even though they are not on title.

    If you are a self-employed professional, you want to protect your assets from any business creditors. Some people attempt to protect their assets by placing title in their spouse’s name or have title held by a holding company.  This protection is not absolute and most bank will require a spouse to, at the very least be a Guarantor or Covenanter on the Mortgage.

    What about going on title with my Adult Child ?
    If you are thinking of holding a property in joint tenancy with an Adult Child for estate planning purposes, you should consult a lawyer. There can be many unintended consequences and pitfalls for such an arrangement. For example:
    -loss of control: you cannot sell or mortgage without the consent of the child
    -taxes: there may be capitals gains consequences for the parent or the child
    -property transfer tax: depending on whether the property is a principal residence, you may have to pay property transfer tax
    -creditors: the property will be at risk to claims by the child’s creditors
    -uncertainty: it is possible that you may not be successful in creating a joint tenancy if the child does not live in the house. The joint tenancy may be unintentionally severed by a number of events.