It’s an exciting time – the old house is sold, the new one is ready, and all that’s left is the move…..oh wait – not quite yet! There’s all that legal “stuff” to deal with now….signatures….titles to be given…and pages and pages of documents that need to be signed before the key is in your hand!!! And to top it all off – who really knows a good real estate lawyer?
MacKay & McLean provides the professional services of a large Regina law firm, with the intimate attention of a small firm. The legal process can be daunting and overwhelming, but it doesn't have to be. MacKay & McLean is with you every step of the way.
MacKay & McLean are TRUSTED REGINA LAWYERS
TrustedRegina.com Talk to the Experts – Home Building and the Real Estate Law show- Questions for Robert MacKay:
Q: Nichole Rintoul: Can a buyer use the sellers lawyer? Or do you advise getting a lawyer of your own? (Sorry very new to considering buying a home).
A: NO. YES.
Code of Professional Conduct … 2.04(9) …
Notwithstanding any other provisions of The Code of Professional Conduct, a lawyer SHALL NOT act for both the builder or developer and the purchaser in a real estate transaction resulting from the construction of a new home, even if the parties consent.
ADDITIONALLY
Draw your own conclusion but …
You are about to commit to, not one but two, six figure contract - $3,4, 500,000, maybe more; purchase contract and mortgage.
$3,4,500k– you’re agreeing to be liable for the better part of a half million to a MILLION dollars in liability…
You can be sure, the developer had their lawyer do up their contract …
You can bet the bank had their lawyers draw up their documents …
Everyone else is looking out for their interests, and that’s how it should be, do you think you should look after yours?
Do you think it’s a good idea to have somebody watching your back?
Lawyers do that.
You probably don’t do this every day. Lawyers, particularly ones who specialize in real estate, we do.
Some developers and lawyers have a work-around, if you will, they don’t act for you but they will act for your lender.
Strategically, it is equivalent to crossing your fingers and hoping for the best.
Again, draw your own conclusions. The choice is yours but, remember, you’re spending the better part of a half million-million dollars—the most amount money you’re likely to spend in your life—one of the most important investments—home, shelter and sanctuary—are you sure that’s where you want to cut corners to save a few bucks?
PREVENTION
Q: Crystal Powell: I have friends that have been in their new build for just over a year and it seems impossible to get them back to fix the shingles that came off due to being installed in the fall without time to set properly ... What legal rights do they have to fix this issue?
A: Unfortunately, most people sign all the contracts, experience trouble and then go to a lawyer and then ask, “WHAT CAN I DO NOW?”
An ounce of prevention is worth a pound of cure.
NO Guarantees in life. You can do your best to do everything right, and still have problems.
You can maximize the probability that everything will be successful.
Emphasize the team aspect of this business – you are about to commit to spending a huge amount of money – you should be getting advice from a number of different sources:
Lawyer
- What terms or conditions or pre-conditions are important to me
- Are these contractual terms really in my best interest?
- What remedies are spelled out in the contract?
- Rights to terminate?
- Right to holdback moneys, e.g. until seasonal work is completed?
Realtor
- Have I really thought out what I need or want in a property?
- Does this development really give me the best bang for my buck?
- Assurance are actually paying fair market value
- Were the other 6 people who bought in this development or from this builder happy - realators talk to one another, they know!
- People/builders develp repuations whether they want them or not...
Mortgage broker
- How much can I spend before I am house rich and cash poor?
- Which is better a 5 year or 10 year term, variable or fixed …
- Monthly, Bi-weekly
- Down payment options…
Insurance Agent
- What are the different types of policies?
- What riders should a person pay extra for?
- Which insurers have the best track record of actually paying out!
- More important then cost!
Home Inspector
- Familiar with Codes and standards
FEES:
Q: Trent Pare: Is it cheaper to sell a house privately for legal fees?
A: I know everyone worries about costs. On the one hand, rightly so, a penny saved is a penny earned.
I have never heard anyone brag that they had the "cheapest" lawyer in town. It conjures up images of Lionel Hutz from the Simpson's. I have heard more than a few brag their lawyers was the most expensive.
Draw on another colloquialism—penny-wise and a pound foolish-- when signing two contracts for SIX FIGURES, is that where you want to cut corners?
The GST and PST on just the commissions paid on these deals usually exceeds what your lawyer is charging in fees.
A number of different factors often go into pricing for a transaction:
- Lawyers do not get paid a commission
- More like insurance companies, the greater the potential liability, the greater the cost
- Was a realtor involved or not? No realtor, more risk, e.g. non-standard contracts
- Is a mortgage involved – then are really acting for two parties, buyer and lender – more work and more risk
- Is closing a month from now or tomorrow – must we clear our desks or can we take out time
- Are there construction advances?
Maybe. Maybe you want someone you can trust. Maybe you want to finding someone who always strive to be the best they can be; who looks out for your best interests; who is available;who puts staff, a team, at your disposal; who tries to you so that can make informed decisions; and, who does their level best to get things done in a timely manner might be worth paying a fair rate for.
Fees rarely change but can. For instance, possession date changes … couple weeks, no problem but six months – now everything may need to be done twice – last minute changes to the lender—necessitating that documents have to be built twice and signed twice… There is a flood or fire and now your solicitor has to negotiate a resolution or embark on litigation.
Lenders – budget 1 – 1.5% … you are unlikely to pay that much – but doing so helps ensure contingencies are covered – tax adjustments, title insurance, condo fees/levies, water heater rental adjustments, real property reports, appraisals, etc. Is a good rule of thumb.
Call/email and get a written estimate. See the breakdown. Sometimes disbursements change, e.g. maybe the property you bought had mineral titles to deal with or turned out to be a double lot. Generally, fees do not change absent some extraordinary circumstances.
Q: Jennifer Hatton Mr. Mackay: We will inherit the home we live in - is it better to transfer the title now, or after the fact? My in laws want to what's easiest ( and economical). Thanks!
A: I would need to know more about your circumstances to be certain but likely, now. If you wait the property owner’s demise, the property will have to pass through probate before you take title—causing the estate to incur probate fees. Probate fees are based on the value of the property to be probated and since the property is likely worth six figures, the cost of waiting might be significant. None of this, I note, might address concerns for protecting the current owner’s interests.
Best thing to do is have a full and frank discussion with a lawyer, everyone get independent legal advice. Sure, it might cost more to do it this way but it improves your odds of having a happy outcome for everyone…and you might save it on the probate fees.
Q: Melissa Ackerman Robert: What if you have an inspection done on a home you are potentially buying prior to signing anything and it comes back fine and then after the fact find issues the inspector didn't notice like wiring or foundation problems? Are you able to go after the previous home owner or Inspector?
A: In short, maybe. Professionals may be sued for negligence and some have successfully sued inspectors for failing to meet professional standards. Every situation will depend on its facts and I encourage you to seek specific legal advice about any given situation. Provide your lawyer with the contract of purchase and sale, the listing, the inspection report and then discuss where the standard fell below par.
But I caution people to not expect a lottery win. First thing to do is figure out the cost of repairs. If it only costs a couple thousand—no sense spending a few thousand to gain a few thousand.
You might say, it’s all about the principle. However, at $3,4,500 and hour, a lawyer will only be too happy to hear all about your principles.
Q: Lindsey Hoemsen: Is it law for sellers to fill out a property disclosure form? What reassurance do buyers have about potential issues with a home?
A: Law? No. General rule is caveat emptor, buyer beware. In many cases a seller may not know the answer and they are only responsible for what they know, sometimes maybe what they ought to have known. But a Disclosure is not a warranty. For example, that this seller never had water in their basement is not a guarantee that you wont get water at any time in the future.
Q: Yolande Howrie: How long should it take to get final paperwork from a lawyer with the purchase of a new property?
A: It depends but usually within a couple days of possession. However, I can conceive of instances where it takes weeks, maybe months. Most of the people leave my office with just about everything but the new title.
Q: Tara Boudreau: Can you legally build a fence right on the middle of the property line if your neighbour does not want it? Or does it need to be shifted over to sit fully on our property then?
A: I would encourage you to negotiate an reasonable solution—for the sake of being a good neighbour.
There is legislation, The Line Fences Act, under which you might be able to compel your neighbour to contribute. I must say, I have never known anyone to sue and make the argument before the courts. Also, the court tends to try and find the fairest solution. Just because you want a gold plated fence does mean you are entitled to full compensation.
Plus, if you have to use the force of the law against your neighbours, they may not phone the police if they see someone breaking into your house.
Q: Nathan Clearihue: It seems that homes are being inspected to quickly and things are being overlooked and missed. What can we do as a homeowner do to protect ourselves with issues that were over looked then and have since become large $$$ costing repairs?
A: [SIMILAR TO #2, 3, 4, 5 above]
Q: Justin Schroh: Are home owners required to disclose house disasters such as a flood, insect/rodent infestation, fire, ect?
A: You fail to disclose at your own peril. Whereas, if you disclose something, what can the buyer complain about?
Q: Lori Glier: My grandmother is 98 years old still in her own home , and in her will She has given me 75% of ownership. Right at this point she is to old to look after her house let alone herself do I have any rights in the home any suggestions and do I have any rights to the home since she is to old and put me in charge?
A: Need more information. However, I do note, the Will only empowers someone, the trustee, executor, executrix, after the death of the testator or, in this case, testatrix. In other words, if she is still alive you have no authority to do anything, unless, you have a power of attorney or are appointed as a guardian.
Q: Jessica Pachkowski McLaren: After being discharged from bankruptcy when is the best time for apply for a mortgage? After the 7 years when it's cleared from your file or is it possible to apply sooner?
A: Is more financial advice and is something better canvased with a mortgage broker or credit counsellor. However, I suggest try getting your credit back on track. Get a Bay card or a gas card—carry a small balance and make sure all statements are paid on time. If you can’t get a bank card get a secured credit car – buy a bond, it’s security on the card, the bank holds it. Most are amenable to this. Lastly, monitor your credit rating through Equifax and TransUnion—the two credit bureaus utilized the most in Canada.
Q: Cindy Ann Pardy Robert: Whom is responsible for paying the insurance on the house between the time your offer is accepted and the closing date?
A: Is a term of the contract. Usually the seller pays up to and until possession. I encourage clients buying property to put insurance in place as of the day before possession. You have no control over when the seller cancels their insurance and the last thing you want is a right to sue someone—better to be able to rely on your own coverage.
