In this specific situation the agent had a letter from their client which said that the agent had the right to sign the client’s name based on this letter. I contacted RECO about this matter and they have advised that taking this action would be considered ‘improper conduct’.  It is my belief that this agent would need a power of attorney to do this or sign the offer in trust for this person which is a not a recommended way to proceed without understanding your own personal liability.

A Power of Attorney for property refers to a written legal document which authorizes one person (the “attorney”) to make legal decisions regarding another person’s financial affairs and property. A specific power or attorney relates to a specific piece of property and/or period of time for which the named attorney can act on behalf of the other person. In this document, the conditions and parameters of the attorney’s powers are set out. In the context of a real estate transaction, the document will note that the attorney has the power to execute certain documents necessary to complete the purchase or sale of real property (usually a specific piece of property).

Given the amount of power and various legal aspects relating to this sort of document, you as real estate agent should never be asked to prepare this document on behalf of your client, nor should you agree to do it. For more information on powers of attorney read one of my previous articles which can be accessed by clicking here.

It is also possible for a trustee to assign the offer to a third party, referred to as the “assignee”. In these circumstances, the trustee who is currently holding the property in trust (referred to as the “assignor”) would transfer the obligations under the agreement to the assignee. However, when this occurs, the assignor is not automatically relieved of liability when the agreement is transferred to the assignee. As a result, the assignor should ensure that the agreement contains a clause which allows for an assignment and removes all obligations and personal liability on the part of the assignor. Here is an example of a clause that can be inserted:

The offer is made by [assignor name] in trust, with the right to assign, and without personal liability. Upon assignment by the assignor to the assignee, and upon the assignee accepting the obligations herein, the assignor shall be relieved of all liability under the agreement of purchase and sale.

It is interesting to note that both British Columbia and Manitoba have rules pertaining to signing on behalf of clients. The Real Estate Council of British Columbia has a rule pertaining to ‘signing agreements on behalf of clients’, Rule 5-3 under Part 5 – Relationships with Principals and Parties. This rule states the following:

5-3 (1) Before signing a contract on behalf of a client, the licensee must have obtained written authorization for this from the client or an authorized agent of the client.

(2) For certainty, the authorization required by subsection (1) may be provided by a service agreement or separately.

The Manitoba Securities Commission issued a notice in 1997 to all registered real estate brokers, authorized officials and salespersons which stated the following information:

Clearly there could be cases, although rarely, where it may be necessary and permissible for a registrant to sign on behalf of another person. For this to be done properly, there are some factors to take into account:

1. The registrant must have the other person’s permission to sign on their behalf. This is best done by obtaining written authorization to that effect, including a description of the type of document(s) which the registrant may sign;

2. The signature of the agent must be affixed in such a way so as to clearly show that you are signing on behalf of someone else; it may be a criminal offence to do otherwise.

Although British Columbia and Manitoba outline information pertaining to obtaining written authorization and signing on behalf of clients, RECO does not have any specific information pertaining to this. And as previously noted they have advised that this is ‘improper conduct’.

The content of this article is intended to provide a general guide to the subject matter. The information does not constitute legal advice and a solicitor and client relationship is not created.

A writ of execution is a court order or other statutory authority that permits a creditor to instruct a sheriff to seize and sell assets/property of a debtor to satisfy an unpaid judgment. The act of filing a writ of execution (Writ) is the first step toward instructing the enforcement office to seize and sell the debtor’s property. A variety of Federal and Provincial statutes, regulations or an order of the court may act as the authority for the issuance of a Writ.

A creditor may file a Writ against a debtor in one or more of the 49 counties or districts (sheriff/enforcement offices) in Ontario. From the time it is filed and becomes effective, a Writ may encumber any land or interest in land presently owned or land that may be purchased in the future by the debtor in the county or district in which a Writ has been filed.

The effect of a Writ is limited to the jurisdiction in which it is filed. For example, a Writ filed with the Sheriff of the City of Toronto does not have any effect on real or personal property located within the jurisdiction of the Sheriff of the Region of Peel. If a Writ is to be enforced or have effect in more than one location, then separate Writs must be filed with each applicable sheriff/enforcement office. The sheriff is required by section 10(1) of the Execution Act to enter all filed and renewed Writs into an electronic database that is to be maintained by the sheriff as an index of Writs.

How Does A Writ Get Registered Against An Individual or Property?

Often a Writ results from bringing a small claims court action against another person and that person ignores it. If you do not defend a money claim made against you in a small claims court, the party bringing the action will be granted a default judgement. That judgement can be filed with the Sheriff and form a Writ. This Writ can be filed against a person’s name with no further notice to them. Statutory orders related to federal or provincial tax enforcement as well as family support enforcement can also be registered without prior consent.

If a debtor owns property, a creditor is entitled to file an application to the Land and Property Information Office to file a Writ on the title to all real property owned by the debtor. The Writ once registered on title is active for up to six years, and prevents the Debtor from selling the property unless the debt is paid. Each time a Writ is renewed, it becomes active for a further six years. A Writ may be renewed before its expiration date by filing a Request to Renew (Form 60 E which can be accessed by clicking here.)

How Is The Real Estate Agent Affected?

In the case Re Grant, it is affirmed that Real estate agents and brokers are entrusted with significant sums of money and this role carries the expectation that persons working in the real estate industry appreciate the responsibilities they have and will act accordingly.

It is not uncommon for agents to be unaware of a Writs registered against a property and to be utterly surprised when these show up during title search, which is often a week before closing. This timeframe is often inadequate to satisfy the settlement timelines of some Writs or negotiate a settlement between multiple debtors if there is going to be a shortfall. As a result, this could jeopardize the closing deadline since you cannot sell property without paying a Writ if it is registered; neither can you obtain mortgage funds. This should be factored in as early as possible to avoid a short sale or failed transaction and to protect the real estate commission.

Listing Agents are advised to run the names that are on title for the nominal fee of $11.00 per person to see whether these names are clear. Of course a Writ can be registered any day and it could happen after you run it. In most cases, however, they are in place for a longer period and should have been disclosed and discovered earlier.

In the case Lograsso v Kuchar, a client advanced negligence claims when a real estate transaction was closed even though a Writ was filed against the property. This case shows the importance of making the necessary investigations and acting accordingly.  Failure to act in a timely manner could result in costly remedial action on the part of the agent and/or solicitor.

What Does It Mean to “Run Clients’ Names” and How Is This Done?

This is where an execution search is performed against the exact name of the registered owner. The Land Titles Act provides that if a Writ is filed under a different name other than that under which the owner is registered, the Writ has no effect. This search determines whether a person, corporation or other legal entity has a Writ filed against them which affects all lands owned by such person, corporation or other legal entity within the jurisdiction of the Sheriff’s office and/or the land titles office where such Writs are filed.

It is recommended that agents run an execution search since this is vital to determining if there is going to be sufficient funds on closing. Ideally this should be run when the property is listed to confirm there are no liens, and hopefully there is no change in status prior to closing. Lenders also require clearance before funds are advanced. Therefore, if purchasers appear to be in a situation where money is tight and they might have had a situation in the past which could be a cause for concern, the agent should probably have their names checked. This is the only way to ensure there are no outstanding judgments that may affect the transaction, whether a sale or purchase.

Land Registry Office Search

Writ searches can be performed by visiting the local land registry office and performing a Writ search.  The process is simple and inexpensive. These searches are performed at designated Teranet terminals within the land transfer office at a cost of $11.00 per name plus $6.00 per Writ.

Remote Search

Lawyers can also conduct remote searches on the Teranet eXpress website.  This system provides flexible remote access to search Writs filed and entered into the Ontario Writs System.  This allows lawyers to retrieve Writs details online and print Writs detail reports.  The Teranet eXpress system is available weekdays 8 am to 8 pm.

What Information Do I Need To Perform A Writ Search?

If you know the exact spelling of the owner’s name and the city in which they reside, you can perform a search. An execution number if available can also be used to search a client’s name.

It is important to note however that an execution search can yield a match even though actual identities differ. Should this occur, it is advisable to have your clients contact their real estate lawyer to apply for clearance.

Searching for Writs is a necessary part of all real estate transactions. Despite how complicated the execution process may sound, the actual running of a client’s name is fairly quick and inexpensive. If there is a Writ that will impact the sale or purchase of a property the sooner the information is known, the more likely a solution can be reached.

The content of this article is intended to provide a general guide to the subject matter. The information does not constitute legal advice and a solicitor and client relationship is not created.

The Court of Appeal agreed that the question was not who was at fault for the spill, but rather, whether or not the Order against the City should be revoked. To determine this, all three courts focused on the “need to serve the environmental protection objective of the legislation” rather than on the “polluter pays” principle and the finding of fault on the part of the City. This is because focusing on who was at fault would not provide any assistance in determining how the need to serve and protect the environment would be addressed if the order were to be revoked. It was decided that the proper course of action was to exclude the evidence of fault and uphold the order which would require the City to remediate the contaminated property.

It is important to note that if the City were to be able to provide some evidence of a solution which would have protected the environment the outcome of this appeal may have been different. However, the City provided no evidence of an alternative solution which would serve the environmental protection objective of the Act, leading to the decision to uphold the no fault order.

Parties subject to no fault orders are eligible under section 100.1 of the Act to seek to recover costs from parties who had some control of the pollutant. The City has taken advantage of this section of the Act, and is seeking to recover some of the costs associated with remediation from the Respondents, specifically the Gendrons (neighbours), Thompson Fuels Ltd. and the Technical Standards and Safety Authority (TSSA). This proceeding has not yet come to a conclusion.

This decision has important implications for innocent landowners. Landowners who have no control over the property from which contamination originates are exposed to substantial risk. Landowners, and especially municipalities, who own large amounts of land adjacent to potential contaminating sources need to be aware of the potential liability and keep informed. If the MOE is involved with a neighbouring property, the adjacent landowner should put the MOE on notice that they are aware there is a potential for liability if the contamination goes off-site. Therefore, you should request to be informed about everything that is going on, including what the MOE is doing to make sure the contamination is contained and properly remediated.

The full ERT 2009 decision can be accessed at: http://www.ert.gov.on.ca/files/ORD/09007o4.pdf

The full Divisional Court 2012 decision can be accessed at: http://canlii.ca/t/frhhk

The full Ontario Court of Appeal 2013 decision can be accessed at: http://canlii.ca/t/fxd71

The content of this article is intended to provide a general guide to the subject matter. The information does not constitute legal advice and a solicitor and client relationship is not created.

In Ontario, real estate transactions, specifically agreements of purchase and sale, are deliberately exempted from the protections of the Electronic Commerce Act 2000, S.O. 2000, c. 17 (ECA).

This is currently under review by way of Private Members Bill 28 (formerly Bill 69) which passed the second reading on March 21, 2013 and is now being further studied in committee before third and final reading. While other Canadian provinces, the United States and Europe have been using e-signatures for a while, Ontario realtors will continue using paper because of provincial regulations that prohibit the use of electronic signatures on agreements of purchase and sale.

The practice of manually signing a paper document, scanning it, and faxing a copy has been allowed in Ontario since the ECA was passed in 2000, but that aspect of electronic authorization is not an issue. The issue involves an electronically generated and applied signature which does not require a realtor to carry a paper copy of a document with a manual signature on it. The entire process is electronic, thereby allowing convenience and faster deal processing.

The purpose of the bill is to facilitate the use of electronic signatures in real estate transactions by removing the exception in the Act which prohibits land transfer documents from being signed by an electronically generated signature. The bill proposed that these land transfer documents would be subject to the reliability requirements contained in section 11(3) of the ECA. These requirements are intended to ensure that an electronic signature is reliable to identify the person signing and reliable to associate the electronic signature with the relevant electronic document.

The proposed bill will delete an exemption of electronic agreements of purchase and sale from the Act and grant the agreements legal protection. Currently, electronic agreements of purchase and sale are exempt from legal protections of the ECA. If passed, the amendment means realtors and consumers will have the confidence to use electronic handling of agreements where consumers amend and sign using their computers or tablets.

Likelihood of Success: Electronic Commerce Amendment Act, 2013

Given the fact that Private Members Bills rarely become law, there is concern as to whether Bill 28 formerly Bill 96 will actually become law and therefore grant protection for the use of electronic signatures in land transfer agreements.

A government which wants to support a Bill will prefer to sponsor it itself, rather than allow a Private Member to do so. The chances of a Private Member’s Bill going through all stages remain very slim, unless there is unanimous consent to it.

In this instance, the proposed amendment came from Private Members Bill tabled in May 2012 but later died on the order paper as a result of the October 2012 prorogation. Interestingly, it was reintroduced earlier this spring and passed second reading with overwhelming support of all three parties. This unanimous consent in both first and second readings seems promising and as described by Todd Smith “a victory” for the real estate industry.

Minister Sousa and Premier Wynne have also included this proposed amendment in the 2013 Ontario Budget, hence it is likely this Bill could actually become law.

Despite the optimism, there are concerns that this Bill could become another statistic. Removing exclusions from the Act is entirely consistent with modern real estate practice however, without addressing the details of requirements to ensure reliability of signatures, the amended Act will subsequently default to whatever systems are implemented by realtors to process real estate agreements. In response to introduction of the Bill, the Ontario Real Estate Association (OREA) has indicated that realtors and their clients would access agreements of purchase and sale through a central portal. No details have yet been provided by the OREA as to the requirements for acquisition and processing of electronic signatures and documents within this system, nor of the applicable security standards or access and privacy policies.

Without appropriate policies and procedures being implemented there is some risk that e-signatures will be held invalid for insufficient reliability. Despite the foregoing, if Ontario is one of the last provinces to recognize the validity of electronic signatures in land transfer agreements, surely most of the work has been done by other provinces to ensure safeguards are in place, as a result the OREA would have other systems to model.

This is already permitted in 30 European countries, the United States and all but two Canadian provinces. When the ECA was originally passed in 2000, there were concerns about the security of electronic signatures. However, since then technology has improved exponentially. This was the central reason to move Bill 28 to the committee stage. It only makes sense that the use of electronic signatures is worthy of consideration.

If all goes well and Bill 28 passes third reading, it is highly likely this amendment will receive Royal Assent and therefore legitimize the application of electronic signatures on land transfer agreements in Ontario.

The content of this article is intended to provide a general guide to the subject matter. The information does not constitute legal advice and a solicitor and client relationship is not created.

1.    Vermiculite Insulation (Asbestos)

2.    Surveys

3.    Warranties and Representations

4.    Lawyers Approval

5.    Hot Water Tank Rentals

6.    Status Certificates

7.    Septic Systems

8.    Water Potability

1. Vermiculite Insulation – Asbestos

With the consent of the vendor, samples can and should be taken if vermiculite insulation is discovered. Clauses that can be inserted in the APS to ensure that the buyer’s agent is able to control who takes the samples if vermiculite insulation is suspected are as follows:

This offer is conditional upon the Buyer’s agent investigating the subject property for the presence of asbestos in the vermiculite insulation within the house located on the property at the Buyer’s own expense, and the obtaining of a report satisfactory to the Buyer in the Buyer’s sole and absolute discretion.

The Buyer’s agent shall be authorized to obtain and submit samples taken in accordance with the vermiculite sampling procedure and chain of custody guidelines.

If the Buyer has not provided written confirmation that a report that is satisfactory to the Buyer, in the Buyer’s absolute discretion, has been obtained within 10 days from the acceptance date of this offer this offer will be deemed void and the deposit shall be returned without interest or deduction.

What if Asbestos is present?

If vermiculite insulation that contains asbestos is discovered, it is contained solely in the attic AND your client wants to proceed with the offer, I would recommend the following clauses:

The vendor warrants that to the best of the vendor’s knowledge the vermiculite insulation that is impacted by asbestos is restricted to the attic.

The vendor agrees to discount the purchase price by 50% of the estimate provided for the removal and reinstatement of the insulation in the attic by a qualified environmental consultant chosen by the purchaser.

2. Surveys

Oftentimes, vendors think they have a survey, but what they really have is just a photocopy of the registered plan of subdivision showing no buildings. Prior to drafting the APS, it is important to determine whether or not the vendor does in fact have a legal survey, and if not, you can avoid your vendor promising to produce a document they do not have.

If the Vendor has a survey a clause in the APS which requires the vendor to provide the existing survey should be included. An example of a safe clause to be inserted in the APS is as follows:

Attached to this agreement is a copy of the information available that depicts the property boundaries.

-OR-

Immediately upon acceptance, the vendor will provide any relevant documents in their possession that depicts the property boundaries on the property, including but not limited to, a survey if one is available.

Note: these clauses are drafted to provide only the information which the vendor has in his/her possession.

If you add on to the recommended survey clause the following, your purchaser gets what it needs and the vendor gives what it has.

The seller will further deliver, on completion, a declaration providing information on any additions to the structures, buildings, fences, and improvements on the property since the date of the information provided.

The purchaser will now have all the information the vendor has to give, a declaration providing information on any changes and title insurance.

3. Warranties and Representations: merge v. survive

Warranties and representations can either ‘survive’ or ‘merge’ on closing.

• To ‘survive’ closing indicates that the seller will be held accountable to the purchaser for that warranty/representation even after the closing of the transaction (typically until a certain date).
• To ‘merge’ on closing indicates that once the transaction is complete, the seller is no longer responsible for the items discussed.

Recently it has become more common for a hybrid of the merger and survival clause to be used.

Survive closing

An example of a clause to indicate survival is:

This warranty (or representation) shall not merge, but shall survive the completion of this transaction.

This wording indicates that both parties agree that the representations or warranties made shall remain in full force and effect for a certain time period following the closing. This clause keeps the seller on the hook to the buyer.

Merge on closing

Representations and warranties made by the seller herein and all other provisions of this agreement shall be deemed merged on closing.

This clause relates to the legal doctrine of merger which indicates that the contractual warranties and representations will be “merged” into the final representations and warranties that are stated within the closing documents that conclude the transaction. The seller’s obligation ceases to exist and claims cannot be made.

Hybrid clauses

The seller warrants that the chattels are in good working order and this warranty shall survive the closing but only to the condition of the chattels on the day of closing.

This is a way to ensure that the main items (fridge, stove, dishwasher etc.) that have been sold with the property are in good working condition the date of the sale, but it does not provide any guarantees from the next day forward.

4. Lawyers Approval

Once an APS is signed and conditions are fulfilled or waived, the contract becomes binding and amendments cannot be made unless both parties approve the changes. Typically amendments are difficult to obtain once the deal is firm because any changes are often for the sole benefit of one party. A clause pertaining to lawyers approval can help to avoid these problems because a lawyer can make recommendations before the contract becomes binding. An example of a clause that could be inserted is as follows:

This offer is conditional upon solicitor approval of the terms of this Agreement of Purchase and Sale in his sole and absolute discretion. Unless the Buyer gives notice in writing delivered to the Seller within 5 banking days following the date of acceptance excluding Sat/Sun & Statutory holidays, that the above condition has been fulfilled or waived, this Offer shall be null and void and the deposit shall be returned to the Buyer in full without deduction. This condition is included for the benefit of Buyer and may be waived at the Buyer’s sole option by notice in writing to the Seller within the time period stated herein.

If you want the lawyer to be in a position to make any and all changes he/she wants upon review of the agreement let the lawyer review it before it is signed.

5. Rental Agreements – Hot Water Tanks

A new trend in residential agreements is for purchasers NOT to automatically agree to assume rental agreements such as those for hot water tanks. The purchaser should ensure that they are given the opportunity to review the contract before consenting to assume it as oftentimes, the terms are not attractive. An example of a clause to insert is as follows:

The Seller agrees to provide a copy of the rental contract for the hot water tank within 5 days of the acceptance date herein. The Buyer will have 3 days after receipt of a copy of the rental contract to confirm whether the Buyer intends to assume the contract or not. If the Buyer does not communicate his/her position within the time set out, the contract will be deemed to be assumed on completion.

This provides the purchaser with the opportunity to review the terms of the rental agreement and if they choose not to assume the contract, the seller is required to cover the associated costs (exit fees/charges imposed by water tank rental companies).

If you act for the vendor you want the purchaser to accept the contract so that your client does not have to break their contract and pay exit fees. If you act for the purchaser you want to protect your client from an unfavourable contract or for them to at least be aware of the terms. I do not recommend that this be inserted as a condition rather a negotiated item. Just like the fridge or stove –is it included or not.

6. Condominium Status Certificates

There is one section included in all status certificates that agents should be aware of:

It is the purchaser’s responsibility to review the declaration and description pertaining to the unit including any exclusive use common element area, to determine whether or not the vendor or any previous owner has carried out a structural change to the unit or has modified the common elements in circumstances where the Board has not given its prior written consent. As this unit and any appurtenant exclusive use common element (if applicable) has not been inspected prior to the making and execution of this certificate, the Condominium Corporation cannot comment upon matters of non-compliance which may be revealed by an inspection of the unit, and the Corporation reserves its right to enforce any matters of non-compliance notwithstanding that they may have existed prior to the issuance of this certificate.

This clause makes it the responsibility of the purchaser to determine if the unit and/or any exclusive use common elements have been modified or replaced. The reason for this is that if they are modified or replaced by the owner, and not the corporation, those items will become the responsibility of the new owners going forward.

I have a standard acknowledgement that I require the vendor to sign in order to confirm that they (nor the previous owner to their knowledge) have not made any changes to the unit. In order to be entitled to this acknowledgement I include the following clause in my requisition letter:

Required: On or before closing a declaration to be provided by the Vendor confirming that the Vendor, or any previous owner or occupant of the unit, has not carried out any structural change to the unit or modified the common elements without prior written consent of the Board of Directors.

If this issue is not raised when the agreement is drafted, there is no way to predict what remedy can be obtained for the purchaser. Since this matter can go to the center of why someone purchases a condo, I would recommend to agents that they include the following clause in the agreement:

The Vendor confirms that the Vendor has not, nor to his knowledge has a prior owner or occupant of the unit, carried out any structural changes to the unit or modified the common elements.

Since this matter can go to the center of why someone purchases a condo I would recommend to agents that they include the following clause in the agreement:

The Vendor confirms that the Vendor has not, nor to his knowledge has a prior owner or occupant of the unit, carried out any structural changes to the unit or modified the common elements.

If the vendor is unable to provide this representation because modifications have made, the following clause can be used:

The Vendor confirms that he or a prior owner or occupant has carried out the following (insert structural changes or modifications) but that prior written consent was obtained from the Board of Directors.

If consent has not been obtained, the vendor should be required to seek approval prior to the completion of the agreement or an abatement in the price should be negotiated.

7. Septic Systems

When acting for a purchaser, it is preferable to request that the septic system be inspected, however, in many cases this is not practical (especially during the winter months in which access is restricted). Due to this, I recommend that a clause is inserted into the agreement of purchase and sale to warrant the septic system. When you obtain a representation or warranty for your client you need to explain to your client what they have. It is something that can be relied upon if there is a need for a claim in the future. For big items this is important because it will lay the basis for a claim to be commenced. An example of a clause to be inserted is as follows:

The Seller represents and warrants, to the best of the Seller’s knowledge and belief, that at the time of installation:

1)    all sewage systems serving the property are wholly within the setback requirements of the property, and had received all required Certificates of Installation and Approval pursuant to the Environmental Protection Act;

2)    all sewage systems serving the property had been constructed in accordance with the Certificates of Installation and Approval;

3)    all sewage systems serving the property had received all required Use permits under the Act or any other legislation; and

4)    all sewage systems serving the property have been maintained in good working order during the Seller’s occupancy and will be in good working order on closing.

Further, the Seller agrees to provide any and all documentation relating to the sewage system, within the Seller’s possession, or which may be made available to the Seller by the appropriate authorities, and given to the Buyer prior to the last date set for examining title. The Parties agree that these representations and warranties shall survive and not merge on the completion of this transaction, but apply only to the state of the property existing at the completion of this transaction.

The Seller agrees to provide evidence if the septic system has been pumped in the past two years or to have the septic system pumped out before the completion of this transaction and will provide a receipt to the Buyer on closing.

8. Water Potability

If you are obtaining a mortgage for the purchase the lender will insist on a Water Potability Certificate. Even if you are not required to obtain this Certificate for your lender, when you sell, that person will require this and for your own health you want the water to be potable. Therefore, I can think of no situation when it would be appropriate to waive the requirement to have a Water Potability Certificate.

I have received a large number of offers in the past few months where there is either no clause to address the private water well or merely a statement that a Water Potability Certificate is required prior to closing. It is my strong opinion that a clause pertaining to this MUST be included in all offers for properties with a private water system.

This Offer is conditional upon the Buyer determining, at the Buyer’s own expense, that:

1)    there is an adequate and potable water supply to meet the Buyer’s household needs;

2)    the pump and all related equipment serving the property are in proper operating condition; and

3)    the Buyer obtaining a Certificate of Potability from the authority having jurisdiction indicating that there is no significant evidence of bacterial contamination. 

Unless the Buyer gives notice in writing delivered to the Seller no later than _____ p.m. on the _______day of ___________, 20____ that these conditions have been fulfilled, this Offer shall become null and void and the deposit shall be returned to the Buyer in full without deduction. These conditions are included for the benefit of the Buyer and may be waived at the Buyer’s sole option by notice in writing to the Seller within the time period stated herein. The Seller agrees to allow access to the subject property to the Buyer or the Buyer’s agent for the purpose of satisfying this condition.

The content of this article is intended to provide a general guide to the subject matter. The information does not constitute legal advice and a solicitor and client relationship is not created.

Sounds easy enough, however, you need to know what is considered a matrimonial home to ensure you have the consent of both spouses for every step of this transaction.

The definition for the matrimonial home comes from the Family Law Act, R.S.O. 1990, c. F.3 (“FLA Act”). A matrimonial home is “every property… ordinarily occupied by a person and his or her spouse as their family residence”.

In order to understand this definition, it is necessary to understand that a ‘spouse’ for these purposes only includes married couples (both same and opposite sex). Common-law couples are not subject to the same legislative provisions.

Also, because the definition includes the wording “every property”, it is possible for there to be more than one matrimonial home, as long as it is used as a family residence. It is interesting to note that who holds the actual title on these matrimonial homes is irrelevant, as the spouse simply just has to occupy the home as a place of residence for the family.

The FLA Act provides spouses with an “equal right” to possess the matrimonial home, while also prohibiting one spouse from disposing of the home, or encumbering it without the consent of the other spouse. If this condition is breached, and one spouse tries to dispose of, or encumber a matrimonial home without consent, the transaction may be set aside in certain circumstances.

One circumstance where the sale may not be set aside is if the buyer acquired the home for good value, in good faith, and without any notice or disclosure that the home was considered a matrimonial home for which spousal consent was required.

Information that could constitute notice that it was in fact a matrimonial home would include information obtained by the buyer’s solicitor when conducting the title search which could indicate that a spouse exists. In that case some sort of spousal consent would be required, and if none is obtained, the validity of the transaction may be put at risk.

Overall, it is important for you as a real estate agent to ensure that you familiarize yourself with who owns the property and determine whether or not a spouse exists. If so, you should ensure that you get both co-owners to execute the Agreement of Purchase and Sale, as to avoid any potential conflicts down the road which may lead to the transaction being set aside. I advise agents when in doubt get both spouses to sign.

This article was prompted by an agent sending me the following email:

I’ve heard contrasting opinions around spousal consent. Here is the scenario:
- matrimonial home
- only 1 party is on title
- 1 signs the Listing Agreement under Seller while the other signs the Spousal Consent line

Does the non-titled spouse need to sign all documents outside of the listing agreement? The APS? Amendments/Price Reductions???

I am sure after confirming that spousal consent was required for the listing you all understand that all dealings require both spouses to consent. Why would you only be required to obtain consent to the listing agreement and initial asking price and not any amendments or price reductions if both spouses have equal rights to the property?

The content of this article is intended to provide a general guide to the subject matter. The information does not constitute legal advice and a solicitor and client relationship is not created.

The other thing you cannot do without potable water is purchase a home if you require a mortgage.

For agents who are assisting clients with property that are in a rural area there are two things to be aware of, water and septic. If either or both of these items are private you MUST address it in the agreement. I previously provided a handout on septic systems. For septic you will want a warranty that it is in good working order, a copy of the use permit and evidence of a pump out in the last two years or a requirement to have it pumped.

It is not so easy to address the private water issue. You cannot simply have a representation that the vendor believes the water is potable. If you are obtaining a mortgage for the purchase the lender will insist on a Water Potability Certificate. Even if you are not required to obtain this Certificate for your lender, when you sell, that person will require this and for your own health you want the water to be potable. THEREFORE, I can think of no situation when it would be appropriate to waive the requirement to have a Water Potability Certificate.

Given it is my belief that we can learn the most from the discipline of others, I have reviewed the discipline decision of a case referred to as the Kirkfield offer which can be accessed by clicking here. In this case, the agent for the purchasers of a rural property included only one condition – a home inspection. The MLS listing disclosed it was on a private water and well system. Shortly after closing the owners discovered the water supply was polluted and the sewage system was malfunctioning.

RECO ruled that the agent acted unprofessionally in failing to insert into the offer any clauses regarding a water potability test, a well certificate regarding water flow rate and/or a requirement for either a waste disposal certificate or an inspection of the septic system by a qualified person. The agent was ordered to pay a $10,000 penalty and the Brokerage a $5,000 penalty.

I have received a large number of offers in the past few months where there is either no clause to address the private water well or merely a statement that a Water Potability Certificate is required prior to closing.

It is my strong opinion that a clause similar to that which I have set out below MUST be included in all offers for properties with a private water system:

This Offer is conditional upon the Buyer determining, at the Buyer’s own expense, that:

(1) there is an adequate and potable water supply to meet the Buyer’s household needs;
(2) the pump and all related equipment serving the property are in proper operating condition; and
(3) the Buyer obtaining a Certificate of Potability from the authority having jurisdiction indicating that there is no significant evidence of bacterial contamination.

Unless the Buyer gives notice in writing delivered to the Seller no later than _____ p.m. on the _______day of ___________, 20____ that these conditions have been fulfilled, this Offer shall become null and void and the deposit shall be returned to the Buyer in full without deduction. These conditions are included for the benefit of the Buyer and may be waived at the Buyer’s sole option by notice in writing to the Seller within the time period stated herein. The Seller agrees to allow access to the subject property to the Buyer or the Buyer’s agent for the purpose of satisfying this condition.

The main differences from the way that I have handled this and the standard clauses (which are set out below) are as follows:
• The buyer or the buyer’s agent are taking the sample. Note, by clicking here. you can visit a website which identifies the many ways that one can cheat on a water test.
• This is a condition so if the certificate is not obtainable from the samples the buyer can enter into negotiations about what it will allow the seller to do in order to obtain the clear certificate. In the example below the seller can do whatever he deems necessary to obtain the required certificate.
• If the certificate is not obtainable it is arguable whether the buyer can walk from the transaction given this was not a condition.

The Standard clauses which should NOT be used are as follows:

The Seller agrees to allow the Buyer & the Sales Representative, which has obtained this Offer, to obtain 2 water samples from each water source (well) on the Property and to submit such samples to the health authorities having jurisdiction for testing and submission to the Buyer’s solicitor. Seller agrees to provide access to the property for the taking of such sample at a mutually agreed upon time, and to provide any necessary written authority which may be required of him to obtain sample results from the authorities having jurisdiction.

AND

The Seller agrees to allow access to the Sales Representative for the purpose of obtaining a Water Sample or Samples, and further to provide written permission for results of such tests, within 3 weeks following the acceptance of this offer, in order to provide the Buyer’s Solicitor with a current Bacteriological Analysis of Drinking Water from the local health authority having jurisdiction over the area, with a rating indicating that there is no significant evidence of bacterial contamination and that the water is potable and fit for human consumption. Should the results indicate a concern of bacterial contamination, the sellers will remedy the problem, and re-submit a water sample until given a new rating indicating that there is no significant evidence of contamination, and further provide the results to the buyer, prior to the date set for examining title.

The agent in the Kirkfield decision relied on the home inspection condition to be enough to address the private water and septic system. He stated that he thought that in all likelihood the inspector would recommend the water well be checked. While I agree a home inspection is an important requirement to be recommended by agents, it does not absolve agents from knowing about issues related to rural properties and ensuring their clients are properly represented.

The content of this article is intended to provide a general guide to the subject matter. The information does not constitute legal advice and a solicitor and client relationship is not created.

In Ontario, all residential septic systems are regulated by the Ministry of Municipal Affairs and Housing (“MMAH”) under the Building Code Act, 1992, S.O. 1992, c. 23 (the Act). One of the main requirements of this Act is that any individual who plans to engage in construction, installation, extension, enlargement or alteration of any sewer system or building connected to the system, must obtain a building permit from their local Building Department. In Barrie, this Department is located at the City Hall on 70 Collier Street L4M 4T5, and an application for a Building Permit can be obtained by clicking here.

On July 13^th 2010, the Act was amended by Ontario Regulation 315/10 in order to help protect Ontario’s drinking water as well as the environment, and to help support the Lake Simcoe Protection Plan. This regulation established a requirement for on-site sewage system maintenance inspection programs to be conducted in specific areas by principal authorities such as municipalities, health units and conservation authorities. Many of the programs established in this regulation did not take effect until January 1, 2011. There are maps located on the MMAH website (which can be accessed by clicking here.) which indicate the areas that have been selected for maintenance programs within five years of January 1, 2011. If any concerns are identified in the initial inspection, further investigation may be required and authorities will address which steps need to be taken next.

The Lake Simcoe Region Conservation Authority also has a program which provides funding to landowners who are required to replace or repair defective or failing systems in order to protect ground/surface water. This program allows for landowners to qualify for 50 percent of the funding, up to a total of $5000.00, for eligible projects. In order for a project to be eligible, the system must be located 100 meters or less from surface water, or water sources which lead directly to surface water. Upgrades to septic systems due to household expansion, or any work that proceeds before approval under this program is granted will not be covered. For more information on this program click here.

When acting for a home buyer, it is preferable to request that the septic system be inspected, but in many cases this is not practical, especially during winter months which do not provide for easy access. Due to this, I would recommend that you ensure that a warranty is included in the agreement prior to finalizing the sale in order to protect against any unexpected delays or costs. For an inspection such as this, it may be conducted by simply hiring a licensed septic system installer, a sewage hauler or a professional engineer.

It is also important to insert a clause in the agreement of purchase and sale to warrant the septic system. Examples of a clause that should be inserted include:

“The Seller represents and warrants, to the best of the Seller’s knowledge and belief, that at the time of installation:

(1)  all sewage systems serving the property are wholly within the setback requirements of the property, and had received all required Certificates of Installation and Approval pursuant to the Environmental Protection Act;

(2)  all sewage systems serving the property had been constructed in accordance with the Certificates of Installation and Approval;

(3)  all sewage systems serving the property had received all required Use permits under the Act or any other legislation; and

(4)  all sewage systems serving the property have been maintained in good working order during the Seller’s occupancy and will be in good working order on closing.

Further, the Seller agrees to provide any and all documentation relating to the sewage system, within the Seller’s possession, or which may be made available to the Seller by the appropriate authorities, and given to the Buyer prior to the last date set for examining title. The Parties agree that these representations and warranties shall survive and not merge on the completion of this transaction, but apply only to the state of the property existing at the completion of this transaction.

The Seller agrees to provide evidence if the septic system has been pumped in the past two years or to have the septic system pumped out before the completion of this transaction and will provide a receipt to the Buyer on closing.”

Overall, understanding the signs of a failing septic system, and ensuring that they are properly installed and inspected is an important aspect that should be considered by anyone purchasing a home or trying to sell a home.

The content of this article is intended to provide a general guide to the subject matter. The information does not constitute legal advice and a solicitor and client relationship is not created.

Expropriation is the compulsory taking of your property by an Expropriating Authority. It is a right granted through federal or provincial statutes to authorities such as governments, universities, or public utilities. It involves situations where privately owned land is needed for public projects such as the building of roads, highways, or schools. The Expropriating Authority must offer the owner of the expropriated land fair market value for their property, which refers to highest price in terms of money that a property would bring in if exposed for sale on the open market. When disputes arise in relation to the amount that is offered, the owner may go to the Ontario Municipal Board (OMB) in order to negotiate a settlement that is deemed appropriate.

Can I stop an expropriation?

You do have the legislative right to object to the expropriation by requesting a Hearing of Necessity which theoretically safeguards the landowner’s interest as it requires the Expropriating Authority to prove that the land it is seeking to expropriate is necessary for the achievement of its objectives. You can also commence a legal proceeding against the Expropriating Authority by filing a Notice of Arbitration and Statement of Claim with the Ontario Municipal Board (OMB).

Who pays the legal costs?

When the matter proceeds to litigation and the OMB makes an Order regarding the amount of compensation, the landowner’s legal, appraisal, and other related costs are recoverable from the Expropriating Authority if the Board orders the Expropriating Authority to pay at least 85 percent of the amount offered when it made its Section 25 Offer of Compensation. The Expropriating Authority can require that the costs be assessed, but the assessment is based on the standard of the costs as between the lawyer and his/her client which is the highest level available, also referred to as Full Indemnity. If a settlement is recorded without a compensation hearing, the landowners legal, appraisal, and related costs almost invariably form an element of the settlement.

What compensation am I entitled too?

Under the Expropriations Act, there are four different types of claims that may be made:
1. fair market value for the property that was taken;
2. claims for injurious affection if the construction of a public work has diminished the value of the owners’ property;
3. disturbance damages which refers to the losses, costs, or expenses that were incurred by the Statutory Owner as a result of inconvenience and dislocation; and
4. claims for business losses, including compensation for the loss of goodwill.

The content of this article is intended to provide a general guide to the subject matter. The information does not constitute legal advice and a solicitor and client relationship is not created.

Particularly, for business professionals, LinkedIn is an important resource that can be used for professional networking and increasing your online presence which can in turn increase your company’s online presence. LinkedIn is described as a business social network that enables individuals and companies to present a professional profile to other professionals and companies that they may wish to connect with.

Due to the high volume of users, and the importance of online marketing in today’s society, I would highly recommend that you use this tool to connect with individuals in your community, colleagues in the workplace, and potential clients and/or business partners.

If you do not have a profile you can sign up by clicking here and you can follow the steps that are provided on the website in order to fully complete your profile. This is one of the most important aspects involved with this social networking site, as it is very important to have a completed profile that is detailed and contains specific information related to your work experiences and expertise. I have done some research to provide you with 10 tips on how to get the most out of your LinkedIn profile. They are as follows:

1. Ensure your profile is complete: LinkedIn will advise you on how complete your profile is by providing you with steps and suggestions as well as a specific percentage. Ensure that you have filled out 100% of the content.

2. Make sure your profile is set to ‘public’: this is important because if you limit who can view your profile, you may be limiting the amount of connections and potential business relationships that you can establish. The more people that view your profile, the more likely it is that you will be contacted. You can make your profile public by going into your settings and changing the various privacy settings to enable everyone to have access.

3. Include your company website link, other social media links, and all contact information: any links that you have to other sites associated with yourself or your company should be inserted in your “contact information” section so people can access all of the outlets you have available to the public. Also be sure to include all of your personal contact information such as phone numbers, email addresses and fax numbers so that people can easily obtain this information.

4. Include key words throughout: in all descriptions that you provide be sure to include key words that relate directly to your field of work and which will be of interest to your potential connections and those individuals looking for professionals in your field. Also try to maintain the same tense – i.e. first vs. third person – in order to have consistency throughout your profile.

5. Include your current work position, and at least two others: your profile will not be considered “complete” until at least two previous positions are included. This also helps to show connections the various work-related experiences that you have had which can help improve your professional appearance. Also, be sure to describe these roles using key words relevant to your business/ field (note: use a variety of key words, do not be too repetitive).

6. Maximize your connections: be sure to aggressively work to expand your network. Go to “Add Connections” under “Contacts” and go through all connection channels available to see who you may know. Do this at least once a month. Note once you hit 500 connections, your public profile will simply show 500+ connections rather than an exact number.

7. Maximize the amount of groups you are involved with: this will help to improve your ‘search engine optimization’ (SEO) which is also associated with including key words in your profile. When people conduct internet searches the better your SEO, the more likely you will appear on the first couple of pages in the search.

8. Ask for and provide endorsements: it is important to not only ask people to endorse the various skills that you possess, but to also endorse your own connections (this will also provide them with an incentive to reciprocate and provide you with endorsements as well).

9. Ask for recommendations from past/present colleagues or clients: this can provide those individuals viewing your profile with first-hand accounts of the various skills and expertise that you possess and would like others to be aware of.

10. Stay active: be sure to provide updates to your connections. It is important to be sure that these updates provide your connections with useful information that they will consider relevant. One of the big things that realtors can share is information related to the various listings that they have.

Also, a big thank you to everyone as my LinkedIn page was one of the top 5% most viewed profiles of 2012! Top 5%

Good luck!

The content of this article is intended to provide a general guide to the subject matter. The information does not constitute legal advice and a solicitor and client relationship is not created.