Why I Ignore Condo Status Certificates (But You Shouldn’t)
When you close on a Condo (new or used) you are buying the key and the right to live in the unit and enjoy (or not enjoy) a certain lifestyle. Things that most lawyers (myself included) don’t look at (cost and liability issues) that you should: Insurance Deductible – Ensure the Insurance deductible (the sum that would normally become the responsibility of the “at fault” unit owner or billed to the condo (all owners) is not exceeding five thousand dollars. Check the Rules to ensure the opening hours of the facilities that you use or that your unit is near. Check the Rules about pets, smoking, and the number of occupants. Examine the budget of the condominium corporation with the view to allocating the reserve fund to something intelligible, such as dollars of reserve fund per unit. Inspect budget year over year and any unusual line items that would add material sums and require explanation. Unusual items might be mortgage payments to the builder for guest suites or rental sums that would normally be items owned by Condominium, such as. roofs and elevators. Determine if the condominium corporation has any cost sharing arrangements with adjacent buildings, commercial units, etc. and attempt to see whether these arrangements are fair Make inquires of the realtor as to whether the unit is different than other units in “the stack”. Changes, such as, replacing carpeting with hardwood floors may invite complaints and the attention of the condominium corporation which would legally require you to remove these changes. Attempt to speak with the Property Manager or Real Estate Agent and attempt to contact one of the Directors and determine whether there are any issues that they are aware of in the building or relating to your suite or floor in particular. Bear in mind that most Directors are volunteers and do not appreciate being harassed. Obtain condominium owners insurance which may require you to provide a “standard unit bylaw” and other information to the insurer. Visually inspect parking spaces for both location and damage. Many condiunum corporations require owners to pay for clean up of oil stains or cracks. Use an experienced realtor. Some are on the Board or buy /sell many units in the building. If so they can very useful sources of...
Read MoreNote To Clients
The Forfeited Corporate Property Act, 2015 (“FCPA”) requires companies created AFTER December 10, 2016 to IMMEDIATELY change their minute books and companies created BEFORE December 10, 2016 to change their minute books by DECEMBER 10, 2018. The new , register of all ownership interests in land situated in Ontario must identify each property and list the date the corporation acquired the property or, if applicable, disposed of the property. In addition, corporations are required to keep supporting documents with the property register. Specifically, corporations must retain “a copy of any deeds, transfers or similar documents” that contain any of the following: the municipal address; the registry or land titles division and the property identifier number; the legal description; and the assessment roll number. Practical Implications Failing to comply may prevent corporations from obtaining financing. Also, failure to maintain the register without reasonable cause is an offence under both the OBCA and OCA. Corporations can be fined up to $25,000 for failing to comply. Directors and/or officers can be liable for up to $2,000 each and may also be subject to imprisonment for up to one year. To date we are unaware of any enforcement proceedings by the...
Read MoreAn Open Letter to Clients
Who am I? I am a residential real estate lawyer in my 30 th year practicing in Markham. What do I do? I hire, fire, train, and supervise staff that perform title and off-title searches, serve clients and manage the vast amount of paper in a typical residential real estate file. I deal with mistakes and problems on files, which are inevitable. As soon as a new client or deal comes through our door, I meet the client or agent involved and try to sniff out any possible problems. I perform certain tasks which we are not allowed to delegate to non-lawyers including title opinions, completing “statements of law” on title documents, and trust account banking. I conduct “lawyer to lawyer” calls when needed. I attend (and sometimes give) lectures to keep current in real estate law many more hours than the mandatory twenty-for (24) hours per year required by our regulator, the Law Society of Ontario (LSO). This is over and above file-specific research such as review of agreements, internet searches, review of title and off title searches, searches against particular addresses, realtors, and parties to a transaction. I am motivated by the pleasure of meeting people at that most exciting and hopeful of times and a desire not to be the subject of legal claims or complaints over sloppy bookkeeping, delayed reporting etc. Fees Unlike family lawyers or realtors, for example, who can do half the job for half the fee (unbundled services), real estate lawyers can do little to limit their liability. They have a monopoly on the transfer of land and handle all deal monies thereby assuming personal responsibility for payment of banks, agents, and government taxes on deals. The suggested fee in 2007 to do the 135 steps in a condo purchase (see link below) Master Chart PDF is at Fees PDF On a simple $1M purchase with a bank mortgage the suggested fee (excluding HST and certain listed disbursements that typically are about $1000) is $3,600. This fee will never be seen by a residential real estate lawyer in my lifetime. As the number of lawyers in the GTA will soon exceed the number of homes for sale, market forces have seen fees (in real terms) steadily decline and (at least in Markham) are currently about $1000. Agents have likewise seen fees decrease but they are still typically 10 times what the lawyer (with comparable risk and insurance cost) will see. It hasn’t all been good news for clients. Inadequately paid lawyers have foisted some of their insurance costs (title insurance) on clients – where it belongs. Typically, about $500/deal. Prior to title insurance lawyers only charged $50 (LawPro Levy) to clients. Regulations Fortunately, dear client, the LSO has of late focused the heavy hand of regulation on us unscrupulous residential real estate lawyers. First they regulated advertising to address lawyers that advertise very low fees only to increase disbursements and other charges. That makes sense. If asked, I tell “tire kickers” to get 3 quotes and accept the highest if they want the best chance of getting an honest and competent lawyer. LSO now intends to end “kickbacks” or “incentives” (required to be disclosed to clients) by title insurers to lawyers that in one case pay the lawyer $100 for their efforts in preparing and printing the policy. The suggestion is that lawyers who fail to disclose or pass on this “saving” or other incentives (volume rebates) are dishonest or unprofessional. That makes no sense. The takeaway is that every time LSO receives a complaint, or one of their 40 directors (37 of whom, by my count, have never seen the inside of a residential real estate practice or walked a mile in...
Read MoreSurveys
A land survey has been called the single most important document in a Real Estate transaction by noted practitioner Bob Aaron. I agree. The current standard Ontario Real Estate Association (OREA) standard Purchase Agreement calls for the Seller to produce any title documents (including surveys) in its control. The Purchaser never, in fact, receives a survey. We recommend to our clients as follows; Firstly, as a Seller, a diligent effort should be made to locate the survey from either your previous lawyer or from your reporting letter or from your own records. If you are aware that a survey was done, copies are kept by law, by the original surveyor and can be cheaply obtained. If you don’t know the name of the surveyor, there are online search resources that can with your legal description entered advise you who the surveyor is and a copy can be provided to you online, usually for a cost of about $100.00. Currently our favorite site for this is a company called Land Survey Records at www.landsurveyrecords.com . When acting for purchasers we would like to see the OREA clause modified to say that any survey dated while the seller owned the property will result in the seller being liable for the purchaser’s cost in obtaining same. Why the big deal about surveys? In addition to verifying lot size the survey will show many other useful bits of information. Survey markers greatly assist dealing with a dispute with a neighbour. It is said good fences make good neighbours, but where do you site the fence? A dated survey will indicate the date of any build outs of the property so as to establish legal non-conforming uses or indicate possible zoning by-law infractions that could result in serious cost of the new owner. Zoning infractions may not come to light until years later when the owner is applying for a minor variance or a dispute arises with the neighbour. As the cost of a new survey is normally about $2,000.00 for a single family home, find the existing survey instead. As a seller we always recommend that a copy of the survey highlighting any issues be attached to the Agreement of Purchase and Sale and initialled by the purchaser. This happens far too infrequently. Many agents and even some lawyers tell clients that a survey is not necessary with title insurance. The majority in the real estate bar and the title insurer’s themselves would certainly not agree with this statement. The reasons for this are the subject of a separate article. The take away is that you should ignore doing a “survey search” when buying at your peril, not...
Read MoreBuilder’s Business Ethics
The conduct of builders is varied and worth noting. A decade ago , when the builder of Liberty Walk (David Hirsh) was faced with rebuilding his low-rise residential development that was destroyed by fire, a colleague of mine (Bob Aaron) properly noted that although entitled to sell the units to new purchasers at higher current prices, he honoured his contracts with all the original purchasers. On the other side of business ethics, I was recently approached by a buyer client who received a cheque of about $1,400.00 and a letter indicating this was a pay-out from a class action against the builder Remington Group Inc. (owned by the Bratty family) with regard to a condominium at 57 Upper Duke Cres, Markham. Just prior to his purchase agreement being signed in 2006 the developer pre-paid development levies to the Town of Markham in return for protection against any future increases in the charges. Subsequently, the Town of Markham in fact did increase its development charges to builders and these were billed out to the purchasers (including my client), notwithstanding these increases were never paid by the builder. As is the practice, the company that the builder used to do business with the purchasers (Rouge Residences Inc.) was a judgment proof shell and even after multiple complaints and small claims actions from purchasers, the unfair charges were not repaid. At great risk and expense to one such buyer (Mr. Sa’d), a lawyer (Sean Grayson, with whom my client and I spoke) commenced a class action proceeding including not just the shell companies but the parent company Remington Group Inc. The action was brought on behalf of approximately 400 buyers. The decision is reported as Sa’d vs. Remington Group Inc [2013] O.J. No.978. The parent company was succesfully joined in a class action and finally consented to pay $578 000.00 into a settlement fund representing a recovery of about seventy cents on the dollar. There was a serious concern about the ability to “pierce the corporate veil” and get at the entity with the money, not just the shell companies used in the agreements with buyers. After legal fees, the buyers got about half the unfair charges refunded. The Bratty family companies are members of the Building Industry and Land Development Association (BILD), Tarion registrants (all have codes of conduct) and major supporters of Villa Colombo Charity. One can only hope that such questionable business ethics by builders remain the exception. Subsequently, Tarion (a builder controlled group that regulates, you guessed it – builders) has since outlawed this practice. The new regulation (507/10) now reads that “ In connection with any Agreement of Purchase and Sale of a home signed on or after Janaury1, 2011 the registrant shall not charge… any amount as reimbursement for a sum paid or payable by the registrant to a third party unless the sum is ultimately paid to the third party. If the registrant charges an amount to the owner in contravention of this paragraph, the registrant shall forthwith readjust with the owner”. Mr. Grayson commented that this law killed other similar proposed class actions against builders. How about a law that no builder should profit from blatantly deceptive or unauthorized charges to buyers by employing the use of “shell” companies in their...
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