Real Estate Law

A list of key questions a seller or buyer would have about completing a purchase or sale.

Why do I need a Real Estate Lawyer?

Real estate lawyers oversee the process of buying or selling property, or refinancing, to ensure the interests and rights of clients are preserved.  Real estate closings are often complicated legal processes involving the execution of many legal documents which have significant financial implications. You want to protect your investment. Legal searches are necessary to protect yourself from any unwelcome surprises down the road.

A purchaser’s lawyer goes over the agreement of purchase and sale to make sure the buyer is protected. The lawyer checks title, or chain of ownership of the property, for any problems or liabilities such as liens.  All mortgage loan documents and legal papers are verified for the purchaser.

A seller’s lawyer will check the agreement of purchase and sale to protect the seller and address any title issues that arise, arrange for final payoffs for existing loans and prepare the necessary documents to transfer ownership of the property.

The guidance of a competent lawyer can make sure your real estate transaction goes smoothly.

What is Title Insurance?

Title insurance is an insurance policy that protects property owners and their lenders against losses related to the property’s title or ownership. A lawyer can only provide an opinion to the extent that a survey is correct, that the government search records are accurate and up to date, and there has been no fraud relating to the public records. Title Insurance protects the Purchaser’s interest in title against these types of risk.

How much is Land Transfer Tax?

Land Transfer tax is calculated as a percentage of the purchase price. At present the tax is .5% on the first $55,000.00, 1% from $55,000.00 to $250,000.00, 1.5% from $250,000.00 to $400,000.00 and 2% above $400,000.00 ie tax on $200,000.00 is $1,725.00. Land Transfer Tax for properties in the City of Toronto is doubled.

Are first time home buyers entitled to any benefits?

First time buyers of new houses are entitled to a maximum Land Transfer Tax refund of up to $4,000.00. This means that eligible homebuyers in Ontario would pay no Land Transfer Tax (LTT) on the first $368,000 of their home’s purchase price.

Can I take money out of my RRSP to purchase a home?

With the federal government's Home Buyers' Plan, you can use up to $25,000 of your RRSP savings ($50,000 for a couple) to help finance your down payment on a home. To qualify, the RRSP funds you're using must be on deposit for at least 90 days. You must also provide a signed agreement to buy or build a qualifying home. The best part is the withdrawal is not taxable as long as you repay it within a 15-year period.

Do I need to arrange home insurance?

When you purchase a property (that is not a condominium), home insurance is required.  You will have to provide your real estate lawyer with a copy of your home fire insurance binder. In fact, your mortgage lender will not advance the mortgage funds without proof of fire insurance.

If you purchased a condominium, you may want to arrange for content insurance.

Who is considered a non-resident?

You will be considered a non-resident if you have been living in Canada for less than a total of 183 days in the year or if one has no residence in Canada and customarily lives outside of Canada.

A person who is not a Canadian Citizen will be considered a non-resident of Canada, if he/she normally lives outside of Canada or if he/she lives outside of Canada for more than 183 days in a year. A person who is not a Canadian citizen and is not a landed immigrant, for tax purposes, be considered as a resident if he/she lives in Canada for more than 183 days a year.

I am not a Canadian Resident, what happens when I sell my property?

If you are a non-resident of Canada, or will be a non-resident of Canada at the time of closing, it is important that you contact our office as soon as possible.

You will have to apply for a non-residency clearance certificate (through an accountant), and will usually result in 25% of the gross sale price to be held (usually by the seller's lawyer in trust) until the government non-residency clearance certificate has been obtained by the accountant who has filed the appropriate application. This process can take between 60-90 days to process and must be submitted within 10 days of closing to avoid penalties.

Probate Law

What is Probate in Canada?

Probate is the process of the courts formally accepting a will, or, if the deceased did not have a will, appointing someone to act on their behalf. The process is designed to verify that the testator has passed away, that that person was the author of the will, and that it's a valid will. It gives the executor or administrator (the term for an executor of an estate that did not have a will) the power to prove the executor's authority to administer the estate.

How long does the probate process take?

It typically takes about 3 months for an application for probate to be seen by the courts, the whole probate process can take anything up to a year. Even longer if there are challenges to the Will.

Be aware that in Ontario, the Executor must submit an “Estate Information Return” within 90 days of them officially being appointed Executor. This return must include a detailed inventory of everything owned by the deceased and the complete breakdown of the value of the estate.

Are Probated Wills public documents?

Once a Will has been probated it is a public document, and anybody can apply to the probate courts to view it. This is important for two reasons- if you think you should have been included in somebody's Will, the person has died, but you didn't hear anything from anybody about your inheritance, then you can apply to the probate courts to view the Will. You should look up the contact information for the Registrar at the Superior Court of Justice in the jurisdiction where the person died and for a fee you would be able to receive a photocopy of the Will.