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BC Real Estate Law Blog by Peter Borszcz - 3w ago
  1. Contact Your Bank– find out how much you will owe the bank to discharge your mortgage. Some important questions for your banker include:
    1. How much do I currently owe?
    2. Is there a payout penalty, if so, how much?
    3. Are there other fees (ie; a discharge fee) which is also payable?
    4. Do you owe more than your home is worth (more info on Distressed Sales here)?

It is a term of every real estate contract that all financial charges be discharged. In the event that the net proceeds of sale (after commission) are not sufficient to pay the mortgage, you will have to bring in money to complete the deal.

  1. Clean up your Land Title
    1. Has your name changed since you last bought your home?
    2. Has a contractor or CRA filed a lien against your property?
    3. Are there certificates of pending litigation or other charges on title that will be required to discharged prior to closing,

Contact your lawyer early and get these dealt with asap before listing. If these items are on title during the selling process they will weaken your bargaining position with potential Buyers.

  1. Do you have the Legal Capacity to Sell?
    1. Are you going to be present during the selling process or are you planning a vacation in the near future?
    2. Does the you as seller have the mental capacity to understand the sales process?
    3. If you are not the registered owner, do you have a power of attorney?
    4. If the owner has died, have you been granted probate?

If there are issues here that are expected, contact your lawyer who can assist you with strategies to deal with some of these issues.

Have questions, Call or Email Real Estate Lawyer Peter Borszcz at Pihl Law Corporation (250-762-5434).

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 Why are Home Inspections so Important in BC?  Because the state of the law in BC is generally “buyer beware” absent fraud or negligent misrepresentation or a latent defect.

Does the Property Disclosure Statement Protect Me? Not much, it is only a statement of the Sellers Current Knowledge and is a “snapshot in time”.

All I need is a home inspection right? Not always, home inspectors are generalists and if they identify a problem a good rule of thumb is to get the specialist out there for further investigation.

Peter Borszcz is a Kelowna Real Estate Lawyer practicing law at Pihl Law Corporation in Kelowna, BC.


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The Premier just announced at 12:45 that they government will be taking action based on the report delivered on the industry yesterday.

http://www.cbc.ca/news/canada/british-columbia/christy-clark-real-estate-report-1.3658442

A few major highlights:

  1. DUAL AGENCY will be abolished
  2. REC will be dissolved and regulation assumed by the SUPERINTENDANT OF REAL ESTATE.
  3. FINES will be increased to $250k for Realtors and $500k for brokerages.

If you are on a TEAM, the announcement on Dual Agency will likely cause the most issues… but remember, that old “sub-brokerage” model… some thought should be given again to that structure (now… in combination with designated agency) for larger teams where the new dual agency prohibitions will be an issue.

Given the tone of the news conference, more announcements are forthcoming.

Love to chat more, but it’s the end of June and I got files to close,

As Dorie the realtor would say… Just keep listing… listing… listing

Kelowna Real Estate Lawyer, Peter Borszcz


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Effective today, the province has introduced new regulations governing Realtors. They didn’t change the law of the contract (where assignments are expressly allowed under the Law and Equity Act), but require that more drafting and disclosure be made by Realtors.

All Realtor drafted contracts (residential and commercial) should contain the following:

  1. this contract must not be assigned without the written consent of the seller; and;
  2. the seller is entitled to any profit resulting from an assignment of the contract by the buyer or any subsequent assignee..

(Note: These are the official statements and I note this “drafting” is quite poor, some contractual definition of PROFIT and ASSIGNEE is required).

In the event these terms are NOT in the contract the Selling Licensee is required to disclose this to the Seller in writing with  the following form:

http://www.recbc.ca/wp-content/uploads/Notice-Regarding-Assignment-Terms.pdf

There remains a discussion to be had on how this effects Limited Dual Agency –the presence or absence of the “Assignment Provisions” may in some factual circumstances relate to a discussion of a party’s “motivation”… if that is the case, the Realtor should consider whether LDA is a viable option (note: in my opinion, I think we are also going to see LDA rule changes arising out of the committee work that is currently ongoing).

The REC council FAQ is a great source of more detailed info:
http://www.recbc.ca/licensee/contract-assignment-faq.html

Have a great week!

Peter Borszcz, Kelowna Real Estate Lawyer


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Shadow flipping or assigning a contract prior to completion has been brought under recent media scrutiny See: CBC or VANCOUVER SUN stories.

This generally refers to ASSIGNING a contract, which is a legal process whereby Purchaser #1 “sells” its contract to Purchaser #2.

This is legal because, once subjects are removed from the deal (and the contract is binding), the Purchaser has an equitable interest in the property from that date. This can occur months in advance of closing. The Purchaser (with binding contract in hand) then will gain if the property appreciates OR will lose if the property depreciates.  (In the Kelowna real estate market I have seen both occur)

It is also this equitable interest that allows Purchasers to sue for specific performance of real estate contracts and demand conveyance of the property to them if a Seller refuses to complete.

Altering this principal of British Columbia real estate law would dramatically change many aspects of real estate law in this province and would not be prudent legislative policy. A better practice would be for real estate buyers and sellers to work with all their professional advisors – lawyers, realtors, appraisers and accountants – early in the process to get well rounded independent advice.

Written by Kelowna Real Estate Lawyer Peter Borszcz


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