Making an Offer & Working With a Lawyer
Sign here, sign here, and don’t forget to initial here! No doubt about it, buying a home includes a lot of paperwork. In Canada, formalizing the purchase of a home requires some variation of a written contract, which involves successfully negotiating the terms with the homeowner.
Making an offer in Ontario usually begins with a Purchase and Sale Agreement, which your REALTOR® will initiate on your behalf. The pre-printed form will include several standard clauses that your REALTOR® will review with you at the time. It will be the information specific to the offer you are presenting that will be the focus of your discussions and will include such things as the legal names of the buyers and sellers, the legal address of the property, and the names of the listing and selling brokerages and REALTORS®. The items on the Purchase and Sale Agreement that may become the focus of negotiations include:
- The Amount of the Deposit – this is an indication of how serious the buyer is in purchasing the property. In a large city with a hot real estate market, this may be as much as 5% of the purchase price. By contrast, in a rural area with a quiet market it may be less than 1%.
- The Possession Date – this may have a direct impact on either the buyers’ or the sellers’ personal life. For instance, will the children have to move before the school year is over? Will an earlier closing date require interim rental accommodation and perhaps some financial hardship? Is one of the owners away on a course during the preferred closing date? Agreeing on a mutually convenient purchase date can sometimes cause complications.
- Fixtures and Chattels – in other words, what is supposed to stay with the house and what is not? These items often become the proverbial straw that breaks the camel’s back. A classic example is the issue of appliances. For instance, a purchase may not come together if the seller will not include them in the purchase price and the buyer will not pay or can not afford to pay the homeowner’s price without them.
- Purchase Price – in most cases, this is the greatest hurdle to the successful completion of a real estate transaction i.e., the homeowner has unrealistic expectations of the market value of his or her home, or the purchaser does not recognize the true value of the property. Quite often the true market value of the property lies somewhere between the buyers’ and sellers’ final offers.
- Conditional Clauses – these are the offer-specific statements that make the transaction subject to various conditions. In other words, the Purchase and Sale Agreement will not become a binding contract until these conditions are satisfied. The most common condition is ‘arranging financing within 5 banking days’. If the buyer is unable to find a lender that will agree to provide the money for a mortgage within this time period, then he or she can, obviously, not usually afford to purchase the property.
In addition to your REALTOR®, one of the other experts who will help you through the myriad of documents is your lawyer. Chances are you will pick your legal counsel after a recommendation from a friend, associate, or from a list provided by your REALTOR® or relocation representative. Whomever you select, it goes without saying that you should feel comfortable with that person and that he or she should specialize in Real Property Law.
What services will your lawyer provide to help with the purchase process? For a start, you may want him or her to review your Purchase and Sale Agreement before it is submitted to the homeowner. The majority of purchasers do not have this done. However, the following are typical tasks your lawyer will complete on your behalf:
- Prepare your mortgage documents, if not completed by your lending institution;
- If not already supplied by your REALTOR®, he or she can provide a list of lending institutions and home inspectors;
- Calculate the amount of Land Transfer Tax that will be payable on the completion date … don’t forget about this fee when calculating your closing costs;
- Confirm the amount of property tax owing and if there are any final municipal inspections that need to be completed;
- Calculate adjustments on closing i.e., reconciling oil and utility bills;
- Determine if there have been any claims registered against the property you are purchasing and, if so, ensure they have been cleared prior to your possession date; and
- Confirm that you have clear title to the property by doing a title search at the local land registry office.
The lawyer’s fee will vary by region and, in some cases, by the home you are purchasing. Be sure to compare prices, but make sure you are comparing apples to apples by ensuring the services are comparable.
Another of the experts closely aligned with the Real Estate industry is the Home Inspector. Tips and services provided by these professionals will be the next topic of discussion. In the meantime, continue to educate yourself in preparation for your next, or maybe your first, real estate purchase.
David Weir BA, CD is a Broker with Royal LePage ProAlliance Realty in Trenton. His sales in the Quinte area have ranked him in the Top 1% of all Royal LePage REALTORS® in Canada since 2005.