Demystifying the Agreement of Purchase and Sale–Title Search Clause #8

ContractMy last Blog was about Title Search Clause #10 in the Agreement of Purchase and Sale, which is a conditional clause allowing for the Buyer’s lawyer to search for any valid objection to Title and other Title issues.  Clause #8 sets out the actual date for this conditional clause.

What most people don’t notice and it is often overlooked, is that there are actually two dates in this clause.

The first date is a date that is entered by your real estate agent.  This date refers only to any valid objection to title.

Usually this first date is set for approx 5 to 10 days prior to closing.  Not all lawyers will wait until the last minute of your condition date to begin their search, but many do.  And when that happens your closing can be put in jeopardy…

Buyers, you firmed up all of your other conditions weeks ago and now you are approaching closing…you may have already sold your house and started packing…and 7 days before closing your lawyer tells you about a major issue with title on the place you plan to move into in 7 days.  How do you feel?

Sellers, you’re confident your property has sold, you’ve purchased a new place and have started packing and now you find out about a major issue with title on your property, just before it’s due to close.  How do you feel?

A little pressured?  A little stressed?  And, what happens when you are pressured or stressed?  You make poor decisions!

You can renegotiate the deal, delay closing or walk away.  Any of these can have serious consequences and costs to either party.

So, Buyers and Sellers, how do you protect yourselves?

Set the Title Search Date for a week to 10 days after the date of all of the other conditions in the Agreement (don’t wait until the last 5 to 10 days before closing).  Then, set the closing date for 30 days after the Title Search Date.  This will ensure that you know of any problems well in advance and will give you lots of time to deal through all of the issues.

The second date in this clause actually allows more time for the Buyer’s lawyer to check work orders, deficiency notices, use of the property and if fire insurance on the principal building (if there is one) can be obtained.  The Buyer’s lawyer has up to 5 days prior to closing to satisfy these four points.  If this is all left until the last 5 days…in my opinion this puts you back into the pressure cooker.  Now you are srambling to fix things and it may mean delays or worse.

Here’s a solution… remove all reference to this other date and have all of the search requirements completed by the first dateThis, again, will ensure you have plenty of notice and can make timely and effective decisions. If you don’t remove this portion of the clause, then, at the very least keep after your lawyers to make sure you have plenty of notice of any issues.   Don’t leave yourself short.

Present use must also be filled in, in this clause.  What does that mean?  It means, the buyer is purchasing the property based on current permitted uses as per Municipal and County zoning.

Sellers, it’s important that you disclose current zoning of your property, both on the listing and here in this clause on the Agreement.

Buyers, if you plan to use the property for something other than the “Present use” declared, you should do your due diligence in advance of firming up on the deal. Include a conditional clause in the Agreement on satisfying yourself on any potential zoning change or required building permits you may want to explore in future.

There are significant implications if there are issues on Title.  You need to know the importance of these two clauses (#8 and #10) and how they affect you, whether you are the Buyer or the Seller.  Be sure you understand  them and what the consequences can be if there is a problem.

Here’s the clause in its entirety:

Title Search Date

A last minute discovery of a Title problem can be devastating!

ALWAYS READ AND UNDERSTAND WHAT YOU ARE SIGNING.  If in doubt…ask for clarification and/or seek legal advise.

Watch for my next Blog on….

Buyer Representation–To Sign or Not to Sign, that is the question!

Don’t forget to send your comments, stories, or ideas, in the comment section below or via email at dimaline@amtelecom.net.

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Kathy Dimaline is a Real Estate Broker for RE/MAX Grey Bruce Realty Inc.  T
he comments on this Blog are the opinions, only, of Kathy Dimaline and do not constitute any legal advice or legal opinion and does not represent the interests or opinions of RE/MAX Grey Bruce Realty Inc., brokerage.

© Copyright Kathy Dimaline, All Rights Reserved

Demystifying the Agreement of Purchase and Sale–Title Search Clause #10 Part 2

Today’s topic is on the Title Search Clause in the Agreement of Purchase and Sale.  This is one of the most important “standard” clauses in the agreement.  What most don’t understand, or over look, is that this is a conditional clause.

Real estate professionals are not lawyers.  Our title search tools are limited, we rely on information provided by the sellers and support from Municipal and County resources, however, these resources are not infallible.  Only a lawyer can confirm absolute title to a property.  The Title Search Clause provides a safety net for both Buyer and Seller by allowing a search of a property to ensure title can indeed be exchanged as described in the Agreement.

The Title Search Clause allows for the Buyer’s lawyer, at the Buyer’s expense, to undertake this task prior to the date set out in clause #8 (more on clause #8 in another Blog).  This is an added cost to the Buyer and is usually incorporated in closing costs from the lawyer.  However, it is important to point out, that just like any other condition, at the Buyer’s expense, whether the deal closes or notthe Buyer will be absorbing this cost.  (I will have more details on “Conditional Clauses” in future Blogs.)

There are a whole host of things that a Buyer’s lawyer is looking for to satisfy this condition, I’m rewording them, here, in layman’s terms.

1.  The title to the property must be good and free of any registered restrictions, charges, liens and encumbrances (there are a number of exceptions to this which I have listed below)

2.  There must be no valid objection to title,

3.  There must be no outstanding work order(s)

4.  There must be no deficiency notice(s)

5.  The buyer must be able to lawfully continue the  present use

6. The principal building must be insurable against risk of fire

Each one of these unto themselves can be a full topic of discussion…in any case, for any doubt you should always seek legal advise.

If any of these issues are uncovered, it then becomes the responsibility of the Seller to remedy (fix) the problem(s), at the Seller’s expense.  One of the remedies is that the Seller may obtain Tittle insurance in favour of the Buyer (or any mortgagee).  It is important to note that any and all issues uncovered can re-open negotiations if both Seller and Buyer are willing.

If the Seller is unable or unwilling to remove, remedy or satisfy (the Buyer/Buyer’s lawyer) and the Buyer is unwilling to Waive this condition, the deal dies.  Any deposit money will be returned to the buyer without deduction.

By virtue of this clause, the Seller, Listing Brokerage and Co-operating Brokerage shall not be liable for any costs or damagesBuyer’s you must be made aware of this!

The clause finally concludes that if there is no valid objection to title the Buyer accepts possession of the property as outlined in the Agreement…there is no further document required to fulfill this clause (except for what a lawyer may request to complete the transaction).

Here is the actual clause:

Here are all the exceptions to the restrictions, charges, liens and encumbrances as per point #1 above…both Seller and Buyer need to be aware of these:

1.  Unless it is otherwise agreed upon in the Agreement by both parties

2.  Any registered restrictions or covenants that run with the land and are complied with

3.  Any registered Municipal agreements and registered agreements with public utilities, and are complied with

4.  Any minor easements for supply of domestic utility or telephone service to the property or adjacent properties.

5.  Any easements for drainage, storm or sanitary sewers public utility lines, telephone lines, cable tv lines or other services which do not materially affect the property.

Again, if in doubt about these exceptions always check with your lawyer.

There’s a lot to this clause and it is often just glanced over in the signing process.  ALWAYS READ AND UNDERSTAND WHAT YOU ARE SIGNING.  If in doubt…ask for clarification and/or seek legal advise.

Don’t forget to send your comments, stories, or ideas, in the comment section below or via email at dimaline@amtelecom.net.

Watch for my next Blog on….

Demystifying the Agreement of Purchase and Sale-Title Search Clause #8

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Kathy Dimaline is a Real Estate Broker for RE/MAX Grey Bruce Realty Inc.  The comments on this Blog are the opinions, only, of Kathy Dimaline and do not constitute any legal advice or legal opinion and does not represent the interests or opinions of RE/MAX Grey Bruce Realty Inc., brokerage.

© Copyright Kathy Dimaline, All Rights Reserved

Demystifying the Agreement of Purchase and Sale–Title Search Clause #10

Today’s topic is on the Title Search Clause in the Agreement of Purchase and Sale.  This is one of the most important “standard” clauses in the agreement.  What most don’t understand, or over look, is that this is a conditional clause.

Real estate professionals are not lawyers.  Our title search tools are limited, we rely on information provided by the sellers and support from Municipal and County resources, however, these resources are not infallible.  Only a lawyer can confirm absolute title to a property.  The Title Search Clause provides a safety net for both Buyer and Seller by allowing a search of a property to ensure title can indeed be exchanged as described in the Agreement.

The Title Search Clause allows for the Buyer’s lawyer, at the Buyer’s expense, to undertake this task prior to the date set out in clause #8 (more on clause #8 in another Blog).  This is an added cost to the Buyer and is usually incorporated in closing costs from the lawyer.  However, it is important to point out, that just like any other condition, at the Buyer’s expense, whether the deal closes or notthe Buyer will be absorbing this cost.  (I will have more details on “Conditional Clauses” in future Blogs.)

There are a whole host of things that a Buyer’s lawyer is looking for to satisfy this condition, I’m rewording them, here, in layman’s terms.

1.  The title to the property must be good and free of any registered restrictions, charges, liens and encumbrances (there are a number of exceptions to this which I have listed below)

2.  There must be no valid objection to title,

3.  There must be no outstanding work order(s)

4.  There must be no deficiency notice(s)

5.  The buyer must be able to lawfully continue the  present use

6. The principal building must be insurable against risk of fire

Each one of these unto themselves can be a full topic of discussion…in any case, for any doubt you should always seek legal advise.

If any of these issues are uncovered, it then becomes the responsibility of the Seller to remedy (fix) the problem(s), at the Seller’s expense.  One of the remedies is that the Seller may obtain Tittle insurance in favour of the Buyer (or any mortgagee).  It is important to note that any and all issues uncovered can re-open negotiations if both Seller and Buyer are willing.

If the Seller is unable or unwilling to remove, remedy or satisfy (the Buyer/Buyer’s lawyer) and the Buyer is unwilling to Waive this condition, the deal dies.  Any deposit money will be returned to the buyer without deduction.

By virtue of this clause, the Seller, Listing Brokerage and Co-operating Brokerage shall not be liable for any costs or damagesBuyer’s you must be made aware of this!

The clause finally concludes that if there is no valid objection to title the Buyer accepts possession of the property as outlined in the Agreement…there is no further document required to fulfill this clause (except for what a lawyer may request to complete the transaction).

Here is the actual clause:

Here are all the exceptions to the restrictions, charges, liens and encumbrances as per point #1 above…both Seller and Buyer need to be aware of these:

1.  Unless it is otherwise agreed upon in the Agreement by both parties

2.  Any registered restrictions or covenants that run with the land and are complied with

3.  Any registered Municipal agreements and registered agreements with public utilities, and are complied with

4.  Any minor easements for supply of domestic utility or telephone service to the property or adjacent properties.

5.  Any easements for drainage, storm or sanitary sewers public utility lines, telephone lines, cable tv lines or other services which do not materially affect the property.

Again, if in doubt about these exceptions always check with your lawyer.

There’s a lot to this clause and it is often just glanced over in the signing process.  ALWAYS READ AND UNDERSTAND WHAT YOU ARE SIGNING.  If in doubt…ask for clarification and/or seek legal advise.

Don’t forget to send your comments, stories, or ideas, in the comment section below or via email at dimaline@amtelecom.net.

Watch for my next Blog on….

Demystifying the Agreement of Purchase and Sale-Title Search Clause #8

.

Kathy Dimaline is a Real Estate Broker for RE/MAX Grey Bruce Realty Inc.  The comments on this Blog are the opinions, only, of Kathy Dimaline and do not constitute any legal advice or legal opinion and does not represent the interests or opinions of RE/MAX Grey Bruce Realty Inc., brokerage.