IF YOU ARE A PURCHASER: 

It is our practice to discuss the options available to you for protecting your title to the property that you are purchasing and to recommend title insurance on most transactions as it has the ability to provide protection which goes beyond the limitations of a traditional solicitor’s opinion.  If you would like more information on obtaining title insurance, you should visit the website for our primary title insurer Stewart Title at www.stewart.ca.                    

When you are purchasing, we will require certain information in order to advise you accordingly and any lenders.  This information will also allow us to endorse the insurance policy appropriately.  For instance

•                            is the property serviced by a septic system?

•                            is the property serviced by a well?

•                            are there any items which do not appear on the survey provided (if any)?

•                            are there any pole lines or hydro boxes located on the property?

•                            are there any other indications of unregistered rights or interests (eg. a travelled path)?

•                            does the property front on or have purported access to water?

•                            is or was the property tenanted?

•                            are you aware that the property is under the jurisdiction of a conservation authority?

•                            are you aware of any unregistered agreements with neighbours or road associations (eg shared well or septic)

•                            were representations made by the Vendor which are not set out in the Agreement?

     Title to real property in Ontario can be held among multiple owners as “joint tenants” or “tenants in common”.  The significance of holding in one or the other fashion is as follows:

     1. Joint Tenants -  If two or more parties own property as joint tenants, upon the death of one party title will vest solely in the surviving party or parties; the property does not become part of the deceased’s estate. 

     2.  Tenants in Common - If the parties hold title as tenants in common, the deceased’s estate acquires their interest in the property and that interest will pass in accordance with their will or the laws of intestacy, as may be applicable; in other words, the survivors will share title with the beneficiaries under the deceased’s estate.  If the deed is silent on the issue, then the parties are deemed to hold as tenants in common. 

Qualifications

You should also be aware that, as a general rule, a solicitor’s opinion and/or a title insurance policy will address the legal status of the property as it exists on record and as of the closing date.  They do not address issues of quality, fitness for purpose or the results of any future inspections by the local authorities.  For such assurances you should look to the services of a professional home inspector or warranties from the Vendor as you may be entitled to under the Agreement of Purchase and Sale. 

Adjustments

Shortly before closing the Vendor’s solicitor will provide a Statement of Adjustments which calculates any moneys owing between you and the Vendor for matters such as taxes, fuel oil and prepaid rent, as of the closing date.  Typically you will be required to reimburse the Vendor for any moneys pre-paid in this regard.  Utilities and gas are usually not adjusted, as you will instruct these service providers to read the meters on closing and the final bill will be sent to the Vendor or their solicitor.  We cannot advise them on your behalf due to privacy laws.   If the property is serviced by oil or propane, it is the usual practice for the Vendor’s solicitor to arrange to have the tanks filled and an adjustment is made for full tanks (this avoids complications with measuring partial tanks).

Fees and Disbursement 

We have a standard set fee for purchases plus any applicable disbursements, title insurance premiums and taxes.  This standard fee also assumes a typical transaction; additional fees and disbursements will apply in extraordinary circumstances.  Such circumstances will include, but are not limited to the following:

•                  remedying title or other defects (outside of requisitioning same from the Vendor)

•                  executions in connection with your name, similar-name or otherwise

•                  extra costs for properties outside of our land registry office’s jurisdiction

•                  non-title matters in connection with satisfying lender requirements

•                  Independent Legal Advice in connection with borrowing, where necessary.

The account for fees and disbursements will be due together with the closing funds immediately prior to closing.  These funds will not be released from trust until the transaction is reported to you.  .

Land Transfer Tax

On closing you will be required to pay land transfer tax to the Ontario Government.  We will collect the tax as part of the net funds due on closing and remit same when we register your deed.  The amount of the tax is a function of the pre GST purchase price and is calculated as the sum of the following:

0 - $55,000                                .5% of purchase price

$55,001 - $250,000                 1.0% of purchase price

$250,001 - $400,000               1.5% of purchase price

$400,001 +                              2.0% of purchase price                                  

Fire, Property Loss and Casualty Insurance

You should arrange for insurance to be placed on the property for fire, property loss and casualty loss as of the closing date.  You will need to advise your lawyer by forwarding the binder letter or policy information sot that he or she can add the lender (assuming there is one) as “first loss payee”.  You will also want to ensure that the policy provides for “guaranteed replacement cost”, as this is a requirement of most lenders, and moreover prudent practice on your behalf.

GST

The rules regarding GST are complicated and you should obtain advice on this issue prior to entering into the Agreement of Purchase and Sale.  Generally, GST does not apply if the purchase does not involve a new or substantially renovated property, the Vendor is not selling vacant land in the nature of a business transaction or the property is commercial in nature.  In the event that the transaction is subject to GST, the Agreement of Purchase and Sale dictates who, among you and the vendor, is responsible for paying same.

Well Water

If the property is serviced by a well, you should know that water potability and quantity are not covered by our title insurer.  Subject to your rights under the Agreement of Purchase and Sale, you must satisfy yourself in this regard.   Tests for organic contamination are usually conducted by the local Health Unit.  Most authorities recommend that three water tests be taken, at least two weeks apart.  Banks will generally be satisfied with one test.  We recommend that you, or at least your agent, obtain the sample and submit it for testing, as test results provided by the Vendor tend to be self serving and have historically been found to be less reliable.  You may also want to consider conducting a test for excessive mineral content.

Septic System

Our title insurance policy normally protects you against any adverse circumstances regarding the legal status of the system that would have been revealed by a search with the local authority as of the closing date.  In any event, it is a good practice to ask the Vendor for a copy of their use permit.  If the vendor does not have a use permit in their possession, you may want to consider conducting a search, because if there is a use permit on file it will tell us how old the system is and where it is located; information which does not address the current legal status, but may nonetheless be useful to know. 

Process

We will call you in due course to arrange a meeting for the signing of documents and delivery of the closing balance of funds including all adjustments, fees and land transfer tax.  Typically this occurs some time during the week prior to closing, after we have received the Statement of Adjustments and other drafts from the Vendor’s solicitor. All funds received by me from you and the lender (if any) will be deposited to my trust account and distributed from there.  All funds delivered to us must be in the form of a certified cheque or bank draft payable to “Oldham & Associate, in trust” (this is because we must draw certified cheques thereon). Please also ensure that you bring picture identification with you as we will be required to verify same pursuant to our obligations to the Mortgagee and the Rules of Professional Conduct as dictated by the Law Society of Upper Canada. 

The Parry Sound and Muskoka area are in the process of converting from the “paper-based” land registry system to the “electronic-based” system called Terraview.  At the present time, only a portion of the properties have been converted to the electronic system.  If the property that you are purchasing has been converted to the electronic system, you will execute an “Acknowledgement and Direction” that enables us as your lawyer to register the deed and ancillary documents electronically on your behalf.  We will then correspond electronically with the other lawyer and the registry office to register the deed at the appropriate time.  If the property that you are purchasing has not been converted then you will sign the typical transfer/deed and ancillary documents on paper which will then be registered by us attending the registry office.

On closing, we will meet the Vendor’s solicitor or his/her agent at the registry office and exchange documents, cheques and keys there.   However, if the property has been input into the electronic registry system “Teraview”, then documents will be exchanged electronically.   Until either of these occur, the transaction has not closed and you do not have any right to access the property.  We always try to close transactions as soon as possible on the scheduled closing day; however, due to the great number of variables it is impossible to establish an exact time for closing.

Once the transaction is completed, we will provide a full report and accounting which will include a copy of your deed/transfer and all relevant documents.

IF YOU ARE A VENDOR

If you are selling a property there is further information that you will need to put together for the transaction to go smoothly.  You will need to have answers to the following questions:

1.     Are you a spouse?  If yes, is the property that you are selling a residence that you use with your spouse and family as a “family residence”? 

2.     How is the property heated?  If the property is heated by Oil/Propane/Gas, who is the supplier and what is the account no. (if applicable)?

3.     What was your most recent final property tax bill?

4.     What is the total you have paid for most recent property taxes?

5.     Is there a Mortgage on the Property?  If there is a Mortgage, you will need to know which Bank it is with and the Mortgage Account No. that the Bank has assigned to it.

6.     What your address will be after the closing of this sale.

We normally contact you to attend at our office in order to sign documents when we are within one week of the closing, or if you will be out of the area close to the closing we would appreciate your contacting us so that we can arrange for you to sign the documents in advance of your travels.