Using a lawyer for real estate transactions can reduce risks

Q: Why would I use a lawyer to assist me in buying or selling real estate?


A: If you are selling, the lawyer makes sure that you get your money. If you are buying, the lawyer makes sure that you get good title to your property.


But the duty of a lawyer is much larger than that. If you are purchasing, obtaining good title includes making sure that the property you are buying does not have any builders’ or tax liens or any other encumbrances that could affect your ownership.


If there are debts owed by the previous owners, which have been registered against the land you are buying, those debts need to be paid off and discharged from title in the same way as the previous owner’s mortgage needs to be paid out and discharged.


Are the taxes in arrears? They will have to be paid out at the time the purchase goes through and that must be done off the top of the purchase money to which the sellers are entitled.


At the time of purchase, a lawyer on behalf of the buyer will determine whether there needs to be a holdback for non-resident tax purposes if the seller is not a resident of Canada. 


In addition to all these considerations, the lawyer will also deal with the mortgage company, make sure that the mortgage is properly documented and registered on title and ensure the necessary funds are in his or her trust account before placing the transfer and mortgage into the land titles system for registration.


They will make sure the other side gets the money, subject to paying out whatever is necessary to give you clear title.


If you are selling, the lawyer prepares the transfer and makes sure you get your money. In addition, a lawyer will be checking other things surrounding the sale.


Are there requirements to be met with regard to the Homestead or Dower Acts involving a spouse whose family home is being sold but who is not on the title? 


Is this sale in an estate situation and are there requirements for beneficiary approval under devolution of real property legislation?


Your lawyer will make sure that all requirements are met to give the buyer good title, sometimes including the negotiation of amounts necessary to retire liens or other debts registered against the title.


If it is necessary to grant possession before the seller receives all his money, the lawyer will make sure that all safeguards are in place such as insurance on the property, cash to close in the other lawyer’s trust account and sufficient funds to pay interest to the sellers for late payment of funds if such a provision was in the offer to purchase.


The basic transaction to transfer title to someone else is relatively simple, but the attending safeguards and protection of your interests are best done by a lawyer.


In most cases, their fees will be fairly reasonable and assessed relative to the value of the property.

This article is presented for informational purposes only and does not constitute legal advice. The views expressed are solely those of the author and should not be attributed to McDougall Gauley LLP. Contact: [email protected]

  • dee

    I love the phrase “. . . their fees will be fairly reasonable . . .”.

    I wish I could be paid in that fashion as well!!!!

  • Sterling Knox

    Article is an excellent review of the essestials. However , the author might take a step back and start with having your lawyer start by reviewing the agreement of purchase and sale before it is signed. This is where the whole tenor of the deal is set and recognizes the rights and duties of of the buyer, the seller and the realestate agent(s) involved. Regardless of the size of the transaction, the purchase or sale of a property is significant and should be treated as such. Always use a lawyer!