Almost Canadian

Apologies for my ignorance, but when did I ever state that I was an expert on Canadian Constitutional Law? When did I ever say that what the coalition were doing was procedurally incorrect?

Almost Canadian

You also have to work within the Tort law of negligence


No, the cause of action I have been discussing here is negligence.

The lawyers very rarely get involved until after the deal is legally binding. That being the case, all they can do is look to the contract. That is precisely why the parties have to rely upon their advisors at that time, i.e., the realtors

Time for me to leave this discussion me thinks

Helen Parnell

I am sorry 'Almost Canadian' if you think my advice is wrong. My clients have normally attended the lawyers to sign the papers to buy a house. That is when they have given money to the lawyer, which includes any balance of sale and fees.

In this case the OP could not or should not have signed any papers for a house which was not going to be clear of title. I am confident that the OP did not then pay for balance of sale/fees etc when there was no house.

The OP should have moved in on 6th December (which is a date I would never accept, make it friday or Monday, lawyers do not work Saturdays!!). It has been delayed till the 10th. Which is actually 2 working days. This is probably to give the sellers time to get additional financing.

The OP has really two options.

1) I am going to pull out of the deal, I need that house on the 6th, I am going to buy another one, and sue your Butts of for the inconvience attitude. Spend weeks/months going to court, not have the house to live in, and just give yourself a real headache

or
2) seek compensation for the additional 4 days he has had to rent/stay in a hotel. Still move into the house on the 10th, start work on the 16th and live happily ever after.

MB-Realtor

Almost Canadian; I don't disagree with your stance completely, but if the Buying Realtor is going to be held responsible by a Court for not discovering that the amount of any loans against the property are more than the selling price, then:-

1) We have to have the authority to communicate with any and all of the sellers lenders, before we write up an offer to purchase. So there would have to be a procedure in place for this to happen, there isn't.

2) I can only pull title during working hours, most offers are written in the evenings and weekends, are you going to go back into the office at 8.00pm to pull a title for me?

3) After pulling the title and finding that there may be a problem, we would need to be able to contact the lenders during the offer process, which as you know is often in the evenings and at weekends, and is often only a few hours long - How are we going to get this information?

It is much more reasonable to expect the Sellers & their Realtor to do this at the listing stage, and for the Lawyers to confirm this immediately they get the file.

mutchg1

Just an update, Get keys for house at 12pm tommorrow, this was only confirmed at 4:30pm today so they left it to the last minute. This only happened after I called the realtor and my lawyer and told them to inform the sellers that I would have them living in a tent by christmas if they didnt get things confirmed by the end of the day

MB-Realtor

I'm glad its ended in a good way for you.

I hope you and your family enjoy your new home.

startwin

Almost Canadian - you may be up on some areas of litigation but you don't seem to know much about Canadian conveyancing law. Helen and MB Realtor have explained it quite well to the OP. There are some differences between provinces, but the basics remain the same. And I speak as a
a conveyancer with 30 years experience in BC.

Almost Canadian

So what did I say incorrectly about conveyancing law? How can a realtor write a contract without pulling title? How will they know if the seller has a title to sell? If they pulled title, they should have been able to tell what charges were registered against the title. I appreciate that they will not have known how much was outstanding on those charges, but they would have had enough of an idea to explain the potential risks to the buyer. If they did so, they have not been negligent, if they didn't, it is arguable that they have.

Do you really believe that lawyers only get involved when the transfer of funds has taken place? Helen suggested the OP would not have incurred legal fees as this hadn't happened.

It was only a suggestion and the OP seems to have worked things out.

dbd33

In the cases of the houses I've bought and sold the lawyers became involved only after the offer was accepted. Their role was simply to hold the money and, as often as not, to pay it out to people or institutions not party to the transaction. I think that to involve a lawyer before a firm deal has been reached invites delay, obfuscation and the possible failure of the transaction. I hate trusting lawyers with, what are to me, large amounts of money as, if they pay it someone at random it can be a pain in the arse to get it back. Since use of a lawyer is unavoidable I think it prudent to involve him or her as late as possible and for the shortest possible duration.

It's don't especially love real estate agents but they have an interest in getting the transaction done and they do tend to pay attention, after all their living and reputation depends on successful transactions. Better to leave it to them than to add a layer of muddling.

Almost Canadian

I don't disagree with what you have said but I think it is taking things a bit far for anyone to suggest (not that you did) that the lawyer will only become involved at the time the money is transferred.

I agree that there is no need to use a lawyer to prepare the contract, if an experienced realtor is being used. Stewart stated above that he usually pulls title, and then later stated that it is difficult for him to do so. I still believe that, whether it was a lawyer or a realtor, it would have been negligent not to have advised the OP of the potential risk.

In Alberta, the lawyer usually prepares the mortgage on behalf of the lender. That being the case, their involvement will be required quite a bit earlier than was suggested above.

MB-Realtor

In MB the Seller makes several promises in the contract with regard to title. I pull title every time when I list a house, and when I make an offer on a private sale I pull title before I submit the offer if time allows, if not I pull it at the next available opportunity and before the lifting of any conditions. I don't pull title when a Realtor represents a seller as thats their job in MB.

The problem with the OP was that there seems to have been only a week or so between Offer & Possession, he should certainly have been warned that with a tight schedule everything would have to go very smoothly for it all to go through without any delays.