What exactly does a real estate lawyer do?

The practice of real estate law is sometimes a bit of a mystery to the public. When people hear the word “lawyer,” they immediately think of Law & Order and courtroom work. What happens on the transactional end isn’t as exciting to the outsider, but there are a lot of things that we do.

Real estate lawyers check title to make sure that you don’t have to buy the house with a restriction you can’t live with; check off title to make sure, for example, that the property taxes are all paid; prepare all of the paperwork; and meet with the client to sign everything. If we receive the offer before it’s firm, we can also have input into conditions and other items.

I came across this article in the Globe and Mail a few weeks ago, which has more tips on what to look for in a real estate lawyer and why it’s important to have one. In Ontario, you cannot buy or sell a property without a lawyer, but hiring one who makes real estate a regular part of their practice can make all the difference.

Do you have to disclose if someone died in your home?

Generally, you are not required to share information about the house as long as you don’t hide anything or deliberately lie about anything. You do not have to offer information that your spouse or parent died at home, or that there was a suicide or even a murder in the home.

Keep in mind, however, that some buyers are more sensitive than others. If you sell to a sensitive buyer who might not have bought if she or he had known about the death, you could run the risk of a lawsuit after closing. In this case, the wiser choice might be to let the buyer know and let them make that decision with full knowledge – and sell to someone who doesn’t mind.

Should you rent or buy?

A lawyer’s favourite answer: it depends.

Because it really does. It depends on how frequently you move; any less than a few years in a house and you will likely lose money on closing costs alone. It depends on how stable your income is; if you frequently would have to borrow from a credit line to make ends meet just to own a house, you’ll be paying far more for that house than you should be. It depends on where you live; in very hot housing markets like Toronto, it can make more sense to find an affordable rental than stretch beyond your means just to say that you own a home.

There are a lot of considerations that go into whether you should buy or rent. Don’t jump into a decision – always get as much professional advice as you can. And don’t be afraid to go with a choice that makes sense for you, even if it’s not what you’re “supposed” to do.

Can you break your mortgage?

Short and sweet this week. The answer: usually. Before you sign to refinance, check your existing mortgage – some banks only allow you to pay out your current mortgage if you are selling. It’s in the fine print, and they’ll hold you to it.

The better question is, should you break your mortgage.

What should you have in writing when co-owing a house?

If you are buying a house with someone who does not share their financial life with you, you will need to consider several extra points in addition to where and how much. The first question is how to take title [reference last post]; the second is how you run the day-to-day and the big questions of when to sell or refinance.

Whenever I have clients going on title to a property with a sibling or parent, I recommend they get a trust agreement that details their obligations. It discusses who is responsible for which expenses (mortgage, taxes, insurance, maintenance, etc.), who can authorize a new mortgage, and when the property can be sold (and how much each party gets on a sale).


Having the rules set out clearly at the beginning makes for far less stress going forward.

What is the best way to take title with a parent?

I see a lot of clients who are buying their first homes, and getting some assistance with either the down payment or the financing from a family member, usually a parent. Most of the time, because it’s not something they would have come across on their own, they have not considered how they should take title.

There are two ways of taking title to property in Ontario: joint tenants, and tenants in common. Joint tenants means that everyone owns the whole thing jointly with everyone else, and there are survivorship rights if one owner dies. Tenants in common means that you own shares, in whatever percentage you decide – the default is equal shares, but you can set it differently. For example, if you are going on title to your daughter’s house solely for financing, you can own 1% and she can own 99% to maximize her first-time buyer rights and minimize any chance you could be charged capital gains taxes.

If you are going on title with anyone – even with a spouse – you should be asked how you want to take title, and get more information if you’re not sure. It’s a big decision that can affect you financially down the road.

3 extra costs to budget for on a sale

Last time I blogged about extra costs on a purchase. Today is three extra costs to budget for on a sale.

  1. Realtor’s commission. You will have to pay it on the sale, and not at a later date. Even if you are selling by yourself, you may have to pay a buyer’s commission. Don’t forget that they have to charge HST on their commission.
  2. Legal costs. Many lawyers (including our firm) will give you an estimate of legal fees and disbursements before you make a decision about who to hire. Get a quote if you can so that you know how much it will cost as it gets taken off the sale proceeds before you get your cheque.
  3. Mortgage discharge. This is where the big costs often come in. Many people assume they know what the penalty will be, and then it ends up higher. There are discharge fees, and fees to register the discharge. You should be able to get an estimate from the bank so that you know what to expect when the closing day comes around.

6 extra costs to budget for on a purchase

When you buy a house, you usually think of one cost: the amount you will pay above what your mortgage is. There are, however, a lot more.

  1. Land Transfer Tax. There is provincial LTT, and if you’re in Toronto, municipal LTT too. LTT is approximately 1.5% of the purchase price, and is payable on closing, so you have to have it available in order to buy your house. There are rebates available for first time buyers, and you should check whether you’re eligible, but be prepared to pay this up front.
  2. Mortgage costs. Some banks charge you to do an appraisal; some charge a lender fee. If you’re putting down less than 20%, you will definitely have to pay for mortgage default insurance, and while they often will simply add that to your mortgage, you will have to pay the tax on it up front. Budget accordingly.
  3. Property taxes, condo fees, fuel tanks: all of these are adjusted on closing so that each party pays their proportionate share for the year or month. You will want to speak to your lawyer about what you should expect to have on hand to be able to pay for these.
  4. House insurance. Whether or not you are getting a mortgage, you will want to have insurance in place, and you will usually have to pay at least a portion of it up front so that it is available for closing.
  5. Legal costs. Many lawyers (including our firm) will give you an estimate of legal fees and disbursements before you make a decision about who to hire. Get a quote if you can so that you know how much to set aside for this.
  6. Title insurance. This is a one-time premium for insurance to protect against fraud, as well as against a former owner doing something to the house that was not permitted. If you’re getting a mortgage, it’s effectively mandatory; even if you’re not getting a mortgage, it’s usually a good idea.

5 mistakes first-time buyers make

You’ve saved up your down payment. You’ve picked your dream neighbourhood. You’ve chosen a realtor to work with. Now comes the hard part: actually buying the house. Here are some common mistakes to avoid:

  1. You fell in love with the staged house. Generally, you don’t get to take the staging with you – and a staged home can be just as hard to see past as a home that desperately needs an update. Will your furniture actually fit? Does the layout make sense for your needs, ignoring whether it is beautifully designed? It’s important to think beyond the design when choosing a home.
  2. You didn’t check out the neighbourhood. It doesn’t matter if the house is perfect if the neighbours party all night, every night. Or if you want somewhere to walk with your toddler and the nearest park is across four busy streets. Before you sign an offer, be sure it’s not just the right house, but the right neighbourhood.
  3. You didn’t get pre-approved for a mortgage. This is one of the biggest: you should never, ever go house hunting without knowing exactly what you can afford to buy. Related to that, don’t look at houses that are outside of your budget; you will just want to stretch beyond your means.
  4. You skipped a home inspection. Sometimes, in hot seller’s markets, people minimize their conditions to make their offers more attractive, but this can be dangerous. If you skip a home inspection, in Ontario, you become responsible for any defects that a home inspector could have found – which means that you can’t go after the seller. Unless you have unlimited funds to repair possible damage, you should not risk it.
  5. You forgot about closing costs. Tax adjustments, legal fees, even title insurance: the little things add up. Get an estimate from your lawyer at the beginning so that you aren’t surprised at the end.

You’ve been approved for a mortgage. Don’t risk it by buying a car.

When you are approved for a mortgage, you will often sign a document that states that they can revoke your approval if your creditworthiness changes before the mortgage is funded. Most people don’t think anything of this, if they even notice it, but it is actually quite important. If you buy a car, or open a new credit card, or sometimes even borrow more money on your existing credit line, that is a change in your creditworthiness, and it can affect your ability to close your mortgage. Your best bet is to hold off on any change to what you have borrowed until after your mortgage has funded.