Your right hand!
A private home seller's best friend is a good real estate lawyer. Choose that lawyer carefully. It is essential to have a lawyer with current real estate experience. Your lawyer should agree to be available for advice before and during the selling process, and when you are finalizing the deal. In our experience, a trusted lawyer is the most important professional in a real estate deal.
How To Choose A Good Lawyer
Although lawyers are professional experts on legal practice, like doctors, they tend to specialize. Make sure that the lawyer you choose is absolutely conversant with real estate law.
Use a Lawyer
• Call the local bar association for a list of names. Ask your friends and acquaintances for referrals. Interview your prospective lawyer and ask the following questions:
□ Are you thoroughly familiar with current real estate legislation?
□ Have you worked on resale agreements (as opposed to sales agreements from builders of new homes)?
□ Do you know the ins and outs of the Condominium Act? (For those selling a condominium).
□ What will the price range for services be?
WHAT A GOOD LAWYER WILL DO FOR YOU
You should expect your lawyer to perform the following acts to assist you during the selling of the property.
• The lawyer should be aware that you are selling privately. Ask for advice before you begin, as the sale proceeds, and right up until the sale is finalized.
• Let the lawyer check your "fact sheet" describing your property (see Chapter 7: Compile a Fact Sheet on Your Home for explanation of "fact sheet". )
• Whenever possible, prospective purchasers should submit offers through their lawyers.
• Do not ask a lawyer to act for both sides, as this would be a conflict of interest. If purchasers have their own legal counsel who deals with their needs efficiently and professionally, they will be more confident about getting involved in a private sale.
• Discuss with your lawyer the clauses of an "agreement to purchase" contract to make sure that you understand all the terms and conditions.
Remember, show your lawyer all offers before accepting, "signing back" (accepting only with changes), or rejecting them. Your lawyer's opinion is the most valuable resource you have.
WHAT YOUR LAWYER SHOULD DO BEFORE CLOSING
The lawyer acting for the purchaser is mainly concerned with the title of the property. Your lawyer, representing your interests as the vendor, is primarily interested in the proper accounting between parties.
• The deposit cheque should be passed on to your lawyer. It will then be held "in trust" for the purchaser until the closing.
• To aid your lawyer in handling his work quickly and efficiently, collect and pass on the following information about your home:
□ the deed
□ the survey
□ any other title documents
□ copy of the mortgage(s)
□ insurance policy(ies)□ realty tax bills for current and former years
□ water and sewer accounts
□ heating bills (if oil, include capacity of tank)
□ if the purchaser is assuming tenants, the names of those tenants and copies of their leases if any.
• Your lawyer will then be able to answer requisitions submitted by the purchaser's lawyer, such as:
□ that you, the vendor, actually have title to the property.
□ that the sale of the property is a valid transfer of ownership.
• Your lawyer will prepare a "statement of adjustments", which records the accounting of the transaction between the vendor and purchaser. A copy is then sent to the purchaser's lawyer.
• Your lawyer will ensure that insurance will not lapse until the transaction closes.
• If you are discharging the mortgage(s) (paying off the remaining balance), your lawyer will obtain mortgage statements from the mortgagee(s) in order to direct the purchaser to make the necessary funds payable to the mortgagee(s) in a "Direction Regarding Funds" document.
• If you are a non-resident of Canada when your house is sold, the lawyer will obtain the appropriate certificate from Revenue Canada.ON CLOSING, YOUR LAWYER WILL:
• Receive payment from the purchaser payable in accordance with your direction.
• Obtain from the purchaser any directions required to authorize deviations from the terms of the agreement of purchase and sale.
• Give the executed deed to the purchaser's lawyer.
• Give any other documents or direction to the purchaser's lawyer.
• Give a house key to the purchaser's lawyer.
• Notify tax authorities.
After closing, your lawyer will provide you with a reporting letter listing all fees and expenses.
Remember, your legal advisor gives you legal advice — not business advice. It is the job of a good lawyer to provide protection for your legal rights. You must depend on your own burgeoning business acumen to judge the business aspects of your deal.