Legal Corner
Legal issues concerning real estate ownership and real estate transactions are always a hot topic when we conduct seminars or consult one-on-one with our clients. Many consumers are unclear on the recent decisions handed down by the courts while others have simply been given incorrect advice in the past.
We will regularly update this page with new rulings and interesting legal tidbits. if you have a specific question concerning real estate law please fill out the "Legal Question" form and we will have a lawyer respond. Questions and answers will be posted but NOT the questioners name.
- Q: We are getting separated, my husband has no job and no way of getting his own mortgage, yet. He wants me to sign a quit claim deed before he will pay me my interest in the house. If I sign a quit claim am I still obligated to the mortgage company?
- A: Firstly, if you are getting separated, you should retain a lawyer so that you can fully understand your rights and obligations on separation. Secondly, if you plan on transferring your interest in the home to your spouse, you will not be signing a quitclaim deed. You will be executing a transfer of the property from both of you to your husband.
To answer your question, the mortgage loan that you and your husband signed is a contract between the lender and yourselves. The fact that you and your husband are separating and that you may be transferring your interest in the home to your husband has no impact on your obligations to the lender. In other words, you are still liable to the lender under the mortgage loan. Generally speaking, it is not a good idea to transfer your interest in the home unless you are relieved from liability under the mortgage. This can be achieved either by paying out the mortgage (if your husband can obtain replacement financing in his name alone) or by having the existing lender agree to release you from all further obligations under the mortgage. Keep in mind that the lender has no obligation or incentive to release you and it is not something that is done very often. If your husband has no job at the moment, it is not likely that the lender would agree to release you.
Again, I stongly encourage you to consult with a lawyer to discuss this matter more fully and to determine how best to deal with your particular situation.
This information provided by Brian Wilson, a lawyer with Farah and Associates. Brian can be reached at 613-746-8115 or via email at bwilson@farahandassociates.ca.
- A: Firstly, if you are getting separated, you should retain a lawyer so that you can fully understand your rights and obligations on separation. Secondly, if you plan on transferring your interest in the home to your spouse, you will not be signing a quitclaim deed. You will be executing a transfer of the property from both of you to your husband.
- Q: My real estate agent and my lawyer both told me to get title insurance. I know it is fairly cheap but what good is it?
- A: Here are some examples of claims paid out and covered as a result of title insurance.
1. A few months after moving in, the basement flooded and smelled of sewage. It was discovered the Vendor had previously received a work order to correct the septic system and failed to do so. Because there was an outstanding work order at the time of purchase, the title insurance company paid the purchaser the total replacement cost of the septic system.
2. In another case, the Vendor signed the deed and said his wife had released all her interest in the property by way of a separation agreement. The wife later claimed an interest in the property purchased. The title insurance company paid for all legal fees to defend the purchaser's title because the purchaser bought title insurance.
Title insurance also covers situations where there is no survey.
This information provided by Norm Fera, BA, MA, LL.B., of Lang Michner. Norm can be reached at 613-232-7171 or via email at nfera@langmichner.ca and on the internet at www.langmichner.ca.
- A: Here are some examples of claims paid out and covered as a result of title insurance.
- Q: My wife and I don't agree on selling our home (we are recently separated). My name is the only one on the deed, can't I just go ahead and sell?
- A: For your matrimonial home there is no question, you need your spouse's consent. In the fine print of the Agreement of Purchase and Sale the owner declares that spousal consent is not necessary or, if it is necessary, that it has been obtained (indicated by the spouse signing the "spousal Consent" section of the offer.
For your situation consult a good family law attorney to determine your best course of action.
- A: For your matrimonial home there is no question, you need your spouse's consent. In the fine print of the Agreement of Purchase and Sale the owner declares that spousal consent is not necessary or, if it is necessary, that it has been obtained (indicated by the spouse signing the "spousal Consent" section of the offer.
- Q: I sold my house through a real estate agent and we did not get the waivers until 2 days after they were due. My agent says it is ok. Is it?
- A: Probably not but it depends. Some conditions are written in such a way that the buyer must proactively waive the condition or the transaction is null and void. If this is the case you should probably have your Realtor do a new, unconditional Agreement of Purchase and Sale signed by all parties.
Other conditions are deemed waived if the time-frame for the condition passes without notice from the buyer. If this is the case, your agreement is ok. For something this important, have your lawyer review the clauses and explain the timing to him.
- A: Probably not but it depends. Some conditions are written in such a way that the buyer must proactively waive the condition or the transaction is null and void. If this is the case you should probably have your Realtor do a new, unconditional Agreement of Purchase and Sale signed by all parties.
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