Frequently Asked Questions
When should I contact a lawyer regarding my purchase and/or sale?
Purchasing a home is one of the biggest investments that you will make. To make sure that your rights and interests are protected from the outset, contact your lawyer as early as possible in the process. Ideally your lawyer should review your Agreement of Purchase and Sale, which is a binding contract, prior to signing. This will help to ensure that all necessary provisions are included, and that issues do not arise later due to items which were overlooked or incorrect in the Agreement.
Your lawyer can also help you to get an understanding of all of the costs included in buying a home.
Please download our “Purchase Checklist” and/or our “Sale Checklist” and bring the completed form with you should you choose us to help with your real estate needs.
What are the steps involved in a real estate purchase or sale?
Provide your lawyer with a copy of your Purchase and Sale agreement if they do not have this already, as well as your mortgage information.
Your real estate lawyer will conduct a title search, ensuring that there are no outstanding liens on the property, and will arrange for title insurance.
Approximately one week prior to closing, we will meet with you; at this time we will need two pieces of photo identification, proof of property insurance, and the address to be registered on the deed.
We will inform you of the total funds required to close the deal, including land transfer tax and any adjustments.
On the day of closing all parties will sign the Agreement of Purchase and Sale and ownership will transfer to you.
Our “Real Estate Closing Checklist” includes additional useful information for planning your purchase or sale.
Can you act for both sides?
As a general rule, no. There are certain limited defined circumstances where this is permitted.
Any advice on private purchase/sale?
Private real estate transactions can involve significant risk if not structured so as to protect your interests. It is recommended that you seek legal advice to protect your rights in this type of transaction. We are seeing more and more private deals and can provide valuable advice on your purchase or sale.
What is title insurance? What does it cover?
“Title” is a legal term meaning you have ownership of a property. When the owner signs the deed, or transfer document, over to you, title is obtained. Title insurance offers protection on your investment in case of a problem with title. Title insurance protects against the most frequently occurring losses related to the purchase of a home by transferring the related risk from the home owner to the title company.
Title insurance protects the property owner from losses related to title or ownership of the property, such as:
Unknown title defects which can prevent you from having clear ownership (for example another person having an ownership in the property which does may not appear on the registered title);
Existing liens against the property as a result of unpaid utilities, property taxes, mortgages, or condo charges;
You are not required to have title insurance in Ontario. Your lawyer, title insurance company, or insurance agent can help you to decide whether title insurance would be advisable.
Title fraud (the use of forged documents to transfer title of your home to an individual or entity without your knowledge);
Encroachment or setback issues which must be remedied;
Any other title-related issues which can affect your ability to sell, mortgage, or lease your property.
Do I need a will?
The main purpose of a will is to safeguard your assets and to ensure that your wishes are fulfilled as to how your assets are distributed. A well prepared will can also result in tax savings.
Having a will allows you to appoint an executor, who will help in administering your estate and managing your assets according to your wishes.
If you don’t have a will you will be considered “intestate”, which means that the government will decide how your assets are distributed and to whom. Not having a will can also result in a higher tax bill for your family.
Can I prepare my own will?
Having a lawyer assist you in preparing your will can benefit you in several important ways. We are familiar with current legislation and statutory requirements which could impact your will. Your circumstances may be unique and not properly accounted for in a legal will kit, and an error in preparation can affect the legality of your will. We can also ensure that your will is designed to minimize the tax that will be owed by your estate.
Please download our “Will Checklist” and bring the completed form with you should you wish to come in and discuss your estate planning needs with us.
Under what circumstances do I need to review or revise my will?
It is a good idea to review your will every five years. You should also review your will whenever there are major changes in your life, such as getting married or having a child, or upon separation or divorce. If an executor is no longer able to act on your will, it should be revised to appoint a new executor.
What is a power of attorney?
A power of attorney is a legal document which grants someone the right to act on your behalf. It allows for the designation of a trusted individual to make financial and medical decisions in the case where you are no longer able. The term “attorney” refers to the individual or individuals who you have chosen to act on your behalf, and does not imply that this individual must be a lawyer.
There are two types of Power of Attorney: a Power of Attorney for Property, and a Power of Attorney for Personal Care.
A Power of Attorney for Property (POA) allows you to designate someone to make financial decisions for you. A Continuing POA can continue to be used if you become mentally incapacitated, while a Non-Continuing POA cannot.
A Power of Attorney for Personal Care relates to personal and health related decisions such as where you live and the medical care you will receive.
Why do I need a power of attorney?
Appointing a power of attorney allows you to decide who will be in charge of decision making if and when you are unable to manage your affairs, as well as allowing you to specify how you would like your financial and health related matters to be handled. In the absence of a power of attorney your wishes as to how these matters are managed may not be known or followed. The government may appoint someone to make these decisions.
What is probate? Is it required?
Probate (in Ontario the official term is Certificate of Appointment of Estate Trustee), is the court process that legally establishes the authority of the executor of the will.
Financial institutions or other third parties may require probate to ensure that they are dealing with the authorized executor. This will ensure that funds are not paid out to the wrong party or parties.
Where the estate includes real estate, probate is required. Probate would also be required if there is confusion as to a provision of the will, or if the will is contested.
Many people wish to avoid probate if possible due to the significant fees. However, probate can be an important part of ensuring that an estate is properly managed. Given the complexities involved, it would be beneficial to seek legal and tax advice to determine the best strategy for any estate.
What are the benefits of incorporation?
Benefits of incorporation include limited personal liability, tax advantages, continuous existence, and better access to capital.
Incorporation does involve additional costs. In addition there are filing requirements such as articles of incorporation, annual returns, and corporate income tax returns. Incorporation also means a more complex structure, including shareholders, directors, and officers. An individual may hold more than one of these positions within the corporation.
If your incorporation involves multiple shareholders, you may want to consider entering into a shareholder’s agreement to assist in decision making and in resolving any disputes which may arise.
I am interested in purchasing a business. What is the difference between an asset purchase and a share purchase, and is there an advantage to one over the other?
In an asset purchase, the buyer is purchasing the assets of a business, i.e. everything the business owns, such as furniture and equipment, office supplies, phone numbers, trademarks and other intangibles such as good will.
In contrast, a share is a piece of paper or “share certificate” which represents ownership of a certain percentage of a company. To buy all shares of a company is to become the owner of that company. In this discussion, 'Business' refers to an incorporated company. Non-incorporated businesses such as sole-proprietorships do not have shares and can only be purchased through an asset deal.
Each of these methods has advantages and disadvantages and is beneficial in different ways to different parties involved. Generally speaking, those selling a business prefer a sale of shares and purchasers prefer an asset purchase. To understand this generally, it is important to first appreciate the legal consequences of each deal structure.
Asset deals are often analogized to cherry picking. As the name implies, the buyer of the business can pick and choose which assets to purchase and which to leave behind. This often includes the name of the business and phone numbers. With this type of purchase, buyers should be careful to list all the assets they wish to purchase. Unless the agreement is for the purchase of all assets of all types, the agreement would only include and be enforceable for what has been specifically included in the deal. Even if the purchase involves all assets of the business, to the extent practicable, the buyer should have a list of assets. One advantage of this type of purchase is that the buyer has a clean slate in terms of the company history and would not be liable for things such as unpaid taxes or rent of the corporation unless specifically agreed otherwise.
One important aspect of an asset deal is the allocation of the purchase price. This is a clause that is often left to be dealt with at a future date. A vigilant lawyer would want to specify this allocation in the purchase and sale agreement and not leave it to be agreed upon after the closing date. The allocation of the purchase price, meaning the value of purchased assets broken down into categories (equipment, furniture etc.) is important and can have serious accounting consequences if it is not treated with care.
For example, if the value of a computer is set at $2,000 but it was purchased and recorded in the books of the company as $1200, there is an $800 tax triggering gain. As a seller, you should consult your accountant for an accurate accounting of these figures.
A share deal involves buying the company, the good and the bad. It simply places one owner in the shoes of another. The buyers become the owner of the company, its reputation, its liabilities, its assets, its good or bad credit and everything else the history of the company entails--including liabilities that the buyer may currently be unaware of. Sellers prefer this type of transaction because as per the Income Tax Act, the seller has a $750,000 capital gains tax exemption. This means up to $750,000 of the gain from the deal will be entirely tax free to the seller.
Choosing and negotiating the best type of deal is ultimately based on your needs and the particulars of the business. Knowledge of the particulars of each sale or purchase method and how and to what extent they benefit the players involved will allow you to be in a better bargaining position. Most importantly, you should engage a lawyer who is well versed in corporate matters as early as possible in the process to ensure that your interests are protected. Once your lawyer has assisted in drafting an agreement, make sure you consult with them prior to making or agreeing to any changes.