Thursday, June 30, 2011

This legal address isn't correct!

While in subject removal stage of an offer you have discovered the legal address was entered into Matrix (the MLS® system) incorrectly, therefore it has transferred over to your written contract of purchase & sale incorrectly                                      
– What to do????
This is a clerical error and should not affect the validity of the offer - don't let it ruffle the feathers of either party.  Ensure the property your Seller intends to sell and the Buyer intends to buy is clear for everyone and secure the correct legal address.
From where?? -     the title search, the sellers BC Tax Assessment Notice, BC on-line.   Once subject are removed and your offer is firm, amend the address so the contract is correct for the lender and the lawyers.  Have all parties sign the amendment.  The other party would not be able to consider the amendment a counter offer as correcting the detail would fall under the

"Doctrine of equitable Rectification
the  doctrine of equitable rectification: does not render the contract void or voidable. It relates solely to written contracts. A court will make an order that the contract be corrected so that it accords with what was actually agreed to by the parties. Once corrected then the contract is binding as corrected. It is about making corrections where there has been an obvious slip. It is not about making the contract accord with what one, or both, of the parties thought it ought to say. it can not be used to alter a contract to take into account some pre-contractual promise. The limited scope of the doctrine of equitable rectification is made clear by the High Court.

Don't let this big eraser mislead you - never never use white out or eraser on a contract - stroke through, clearly write the correct information and have all parties initial the change or, after your offer is accepted by all, use an Amendment Form - not an Addendum to make changes or corrections.  The preprinted items on the Amendment form are very important to contract law and should never be missed. 

ie) For Good and Valuable Consideration, The Buyer and Seller Agree:   
"All other terms and conditions contained in the said agreement remain the same and in full force and effect. Time shall remains of the essence."

When the going gets "Tough"... just call me
Susan Tough
Posting your thoughts and comments are welcome and great for all to read!

Thursday, June 23, 2011

What? You want to stay AFTER I pay you ...

Question?   I have a Seller staying in the property two weeks after completion by the Buyers.  – That is, two weeks after the seller has received the funds and the Buyer is registered on title.  They have all agreed but what issues might we have to deal with? 

You need to decide who is going to pay property taxes for those two weeks, strata fees if it’s a condo, utilities and any other prorated costs that might be incurred.  It needs to be negotiated between the parties. I usually see it being the person who has the actual use of the property – therefore, in my opinion, the ‘Adjustment date” on the contract should be the date the Buyers take possession – not when they close on the purchase. 
The contract states that the Buyer insures the property for the completion date – Your Sellers may want to carry a tenant policy for their belongings.
Be sure to address yard maintenance - who is responsible?        

repairs and  maintenance costs of the H2O tank, appliances – anything that could break under everyday use.                                                                                                            

The reverse scenario has the same issues that need to be discussed and addressed. Perhaps a transfer is happening prior to the sale of the Buyer’s home completing. The Buyer may need possession earlier than they are able to complete the purchase.

Remember to deal with the adjustment date, insurance and maintenance concerns.

In both circumstances be sure to provide a condition for both parties to seek legal advice.  Based on past experience, some lawyers will not recommend a possession date that does not coincide with a completion date – problems can arise if both parties have not given complete thought to the responsibilities and expectations they have of each other.

When the going gets "Tough"... just call me
Susan Tough
Posting your thoughts and comments are welcome and great for all to read!

Thursday, June 16, 2011

When is a Fee Agreement great to use??

When is a Fee Agreement great to use??

                  - from a Realtor's prespective:
Use a Fee Agreement when the seller is not represented by a REALTOR®. That is - when you have a Buyer interested in a For Sale By Owner (FSBO) property.
                  - from the Seller's prespective:
Sellers that attempt to sell on their own believe they do not need the services of a professional Real Estate Agent.  The Fee Agreement provides that clear distinction for them - the Seller is very specifically NOT represented - only the Buyer has representation by the REALTOR® using the form.  The Agreement simply secures an accepted remuneration amount to be paid by the Seller for the Buyer's Agent, should this 'specific' Buyer purchase the home.  A By Owner Seller often appreciates the opportunity to do business without being required to be under a contract with the REALTOR®. 

The Buyer's REALTOR® still owes a duty of care to the Seller and should  provide a condition in the written contract of purchase and sale, giving the Seller time to seek legal advise regarding the contract.
If the Seller is represented by a REALTOR® who tells you to bring a fee agreement for your commission, that will ensure remuneration for the Buyers Agent only.  If the REALTOR® providing agency to the Seller expects to get paid, the vehicle they should use is not a Fee Agreement but an Exclusive or MLS listing contract.

Wednesday, June 8, 2011

Signing for each other?

When negotiating through an offer to purchase a home, can a Husband and Wife sign for each other for the ease of convenience if one is not available? 

Only if they have a written authorization dated and witnessed or a power of attorney. 

I would imagine divorce lawyers' business would increase substantially if that practice in contract law was not in place. 
When the going gets "Tough"... just call me
Susan Tough

Posting your thoughts and comments are welcome and great for all to read!


Welcome to "Across the "TOUGH" Desk".  I hope to offer some insight to the world of real estate -the pros and cons that exist in every situation.  Some days - you would be very surprised what crosses my desk.  

At time clients wonder what we actually do to earn our living.......... and REALTORS® wonder why they are not a WalMart Greeter.  At the end of the day - long ones - bringing homes and families together is very rewarding and worth the effort. 

When the going gets "Tough"... just call me
Susan Tough

Posting your thoughts and comments are welcome and great for all to read!

Even I get appreciation from time to time....