Thursday, July 28, 2011

But we can't sell it yet.......Can we?

Often a question comes up either from one of our REALTORS® or a seller who is faced with selling a property for a loved one that has passed away.
    "Can I list a property prior to probate being complete? "
The quick answer is "YES"
REALTORS® are armed with their Professional Standard Manual (Pg 106 to be specific or online: "Buying from an Estate") that explains some of the details when buying or selling from an estate.
The most important thing when accepting an offer on an estate sale that has not yet cleared probate is to include:
Subject to the seller receiving the following by _______________
          (1) copy of a grant of probate or letters of administration which allows the property to be sold: and
          (2) assurance that everyone entitled to claim under the Wills Variation Act has waived or released their claims against the property.
This condition is for the sole benefit of the Seller.
This protects the Seller from committing to provide possession and completing on the transaction and then finding out later that 'Aunt Mary' wants the house and can claim title to it.  It's really inconvenient to then tell the Buyer - sorry - you have to move out.

For your entertainment:
Check out this Alan Thicke short video on "The Truth".......

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

Thursday, July 21, 2011


Fixture vs Chattel

“But my Mom bought us that espresso maker - it cost us a fortune to pipe the water line to it. What do you mean I can’t take it??!!”

“That mirror was my great grandmother’s – there is no way I’m leaving it for the Buyers – they should have asked for it if it was important.  It’s a family heirloom and we are taking it!”

Through my real estate career as a producing REALTOR®, an Educator and Managing Broker, I use one test that I have found to be the most reliable in getting the point across to the client, very clearly.

I walk through the house with a screwdriver in my hand..... And simply say, “If you have to use this to take it – it stays – so take it down now - before we list the home or be prepared to leave it behind”

If the property is not affixed to real property it is considered chattel property. Fixtures are treated as a part of real property. A classic example of a fixture is a building, which in the absence of language to the contrary in a contract of sale, is considered to be part of the land itself and not a separate piece of property (a garden shed). 

Law students are taught in first-year property courses that chattels are items of moveable or transferable property, unlike land and buildings that are fixed and immoveable. If the items are neither land, nor permanently attached to land or a building, they are, by definition, chattels. (The word chattel dates back to feudal times when cattle were the most valuable item of property — except for land.) 

Typically, if an item is attached to land only by its own weight, it is not usually considered part of the land unless the surrounding circumstances make it clear that they were intended to be part of the land. 

By the same token, a fixture is a piece of equipment which has been attached to real estate in such a way as to become part of the premises, and its removal would do harm to the building or land. 
Using these definitions, a mirror that is hanging on a hook is a chattel and can be removed by the seller. 

The same mirror becomes a fixture if it is permanently attached or mounted to a wall in the house. 

A furnace delivered to a house, for example, is a chattel or item of moveable personal property when it leaves the store. When it is installed in the owner's house, and permanently connected to the ductwork, floor, electrical and plumbing systems, it becomes a fixture that remains with the building when the owner moves out. 

Over the years, courts have attempted in many cases to determine whether an object is a chattel or fixture. Judges will often examine the purpose of the attachment or annexation of the item to the property, and the actual degree or extent of the attachment.

The courts have developed two tests for determining whether an asset is a fixture or a chattel:

  • the method and degree of annexation,
  • the object and purpose of annexation. 

It is human nature that people want what they are told they can’t have – even if they really don’t want it.  I bet you would be hard pressed to find a REALTOR® who, at some point in their career, hasn’t replaced a mirror, special light fixture, under mount espresso maker, or similar to keep their seller or their buyer happy.

Buyers and sellers of land — and their agents — should always direct their minds to the question of chattels and fixtures before the agreement of purchase and sale becomes firm. 

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

Sources  for this blog:
*Bob Aaron is a Toronto real estate lawyer. He can be reached by email at
*Wikipedia® Legal Term  is a registered trademark of the Wikimedia Foundation, Inc
*Real Estate Services Act, Real Estate Council of British Columbia

Thursday, July 14, 2011

My drive to work...

My drive to work was very uplifting today…….  I live in Lakeview Heights West Kelowna.

 As I traveled down Mission Hill, Ridge and Vineyard View to our Westbank office, I passed ‘FOR SALE” signs.  Something that has jumped out at me over the last few weeks is the only sale signs that have SOLD on top of them, have been Coldwell Banker®!

That tells me a couple of things – even though our agents may not have brought the Buyers to the table (although on one sale we did that too), it shows the listing REALTOR® priced the home properly - #1 necessity to achieve a Sale. It also shows they exposed the listing to the market place very well.  ON LOCATION® videos are an amazing tool that our REALTORS® embrace!  The networking abilities, marketing skills and advertising creativity of Coldwell Banker agents get results.

Further down the street our Property Management Maintenance van was in the driveway of one of the rented homes our office manages.  Our landlords benefit from the convenience of time and cost savings our Maintenance Department can offer them.  We can deal with those pesky repairs that happen to every home in the course of its life time.

Further along my drive I passed the FOR SALE sign at a new development marketed by Coldwell Banker Horizon Realty.  Once again – three sales have been recorded lately by the listing agent – also representing the Buyer and assisting in a smooth transition to their new home.

I arrive at Vintage View to park in front of the beautiful two store office building – boasting the COLDWELL BANKER marque.

When our slogan says 
“We Never Stop Moving ®” – we mean it.!
Have a great Coldwell Banker® day – I know I will.

Thursday, July 7, 2011

AND/OR Nominee...Or Not... and some stats.

From time to time REALTORS® are faced with a Buyer that instructs them to place  AND/OR Nominee behind their name on the purchase contract – explaining that they may want to put the property in a company name or might want to add Aunt Mary on to the title.

This situation can arise either before or after the execution of a contract of purchase and sale.  Using the terms “and/or nominee’ leaves room for the argument that the contract is unenforceable due to uncertainly of the identity of the Buyer.

According to the Law and Equity Act – real estate contracts are assignable by the Buyer as long as the position of the Seller is not compromised.  Some Buyers can argue the fact and feel they still need the reassurance of the term.  Rather – Council advises the REALTOR® to add the statement:

 “Buyer reserve the right to register the property in another name or entity upon completion”

The Buyer can instruct their lawyer conveying the transfer for them to register the title in the name of their numbered company – or Aunt Mary if desired.

When the Buyer is obtaining financing, be aware, that many lenders now require the contract of purchase and sale to be in the same names as the title to the property.  There may be an ‘amendment’ to the contract required to meet the requirements of the lender – they don’t like and/or Nominee either.

On another note, do you think it's a good time to buy?  Let's see what this article says...Kelowna Has No Housing Bubble to Burst.

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