Buying and Selling Property

ABOVE ALL, CALL ON AN EXPERT 

Buying or selling real estate is not a decision to be taken lightly. This is an important action with many consequences. Caution is highly recommended, as is the use of expert advice. A notary is in fact a recognized expert in the field of real estate law. Before signing any document whatsoever for the purpose of buying or selling a building, make sure to ask your notary. The latter will be able to inform you about the exact nature of the document you’re planning to sign, to avoid unpleasant surprises and to ensure that the future deeds of purchase and sale can be signed with no trouble. At the time of signing the contract of purchase and sale, the notary explains to the parties their explicit rights and obligations resulting from their signature. The notary must also deliver the sales price to the seller only after making certain final checks in order to ensure the full protection of all parties.

THE PROMISE TO PURCHASE OR THE PROMISE TO SELL 

The promise to purchase or the promise to sell is usually the document signed by each of the parties involved prior to the deed of sale. Contrary to what one might think, this type of pre-purchase document is something that can be easily revoked. This document constitutes a preliminary contract and imposes certain obligations on the parties. Once this document is signed, it often becomes very difficult to modify the terms and conditions and to break free from the contracted obligations.

It is very important to call on the expertise of a notary before signing any document whatsoever if you want to prevent unfortunate and often irremediable situations.

Regarding the promise to purchase, we invite you to read our article entitled Preliminary Contract: To Purchase a Home.

SELLING IS NOT ALWAYS PURELY UP TO YOU

Selling your property to whomever you want and whenever you want might seem to be a vested right. Yet, on some occasions, an owner may need authorization before he or she can proceed with the sale of the immovable. For example:

• The owner requires the written consent of his or her spouse to sell a family home.
• The guardian of a minor may require certain authorizations to sell immovable property owned by the minor.
• The owner of classified cultural property must, in specific circumstances, obtain certain authorizations in the event of sale. The same applies to owners of agricultural land.
• The sale of an immovable situated in a real estate complex is subject to the authorization of the Régie du logement.

Caution is therefore advised: selling without having the right to do so directly impairs the validity of the sale and may expose you to other civil remedies. Your notary can inform you about all the necessary and required authorizations and, at your request, take the steps to obtain them.

SALE WITH LEGAL GUARANTEE 

Both the seller and buyer of an immovable owe certain obligations to each other. Thus, the buyer must take delivery of the property sold and pay the price.

Also, the seller must deliver the property. He is also obliged under the legal guarantee, i.e., the law obliges him to guarantee certain things to his buyer.

The seller is first required to guarantee the right of ownership. He is obliged to guarantee to the purchaser that the immovable is free from defect of title and that it is free of all liens, with the exception of those declared at the time of the sale. At the same time, the seller must guarantee his buyer against any existing encroachment (encroachment by himself or, as far as he is aware, by a third party) and, within the limits fixed by law, against any breach of public law (for example, the seller warrants that the immovable does not contravene any zoning by-laws). However, the guarantee against breach of public law is not absolute; the buyer must therefore remain vigilant.

The seller is also obliged to guarantee quality, i.e., to guarantee against hidden defects.

But, again, be careful! The guarantee of quality only covers the major defects that exist at the time of the sale, which are unknown to the buyer and which a prudent and diligent buyer could not have discovered…

That’s not so easy!
To the extent provided by law, the parties may add or subtract from the legal guarantee. The notary can properly inform you on this and include, in the deed of sale, an extensive or limiting clause of responsibility that meets the wishes of the parties while being perfectly legal.

REVIEW OF TITLES: A STRICT NECESSITY

By carrying out the appropriate research, the notary is able to guarantee you a property title beyond dispute.

The notary’s research consists in checking:

• If the seller is the real owner of the immovable.
• If he has the right and the ability to sell.
• If his or her spouse or other persons must consent to the sale, etc.

Using the certificate of location, the notary then checks:

• If the dimensions of the land are accurate.
• If the buildings are in fact erected on the land being sold.
• If the house was built in accordance with municipal by-laws and zoning laws;
• If the property of the neighbour encroaches on your land.
• Whether windows meet legal requirements.
• Whether there are rights of way, etc.
• Finally, by examining the deeds, the notary

Finally, by examining the deeds, the notary can detect the actual charges or rights likely to affect, limit or devalue your right of ownership, such as mortgages, seizures, judgments, servitudes, etc.

THE SALE PRICE 

Are you planning to pay cash? You then benefit, for your protection, from the management of the sums by the notary through a trust account. The notary will only remit the funds to those authorized by law after certain final checks have been carried out.

Mortgage take-over? To save the payment of a “penalty” that might become due in favour of your creditor, are you willing to remain liable to that creditor in the event of default by the buyer? Ask your notary about the possible alternatives and their consequences.

Balance of sale price or new mortgage? The notary can help you compare the different modes of financing and is able to evaluate, with you, the various proposals received. It’s a matter of respecting your budget.

NEW CONSTRUCTIONS 

Do you want to buy a new home, without going through the horrors of legal construction mortgages?

A follow-up after the deed of sale is essential, because various construction workers can still claim the sums that your builder has failed to pay them. Considerable sums of money are often involved.

Your notary can offer you legal mortgage insurance; make sure you get it!

NOTARIZED DEED OF SALE: A MOST VALUABLE DOCUMENT 

The notary meticulously writes the deed of sale with absolute precision, inserting all the clauses essential to safeguarding your rights.

In addition, the notary performs all acts related to the deed of sale: mortgage, servitude, receipt and other, such as co-owner agreements, wills, etc.

The notarized deed is proof of its contents. You will have an authentic copy of the original, which is numbered, indexed and kept in the registry of the notary. No loss in sight... for your protection.

JOINT PURCHASE OF PROPERTY 

Nowadays, many couples, whether married or not, decide to buy property together. In familiar language, it is said that the house is “in both names”. As a precautionary measure, when they decide to buy, the co-owners should draft an agreement containing certain applicable rules. The notary can advise them adequately on the scope of such an agreement and draft the appropriate document.

Source : Chambre des notaires du Québec (Translation)