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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:
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:
Using the certificate of location, the notary then checks:
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)
Consult your notary, who leaves nothing to chance.