Law of the land

Professional legal help can benefit any real estate transaction

Buying or selling a home is a process that benefits greatly from professional help, and that especially true on the legal side of things.

Calgary Legal Guidance (clg.ab.ca) has information on selling and buying real estate in its Dial-A-Law series, including the role a lawyer plays.

Jeffrey Kahane of Kahane Law Office in Calgary says most people don't get a lawyer involved until the conditions of a sales agreement are waived, "because then you've got a firm deal."

But Kahane says if there is anything before that stage that seems "funny," such as doubts about registrations on title, or unusual things that the buyer or seller has to do, then reach out to your lawyer and get those questions answered.

"Before anything is signed, if you have concerns, talk to your lawyer," he said. "We don't charge extra if someone has questions. It's part of our process."

He says a lawyer's role is to look after the legal side of a real estate transaction, so the buyer or seller can keep their focus elsewhere during the proceedings.

"I like to say that our job is to make sure that the hardest part of the transaction for the buyer or seller is moving their stuff," he said. "And that's how it should be."

Kahane says there are some things that tend to trip people up, often because they wait until it's too late to clarify something they don't understand.

Dower rights
If you are selling your home and are married, even though the home title may be in your name only, if you or your spouse have lived in the house since the marriage, the spouse has dower rights.

Kahane says that means the spouse also needs to sign off on listing the home, any sales contract, and also the transfer of the property to the new owner.

"Before anything is signed, if you have concerns, talk to your lawyer. We don't charge extra if someone has questions. It's part of our process." - Jeffrey Kahane, lawyer at Kahane Law Office

"If someone is going through a divorce and there is a big fight, you don't want to try and sell your house unless you know for certain you are going to be able to transfer the property," he said.

Encumbrances
A registered interest against a property, encumbrances can be financial, such as a mortgage owing, and need to be removed before the property changes hands.

Kahane says other encumbrances that may create problems include a restrictive covenant – for instance, one that requires a certain type of roofing be used on a house, or dictates what kind of fence you can build in the yard.

He says there can also be a "right of way" on the property for something like utilities, and you can't build a shed or deck on top of a right of way.

"That's when people say, 'Oh, I never would have bought the house if I knew that,'" he said.

Conditions
Kahane says conditions included in a sales agreement might include approval of financing, completion of a satisfactory home inspection or review of condominium documents.

"Those are there to protect the buyer or seller, and the entire contract is condition on those conditions being met and waived," he said. "If it's not met and waived, then there is
no contract.

"Everything goes back to the beginning and the deposit is returned. It's as if the contract had never existed at all."