Real Estate Law

My legal practice involves a considerable amount of residential conveyancing as well as drafting / registering mortgages issued by public financial institutions. If you require assistance regarding a property / construction dispute, including Builders Liens, please see Litigation.

For quick reference, please click on the following links:

- Residential Conveyancing (general introduction with list of disbursements)
  - Purchasing Property
- Selling Property
- Mortgages

Residential Conveyancing

Residential conveyancing is the process by which registered legal title to real property (land and dwellings) is transferred from the existing owner, the vendor, to the new owner, the purchaser. Records of ownership are registered and stored in the Land Title and Survey Authority of British Columbia (LTSA of BC), which has offices throughout the province. The office responsible for handling all real estate records for the lower mainland is situated in New Westminster.

Although I can represent both the purchaser and vendor of the same property, customarily each party will retain their own lawyer / notary public to coordinate and complete all aspects of the transaction. Once retained, I start the process by obtaining information from your real estate agent involved with the sale. In the world of residential conveyancing, the purchaser's lawyer customarily prepares all the paperwork (see below) and the vendor's lawyer will review the paperwork to ensure accuracy, as well as discharge the vendor's mortgage (if applicable). As a result, my legal fees are usually slightly higher when representing purchasers than vendors. As well, the cost of disbursements (fees paid to third parties to complete the transfer) will be greater for purchasers than for vendors. A list of typical disbursements you should expect in a simple conveyance includes, but is not limited to:

- LTSA of BC search and registration fees,
- City of Vancouver property tax record fees,
- Strata fees for Form F documentation, entrance and exit fees (for condos only),
- Courier fees (moving documents to and from LTSA of BC; moving purchase money from
   purchaser's lawyer to vendor's lawyer),
- Purchase Transfer Tax (calculated at 1% of first $200,000.00 plus 2% on remainder of purchase
price). There are exemptions to the PTT for purchasers who are transferring property where no
   money changes hands (such as adding a spouse to title as joint owner, or an executor to title for
   the purpose of liquidating an estate). Ordinary purchasers must meet all the following conditions
   for exemption from the PTT:
- resident of British Columbia for twelve months,
- purchasing first property ever,
- property is a principal residence,
- with a purchase price less than $325,000.00 (for Greater Vancouver Area; there is a
   proportionate exemption available for properties up to $350,000.00),
- using high-ratio (70%+) mortgage financing from a public financial institution.

Purchasing Property

When purchasing a property, conveyancing involves two stages for the purchaser's lawyer:

1) ensure the purchaser obtains title to the property "free and clear" of all encumbrances and legal charges. This means that upon registration in the LTSA of BC, the purchaser - now the owner - should own the property free from any third party claims - such as banks, unpaid construction workers, secured creditors, judgment creditors, former spouses of the vendor, etc. The only encumbrances to be expected on title are rights-of-way issued to the City of Vancouver and utilities such as BC Hydro - these are non-negotiable and pass with the title from owner to owner; and

2) calculate the final amount of money needed to complete the transaction and determine how that money is to be distributed. The purchase price agreed to in the Contract of Purchase and Sale is not necessarily the exact amount of money that will change hands from the purchaser to the vendor. This is because there are financial adjustments that must be made to the purchase price - for example, has the vendor paid their property taxes for the year? has the vendor paid their strata fees? is the vendor a resident of Canada? are there any unsatisfied conditions in the Contract of Purchase and Sale? is the property new or has there been a substantial renovation to the property? Furthermore, the commission due to both real estate agents (buyer and seller) must be subtracted from the purchase money and paid directly to them by the purchaser's lawyer.

Once these issues have been investigated and clarified, I prepare a number of legal forms for you and the vendor to review and sign in the presence of a lawyer / notary public, and then register these documents in the LTSA of BC. In the event you are financing the purchase with a mortgage, all mortgage documents are also drafted and registered at this time (see below). Immediately following successful registration, I distribute the purchase money to the vendor and real estate agents, and then wait for the transfer to complete (see below). Upon completion, I apply for a State of Title Certificate to be retained by you as final proof of your ownership of the property.

Selling Property

When selling a property, conveyancing involves two stages for the vendor's lawyer:

1) review all the paperwork prepared by the purchaser's lawyer to ensure accuracy (especially regarding all financial calculations), and then witnessing and notarizing your signature on all paperwork and returning it to the purchaser's lawyer for registration in the LTSA of BC; and

2) receive and disburse the purchase money in accordance with the legal forms (above). In the event you have a mortgage on title (see below), I must discharge (cancel) the mortgage by paying it out to the bank right before releasing all remaining funds to you. A bank has up to 60 days to sign and return the discharge to me (although interest on the mortgage ends on the day payment is received by the bank). I must then register the signed discharge in the LTSA of BC, which officially removes you - the vendor - from title and completes the conveyance.

It should be noted that the above discussion is limited to simple conveyances. More complex and time consuming issues arise in the event of new or substantially renovated properties, as well as properties with charges on title, such as Builders Liens or spousal property interests.

In my Real Estate practice I conduct all varieties of residential conveyances. Please feel free to contact me for additional information.

Mortgages

The Mortgage contract is negotiated and finalized entirely between the mortgagor (you) and the mortgagee (bank). What I do is draft a "registrable form" of the mortgage and then register it in the LTSA of BC against your title to the property. What is happening is that you, the legal owner of the property, are borrowing money from the bank to assist you in purchasing your property. In exchange, you promise to pay back the loan plus interest - representing the bank's profit for its service to you. To guarantee your promise, you agree to provide your property as security for your obligation. Registration of your mortgage simply secures the bank's priority against everyone else.

When it comes time to advance the mortgage proceeds, banks will retain their in-house lawyers, or ask the purchaser to retain a lawyer (me) to draft and register a "registrable form" of the mortgage in the LTSA of BC as a charge against your property, usually with priority over all other existing and future charges. Only upon a lawyer's legal opinion as to the validity of the bank's registered mortgage against title will they release the funds to the purchaser, in order to complete the transfer.

Drafting and registering mortgages involve their own series of registry searches, disbursements, and LTSA of BC registrations - all done simultaneously with the residential conveyance. In addition, insurance policies must be obtained naming the bank as first beneficiary.

In my Real Estate practice I draft and register all varieties of mortgages (including construction mortgages, refinancings and lines of credit). Please feel free to contact me for additional information.

NOTE: For additional Real Estate Law services such as Commercial Leases, please see Commercial Law; for a Will and Power of Attorney (as every property owner should have one), please see Wills and Estates; for Property Disputes, Encroachments, Builders Liens and Failed Contracts of Purchase and Sale, please see Litigation; for issues regarding Spouses and Marital Property, please see Family Law.

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Jeremy Bohbot

700 West 16th Avenue
Vancouver, BC V5Z 1S7

Tel 604.288.0582
Fax 604.630.7210
Email

Email: jeremy@myvancouverlawyer.com