Quantz Law

10/01/2024

Quantz Law is Hiring!

Receptionist/Legal Assistant - Athabasca Office

Quantz Law is looking for a part-time receptionist/legal assistant for our busy Athabasca office. Variable weekdays from 9:30am to 3:30pm, up to 12 hours per week. Applicants with previous experience in a law firm will be preferred. Wages negotiable based on previous experience.

Interested candidates should submit a cover letter and resume to [email protected].

04/09/2023

Happy Easter from all of us at Quantz Law

03/15/2023

Collaborative Family Law: Resolving Your Legal Matters Outside the Courtroom

As delays in the Canadian court system worsen, clients and legal professionals are looking frequently for opportunities for resolution outside the court system. In family court, waiting for a 20 to 60 minute hearing at Special Chambers at the Court of Queen’s Bench or waiting several years for a trial is common.

Alternative Dispute Resolution (ADR) processes settle disputes outside court. I have previously written two articles on the topic of Mediation (here and here); this article will focus on Collaborative Family Law.

Collaborative Family Law was founded by a lawyer named Stuart Webb in the early 1990’s in Minneapolis, Minnesota. After litigating for several years, Stuart found himself increasingly dissatisfied with the obstacles and frustrations that come with resolving family law issues in the courtroom. Stuart decided at that point that he would no longer act for clients seeking to resolve their issues in court; instead, he would assist them solely with negotiating and settling their disputes outside the courtroom. If negotiations broke down and clients were unable to reach a settlement, Stuart would then refer them to another lawyer specializing in litigation. Other lawyers found his idea intriguing and soon followed suit; in fact, Medicine Hat, Alberta, was one of the earliest cities to take advantage of this new method. Collaborative Family Law has only grown in popularity since then with thousands of lawyers throughout the globe choosing to follow in Stuart’s footsteps.

Collaborative Family Law is an ADR process by which the parties work together to resolve their legal issues outside of the courtroom with the assistance of their registered Collaborative lawyers and other team members. After an initial consultation and preparatory meeting with their own respective lawyers, clients will then meet together in a series of face-to-face 4-way meetings with their Collaborative lawyers. The meeting agendas, topics for discussion and the order in which they are addressed are set by the clients according to their own particular needs and circumstances. All of the substantial issues are discussed in the 4-way meetings with all parties present – communication outside of the meetings is typically restricted to dealing with any procedural issues that may arise. This promotes openness and transparency between the parties and allows them to fully engage in honest, good faith negotiations. Throughout the discussions, the Collaborative lawyers will provide education and advice on the law and how a court may decide a particular contentious issue between the parties to assist them in making a fully informed decision. However, what is most important is that the parties are the decision-makers and ultimately retain control of the outcome of the meetings.

During the meetings, parties are encouraged to be as creative as possible in generating options for resolution. Any discussions that take place are “without prejudice”, meaning that the parties have the freedom to speak their mind without fearing that those statements will later be used against them in court. All discussions and meeting minutes are private and confidential.

Collaborative Family Law centers on interest-based negotiations. Rather than focusing on their respective positions, parties are encouraged to focus on their underlying interests and concerns, and ultimate goals for the process, themselves and their family going forward. For example, if one parent in a meeting expressed that he or she “wanted the children 50% of the time”, the Collaborative lawyers would then dig a bit deeper to find out what interest or concern is underlying that statement. Is it fear of a loss of relationship with the children? Is it a concern for maintaining stability in the children’s lives so they are affected as little as possible by the separation and divorce? By examining issues on a deeper level, parties are able to recognize that they may share common interests, thereby allowing them to more easily generate options that speak to those shared interests and ultimately reach a mutually-acceptable solution.

In addition to the two registered Collaborative lawyers, other Collaborative team members, such as a parenting specialist or financial expert, may be added in order to assist parties in decision-making. If parents for instance are finding it difficult to formulate a parenting plan that best suits their children at each particular developmental stage, they can retain a parenting expert to provide them with advice and recommendations. When it comes time to discuss division of the matrimonial property, parties may choose to retain a financial expert to provide advice on the tax consequences of particular dispositions or to assist in valuing a business. Experts retained in addition to the Collaborative lawyers will be neutral – meaning that they will be jointly retained by the parties and therefore will not work for either parties’ particular interest. Regardless of who makes up the Collaborative team, all team members are ultimately there to support the parties in making sound decisions for their family.

Once all of the issues have been discussed and matters settled between the parties, the Collaborative lawyers will prepare a legally binding settlement agreement for parties to review and sign. If applicable, the lawyers will also jointly file for a desk divorce.

If the negotiations break down at any point during this process, both parties are free to withdraw. However, and what is most critical to this process, the registered Collaborative lawyers will then be disqualified from later representing their clients in court. Because all of the discussions were confidential and without prejudice, the clients would essentially have to start the divorce process over with a new lawyer if they wanted to pursue litigation. In addition to motivating the parties to reach a resolution, this component is critical for maintaining the integrity of the full, honest disclosure and good faith negotiations that are the hallmarks of the Collaborative process.

As set out on the Collaborative Divorce Alberta Association’s website, Collaborative Family Law has been successful in a wide variety of situations, including:

Short-term and long-term marriages;

Marriages with or without children;

Financially straightforward or complex marriages;

Common-law relationships;

Same-sex relationships;

Marriages with unique or cultural or religious values;

Negotiation of cohabitation agreements;

Negotiation of pre-nuptial agreements.

If you, a family member or friend is interested in learning more about the Collaborative Family Law process or scheduling an initial consultation, please do not hesitate to contact our office at 780-482-7691. Additional information can also be found at: Collaborative Divorce Association Alberta https://collaborativepractice.ca/ and Association of Collaborative Family Professionals (Edmonton) http://divorceseparation.ca/.

DAYNA E. KWASNEY

NOTICE TO READER: The summaries of legal rights and remedies described above are general references to the Alberta laws existing at the date of the publication and may not apply to the reader’s individual circumstances. Also, the laws may change. These legal summaries are not to be relied upon as applicable to your individual circumstances and are subject to a complete review of the facts and applicable laws in every case.
https://www.quantzlaw.com/perspectives/2019/2/1/collaborative-family-law-resolving-your-legal-matters-outside-the-courtroom

Divorce is difficult enough. Why add to the distress with a courtroom process that may not serve your interests? A Collaborative Divorce team can help you and your spouse reach a customized, out-of-court settlement based on your priorities. Talk to a Collaborative lawyer about a divorce that builds....

03/07/2023

New Wills Legislation

The New Wills and Succession Act, RSA 2010, c. W-12.2 replaces the Wills Act, the Intestate Succession Act, and several other Acts. The Wills and Succession Act introduces significant changes to the law of Wills. Some of these changes are as follows:

A marriage will not revoke a Will;
A testamentary gift to an ex-spouse or ex-partner is void;
A minor, authorized by the court, can make a Will;
A court, with good reason, can dispense with formal requirements of a Will;
A gift is void if to an individual who signs on behalf of a testator or to an interpreter who provides translation services in the will-making process;
The Court can add to or delete from the Will, if it is convinced that the Will did not reflect the testator’s intention;
The entirety of an intestate Estate will go to the surviving spouse or adult interdependent partner if all descendents are the descendents of both;
A Will can designate or revoke a named beneficiary of a retirement plan;
A family member who is 18 to 21 years of age and a full-time student can, as other dependents, apply for part of the Estate if inadequately provided for in the Will;
A spouse or partner of the deceased has a right to occupy the family home for 90 days following death; and
Generally, the Court has broader powers to make discretionary decisions in regard to a Will or an Estate.
The new Wills and Succession Act will affect only those Wills written after the Act comes into force. However, it could affect certain matters of probate, administration, and litigation for Estates if a person dies after the legislation comes into force.

If you would like to discuss the implications of the new law in regard to your Estate matters, please set up an appointment with our Wills and Estates team at Quantz Law Group. Our up-to-date lawyers will provide current advice in a changing legal landscape.

NOTICE TO READER: The summaries of legal rights and remedies described above are general references to the Alberta laws existing at the date of the publication and may not apply to the reader’s individual circumstances. Also, the laws may change. These legal summaries are not to be relied upon as applicable to your individual circumstances and are subject to a complete review of the facts and applicable laws in every case.

02/27/2023

Duties of the Personal Representative of an Estate

“Trustees must act in good faith and be fair as between beneficiaries in the exercise of their powers.”
-Hunter Estate v. Holton, (1992), 7 O.R. (3d) 372 at 379 (Gen. Div.)
Whoever manages the Estate of a deceased loved one is entrusted with a powerful opportunity—to act with integrity, empathy, and wisdom in the midst of loss and grief.

Administering an Estate can also be a burdensome and time-consuming endeavor. It comes with liabilities if the Personal Representative does not adhere to the Will or mismanages the Estate. Therefore, an individual must consider fully the duties and responsibility of the role before deciding to accept or decline that position.

Each Estate situation is unique, and therefore the management of each Estate will be unique. This simplified and generic account of the duties of the Personal Representative cannot replace good counsel from a lawyer for your specific Estate situation.

Who is the Personal Representative?
Such a person is known by different names: executor/executrix, trustee, Personal Representative, administrator, and legal representative. A Personal Representative can be named in a Will or appointed by the court to fill such a position. Several individuals can share the duties.

A Personal Representative owes a Fiduciary Duty
A personal representative of the Estate must act in fairness to and for the advantage of all those benefiting from the Estate. This mandate is not simply restricted to those who are named in a Will as a beneficiary, but also extends to creditors who have a claim against the Estate for debts owed. It also may extend to those not named in a Will, but who, because of their situation, are entitled by law to a benefit from the Estate (such as a spouse, adult interdependent partner, or a dependent child).

Applications/Forms to be Filed at a Courthouse
If the deceased person was customarily resident in Alberta prior to death or if some of the deceased’s property was in Alberta, then the Personal Representative should normally file at the Alberta Surrogate Court, certain forms, such as:

An Application for a Grant, the “Grant” being the Court’s permission to proceed with the management of the Estate, possibly accompanied by limitations and further directions;
Notices, which must be served on each person that might possibly benefit from the Estate, whether named in a Will or not, and on the Public Trustee, if a minor child is a beneficiary;
Several Affidavits or sworn statements, one of which is to be by the Personal Representative(s) in regard to information about the deceased, the Will, the Personal Representative(s), beneficiaries, and the property of the deceased.
The filing of these documents promotes the integrity of the process for all beneficiaries and potential beneficiaries of the Estate. The Surrogate Court is then apprised of the situation surrounding the Estate and can provide direction, such as requiring proof of the validity of the will.

There are an assortment of other forms, that may or may not be needed depending on the particularities of the Estate. It is in your best interest to consult with a lawyer about the forms that need to be filled out in administering the Estate.

The Grant of Probate/Administration
Once the Personal Representative receives the Grant from the court, subject to any restrictions or limitations on that Grant, the Personal Representative can then use this document to conduct the business of the Estate, such as opening an Estate bank account, transferring land into the name of the Estate, and signing contracts on behalf of the Estate.

Also, the Grant will allow the Personal Representative to liquidate the Estate, settling debts and selling property. If distribution of the Estate will not occur for some time, a Personal Representative should consider investing the assets as a prudent investor would.

Dealing with Liabilities
A “Notice to Claimants”, though not required, should normally be published in a newspaper that circulates in the area where the deceased lived. For sizable Estates, this publication should happen twice, with at least 5 days between the publications. This Notice puts potential claimants or creditors on alert to come forward with a notice of their claim within one month of the final publication. If they do not, they could potentially lose their claim against the Estate.

However, there may be other outstanding liabilities that the Personal Representative needs to deal with. Unpaid income taxes, credit cards, outstanding utility bills, lawsuits, mortgages are just a few examples.

Once a Personal Representative compiles a complete list of debts, debts should be paid as they come due. However, a Personal Representative may decide to contest a claim if he or she does not agree to all or a part of it. Also, if there will not be sufficient funds in the Estate to pay all the debts, then the Personal Representative should seek direction from the Court as to how to divide the assets amongst the creditors.

Dealing with the Property of the Estate
Every Estate is unique in that it contains different property and different claims on that property. For instance, a specific piece of land could have been gifted to a certain individual in the Will of the deceased. In another case, it may be difficult to sell mineral rights that are not easily quantifiable. In another Estate, a Personal Representative may need to set up a trust fund for a child until the child reaches adulthood. In yet another situation, certain property may fall outside of the Will, such as an insurance plan that names a beneficiary, and would not form part of the Estate at all. Several individuals may have a claim on the same property. In the case of corporate shares, a unanimous shareholders agreement may dictate what is to happen to these shares upon death.

However, in most cases, the good management of that property will be the responsibility of the Personal Representative. In order to prepare for distribution of the Property, the Personal Representative must be fully aware of the property within the Estate, the claims upon it, and their responsibility in regard to that property.

Taxes
The Personal Representative will need to file tax returns for the deceased and for the Estate.

These include the following:

The T1 Terminal Return is the personal tax return for the deceased individual, which must be filed by April 30 of the following year, unless the deceased died between November 1 and December 31, then it must be filed within 6 months after death.
Any previous tax returns still outstanding by the deceased;
After the terminal taxes have been filed and paid, the Personal Representative must file a T3 trust return within 90 days of an elected year end: either the calendar year or the anniversary of death.
Prior to distribution of the Estate, the Personal Representative should apply to the Canada Revenue Agency for a Clearance Certificate, so as to alleviate himself or herself of any personal liability for unpaid taxes.

The Personal Representative should consult an accountant or a tax lawyer for the preparation of the tax returns.
Accounting
A Personal Representative has the duty to give an account of the administration of the Estate to the beneficiaries. Financial statements must show what is received, disbursed, and distributed. Such financial statements must be provided to the beneficiaries at regular intervals. Before any distribution of an Estate, a Personal Representative should obtain from each residuary beneficiary a release, indicating that he or she is satisfied with the accounts.

Compensation of the Personal Representative
It is appropriate for the Personal Representative to be compensated. Certain factors set out in the Surrogate Rules should be considered when determining what is adequate:

the gross value of the Estate;
the amount of revenue receipts and disbursements;
the complexity of the work involved and whether any difficult or unusual questions are raised;
the amount of skill, labour, responsibility, technological support and specialized knowledge required;
the time expended;
the number and complexity of tasks delegated to others; and
the number of Personal Representatives appointed in the Will, if any.
Compensation may be paid to the Personal Representative if the Will provides for it, if the beneficiaries all agree to it, or if the court orders it.

A Personal Representative may also be reimbursed for expenses that were properly incurred.

Litigation in Estates
Sadly, relationships can disintegrate amongst family members, friends, and beneficiaries as the Estate is administered and distributed. Estate litigation is common, and the Personal Representative can be found liable to beneficiaries, potential beneficiaries, and claimants if the Estate is mismanaged.

If the Personal Representative is in a potentially contentious Estate situation, he or she should consult with an experienced Estate lawyer to find out how to minimize personal liability and manage the Estate affairs in such a way as to be above reproach.

Distribution of the Estate
Prior to distribution, a Personal Representative should be certain that all outstanding matters of the Estate in regard to property and claims on the Estate have been addressed satisfactorily and that the instructions of the Will have been followed.

In certain situations, an interim distribution may be made, as long as there is sufficient money held back to deal with any outstanding claims and liabilities on the Estate.

Advice and Direction from the Surrogate Court
At any time in the process, the Personal Representative can apply to the court for its direction on any matter that arises during the administration of the Estate.

We Want to Help
The Personal Representative has a significant role at a difficult time. Though much care and attention may be poured into the Estate, a Personal Representative who manages the Estate without the advice of experienced counsel may find the process confusing, frustrating, lengthy, and exhausting.

For those who have found themselves in the challenging position of Personal Representative, our door is open to you. At Quantz Law Group, we will truly hear your unique challenges and provide sound guidance and direction. We will assist you in being the best person for the job.

NOTICE TO READER: The summaries of legal rights and remedies described above are general references to the Alberta laws existing at the date of the publication and may not apply to the reader’s individual circumstances. Also, the laws may change. These legal summaries are not to be relied upon as applicable to your individual circumstances and are subject to a complete review of the facts and applicable laws in every case.

02/24/2023

How do I avoid Litigation in regard to my Estate after I die?
Within a volatile family, sometimes litigation cannot be avoided. However, there are some things that can be done to minimize the possibility of estate litigation after you die.

1) Have your Will done up by a lawyer, and do not try to do it yourself.

2) Have any changes to your Will done up by a lawyer, and do not try to change the document yourself.

3) Only have one Will, all previous Wills having been destroyed or revoked by you, and ensure that your Personal Representative knows where that Will is kept.

4) If your testamentary capacity to execute a Will might be called into question to invalidate your Will, take the steps to obtain a capacity assessment or a medical opinion of capacity prior to executing your Will.

5) Name a personal representative/executor/executrix that is trustworthy and respected by the beneficiaries, and who has the financial wherewithal to administer your estate well.

6) Encourage your designated personal representative to hire the appropriate professionals, such as a lawyer and an accountant, so that the estate affairs are properly conducted and administered.

7) Deal even-handedly with those individuals who would expect to benefit from your estate.

8) In your testamentary gifts, provide adequately for any dependents, including minor children, your spouse, your adult interdependent partner, and any dependent adults to whom you have legal responsibility.

9) Consider providing a clause for payment of your personal representative in your Will, to minimize a dispute over fair compensation.

10) Do not promise gifts to loved ones outside of your Will unless your Will also provides the gift or unless you perfect the giving of the gift prior to death;

11) Review your estate plan frequently to ensure it still expresses your wishes given your current situation.

At Quantz Law, we spend ample time with our estate clients to ensure that we understand their family background, their property, and the potential claims on their estate. Although the testator has the authority to decide who to name as beneficiaries of their estate, we want the testator to consider the risk of future litigation before making final decisions about his or her Will.

Further, at Quantz Law, we typically advise a client to incorporate an alternate dispute resolution clause in the Will, thereby reducing litigation since mediation is required by the Will as a first step in conflict resolution.

02/22/2023

Why I Advocate for Mediation

Not too long ago, a mediator called me to ask if I would be open to a referral from her. She had a matrimonial client who had reached a mediated agreement with a spouse and was looking for a lawyer to help finalize that agreement. “Not very many lawyers will take on work from a mediator,” she stated. I cannot comment on whether or not family law lawyers are reluctant to work with mediators or mediated agreements. However, I do know why I really do appreciate referrals from mediators.

Here is my top ten list of reasons why I think settlement work done by a mediator is time well-spent:

1. Mediators empower individuals to problem-solve. Even if not all matters are sorted out in mediation, the parties are closer to final resolution having had the experience of deliberating together to try to work out the details of settlement. If parties can talk once, they can usually talk again.

2. Mediators can get to the root of the disagreement. The litigation process, at the end of the day, can dole out final answers – Who must pay? What amount is owed? What child lives where and with whom? However, it cannot give answer to the deeper concerns that are often felt by both parties – worry for a child; stress about finances; conflicting parenting styles; concerns for the future. Mediation can discuss the sensitive issues that may be at the root of the disagreement.

3. Mediation respects privacy. Most court proceedings and filings are open to the public. What is filed at the courthouse is searchable and retrievable information. For example, corporate financial statements, tax returns, partnership income, EI, trust statements, disability payments, and other income information must be filed when child support is at issue. Also, opposing affidavits, which can be mutually damaging, are often filed in family law applications. When parties do not want their disagreement to be made public, the mediation room may be preferable private forum.

4. A stranger is not deciding. When parties come to mediation, they are in charge of their own problems and their own solutions. There is no judge, no stranger, making a decision about the fate of a family. The parties are not obligated to decide on resolution at the mediation table, but they have opportunity to decide a resolution. Being able to decide on a plan of action can be liberating.

5. Mediations are often “without prejudice.” “Without Prejudice” means that a mediated discussion or agreement cannot be used in court as evidence. Thus, one can come to the mediation table, and propose solutions without fear of the discussion being disclosed to a judge if the mediation is not successful. One comes voluntarily to the mediation table, and one can also walk away from the mediation table.

6. Mediators are skilled professionals. Litigators and mediators play very different roles. The litigator’s goal is to win. The mediator’s role is to resolve. Sometimes it takes a mediator’s training and experience to break the standoff between clients and their respective lawyers.

7. Mediators are trained not to overstep their roles. While mediators certainly have a crucial role of resolving issues, mediators often advocate for us lawyers throughout the mediation process. Often, mediated agreements are made “without prejudice” and are only memorandums of understanding (“MOU”) and, therefore, unenforceable. However, lawyers can take the terms of a mediated agreement, advise their client about the feasibility and acceptability of its terms, and then draft out of it a formal and binding legal agreement. Often, mediated agreements need to be tweaked or reworked to a degree based on the reality of a legal situation. Lawyers are trained to root out the legal complications of a MOU, and draft from an MOU a legal agreement.

8. Mediation is available now. Our courthouses are full to bursting, and it takes a lot of time to get a matter resolved through court processes. Mediators are available now for resolution work.

9. Mediators are affordable and often save costs in litigation. A skilled mediator can save individuals money and can decrease stress. In my experience, even clients that are driven to have their day in court become drained by the angst and the high cost of litigation. Even if mediation does not resolve all of the issues, it may resolve some of the issues, and may be the catalyst of final resolution before a trial of the matter.

10. Mediators are really nice people. I don’t mean this tritely. Not all professionals are trained to be nice. I don’t think lawyers are well-known for their niceness. However, mediators are trained to listen, to affirm, and to care. Problems may resolve simply because parties feel like they have been finally heard.

Should you want to try mediation services, please let us know and we will provide you with some referrals to mediators that our clients have successfully used in the past.

Paula Kinosh*ta

NOTICE TO READER: The summaries of legal rights and remedies described above are general references to the Alberta laws existing at the date of the publication and may not apply to the reader’s individual circumstances. Also, the laws may change. These legal summaries are not to be relied upon as applicable to your individual circumstances and are subject to a complete review of the facts and applicable laws in every case.

02/17/2023

10 Things to Know about a Real Estate Transaction

Although real estate is a year-round business, typically most homes are bought and sold during the spring and summer months. As the warmer weather approaches, we thought we would provide you with a list of things you should know if you are contemplating buying or selling in the near future.

1. A Real Estate Purchase Agreement is a legally binding document. It is important to have it drawn up by a Lawyer or Real Estate Agent.

Although parties may wish to draft the purchase contract themselves in order to keep costs down, there is no comparison for the vast expertise and knowledge that a Real Estate Agent or Lawyer can provide. They can advise if the terms of the agreement expose the purchaser or seller to any potential liabilities, if the purchaser’s lender will likely require additional documentation prior to funding the mortgage (which the seller may be obligated to provide), or if any clauses require further clarification in order to avoid any confusion between parties in the future. It is usually much more cost-effective to have a Lawyer or Real Estate Agent involved at the beginning of the process than for them to try to find a solution for any problems that may arise in the future as a result of the agreement between the parties.

2. A seller must disclose all hidden defects/problems with the property to their Real Estate Agent/Lawyer to help prevent a potential lawsuit in the future.

It is imperative that a seller discloses all known hidden defects with the property to prospective purchasers in order to avoid potential litigation. Although sellers are not obligated to report defects that are readily discoverable by purchasers, such as deficiencies visible upon an inspection of the property, we highly recommend that all potential problems are disclosed and if of a serious nature, are specifically acknowledged and accepted by the purchasers in the purchase contract. This will provide evidence that the purchasers were aware of the deficiency, but were nevertheless interested in purchasing the property. This will in turn provide the sellers with a measure of protection should the purchasers choose to commence a lawsuit in regard to the defect.

3. A seller will need to obtain a current Real Property Report (survey) and Certificate/Letter of Municipal Compliance in most sale transactions. “Current” is defined as less than 10 years old and represents the current state of the property.

A Real Property Report is a survey of the property which shows the location of all buildings and structures relative to property boundaries. A Compliance Certificate or Letter of Compliance is a document issued by the municipality confirming that all visible improvements on the property have met the regulations under the zoning bylaws and have the appropriate development permits. Prospective purchasers (and their lenders) will want this confirmation to ensure that they will not be required by the municipality to expend monies in the future in order to bring the property into compliance. Because it can take quite some time to have the survey completed and Compliance issued by the municipality, it is strongly recommended that sellers look into obtaining these documents, or consult a Real Estate Agent or Lawyer with respect to the same, shortly after deciding to list the property for sale.

If the sellers obtained a Real Property Report and Compliance Certificate when they purchased the property and nothing has been changed on the property since the date of purchase (i.e. addition of a deck, hot tub, garage, etc.) then they may be able to use these older documents when selling the home in the future. However, the purchasers’ lender will typically only accept surveys that were completed within the last 10 years.

4. Title insurance can protect purchasers and their lender from any unknown Municipal Compliance issues in the absence of a Real Property Report and Compliance Certificate. However, Title Insurance may not be accepted in certain transactions.

Title insurance indemnifies for loss from title defects or encumbrances such as liens and survey/Real Property Report defects that were unknown and undiscovered at the time of closing.

If a current Real Property Report and Compliance Certificate are not available, purchasers may agree to accept homeowners’ and lender’s policies of title insurance instead. Although the purchasers’ Lawyer will be responsible for ordering the policies, the sellers will typically reimburse the purchasers for the cost of those premiums, which depending on the particular title insurer, are usually around $300.00-350.00 for an average-priced home.

It is important to note that title insurance will only cover survey or title defects that were unknown at the time of closing. For example, if the purchasers were aware at the time of closing that the garage encroached onto municipal lands, this defect would not be covered under the title insurance policy. However, if the purchasers were not aware at the time of closing that the garage encroached onto neighbouring municipal lands and the municipality later advises that the garage must be relocated, the cost of doing so would likely be covered under the title insurance policy.

It is important to note that title insurance policies may change the defined coverage from time to time. As a result, it is always advisable to check the policy coverage at the time the policy is arranged.

5. Rush transactions can cost you more money. Ideally, allow for 3 weeks from the condition removal date to the possession date to avoid unnecessary costs.

It is only when all of the condition precedents set out in the purchase contract have been waived by the parties that the lawyers can begin working on the file. Condition precedents are more commonly referred to as the “subject to” clauses, such as “subject to approval of new financing” or “subject to a property inspection”. In order to ensure that there is sufficient time to prepare the necessary documentation, it is important that the condition removal date(s) and possession date are not scheduled too closely together.

In addition, because documents are typically signed within the 2 weeks preceding the closing date, it is important that if you plan to be away immediately prior to the possession date that you let your Lawyer know as soon as possible. Depending on the number of real estate transactions our firm may be acting on, we typically do not start working on files until 3-4 weeks prior to closing. However, if we have notice from our clients that they will not be available to sign documents in the 2 weeks preceding closing, we will ensure that all of the documentation is prepared and executed well in advance of the closing date to ensure there are no delays.

6. All lenders are not created equal.

As a purchaser, if you do not select a major bank for your new mortgage (e.g., CIBC, TD Canada Trust, Bank of Montreal, RBC Royal Bank, ATB Financial, Scotiabank, Servus Credit Union) you may incur additional legal costs as the requirements of certain lenders increase the obligations of your Lawyer. This is mainly because the paperwork and documentation required for most “B” lenders is significantly more than what is typically required for the major banks. In addition, when we act for a “B” lender, there are usually many more searches and other investigations that need to be conducted as part of the conditions of funding. As a result, the legal fees associated with preparing “B” lender mortgages are typically higher.

7. The seller must ensure that all expenses associated with the property are kept current to the date of closing, such as the property taxes, mortgage payments, utilities and fire insurance.

Most real estate purchase contracts will specify that items such as property taxes, local improvement levies, utilities, rents, security deposits, homeowner association fees, condominium fees, etc. will be the seller’s responsibility for the entire closing day and thereafter assumed by the purchaser. If these expenses were paid on an annual basis, such as the property taxes or homeowner’s association fees, these will be adjusted for the parties as part of the transaction. For example, if the seller has not paid the property taxes for the year, the purchaser will receive a credit for the amount the seller should have paid for the days he or she was in possession of property. All property taxes are paid on a calendar year basis regardless of when they become due and payable.

If the seller fails to keep the expenses associated with the property current, typically the Lawyer acting for the seller will have to pay those arrears out of the sale proceeds and often there will be extra legal fees associated with the additional payouts.

8. A mortgage payment may be taken out after the closing date if the lender has not processed the mortgage payout in time to cancel the subsequent payment.

When acting for a seller, the Lawyer will be responsible for ordering a mortgage payout statement from the seller’s lender. Typically, if the closing date is scheduled for a day that a mortgage payment is to be automatically withdrawn from the seller’s account, that payment will still be withdrawn and the lender will take that payment into consideration in the payout statement. If an additional payment is taken out after the closing date, and there is an overage on the account, the lender will typically reimburse the seller in time once the payout has been processed.

It is important to note that most mortgage payout statements assume that all previous mortgage payments have been made and that the mortgage is in good standing. As a result, it is very important to advise your Lawyer if any mortgage payments have been missed or if there are any other arrears as those will need to be added to the payout figure sent to the lender. Only when the mortgage has been paid in full will the lender issue a discharge of mortgage.

9. When selling, it is important that the property is left in a similar or better condition as to when the purchasers viewed it in order to avoid complications on closing.

We have recently dealt with a number of transactions in which the property was left in a very unclean state or where certain affixed items had been removed contrary to the purchase contract. This can potentially result in a holdback of a portion of the seller’s net sale proceeds pending rectification of the deficiencies or issues or, if that is not possible, releasing some of the holdback funds to the purchasers as compensation. Most real estate purchase contracts will contain a clause confirming that the property will be in a similar condition as to when it was inspected by the purchasers.

The rule of thumb is if the item is even slightly affixed to the property, such as a curtain rod or ceiling fan, the common law presumes that the fixture will remain with the property. Chattels, or items which are not affixed to the property and are moveable, such as a fridge or stove, are not presumed to stay with the property upon a sale. As a result, it is important that if the seller wishes to take a fixture when moving out of the property, that that is specified in the real estate purchase contract. Similarly, if a seller is willing to leave certain chattels behind, that should also be set out in the purchase contract in order to avoid any confusion and complications later on. If there is any doubt or hesitation as to whether a particular item is a chattel or fixture, include it in the purchase contract so that both the purchasers and sellers are on the same page.

10. Choose your Lawyer based on reputation and trust.

Your home is a huge investment. Although legal fees are typically the main focus for clients when choosing a real estate lawyer, it is important to also take into consideration each lawyer’s particular real estate law experience and knowledge. Real Estate is somewhat of a specialty and it is important that the lawyer you choose is well versed in that area of law. Lower legal fees may mean that less time and attention to detail is spent on your file. It is important to query with prospective lawyers how the file will be conducted in addition to the legal costs involved in the transaction. Ultimately, you want to choose a Lawyer you trust to handle the transaction with competency and efficiency.

Dayna Kwasney

NOTICE TO READER: The summaries of legal rights and remedies described above are general references to the Alberta laws existing at the date of the publication and may not apply to the reader’s individual circumstances. Also, the laws may change. These legal summaries are not to be relied upon as applicable to your individual circumstances and are subject to a complete review of the facts and applicable laws in every case.