Commercial Contracts Flashcards
Real Rights subject to publication
Acquisition
Transmission
Extinction
Modification
Recognition
Constitution
All matters relating to an immovable real right
- Hypothec, servitude, usufruct, declaration of co-ownership, etc
Effects of publication
Set up against 3rd persons
- Enforceable against all individuals who are not part of the contract
Ranking of rights
- According to date, time and minute of their filing
Giving effect to the rights
- Publication gives effect to certain rights (right only exists if published)
Terms and conditions of right publication
Application must be made for
- Right to be published in register
- Cancelling a right
Several different forms for application
- Presentation of notarial act (by deposit) or excerpt thereof is possible, can also be digital
Cancellation
- Deletion of an entry
- Usually when a hypothec has been repaid
Letter of non-disclosure (NDA)
Definition of terms
- Confidential info
- Enterprise/immovable referred to
Property
- The information is and will remain the property of the enterprise
Obtainment
- Appointment of a confidential info officer who will handle requests for information and requests for meetings involving others
Availability
- Date that info was provided to NDA signatory
Use
- Confidential info to be used exclusively to develop an offer to purchase
Broker must sign NDA and ensure potential buyer also signs one
Penalty clause ($$$), defining “confidential info”, and Term to the NDA are important for having a good NDA
Letter of intent
- Present details of the services they have to offer
- Include conditions to contract
- Business proposal
- Persuading a client
- Terms
- Assessment of immovable using the Land Register
- Equivalent of an offer letter
Sole proprietorship
Operated by a single person
Partnership
Two or more people
Who signs for a General partnership (GP)
Best to have all partners sign
Limited liability partnership (LLP)
Formed by general partner and special partner
- General partner is the founder and must sign
- Special partner provides capital and supports mission
Undeclared partnerships
Enterprise that includes several partners acting on their own behalf, but for the benefit of all
Business corp.
- Certificate of incorporation issued
- Administered by directors
- Board of directors resolution specifies who signs
- Special shareholder resolution passed with at least 2/3 of shareholder votes and board resolution
Certificate of Location (2 parts + when to change?)
The Report
- Cadastral description
- Size & dimensions of lot as well as exterior dimensions of main & accessory buildings (frontage by depth)
- Surface area of an immovable (land)
The Plan
- Graphical representation of the findings in the report
New COL is physical change, change to regulations, cadastral renovation not shown, or COL more than 10 years old
Seller obligations (Two main obligations towards the buyer)
Delivery of the immovable (twofold)
- Physically deliver the keys to the immovable, remove all their property from it and ensure it is available for occupancy by the buyer
- Legal delivery: deliver title deeds, certificate of location and deed of acquisition
Legal warranty (also two components)
- Warranty of ownership: Guarantees that the buyer is indeed the owner, that the immovable is free of all rights, except those declared in the deed of sale, Guarantees that the immovable does not encroach, is not encroached upon, does not violate limitations of public law or private law, and reimburses and cancels the hypothec (unless buyer assumes mortgage)
- Warranty of Quality: guarantees that the immovable is free from hidden defects, whether or not the seller is aware of them. If a hidden defect is discovered by the buyer, may either cancel the sale, ask for a price decrease or ask the seller to reimburse all damages (only when the hidden defect was known to the seller)
Different Laws Regarding Non-Residents
If seller is non-resident, the obligation to pay taxes falls on the buyer (seller must obtain from prov and fed Govs a certificate of compliance authorizing the seller to sell the immovable, which will stipulate the amount withheld)
- If certificates not obtained before the sale, buyer must demand that required amounts be withheld and paid. Notary generally takes care of this
- Broker should calculate to ensure that the selling price is adequate to cover repayment of the mortgage, if any, as well as the amount withheld
Non-residents of Quebec shall not, directly or indirectly, make an acquisition of farm land except with the authorization of the Commission de Protection du Territoire Agricole du Quebec
Transfer of immovables subject to the Welcome Tax
- Sale of immovables
- Deed of gift of an immovable
- Declaration of transmission in connection with the transfer of an immovable
- Exchange of immovable
- Sale under judicial authority
- Immovable rental whose term exceeds 40 years
- Emphyteusis and assignment of the rights of the emphyteutic lessee
Exemptions
- Transfer to an ascendant or descendant in the direct line (grand-parents, parents, children, grand-children), between spouses, or to the spouse of the child or parent or child or parent of the spouse
- Does not apply to siblings, as they are collateral relatives, not ascendant or descendant
- Although a situation may be exempt, the legislation provides that municipalities may still apply a suppletive law (should obtain relevant info from the city)
