Drafting Flashcards
Rules for 3 day right of withdrawal
Day of signing ❌
Day of deadline ✅
Stat holidays count if they do not fall on third day
When last day is holiday, time limit to be extended to 2359 following non-holiday day
- Saturday/sunday
- January 1-2
- Good Friday or Easter Monday
- June 24
- July 1 (Or July 2 if 1st falls on Sunday)
- First Monday in September (Labour day)
- 2nd Monday in October (Thanksgiving)
- December 25 & 26
- Victoria day
Taking a property off the market
If Broker and selling owner agree that broker’s obligations will be suspended for a period of time or for the remainder of the term of the BC
EBCS remains active until it expires, meaning that seller cannot put property on market with another broker
This amendment must be made in writing
May be a solution in the case of an irrevocable contract
Content of a specific clause
Something that must be done by an identified individual
Deadline to fulfill the obligation
Notice to inform the other party of the fulfilment or non-fulfilment of the obligation
Consequences of non-fulfilment of the obligation
How many days between deed of sale and occupancy?
5-7
Except if no deed of sale is signed through the fault of the buyer, selling client may be required to pay broker’s remuneration in 4 instances
If seller accepts PP on their own or through a person other than the broker and all conditions of PP have been met except signing of deed of sale
Seller rejects PP that is fully consistent with the terms of the sale set out in BC
Broker shows immovable to clients during term of BC. Clients make no PP. Visit several other properties. BC ends or is terminated. Same clients visit immovable again [without any brokers present] and come to agreement with seller within [180 days] of date of end or termination
Seller willfully prevents you from fulfilling your part of the contract
Cases in which no remuneration may be demanded
Immovable acquired by broker, agency or broker representing agency, or through business controlled by them
By spouse of broker
By legal person or corporation controlled by spouse of broker
By a person who has been named in a standard exclusion clause added to the contract, other than those mentioned in this clause
Broker not entitled if deed of sale was not signed or purchase price not paid by buyer
2 options for surface area of the living space
Gross area: Total surface area of exclusive part, including thickness of the walls
Net area: Interior surface area as measured by a land surveyor and for which a COL has been produced
For gross area only, need to explain in clause 11.1 how the surface area was established
Undivided co-ownership: If no co-ownership agreement or pre-emptive right
Civil code applies, co-owners have a redemption right
Can be waived in the agreement or during PP stage
Co-owner can also sell whthout consent
Section 3 BCM
Specify mobile home’s brand, year, surface area, serial # and dimensions
Specify who owns the land and include all land info
Essential features of the buyer’s immovable must be indicated
Section 4 - Additional features
Don’t be too precise nor too vague
Those include how the client intends to use the immovable, zoning, location, # of rooms, number of floors, etc
If buyer purchases something that is different from the stipulated essential features, broker may not claim remuneration
Any features that the buyer desires
Does not affect remuneration
3 situations will render remuneration payable by the buyer
Immovable purchased corresponds to section 3 of contract and no other clause, and all conditions have been fulfilled except signing of deed of sale and payment
Broker collaborates with another broker
Remuneration cannot be claimed for an immovable in which broker holds an interest, if contract is not finalized or if seller prevents payment of purchase price
How to check for servitudes
Check if there are any servitudes in client’s titles of ownership (deed of servitude should be there)
Read description clause in Client’s deed of sale (notary indicates all servitudes duly published at the registry office before signing this deed of sale)
Carefully review any mentions of servitudes in COL (Land Surveyor must indicate all servitudes)
Review Land Register online or, as last resort, visit registry offics (as servitudes only exist if they are published)
Real rights and their impact on the sale
Usufruct: both should sign BC
Right of use: seller to obtain ASAP commitment from user to waive right of use should PP be submitted (buyer could still purchase and allow user to remain)
Emphyteusis: broker can issue a notice stating that the immovable is under emphyteusis and that buyer is purchasing the right of ownership for the remainder of the emphyteusis
Superficies: owner of land (subsoil owner) allows another person (superficiary) to install a structure on the land while keeping the property. Disclose that fact as structure standing on land is not included in the sale
Method for recording property in section D15
Nature of the right (mortgage, priority or a servitude)
Who holds this right (bank, credit union, individual, or in the case of a servitude, a lot)
Any other info deemed to be useful (enter reference # in Land Register, for example)
Absence of undertaking
Seller has 5 days from expiry of time limit or from date of receipt of notice of refusal to require that buyer make another mortgage loan application at financial institution of seller’s choice
- Seller must also provide a time frame within which buyer must submit a written undertaking from creditor
Seller may also decide to render PP null and void
PP - 7.3
Buyer pays for:
- Notary fees for
- Deed of sale
- Fees for hypothecary loan (deed of hypothec)
- Adjustments
Seller pays for
- Deed of acquittance
- Any other services they require
PP Section 8
Checking box in clause 8.1 makes PP conditional on inspection
Time frame should be between 7-10 days
If buyer wants to have immovable inspected by, e.g. a contractor friend
- Cross out the words “building inspector or professional”
- Add “building contractor” or the profession of the person designated
- Gave all buyers initial change
- Seller to initial to confirm they are aware of the change. If they do not agree with it, counter-proposal or reject proposal
Several possible outcomes after inspection is completed
Buyer is satisfied with result of inspection
Buyer wishes to render PP null and void
Have 4 days after deadline to
give notice to the seller,
together with inspection
report. This renders PP null
and void upon receipt of
acknowledgement by seller
Buyer asks that seller implement corrective measures
Buyer asks the seller to
remedy certain issues before
notarial act or other date to be
determined, failing which an
amount will be held by the
notary for the buyer. This
condition must be
included in AM form and
signed by both parties before
deadline expires
Buyer wishes to continue with purchase despite the issues and seller’s refusal to negotiate
Buyer would like a price reduction
AM form to be signed by both parties before deadline
Reason for this must be
specified and say that seller’s warranty is limited to such an amount for said issue
Buyer would like to investigate an issue
Specify in AM form and
provide a deadline for the
new inspection
Section 9 — Review of documents by the buyer
Buyer must notify seller within 7 days of deadline in 9.1. Receipt of acknowledgement by seller is required to render PP null and void
Documents to be given to buyer by seller
Valid title of ownership
- Deed of servitude
- Deed of hypothec
- Act granting acquittance or release
- Act granting usufruct, right of use or emphyteusis
- Other
COL
- Physical or legal change
10.1.5 specifies whether other co-owners have a pre-emptive right, and conditions
Copy specific clause in this section, important to know the delay in order to plan inspection
First checkbox: Co-owners have an agreement and did not renounce
Second checkbox: No co-owners agreement, did not renounce the redemption right, must use the second checkbox only
Third checkbox: Co-owners have or don’t have agreement and ALL have renounced to both rights (fill in both parts)
P2.7
= section 14 of PP. Strict deadline. Don’t forget for the exam
F2.3.2: enter time frame, which will begin the day PP or CP is accepted
15 day window is usually sufficient
Absence of consent: seller has 5 days (strict) after deadline to personally request creditor’s written consent (if choose this, 5 more days, otherwise null and void) or render PP null and void
R2.1
Specify address of immovable to sell, and provide a strict deadline by which buyer must advise seller in writing
- That they have met the condition (accompany notice with copy of mortgage lender’s unconditional undertaking to grant a loan to the buyer, if required);
- Thet they waive the benefit of this condition by demonstrating that they have the necessary funds
- No notice given before deadling = PP null and void
AM Section M7
Checkbox depends on the change
- BC (agency/seller) no witness
- PP (buyer/seller) broker witness
- Buyer’s contract (agency/buyer) no witness
