Real Estate and Property

A property transaction is ordinarily the largest a person enters into, and it is conducted on documents most buyers sign without reading. Our work is to ensure that what you believe you are acquiring is what the record actually conveys, and that the obligations you are taking on are the ones you intended.

Title, and why it is examined

Title is the record of ownership and of every interest that burdens it. Examining it means tracing that record to establish that the seller can convey what they have agreed to convey and to identify what will remain attached to the property after you own it.

What examination discloses is frequently not what the parties expected. Mortgages that were paid but never released. Judgment liens against a former owner. Unpaid tax assessments. Easements permitting a utility or a neighbour to cross the land. Restrictive covenants limiting what may be built or how the property may be used. Mineral rights severed from the surface generations earlier. Boundary descriptions that do not close, or that conflict with the fence line everyone has treated as the boundary for decades.

Most of these are curable, and the moment to cure them is before closing, while the seller still has an interest in resolving them. After closing they become your problem, and the person best placed to fix them has been paid and has no remaining incentive.

The contract

The purchase contract fixes the parties' obligations, and by the time most buyers consult an attorney it has already been signed. It is better consulted before.

The provisions that matter are the contingencies and the remedies: the period allowed for inspection and what may be done with what it discloses; the financing contingency and what happens if the lender declines; the appraisal contingency where the valuation comes in below the price; what fixtures and personal property are included; who bears the risk of damage before closing; what happens if either party fails to close; and how the earnest money is dealt with in each of those circumstances.

We review contracts before signature, negotiate their terms, and where the transaction is unusual, an owner financed sale, a purchase from an estate, a sale of property with a tenant in occupation, we draft to fit it rather than adapting a form that does not.

Commercial transactions and leasing

Commercial transactions involve considerations residential ones do not: the condition of existing leases and the income they produce, environmental liability, zoning and permitted use, compliance with access requirements, and the effect of any development agreement affecting the site.

In leasing we act for landlords and for tenants. A commercial lease is a long financial commitment, frequently longer than the business plan behind it, and the terms that determine its cost are not only the rent. The provisions to examine are the treatment of operating expenses and how they may be increased, responsibility for the structure and for building systems, the assignment and subletting clause, whether a personal guarantee is required and for how long, the terms of any renewal option, and what happens at the end of the term as to the condition of the premises.

Disputes about land

Boundary and easement disputes are among the most bitter matters in the practice, because the parties are neighbours and will remain so whatever the outcome. They frequently turn on a survey, on the history of use, and on doctrines by which long standing possession or use may ripen into a legal right.

We also act in disputes between landlords and tenants, in claims arising from the condition of property or the failure to disclose defects, in construction disputes and mechanic's lien claims, and in proceedings to quiet title where the record is unclear.

Where a dispute with a neighbour can be resolved by a recorded agreement rather than a judgment, that is ordinarily the better outcome, and it is where we begin.