REAL ESTATE LAW
Selling property to whomever you want and whenever you want may seem like a given right. Meanwhile, in certain situations, the owner may need authorization before the purchase can be processed. Examples include:
- The owner needs written consent from his or her spouse before selling a family residence.
- The guardian of a minor may need specific authorization before selling property that is owned by the aforementioned minor.
- The owner of classified cultural property must, in specific cases, obtain certain permissions before selling the building in question. The same is often true for owners of agricultural land.
- The sale of property located within a real estate complex is subject to the authorization of the Régie du logement.
Caution is therefore advised: selling property without having the right to do so jeopardizes the sale and may incur civil suits. A notary can provide information regarding the required authorizations and, at your request, take the necessary steps to move forward.
THE PROMISE OF PURCHASE OR THE PROMISE OF SALE
The promise of purchase or the promise of sale is generally the document signed by all parties involved, prior to the deed of sale. Contrary to what one may think, once signed, such a document is not easy to withdraw. This is a preliminary contract and with it comes certain obligations for both sides. Once this document is signed, it often becomes very difficult to change the terms and conditions, or to get released from the contractual agreement altogether. It is therefore better to consult a notary before signing such a contract, regardless of whether the aforementioned document is being signed without or in the presence of a real estate agent. Before you do anything, let Susan Tremblay review your rights and obligations !
When property is involved, the seller and the buyer have certain obligations to one another. The buyer must take possession of the purchased property and pay the agreed upon price. As a result, the seller must release the property. In the absence of a statement to the contrary, they are also bound by a legal guarantee. This confirms that the law obliges the seller to guarantee certain conditions to the buyer.
The seller is first required to guarantee right of ownership. They are obligated to guarantee that they are exempt from any title defects and free of all rights, except any declared at the time of sale. However, any existing encroachments (unknown, known, or known by a third party) and, within the regulations set by law, violate public law limitations (for example, the property seller guarantees all zoning bylaws are respected). Non-compliance to zoning bylaws may not be absolute, but the buyer must demonstrate vigilance for all such transactions.
The seller is also obligated to guarantee quality; to provide a guarantee against hidden defects. But still, be careful! This only covers major defects present at the time of sale which are unknown to the buyer and which a prudent and diligent buyer couldn’t have known about. Not so simple !
By handling all research, a notary is well-positioned to guarantee an indisputable property title. Firstly, their research involves checking :
- If the seller is the true owner
- If the seller has the right and ability to sell the property
- If the seller’s spouse or anyone else must consent to the sale
- If certain mortgage or other charges must be removed from the title
Using the certificate of location, the notary then checks :
- If the land dimensions are accurate
- If the buildings are located on the land sold
- If the house was built in accordance with municipal bylaws and zoning regulations
- If the neighbour’s property encroaches on your lot
- If windows meet legal norms and standards
- If there are rights of way, etc.
Finally, with a title search, a notary can identify any charges or rights that are likely to affect, limit or devalue your right of ownership, such as mortgages, seizures, judgments, servitudes, etc.
NOTARIZED DEED OF SALE
A notary will meticulously draft a deed of sale, addressing all clauses to safeguard your rights. Furthermore, a notary can coordinate any other elements that are essential to this step: mortgages and servitudes, as well as shared property agreements, wills, etc. The notarial deed is a credible document, and you will receive an authenticated and numbered copy. It will also be indexed and placed for safekeeping in the notary’s files. You’ll be fully protected !
Servitudes are established in a contract by the owner, through a will or by law. A conventional servitude involves the dismemberment of ownership of a property, either for the benefit of another property or of a person. There are two types of conventional servitudes: a real servitude and a personal servitude. A real servitude is an obligation that is imposed on a property to support a different property owned by someone else.
A personal servitude is halfway between a real servitude and a personal obligation, meaning this involves linking a good to a person. Meanwhile, a real servitude is linked to real estate. Personal servitudes can have an impact on moveable and immovable holdings, as in the case of usufruct and rights of way.
PROTECT YOUR REAL ESTATE HOLDINGS
To ensure your real estate holdings are protected, contact our legal team! As real estate specialists, we are committed to managing all your documentation as well as to professionally handling your property matters. Furthermore, our expertise and years of experience have prepared us to assess property value. Please note, we can also provide advice regarding any real estate transactions !
MANAGE YOUR REAL ESTATE HOLDINGS
Trust the management of your real estate holdings to a professional! We offer clients a full range of services for buying a house or selling a property. Every step of the way, our team will be by your side. Having mastered all necessary legal documentation, we can recommend solutions that are specifically tailored to your life and situation. Our work is meticulous and thorough !