Who doesn’t need a Realtor? If Buyer and Seller have connected privately and they each have extensive  ”in-depth” knowledge of the area (ie; you are buying your next door neighbors house for your parents to live in).  As you can see, this will not apply to most people.

Do I need a FULL SERVICE REALTOR? For most people, the answer again here is YES. Due to recent CREA rulings, there is lots of choices out there for people when looking for a Realtor. Some Realtors offer “mere posting” which simply place a listing on the MLS system, but offer no other services. Traditional Realtors offer “full service agency” where an agent guides you every step of the way. Some Realtors offer a hybrid model, allowing customers to pick and choose.

“Full Service Agency” has a number of key benefits to most Sellers and I strongly recommend to most of my family and friends to make finding a Realtor that “fits them” the first step in a home sale. Selling a home is stressful, and good Realtor will help you accomplish your goal of moving sooner. One of the key components of “Full Service Agency” is to ensure that you are working with a “Full Time Realtor” dedicated to selling your home. The services that Realtors provide are outlined in their listing contracts and may differ from Realtor to Realtor.

For a few people, Full Service Agency is not required. However these are usually insiders in the industry and have trained sales staff (for example developers) or very experienced real estate investors or persons who have extensive legal or real estate sales training and are competent enough to write and understand their own real estate contracts.

The bottom line here is that for the average person selling their home, a full service Realtor is usually the way to go from the start.

Article by Peter Borszcz, Kelowna Real Estate Lawyer.

Personal Side Note: I know this is an emotional “hot button” issue for the industry right now, and I am very supportive of all Realtors in the industry.  No matter what model or brokerage you are with we still a) respond promptly to your calls, even on weekends! b) help you through both the easy and the tough deals, step by step, and c) appreciate every referral and the trust you place in our firm everyday.

For our law office perspective, we have the ability to complete most deals in 24 hours if the Buyer and the Seller are available to attend in person and it is a cash purchase of a fee simple home. We accomplish this by having a law office that is built for real estate sales and purchases whether that is a 25 million dollar development or a 250,000 condo.

An important caveat here, is that there are many third parties to real estate transaction that also need some time to get things in order as well:
1) BANKS and LENDERS – mortgage approvals will take 7-10 days for most transactions (usually during subject removal) and then instruction and funding of mortgage will often take a further 3-5 days for credit unions and major banks and up to 14 days for secondary lenders. For sellers, a payout statement is required to be obtained. Although most institutional lenders will readily provide this within 1-3 business days, if there is a private lender on title their timely cooperation cannot be relied on and extra time will be needed for the Seller’s law firm to obtain a dischard.
2) STRATA CORPORATIONS – forms need to be obtained from strata corporations and it is prudent practice, as a purchaser to always personally review the bylaws and the strata rules. Depending on the strata these documents can take a few days to obtain, and although they can be obtained on a rush, rush documents can be very costly. At least 1 clear week is needed to obtain strata documents without penalty (See Form F Rules Here)
3) INSURANCE COMPANIES – in all cases proof of insurance is a requirement of the mortgage lender and the lawyer is required to obtain an “insurance binder” on behalf of the lender. Most local insurance companies (perhaps accustomed to the speed of our real estate process) usually have binders to our office within an hour or so, however “internet based” or out of province insurers usually are not as responsive.
4) CLIENT AVAILABILITY – surprisingly it is either the Buyer or the Seller who is having difficulty making themselves available to complete the transaction. For Sellers, they are packing their bags and moving on, but they still have to attend at a lawyer’s office to sign the paperwork either on or just before the closing date. For Buyers, who are usually in the middle of packing up their entire household and trying not to forget the pets and kids…. it is important that they remember that the deal is not done until you have the keys and are moving in!

For Realtors, the best advice for a smooth carefree closing is to allow at least 4 full weeks following subject removal to complete a file. It can be done faster, but the probability of encountering a unavoidable delay or perhaps being forced to extend completion will increase if the “closing window” is tight.

Do you have a deal with a quick closing? Happy to talk about how we can help your clients get it done. Blog post written by Kelowna Real Estate Lawyer Peter Borszcz (250-762-5434)

1. Income Taxes (capital gains) payable on the death of the Parents on Title;
2. Income Taxes payable due to placement of kids as Joint Tenants with Parents (to avoid #1)!;
3. “Sharing” issues between family members on things like upkeep costs and usage times;
4. Liability issues in the event of a judgment against or divorce of one the owners (where property is shared);

Some Potential Solutions Include:

1. Legal Ownership Structuring – Does there need to be a “Co-Ownership” agreement setting out the use and enjoyment of the property between multiple families? For larger or more complex family holdings, has a Family Holding Company or Trust been considered (Divorce/ Liability Protection)?
2. Tax Planning – Capital gains will be payable upon transfer to children (whether as joint tenancy or upon death), has this tax been accounted for (life insurance may assist)? Is a principal residence exemption/ election available (or part thereof), especially if the primary home is not expected to appreciate?
3. Securing Family Loans – Where a property (or portion thereof) is to be transferred to kids without immediate payment, parents should ensure that a promissory note/ mortgage evidence the loan (important in case of a future marital breakup).

Need help with a family vacation residence?

Call Kelowna Real Estate Lawyer Peter Borszcz.

1. What is the term?  Unless earlier terminated, the sublease expires June 5, 2107. Upon termination of the lease, your leasehold interest will expire and you must remove all belongings and leave the premises in good condition. A lease may be terminated prior to the end of the term in the event of an uncured default of either the sublease of the head-lease.
2. Is the lease entirely prepaid?  YES – In addition, there are additional components which you are responsible for paying on a monthly ongoing basis being: Additional Rent and Home Owners Association dues, which will include common costs for property taxes, utilities, common area maintenance, common area insurance, and common area utilities.
3. Other financial obligations under the lease? The rent is pre-paid however, as with other strata-type properties, there are additional components which you are responsible for paying on a monthly ongoing basis being such items as: Property Taxes and Utilities are payable to the WFN and Home Owners Association dues are payable (similar to strata fees) which will include common costs for property taxes, utilities, common area maintenance, common area insurance, and common area utilities
4. Does the lease allow the owner to assign (sell) to a third party? YES – but, prior to assignment (sale) to any third party a certificate of good standing will have to be obtained. The Assignment must be registered with WFN. Additionally, there is a non-assignable, non-transferable sublease for a boat slip which terminates upon assignment to a third party, a $500 assignment fee is payable by the Buyer.
5. Does the lease permit the owner to obtain a mortgage from a bank? Yes – the lease will permit the mortgaging of the Tenant’s interest without consent of the Landlord. The lease also contains those provisions which are required by the CMHC to provide insurance to lenders.
6. Does the lease restrict the use of the property? Yes- Your use of your property is restricted to residential uses and home-based business uses which are subordinate to your residential use and carried on indoors.
7. Are there unique insurance requirements? Yes – the Tenant must obtain a Personal Liability Insurance policy in the name of both the Tenant and the Sublandlord (West Harbour Holdings Ltd.)  in the amount of $2,000,000 and maintain “All Risks” Property Insurance upon improvements of Subleased Premises to their full insurable value.
8. Are there provisions for a homeowners association? Similar to a Strata, The Home Owners Association or Sub-landlord may create bylaws and rules and fines may be imposed if you breach those bylaws or rules

By Kelowna Real Estate Lawyer Peter Borszcz.

In my opinion, the attraction of the area is:

1. Ease of Access– Kelowna is a one day drive (or less) from Calgary, Edmonton, Vancouver and the oil and gas fields.  The direct flight is even faster.
2. No Health Care Issues – As someone who has had to spend a night in a foreign hospital, I can say there is a lot of value in having a health care system you understand close by.
3. No Taxation Issues – CRA treats property across provincial boundaries exactly the same, no special filings are required.
4. No Residency or Visa Issues – Spending a large amount of time in a foreign jurisdiction requires permission of that foreign government (a visa).
5. A Real Four Season Lifestyle – World Class Skiing, Golfing, Beaches, Wine all in one place. If you are bored in Kelowna, I guarantee next week will be different.
6. Good Real Estate Value – the average home price in Kelowna is lower than the average home price in Edmonton, Calgary, and Vancouver.

Those are the good things, but I also think there are many areas where Kelowna can improve, especially in the area of business development. The city needs to constantly be looking to attract businesses to the valley. Our elected officials (provincial and municipal) need to look at initiatives to: a) reduce administrative barriers for business, b) facilitate infrastructure investments that help business grow, and c) connect quality of life with quality careers.

Written by Kelowna Real Estate Lawyer Peter Borszcz.

1. What is the term?  Unless earlier terminated, the sublease expires: January 2, 2109. At the end of the term, your leasehold interest will expire and you must leave the premises in good condition.
2. What type of Lease is it? Upon the sale of the last unit in the development and at the discretion of the Developer, Elkridge uses a “Lessee Corp”  as Sublandlord model where the Owner may be issued a share Homeowners Association which is the tenant of the Headlease (note this has yet to occur).
3. Is the lease entirely prepaid?  YES – In addition, there are additional components which you are responsible for paying on a monthly ongoing basis being: Additional Rent and Home Owners Association dues, which will include common costs for property taxes, utilities, common area maintenance, common area insurance, and common area utilities.
4. Other financial obligations under the lease? The rent is pre-paid however, as with other strata-type properties, there are additional components which you are responsible for paying on a monthly ongoing basis being such items as: Property Taxes and Utilities are payable to the WFN and Home Owners Association dues are payable (similar to strata fees, and include a 15% administration fee) which will include common costs for property taxes, utilities, common area maintenance, common area insurance, and common area utilities
5. Does the lease allow the owner to assign (sell) to a third party? YES – but, prior to assignment (sale) to any third party a certificate of good standing will have to be obtained and a transfer fee will be payable. The Assignment must be registered with WFN.
6. Does the lease permit the owner to obtain a mortgage from a bank? Yes – the lease will permit the mortgaging of the Tenant’s interest without consent of the Landlord. The lease also contains those provisions which are required by the CMHC to provide insurance to lenders.
7. Does the lease restrict the use of the property?  YES – Your use of your property is restricted to residential uses  and home based businesses only.
8. Are there unique insurance requirements? YES – You are required to insure your premises according to the terms of the Sublease.
9. Are there provisions for a homeowners association? Similar to a Strata, The Home Owners Association or Sub-landlord may create bylaws and rules and fines may be imposed if you breach those bylaws or rules

a)      The Buyer bought the home “sight unseen”

b)      The Home Inspection (as posted by CBC) noted:

1. Damaged, rotten windows with moisture damage
2. Old galvanized piping
3. The house was 80+ years old
4. The home inspector was unable to access the crawl space
5. Major cracking in the ceiling
6. Damaged sinks and freeze vulnerable piping
7. Missing baseboard heaters
8. Major electrical issues requiring further inspection

So the question that comes to my legal mind given these facts is “would a reasonable person think they were buying a home without major flaws?”. Obviously there are many more facts to this story which will be uncovered in the course of the court proceedings on this matter.

Whenever I discuss home inspections with Buyers I always stress that home inspections are like going to see a doctor at a walk-in clinic; Home Inspectors are generalists, they have a broad base of knowledge, but they are not specialists. The take home message for Realtors is that if there are “issues” that are discovered in a home inspection, Realtors should ensure that their clients are directed toward professionals (plumbers, engineers, roofers, ect…) who are in the best position to assess the magnitude of the problem and provide a realistic cost of repair.