Peter’s Weekly – A Realtor’s Ethics Matter

With Remembrance Day long weekend behind us, Black Friday and Christmas are firmly ahead. Like all married men, I struggle at this time of year sky rockets trying to find the perfect gift for my wife… any great ideas?

 

In the News

  • Don’t Lie to your Regulator – A realtor in Vancouver was suspended when he forged a fake medical excuse note for one of his unlicensed assistants after he had handed in a licensing assignment late (CBC story here).  His assistant had texted him “I need a note somehow saying I was in the hospital.”… and the Realtor offers “We will make it work,” he wrote. “My (family member) said he could do letter np.”… the BCREA administrator discovered and reported the forgery. The assistant will have to undergo a conduct hearing prior to continuing to be a licensee and the Realtor (who was complicit in the forgery) was fined, suspended and ordered to take an ethics course…. Remember your conduct as a regulated professional extends to all that you do.

 

Christmas Closings

  • Christmas break is NEVER a good time to close a real estate deal. Many banking, legal and accounting professionals are away (our office is closed during the Christmas week). Unless there is a good corporate year end reason WHY a deal needs to close on December 31, you should be recommending to your clients to schedule their closings for earlier (DEC 20th) or later (JAN 4th). Note in both cases I have picked these dates to allow some time for requesting of mortgage funds from banks or administrative delays in receipt of funds.  Remember CLOSING DATE and POSSESSION DATE are often different days (and should be at least a day apart)… at Christmas time it is VERY common to see CLOSING DATE of DEC 20th and a POSSESSION DATE of DEC 28th (for example)… as this is a much “safer” transaction than hoping all your deal closes between Christmas and New Years.

 

Encroachments

  • Use GIS Mapping as part of your due diligence to flag for potential encroachments (RDCO GIS). Everyone probably remembers the case of the swimming pool encroachment in the Upper Mission where the court ordered the swimming pool removed (see my blog post here)…  In a similar case, I had a meeting today with clients of a great Royal Lepage Realtor that had looked at the GIS mapping of a property and after looking at the City file discovered a large potential encroachment of the neighboring property.  The client, a first time home buyer, had a meeting with myself, their Realtor and Andrew Prior (the real estate litigator at the office) to discus the options for proceeding here, including both transactional, negotiated and court option. It was a great team approach to getting these clients to advice they needed.

 

Getting  Pihl Law Corp involved is good risk management.

If your client does not know a real estate lawyer…. I really appreciate talking with these  clients EARLY in their real estate journeys, have them call (250-762-5435) or email (peter.borszcz@pihl.ca) and I am happy to talk with them personally to get them on the right track…

Our valued referring Realtors always get the inside track here… our firm works to ensure that your clients get connected and get the advice they need to make their real estate decisions.

Before you List…

  1. Contact Your Bank– find out how much you will owe the bank to discharge your mortgage. Some important questions for your banker include:
    1. How much do I currently owe?
    2. Is there a payout penalty, if so, how much?
    3. Are there other fees (ie; a discharge fee) which is also payable?
    4. Do you owe more than your home is worth (more info on Distressed Sales here)?

It is a term of every real estate contract that all financial charges be discharged. In the event that the net proceeds of sale (after commission) are not sufficient to pay the mortgage, you will have to bring in money to complete the deal.

  1. Clean up your Land Title
    1. Has your name changed since you last bought your home?
    2. Has a contractor or CRA filed a lien against your property?
    3. Are there certificates of pending litigation or other charges on title that will be required to discharged prior to closing,

Contact your lawyer early and get these dealt with asap before listing. If these items are on title during the selling process they will weaken your bargaining position with potential Buyers.

  1. Do you have the Legal Capacity to Sell?
    1. Are you going to be present during the selling process or are you planning a vacation in the near future?
    2. Does the you as seller have the mental capacity to understand the sales process?
    3. If you are not the registered owner, do you have a power of attorney?
    4. If the owner has died, have you been granted probate?

If there are issues here that are expected, contact your lawyer who can assist you with strategies to deal with some of these issues.

Have questions, Call or Email Real Estate Lawyer Peter Borszcz at Pihl Law Corporation (250-762-5434).

Strata Documents and Minutes

Is strata right for me? This is a personal question and each strata is different. When you are buying into a strata you are buying into a community and you should carefully read through the Form B package, the rules, minutes, and bylaws to ensure that who your are matches the “personality” of the community. When in doubt don’t be afraid to call the strata council president.

The Strata Form B is a large stack of documents, should I get a lawyer to review? Most of these documents are strata rule and minute and are not written by lawyers, they are written by your strata council and should be easy to understand. Unfortunately legal review of these minute is not as effective as a your own personal review as it is most important that you (and not your lawyer) feel comfortable with the way the community if being run. This being said, I always encourage my clients to, after reading the minutes, give me a call when any specific items of concern they may wish to discuss.

What are some red flag in the strata Form B package and minutes? Things to watch out for include: discussion of future repairs, reoccurring problems and disputes, and dysfunctional or disinterested councils.

What is a property depreciation report and how can I tell if a strata contingency fund is “fully funded”? Each strata is required to commission a property depreciation report every three years. This report sets out models which detail how the building will require maintenance and upkeep over the next few decades and can assist in foreseeing the likelihood of special assessments. Each depreciation report sets out three funding models and by comparing the current state of the contingency reserve and the monthly CRF contribution to these models you can determine how closely the strata is following the reports recommendations.

Written by Kelowna Real Estate Lawyer Peter Borszcz.

Home Inspection Subject Conditions

 Why are Home Inspections so Important in BC?  Because the state of the law in BC is generally “buyer beware” absent fraud or negligent misrepresentation or a latent defect.

Does the Property Disclosure Statement Protect Me? Not much, it is only a statement of the Sellers Current Knowledge and is a “snapshot in time”.

All I need is a home inspection right? Not always, home inspectors are generalists and if they identify a problem a good rule of thumb is to get the specialist out there for further investigation.

 

Peter Borszcz is a Kelowna Real Estate Lawyer practicing law at Pihl Law Corporation in Kelowna, BC.

 

 

End of Dual Agency in BC

The Premier just announced at 12:45 that they government will be taking action based on the report delivered on the industry yesterday.

http://www.cbc.ca/news/canada/british-columbia/christy-clark-real-estate-report-1.3658442

A few major highlights:

  1. DUAL AGENCY will be abolished
  2. REC will be dissolved and regulation assumed by the SUPERINTENDANT OF REAL ESTATE.
  3. FINES will be increased to $250k for Realtors and $500k for brokerages.

If you are on a TEAM, the announcement on Dual Agency will likely cause the most issues… but remember, that old “sub-brokerage” model… some thought should be given again to that structure (now… in combination with designated agency) for larger teams where the new dual agency prohibitions will be an issue.

Given the tone of the news conference, more announcements are forthcoming.

Love to chat more, but it’s the end of June and I got files to close,

As Dorie the realtor would say… Just keep listing… listing… listing

Kelowna Real Estate Lawyer, Peter Borszcz

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