In the last few weeks the Kelowna Real Estate market has seen a dramatic increase in sale activity (see OMREB stats here) and in some sectors of our market (particularly single family homes under 500k) signs of a “Sellers Market” have begun to emerge (see my January post here).
The rather quick shift from a Buyer’s Market earlier in the year to a Seller’s Market has caught some Sellers “off guard” particularly those who did not expect their homes to sell as fast as they did. In the last week I have received a large number of calls (from either the Buyer or Seller) in situations where the Seller wants out of a signed real estate contract.
In most cases, immediately upon signing, a Seller is legally bound to complete the terms of that contract for the Purchase Price (see my post here about what Sellers need to check before closing). The “subject conditions” in the deal are, most often, solely for the benefit of the Buyer and will not allow a Seller to back out once the deal is signed.
If the Seller is unsure about being able to complete the deal as presented they should:
- NOT sign the contract of purchase and sale; or
- ensure that appropriate subject conditions are added to the contract (ie; bank assurance of ability to clear mortgages from title) to the benefit of the Seller.
If a Seller is unsure of their financial payout commitments on closing they should call their mortgage broker PRIOR to listing the property, these financial commitments include: principal, interest, penalties, and other home secured loan products (ie; lines of credit).
Have questions? Selling or Buying a Home? Call Kelowna Real Estate Lawyer Peter Borszcz.
Most transactions involve the discharge of at least one financial charge, being a Seller’s mortgage which is found on most titles. Where a seller has run into financial or legal trouble, often a Judgement, Builder’s Lien or Certificate of Pending Litigation are registered against title to the Lands.
Judgement – A judgement registered against the Land Title is an indication that the BC Court has awarded a judgment to the chargeholder against the land owner and that the amount of the judgment is payable by the land owner to the chargeholder. The amount of the judgement can be obtained by retrieving a copy of the charge from the Land Title Office.
Builder’s Lien – A Builder Lien can be registered by a contractor, architect, or material supplier that has supplied goods or services to the property, who have a 45 day period to register the lien. Although the mere registration of the lien does not “prove” the debt, the landowner must either a) pay the chargeholder, or b) pay the amount into court pending the resolution of the matter.
Certificate of Pending Litigation – Also called a CPL, is a declaration that a court action has been started by a litigant claim an “interest” in the land. A CPL cannot (and should not) be filed by a person merely claiming monetary damages. A CPL is often filed by a spouse where the landowner is involved in family law proceedings.
Unlike a bank (which is required to provide a discharge when full payment is made under the mortgage), the discharge of these charges will require the Seller’s lawyer to negotiate terms with the respective parties holding the charge. In some cases, for example a Judgement, this is can be as straightforward as paying the chargeholder and obtaining a release of the charge, in other cases, the for example where a CPL has been filed in a family law proceeding, this may require extensive preclosing discussion with the Seller’s family lawyers.