Getting paperwork to the sellers lawyer

[JohnSoucie]

I'm still having uncertainties with the role of the sellers lawyer in an Agreement for Sale deal. They don't have much if anything to do on closing day. Yes the seller "should" get independent legal advice(or a waiver saying they decline). Is having a lawyer an actual legal requirement in Ontario? My lawyer has answered this question a little obtusely in my opinion. I am getting a bit of the impression he only really knows how to do traditional deals which "typically" have another lawyer that he works with on the closing day. This seller didn't want or have the funds for a lawyer and was quite adamant that she didn't want that hassle and expense. It was a straightforde debt assumption deal. I had to tell her it's legally required...but wonder about it.



On a related question....how are people handling the logistics of the other lawyer. Ron Legrand is adamant that you never leave a compelted contract. I never understood that one. So in the case of Ontario, if there is a legal obligation for both buyer and seller to have their own lawyer, the sellers lawyer will want a completed contract to review won't he, and not just the template to review...so he can represent them in the sale/closing? So if I leave a completed contract with the seller, signed by me, I fear the lawyer may srart striking out or appending to it...and the churn/negotiations starts, wreaking havoc with closing the sale cleanly as the seller has already accepted the deal verbally. I think that might be why Ron advised against giving them a completed one. What are people doing?



I'll take any education I can on this as it's proved to be a little challenge a couple of times.



John Soucie

 

[Thomas Beyer]

To my knowledge, in most provinces you do not legally require a lawyer to transact real estate, only someone that knows what to do.



In Europe a so called "notary" is required just for the title transfer related activities [highly coveted, highly paid position, regulated, such as one per town or only 10 for a large city]



However, since it usually involves mortgages and/or larger amounts of money a person of "trust" is recommended. Banks also insist on a lawyer, so therefore if a mortgage is involved (and it usually is) a lawyer is a must. Even without a mortgage there is the element of trust with all the paperwork and $ amount. Lawyers are setup for that "trust" relationship, i.e. money gets advanced from one lawyer to another under so called "trust conditions" or "undertakings". One such undertaking might be to release money to the seller from the buyer only if the seller's lawyer undertakes to discharge the old mortgage (which usually takes a few days) .



The risk of not using a lawyer is that you might advance the money but do not get the title transfer and now the money is gone, you have no title and have to fight in court for 2 years.



If the seller has no money, then you can agree to pay for that person's lawyer as part of your contract, but it is highly unusual to not have a lawyer.



In residential transaction the buyer's lawyer usually represents the bank AND the buyer as the procedures are very routine, to keep costs low.



Due to $s involved and non-routine matter, in commercial transactions there at least 3 lawyers, sometimes 4: one for the buyer, one for seller, one for the bank that grants the new mortgage, and occasionally a 4th for the bank that discharges the old mortgage.



Get a lawyer that knows what an "agreement for sale" is. Lawyers specialize, and agreements for sale are so rare that a normal real estate lawyer that only does residential non-investor deals is usually above his head. Find a lawyer that specializes in investor related real estate deals and that has done a few agreements for sale.