Looking for an opinion or guidance on a real estate matter? The following members of the HLA Real Estate Subcommittee are available by phone or email:
|Li Cheng, Li Cheng Professional Corporation
|Maria Durdan, SimpsonWigle Law LLP
|David A. Elliot, Agro Zaffiro LLP
|Mark R. Giavedoni, (Chair) Gowling WLG
| Samantha Grilli, Harbour Legal
|Brian Hurren, Inch Hammond Professional Corporation
|Thomas Lazier, Ross & McBride LLP
|W Patric Mackesy, Mackesy Smye LLP
|Gregory Mallia, Regency Law Group
|John P. Millar, Millar, Alexander
|Bilal Mirza, SimpsonWigle LAW LLP
|Catherine Roberts, Roberts Law
|Bruno Uggenti, Campbell Mihailovich Uggenti LLP
To speak to an HLA staff person regarding the Real Estate Subcommittee, please contact:
, Manager of Finance
tel: 905-522-1563, email: firstname.lastname@example.org
In an effort to keep real estate lawyers updated with the ever-changing situation, we have further information to be shared with the real estate lawyers in your association.
LRO Notice to Clients
The provincial government has issued a Notice to Land Registration System Clients confirming that Teraview continues to run for both search and registration, OnLand continues to run for search and various request functions, and that the all land registry offices are scheduled to be open from Monday to Friday from 9:30am to 12:00pm.
The Notice can be found in English and French on our website here.
Law Society CPD
The replay of the Law Society free audio webcast from Friday, March 27 entitled “Your Real Estate Practice and the COVID-19 Pandemic: What You Need to Know Right Now” is now available.
The link to the audio program is here and the link to the resource materials is here.
Lawyer Done Deal Remote Signing
Lawyer Done Deal has created a remote signing portal for lawyers where you can post documents to clients, host virtual closing meetings and view client signing activity, all while meeting social distancing and legal obligations. This portal is being offered free to all lawyers, whether or not you already have a LDD or RealtiWeb account.
They are also working on including a client verification element that will be Fintrac compliant. More information is available on the LDD website here.
Expiry of Drivers Licences and Passports
What happens if a client’s ID has recently expired or will expire this month? Renewals of passports and driver’s licences are currently suspended, so clients will not be able to get new ones while this pandemic continues.
The Ontario government has extended the validity and expiration date of driver’s licences and Ontario Photo Cards. See here for more details. We think this means that you should still be able to accept an Ontario driver’s licences as valid identification, even if the expiry date has passed.
Information on the Government of Canada Passport Services can be found here.
A new Tarion Advisory was published on March 26 in response to the Emergency Order passed by the provincial government suspending limitation periods. Tarion has suspended all warranty claim submission deadlines – the 30 day, year end, second year, major structural defect, delayed closing, financial loss and deposit claims deadlines have all been suspended. Once the Emergency Order has been lifted, homeowners will receive a reasonable extension to submit their forms. Tarion has also suspended timelines relating to builder repair periods, except for emergencies or health and safety issues.
The March 26, 2020 Tarion Advisory can be found here.
Letter to MCAP
FOLA’s letter of March 26, 2020 regarding MCAP’s recent decision to close all refinance transactions through either FCT or FNF is posted on our website here.
Working Group Fees, Disbursements & Taxes Calculator
Given the additional work that lawyers and their staff are doing in order to complete transactions during these challenging circumstances, many lawyers might be reviewing the amount of legal fees they are charging.
The Working Group on Lawyers and Real Estate has a Suggested Fee Schedule, which can be found here.
In addition, they have now added a Fees, Disbursements & Taxes Calculator on their website which can be accessed here.
This new calculator does many things, simply by answering a few questions.
Once you enter the value of the transaction, if you indicate your quoted fee, it will compare it to the suggested fee schedule, as a % of all costs and to the HST on the real estate agent's fees, which is great for marketing.
It will also:
- calculate the LTT
- calculate the MLTT (for Toronto properties)
- calculate the first-time homebuyer rebates for LTT & MLTT
- calculate the NRST (for GGH properties)
- estimate the disbursements (suggestions provided but fully editable on the disbursements tab)
- calculate for a purchase, a sale or a mortgage-only transaction
- provide a personalized 2-page printout of the summary and estimates disbursements, which can be reviewed with or emailed to clients
Law Society CPD
There is a Law Society free audio webcast on Friday, March 27 entitled “Your Real Estate Practice and the COVID-19 Pandemic: What You Need to Know Right Now.” Click here for more details.
We understand that the live program is now full. The Law Society is replaying the program on April 1, 2 and 3. See the LSO CPD calendar here for more details.
Teraview and Land Registry Operations
You can expect some changes in the operation of the Land Registry Offices. We urge you to be patient, to explain to your clients the uncertainties and delays which may occur and to be prepared with tools like the Lawyer’s Delayed Closing Escrow Agreement prepared by the Working Group on Lawyers and Real Estate, which can be found here.
This is the unofficial information we have received:
- Teraview® and ONLand are still up and running and will continue to stay up during all normal hours!
- All physical Land Registry Offices have commenced reduced hours 9:30 to 12:30. If you need to do anything in paper you should verify the status of your local LRO.
- Some physical LROs (mostly in Eastern Ontario) are still closing ad hoc. For the moment there is no work-around, but efforts are ongoing. The situation is unpredictable at best so lawyers and clients should be prepared to adapt. The list of unanticipated LRO closings is growing, not shrinking. Unfortunately, there is no guarantee that non-convert deals will be registered.
- For the time being it seems the volume of registrations in Teraview® are up, but certification rates are down to a crawl. Starting tomorrow, March 26th we expect that the LRO’s will move to much more stringent social distancing so even lower certification rates will likely result.
We have reached out to the Law Society for assistance and we understand that they are contacting the financial industry and federal and provincial politicians regarding the following concerns:
- Most banks are not accepting scanned documents for mortgage closings – and mortgage instructions require lawyers to be in the physical presence of borrowers, so even if we meet remotely, we need to be physically in the same room to sign the documents.
- Lenders are not allowing lawyers to wire mortgage discharge funds, even though many bank branches are closed and those that are open are working on reduced hours.
- Some lenders are now requiring all refinances to go through FCT or FNF, meaning borrowers will not have any legal representation.
There is a global pandemic with health and safety protocols to be followed. Remaining inflexible, requiring people to put themselves at risk and denying borrowers legal counsel is unconscionable.
We strongly urge lawyers to think about the title insurers they are working with – is your preferred title insurer actively lobbying banks and government to remove lawyers from the real estate transaction? Are they marketing their ability to perform legal services that you ordinarily provide? If so, the premiums you send them are funding these lobbying and marketing efforts.
There are title insurance companies, like TitlePLUS and Stewart Title, who are actively working to keep lawyers involved in real estate transactions, especially during these unprecedented times.
Section 10 of the Document Registration Agreement (reproduced below) requires original documents to be provided within 2 business days of closing. You may want to consider amending this to either eliminate the need to send originals or extend the time frame.
This Agreement (or any counterpart hereof), and any of the closing documents herein before contemplated, may be exchanged by telefax or similar system reproducing the original, provided that all such documents have been properly executed by the appropriate parties. The party transmitting any such document(s) shall also provide the original executed version(s) of same to the recipient within 2 business days after the Closing Date, unless the recipient has indicated that he/she does not require such original copies.
Sending Closing Funds
Because many lawyers are now wiring purchase funds to the other lawyer whenever possible, a separate cheque is not being written to the mortgage lender for the discharge amount - the full balance is being delivered to the vendor’s lawyer with reliance on their undertaking to payout and discharge the mortgage.
The Law Society guidelines recommend a separate cheque payable to the lender for the discharge amount to protect against fraud - lawyers who receive the funds but don’t pass them along to the lender, and consequently never receive a discharge. You may be aware that there have been a few lawyers over the years who have gotten into some kind of trouble and who did this. It has been rare, but it has happened.
Given the current situation, there may be a greater risk of this happening if deals are not closing and people begin to feel desperate. Bills still need to be paid, and if there are fewer transactions closing, there may be a temptation to “borrow” the money sent for a discharge.
If you are sending the full balance due to the lawyer on closing, you may want to consider amending your closing procedure to request evidence that the funds have been forwarded to the lender.
Corporate Amalgamations and Amendments
We have been advised that the only ServiceOntario office accepting amalgamations or amendments for Ontario companies, which need to be filed in person at the counter, is the Bay Street office in Toronto.
Land Transfer Tax pre-payments
We have also been advised that the Ministry of Finance is also no longer accepting payment of Land Transfer Tax at the Oshawa office. Pre-payments of LTT were done when you didn’t want to include the consideration on the transfer but rather simply include a statement that LTT was pre-paid. For workarounds, you should contact the Ministry of Finance.
HLA Real Estate Events
The Real Estate Subcommittee welcomes suggestions and ideas for future seminar topics. Please contact the Subcommittee Chair as noted above.
UPCOMING EVENTS & SEMINARS