When it comes to real estate purchase or sale, residential or commercial, sometimes it happens that some steps are taken unwittingly without appreciating the ramifications on the clients or the interest of the agents.
One key aspect to be considered before listing the property on sale and preparing the Agreement of Purchase and Sale is to identify the seller. So let us see who is a seller-?
1. An Individual-The persons registered on title to the property should be shown
as the vendors in the agreement of purchase and sale. Be careful, a vendor suffering from incapacity does not have the capacity to contract. This situation is subject to legal scrutiny.
2. A Corporation-Properties owned by Corporations must execute all documentation by affixing the corporate seal through its authorizing agents, being its officers and directors. The sale transaction must be authorized by a special resolution of the shareholders.
3. A Partnership-where partnership owns a property, all partners shown on the title of the property must execute the documents.
4. A Mortgagee-A mortgagee can sell the property under the power of sale once the redemption period has ended. The mortgagee has the authority to execute all the documentations; notwithstanding its only interest in the property is the mortgagee.
5. A power of attorney- An attorney pursuant to a valid power of attorney has the authority to sell the real property provided the power of attorney includes the sale of the property. Power of attorney should refer to the sale of the property by specifically mentioning the parcel of land by address and legal description.
6. A receiver appointed by Court- A receiver has the authority to sell a property as the court order provides.
Do you know what happens when the owner of the property dies? It leads to many consequences:
One, if the deceased owner owned a property with another as joint tenants, the property automatically goes to the surviving joint tenant. The surviving joint tenant should then be registered as the owner of the property to complete the transaction.
Two, if the property is a matrimonial home and title of the property is owned as joint tenants by the deceased owner and a non-spouse, the joint tenancy is severed immediately prior to the death.
If the owner dies without a “will”, known as intestate, the transfer of property is done according to the Law of succession. This is further subject to legal provisions on the subject. However if the owner had a Will, the property is transferred in accordance with the provisions in Will. There are provisions with respect to the power of sale. Check with me on this subject if that is the situation. The role of the Trustee is very important in this matter.
Please note that this is for information only and not to be considered a legal opinion or advice and each situation is different. You need to check up with me along with details of your case.
Feel free to call me
Barrister, Solicitor, & Notary Public
201-10 Kingsbridge Garden Cir, Mississauga, ON L5R 3K6
PH: 905 290 7205