August 17, 2011

Law Day

Last week, I blogged about what real estate lawyers do. I mentioned four main components of what I do for my clients: searching title; communicating with lenders and the other lawyer; preparing documents; and registering/discharging mortgages and transfers. Today I’m going to focus on one of those points: title searches.

When you purchase a new home, you want to know that you own the house and the land, and that no one has any right to be on the land. You also want to know whether you will need access over anyone else’s property in order to properly access yours, and if so, whether you have a legal right to do that. In Ontario, we determine what exactly is on title to your house, and what comes with your house, through title searches at the Land Registry Office. You can physically go to the LRO to look at your property; all of these searches are public documents, provided you pay the appropriate fees. However, most real estate lawyers in Ontario do title searches through Teranet, which allows us access to all of the same documents that are available at the LRO through a web portal.

When I do title searches, I want to see a few things. First, are there any mortgages that the current owners have? If so, I get an undertaking (basically a promise) from the seller’s lawyer that the mortgage will be taken off title after closing. Second, are there any easements over the property? If the hydro company or a rail line has an easement (a right to be on your property for a specific reason), you want to know that before you buy so that you can decide whether it is too much of a burden. Similarly, I want to know whether there is a subdivision agreement still on title, or whether the builder has a right to enter onto the property for any length of time. One of the most important things that I search for is to see if there are restrictive covenants on title. These are often placed on title at the time the house is built, and can prevent you from building a fence, or having a shed, or cutting trees, among other things. Again, the question is always whether the restrictions are restrictive enough that you no longer wish to purchase the house. Title searches are very important to ensure that you know exactly what you are getting into.


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About Cesia

Cesia is a real estate lawyer at Wall-Armstrong and Green, a boutique law firm in Barrie focusing on real estate and estates. When she's not online, she can usually be found in her garden.

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5 Responses to “Searching….”

  1. Tim Says:

    So if there are easements or restrictive covenants, is this something the lawyer would tell the purchaser, or would that be the responsibility of their real estate agent (or both)?


    • Cesia Says:

      Usually that would be the lawyer. If it’s something serious, I’ll call as soon as I find out. If it’s something standard, like a hydro easement, I’ll go over it when the purchaser comes in to sign documents.


      • Tim Says:

        So how close to closing would it generally be when you found out? What are some examples of what you would consider “serious”?


        • Cesia Says:

          It depends on when the requisition date is. We usually have the title search done before then; that date can be anywhere from 2 days to a month before closing. Something serious would be a dispute over the boundary line, or restrictions that are highly unusual.


  2. Brendan Says:

    The Realtor can/should also request a copy of the survey at the time of offer (or look in the legal description of the property) and make any easements, right of ways, etc known to the buyer and the buyer’s lawyer asap to avoid 11th hour discoveries. I’m always extra cautious and make the deal “conditional on the buyer’s solicitor approval”.

    It is important for the agent to do his/her due diligence, wouldn’t want someone saying “but I wanted a pool in the backyard!” long after the fact!


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