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Bookstore Real Estate Transactions: Cases, Text and Materials
Content Summary
TopPrefaceFirst of all, I want to acknowledge the inspiration of all four editions of Real Estate Law, published by Emond Montgomery, which I used in my Land Transactions course at Queen’s University Law School over the years. I owe a particular debt to the authors of the fourth edition, from which some of the materials are adapted. This text is an evolution of the concept inherent in real estate law—that is, the “transaction” approach to the presentation of legal materials. In this text, it has been supplemented by a “problem” approach whose purpose is to illustrate common situations inherent in the purchase and sale and financing of residential real estate. I am grateful to numerous students in the Land Transactions class who helped with research on particular topics in the text, especially the sections dealing with remedies, title insurance, and electronic registration. I am particularly grateful to Suzanne Hayward, whose boundless energy helped me get started with the preliminary version of the materials, and to Jennifer Beelich and Renata Bronshtein, who reviewed the last version. I would like to express my gratitude to Paul M. Perell, who spent an extraordinary amount of time reviewing the manuscript and making many invaluable suggestions, and to Lisa M. Weinstein, who not only regularly finds time to explain the intricacies of title insurance to my students, but also reviewed the section on title insurance in the text. I am also indebted to Paula Pike, who edited the manuscript and laid out the materials so as to make them easier to read. TopTable of ContentsPreface
Acknowledgments
Table of Cases
Bibliography
Chapter One The Typical Residential Land Transaction A Typical Transaction: The Purchase and Sale of 123 University Avenue The Initial Stages of the Transaction: The Vendor Chooses a Real Estate Agent The Prospective Purchaser Chooses a Real Estate Agent Negotiating the Deal The Formal Document: The Agreement of Purchase and Sale The Agreement of Purchase and Sale Respecting 123 University Avenue The Purchaser Retains a Solicitor To Act on the Purchase Reviewing the Executed Agreement of Purchase and Sale Initial Steps Taken by the Purchaser’s Solicitor Searches Undertaken by the Purchaser’s Solicitor The Title Search Requisitions The Mortgage Transaction The Reply to Requisitions Attachments Resolving the Issues Closing the Transaction Post-Closing Routine Chapter Two The Real Estate Agency Relationship Administrative Framework The Institutional and Commercial Framework Multiple Listing Service The Legal Framework Whose Agent Is the Real Estate Agent? Duties of the Real Estate Agent and Broker The Duty of Loyalty The Duty To Exercise Care and Diligence The Duty of Candour Duties to Third Parties The Agent as Purchaser or Vendor Commission Payable on a Real Estate Transaction The Quantum of the Commission Evasion of Commission Payment The Deposit Referrals, Division of Fees, and Other Practices Chapter Three Conditions in the Agreement of Purchase and Sale “True Condition Precedent” “Good Faith” Performance Drafting Issues Chapter Four What Is Being Bought and Sold Fixtures Description of the Land Chapter Five Interest of the Parties Pending Closing Defining the Interests of Purchaser and Vendor Non-Physical Changes to the Character of the Property Consequences of Damage to the Property Pending Completion: Claims Against Third Parties Chapter Six Physical Defects Scope of the Problem Scope of “Physical Defect” New Homes Application of ONHWP Liability of Other Participants in the Real Estate Transaction Real Estate Agents “The Inspector” The Municipality Construction Professionals Manufacturers Petronella’s Solicitor Financing Institutions Liability by Vendor to Third Parties Chapter Seven Title Defects “Good” Title The “Rescission Clause” Types of Requisitions Replying to Requisitions and Methods of Satisfying or Dealing with Them Vendors and Purchasers Act Application Under Rule 14.05 The Land Titles Act Application Under Section 61 of the Conveyancing and Law of Property Act Committee of Adjustment Consents and Amendment to Zoning Bylaws Title Insurance Assignment of Legal Opinions Chapter Eight Time Provisions and Tender Time Provisions in the Agreement of Purchase and Sale Extensions Unavoidable Delays Closing in Escrow Undertakings Tender Chapter Nine Closing Introduction Merger Post-Closing Remedy Availability Covenants for Title Chapter Ten Remedies Overview of Remedies Available in a Land Transaction Context Survey of Purchaser’s Remedies Survey of Vendor’s Remedies Specific Performance Availability of Specific Performance Certificates of Pending Litigation Equitable Damages as an Alternative to Specific Performance Specific Performance with an Abatement in Purchase Price Limitation on the Granting of Equitable Remedies Laches Mutuality Clean Hands Hardship and Unfairness Plaintiff Ready, Willing, and Able To Perform Rescission Recission and Repudiation Contrasted Damages Assessment of Damages Vendor’s Inability To Make Title: The Rule in Bain v. Fothergill Adjustments to Damages Income Losses Third Parties Dealing with the Deposit Assertion of Liens Rectification Election of Remedies Chapter Eleven Registry Act Introduction Priorities Notice Length of Search An Apocryphal Story Chapter Twelve Land Titles Act Introduction Notice Fraud Land Titles Assurance Fund Electronic Registration Basic Tools of the Electronic Registration Process Operation of the Electronic Registration System Chapter Thirteen Additional Considerations Encumbrances, Statutory Liens, and Tax Statutes Affecting Real Estate Other Off-the-Record Searches Statutes that Deal with Particular Title Problems Issues and Statutes Affecting the Value or Use of Land Title Insurance in Ontario Introduction to Title Insurance Aspects of Title Insurance The Structure of a Title Insurance Policy Extent of Title Insurance Policy Exclusions from Title Insurance Policies Title Insurance and the Traditional Role of the Lawyer in Land Transactions Chapter Fourteen The Mortgage Transaction: An Introduction Introduction to Mortgages The Historical Context “Disguised ”Mortgages “Equitable Mortgages” Chapter Fifteen Aspects of the Mortgage Relationship Introduction Mortgage Brokers Institutional Lenders Maxims of Equity Respecting Mortgages “Due-on-Sale” Clauses Chapter Sixteen Repayment Provisions Introduction Blended Payments The “Reinvestment” Principle Bonuses and Penalties Relief for Oppression Acceleration Clauses Chapter Seventeen Guarantees and Transfers Guarantees Transfers by the Mortgagee Transfers by the Mortgagor Novation Chapter Eighteen Mortgage Remedies Introduction Overview of Remedies Available on Default Action on the Covenant Possession Foreclosure Judicial Sale Power of Private Sale Statutory Power of Sale Distress Appointment of a Receiver Unilateral Performance of Covenants by Mortgagee Action on the Covenant Merger Possession Foreclosure Power of Sale Manner of Proceeding with the Sale Substantive Obligations on the Sale Mortgage Insurance |
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