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All posts for the month April, 2014

Spousal Consent Matrimonial Home | www.GreatRealEstateAdvice.netQuestion: I owned a house with my common law partner but my name is not on the title only my common law spouse. We have been living in the same house for more than 10 years and my common law partner decided to sell it.

Since I am not on the title do I have a say on the property? – Josie

Answer: In Ontario Family Law Act, R.S.O. 1990 under “matrimonial home” a spousal consent is needed in order for the property to be listed for sale.

It looks like you are considered living under a cohabiting arrangement or common law arrangement with your spouse so NO spousal consent is needed to sell the property. – seek independent legal advice

FLA states that the definition of spouse is “married couple” although a common law spouse may have been contributed financially towards the matrimonial home it doesn’t automatically guarantee an ownership. More information about COMMON LAW article www.commonlawrelationships.ca/ontario/

In order for non owner (married) spouse to sell the property on his/her own you need to file a motion. Either spouse can file a motion for interim relief and request that a judge decide whether a matrimonial home should be listed for sale, even if the other spouse does not want to sell it. The judge can also deal with other things like:

  • who will get to sign the documents needed for the sale
  • who will get to make decisions about listing and sale prices
  • other sale details
  • how the proceeds from the sale will be paid out over the short term and
  • how leftover sale proceeds will be dealt with.
Listing Agreement

Listing Agreement Authority To Offer For Sale

When listing and selling a property, all registered owners need to sign the “Listing Agreement” and the “Agreement of Purchase and Sale” and all related documents. Most residential properties are owned by both spouses jointly. If both spouses are on title as owners of the property (any property, whether it be a matrimonial home or other property), both spouses are shown as owners and sellers throughout the transaction. A Realtor must have both spouses sign the listing agreement and agreement of purchase and sale and other related documentation, as the owners and sellers. It is a serious problem if not all the owners sign the listing and/or the agreement of purchase and sale and related documents.

If only one spouse is shown on title as the registered owner of a matrimonial home the owner-spouse would be shown as the seller throughout the transaction. However, the non-owner spouse will NEED to consent to the listing and the transaction and sign many items, including:

  • the spousal consent section of the listing
  • any amendments to the listing
  • the agreement of purchase and sale and ancillary documents, such as the deed/transfer, etc.
  • Both spouses also need to initial any changes to the APS in the event of counter offers.

If the property is a matrimonial home and only one spouse is on title as the owner and the other spouse will not/does not provide his/her consent to the listing and sale of the property, the seller’s lawyer will need to be consulted to determine whether:

  • there has been a joint designation of another property as the matrimonial home, which has been registered and not cancelled;
  • there is a separation agreement in place releasing the Part II rights of the non-owner spouse; or
  • a court order to that effect has been or will need to be obtained.

A Realtor is trained to the following: If there is any doubt as to whether a property is a matrimonial home, assume that it is unless appropriate documentation under the Family Law Act or a court order states otherwise. If there is a dispute between spouses as to whether a property is a matrimonial home, the spouses may need to obtain a court order to determine whether it is and whether it requires consent in order for one spouse to sell or encumber it. If one spouse refuses to consent, a court order may need to be obtained in order to dispose of the property.

NOTE: I WILL HIGHLY RECOMMEND AND ADVICE YOU TO SEEK AN INDEPENDENT LEGAL ADVICE REGARDING “FAMILY LAW” MATTERS.

Holdover ClauseQuestion: My next question is can I do a multiple representation two real estate agent to represent me at the same time? – Lisa D.

Answer: Your question has two different meaning. Let me explain…

I believed you are asking if you can be represented by two real estate agent at the same time meaning if you can sign a contract with two different real estate agent. The answer is Yes you can!

This is possible if you are working on two different geographic location example, one agent is helping you find homes in Toronto and the other agent is helping you find homes in Markham. This was explain in Buyer Representation Agreement OREA Form 300. See below.

Geograpic Location

Real Estate agent are trained and mandated to be specific about the geographical location which they are representing their client. A mistake on the geographical location can void the contract agency.

I also want to point out about the terms “Multiple Representation” in the Realtor terms it is has a two different meaning.

A multiple representation occurs when you as a client are being represented by the same Brokerage. Example of scenario of multiple representation…

  • House you trying to purchase is listed by “Century21 Brokerage A” in Toronto Office and you are being represented by a subsidiary office buyer agency from “Century21 Brokerage A” – Brampton office.
  • The agent representing you is the same agent for the property you’re trying to purchase.

Multiple Representation

I don’t want you to get confuse with this two different terminology.

Holdover ClauseQuestion: I signed a contract (Buyer Representation Agreement) with a real estate agent and my contract ended. The agent said that he is still entitled with the commission under the holdover clause.

If I work with other real estate agent can the real estate agent that I previously signed contract with be entitled with the commission? What is the holdover clause in the Buyer Representation Agreement and how does it work? – Lisa D.

Answer: Can the real estate agent whom you signed with be entitled with the commission? It depends on the scenario! A holdover clause takes effect (previous agent is entitled for commission) if you purchase a house that was previously shown to you by the agent whom you signed a contract with either during the “contract period” or during the “holdover period”. And that commission is reduced to the difference of the commission between the first agent and second agent.

Previous Agent is not entitled to a commission if you purchase a house that was never previously shown to you by the first agent.  Basically, a holdover is a time period addition to a contract date and this period can be negotiated between the agent and client.

This was clearly explained on the Buyer Representation Agreement form. See below.

Holdover

Holdover2

Q&AQuestion: I saw the new realtor commercial on TV do realtor really need to disclose that the owner of the property is a drug cartel? – Xu Liu

Answer: When a realtor list a property one of his primary obligation is to know everything about the property and to disclose it in the listing. The agent has a obligation to disclose anything that may affect the present and future value of property.

I may not agree with the CREA (Canadian Realtor Association) choice of communicating it with the public about the drug cartel scenario – because I’m sure if a property owner is a drug cartel he will be smart enough not to put the property on his own name.

But that’s beside the point and but yes a Realtor is obligated to ask question and to disclose any information he finds from the seller about the property. A Realtor is also require to ask question and disclose if there is any paranormal activity in the house (example ghost) or if anybody has died in the property.

This may sound a bit absurd but disclosure is one of the main lawsuit a Realtor face with during transaction.

CREA Commerical Video: http://bit.ly/1hXgWhB