Kobewka Stark

Important Questions Before You Buy or Sell a Home

If you are planning to purchase or sell your home, our advice will help you answer the following questions:

  • What is a Real Property Report and Compliance Certificate and why is it important?
  • What special zoning or other rules or restrictions apply to this property?
  • Can you hold the Seller liable for what they told you about the property?
  • If you are buying a condominium are there any past or future special assessments and who is responsible for paying those?
  • Will there be a penalty for paying out your mortgage early?
  • What does it mean to hold title as “tenants in common” or “joint tenants”?
  • What amount of cash will you need to close the transaction?

When you purchase or sell a home we can help protect your interests.

Posted in Real Estate | Tagged

12 Questions to Ask Before You Buy a New Home

Your real estate agent knows the market. It is their job pay attention to real estate sales and help you find a home that meets your needs. But before you buy a new home, you need to be sure that you’ve protected your own interests. When you hire a lawyer to assist you with purchasing a home, they can help you answer some important questions.

The Canadian Bar Association has a list of 12 questions that they recommend asking before you buy a house.

  • Are there any liens or outside claims from unpaid debts for past work? Any outstanding judgments or municipal work orders? Have utilities been paid? Did the builder have the necessary building permits and work orders for any work done?
  • Does the property comply with all by-laws? For example, is the fence height legal? Is the parking areaallowed by zoning? How will any easements and rights of way effect or limit my use of the property?
  • Are there any special zoning or other rules or restrictions that apply to this property? For example, is it in a heritage district? Can I put in a clothesline? Is an above-ground swimming pool allowed? Is the sump pump discharging according to local regulations?
  • Does the property have asbestos, UFFI, lead paint? If yes, what can I do about it?
  • Is the current owner leaving behind the appliances? The garden shed? The lighting fixtures? The curtains and blinds? Does the owner need to fix anything before the sale closes?
  • Can I rent out the basement? Can I have a tenant?
  • What does the condo’s status certificate tell me to expect?
  • What do the mortgage papers from the bank mean? Can I pay off, refinance, or sell early without paying a penalty? Will my interest rate change? When?
  • I am buying the property with someone else. What does it mean to be “tenants in common” or “joint tenants”?
  • Is the title free and clear? Is the survey acceptable? Should I get title insurance?
  • What costs should I expect (for example, adjustments, land transfer taxes, mortgage, property taxes, CMHC insurance).

Print off a PDF of these questions here: Before-you-buy

Posted in Real Estate

When high conflict enters divorce—Apple Magazine

Apple Magazine recently published an excellent article on the cost of a high conflict divorce. But as Greg Harris writes:

Divorce and separation needn’t be so financially and emotionally costly or turn into a court battle. One Alternative is collaborative practice, which focuses on helping couples and families “restructure” by encouraging mutual respect, emphasizing the needs of children and adopting a problem-solving approach.

The full text of Harris’ article can be found in the Spring 2014 issue of Apple.

Look inside >
26
When high conflict enters divorce

Posted in Family Law

Authorization and Consent to Travel Form

When you let your child travel with friend, babysitter, or relative, they may need to have proof of your consent. An Authorization and Consent to Travel form sighed before a Notary shows that you have allowed your child to travel with this person.

Authorization and Consent to Travel Form (PDF 22 KB)

Posted in Family Law

GST/HST Policy Statements

Revenue Canada’s website provides in-depth information on tax policies. If you need more information on how GST or HST affect your business, take a look at their policy statements page.

Revenue Canada: GST/HST Policy Statements

Posted in Legal Information

Links for your Personal Legal Research

If you are looking for legal information or advice, there are a number of resources you can turn to.

The Edmonton Community Legal Centre
(ECLC) gives free legal information and advice to individuals and families in the following areas:

  • Landlord and tenant matters
  • Employment and wrongful dismissal
  • Small claims
  • Debt
  • Human Rights
  • Immigration, including Temporary Foreign Workers
  • Income supports advocacy

Law Central Alberta is an excellent resource for legal education and research. Their website contains articles on a range of legal topics.

If you want to research case law yourself, the Canadian Legal Information Institute (CanLII) lists many Canadian cases. Their database makes it easy to search for cases by topic or by the parties involved.

Posted in Legal Information

Common-Law Relationships in Alberta

Many people in common law relationships don’t usually know the difference between their relationship and a marriage. This causes a lot of confusion and grief if the relationship ends either through breakup or death. This article will explain what a common-law relationship is, and the legislations that govern this relationship in Alberta.

In Alberta marriages are governed by the Divorce Act, the Family Law Act, and the Matrimonial Property Act. These acts deal with child and spousal support as well as division of property. For example, the Matrimonial Property Acts states that property acquired during the marriage even if it is acquired only in one spouses name will be divided equally. Also, any property owned separately prior to marriage and any property inherited during the marriage will be exempt from equal division but the increase in value of these assets may have to be shared equally.

Common-law couples, however, are only governed by the Family Law Act. This means that there is little legislation to regulate the division of property between a common-law couple who is separating. Because there are fewer legislations that apply to adult interdependent partners, common-law separations can be more difficult.

There is one act that applies specifically to common-law relationships. The Adult Interdependent Relationships Act is the most current piece of legislation that regulates common-law relationships. It is important to note that these types of relationships are not called “common-law marriages,” but rather the couple is referred to as “adult interdependent partners” (AIP). The act explains that two people become adult interdependent partners if they live in a relationship of interdependence for a continuous period of not less than 3 years or if the relationship has some permanence and they have a child together. The Act defines “ relationship of interdependence” as a relationship outside marriage in which any two persons

  1. share one another’s lives,
  2. are emotionally committed to one another, and
  3. function as an economic and domestic unit.

The Adult Interdependent Relationships Act treats partners as spouses and therefore allows them to claim spousal support under the Family Law Act, Canadian Pension Plan benefits, division of an estate on intestacy (when there is no will), benefits under the Fatal Accidents Act. Also, if a will does not provide adequate support to the surviving AIP then the Court can overturn the will and order the Personal Representative to pay the partner a sufficient amount for this support.

Since the legislations governing common-law relationships are different than the legislations governing marriages, it is a good idea to sign a prenuptial agreement, or cohabitation agreement, before entering into an interdependent relationship. A prenuptial agreement defines the legal relationship of the couple and prevents misunderstandings if the relationship ends. It can be difficult to talk about these issues but a legal agreement can prevent future misunderstanding.

Unlike divorces, there is no formal proceeding to end a common-law relationship. Legally, there are three ways to end a common-law relationship. The Adult Interdependent Partners Act explains that an interdependent relationship can end if:

  1. the couple lives separate and apart for one year with no intent to renew the relationship,
  2. the couple enters into an agreement to end the relationship by obtaining a Court declaration,
  3. or if one of the partners marries someone else.

Although there are fewer laws regulating common-law partnerships, they are still legal relationships and the law expects partners to care for each other in a similar manner to a marriage. The best way to understand the legal consequences of a common-law relationship is to enter into a prenuptial agreement. If you and your partner have talked about the terms of your relationship beforehand, there will be less confusion if the relationship ends or if one of you passes away. If you choose to end your common-law relationship, an agreement will finalize the details of your separation and allow each partner to understand the terms of their separation.

Posted in Family Law

Common-law Relationships and Cohabitation Agreements

When a couple chooses to live together they are entering a relationship that can have legal consequences if they choose to separate in the future. Under Alberta law, a couple is considered to be in a common law relationship if they have lived together for three years or more, have a child or have adopted a child together, or have signed a cohabitation agreement.

Although common law relationships do not fall under the same laws a traditional marriages, they are legally binding relationships. Alberta is one of the few provinces in which common law partners do not have an automatic right to claim against their partner’s assets if the relationship ends. This means that if a common law couple live in a house owned by one partner, that partner alone is entitled to the property, and the other partner has no rights to it.

However, the Alberta courts have created safeguards in case one party is unjustly enriched at the expense of the other partner. For example, if a couple live in a house owned by one partner and the other partner helps to renovate the house but is not on the title, the courts will rule that the non-owning partner has some rights to the house.

Common law partners often do not define the legal effects of their relationships and if they choose to separate they may become entangled in similar legal proceedings to a divorce. For this reason it is important to be aware of the legal effects of your common law relationship.

In order to avoid legal disputes if you choose to separate, common law partners can sign a cohabitation agreement that outlines the legal consequences of your relationship.

A cohabitation agreement has similar clauses to a pre-nuptual agreement, but is designed for common law couples. The agreement usually clarifies who owns which property and what rights the partners have over the property. Income, or a gain in the value of assets, often will belong to the partner who earns the income or owns the asset. If the couple wishes to own assets together, then the agreement will outline the portions that the partners own.

The agreement should be signed before separate lawyers to ensure that both parties clearly understand its legal effect.

Cohabitation agreements are persuasive in Court when claiming spousal support and are likely to be upheld regarding a claim against assets. They will have no effect however regarding a claim for child support since the Courts will allow parties to freely enter into agreements but have an overriding duty to ensure that child receive adequate support.

Along with preparing a cohabitation agreement you should ensure that you have a valid Will. If one partner dies, the other partner can also claim Canada Pension Death benefits, or support from a deceased partners estate. If you or your partner pass away a valid Will can prevent legal family disputes. Planning your affairs and preparing the proper documentation can prevent misunderstandings, grief and high legal fees.

Further information from the Government of Alberta on the Adult Interdependent Relationsips Act.

Posted in Family Law

Who is liable for the defects in your new house?

Imagine you have recently purchased a new home and now you find that the foundation is crumbling and the basement is flooded. Or it is infested with termites and bedbugs. Or, apparently, the seller has hastily painted over a growth of black mold. You are going to have to sink thousands of dollars into the house just to make it livable. You feel cheated and want to know if there is any way to hold the seller legally responsible?

When buying a house, the principle of “caveat emptor” – or “buyer beware” – is supreme. However, this principle is only absolute when we are dealing with patent defects. Patent defects are problems that are ascertainable through a reasonable inspection of the house. If a problem is in plain sight, then the purchaser cannot complain about it after the deal is closed or expect the courts to do anything about it. As long as the seller did not make fraudulent claims, it will be difficult to hold him responsible for defects that are in plain view. So, when it comes to obvious problems, silence is golden as far as the seller is concerned. This is why a professional home inspection is important before completing a purchase.

The situation is somewhat different with latent defects, or those defects which are not easily ascertained through an inspection. In these cases, merely remaining silent is likely not enough for the seller to absolve himself of problems that materialize after the closing date. In fact, when a seller conceals a latent defect or merely remains silent about it, the purchaser may have legal recourse to damages and legal costs.

This longstanding principle of real estate law is supplemented by a clause contained in the standard form purchase agreement that is typically used by Alberta Real Estate Association (AREA) realtors. Clause 6(1)(h) of that form provides that “except as otherwise disclosed, the seller is not aware of any defects that are not visible and that may render the property dangerous or potentially dangerous to occupants or unfit for habitation.”

Some may question the usefulness of this clause given that in real estate transactions, the conditions and warranties of the purchase contract are extinguished by the conveyancing document. This is true. However the standard form purchase agreement also contains clause 6.3 which provides that “the representations and warranties in this contract may be enforced after the completion day.” That is, the conditions in the purchase agreement are contractually preserved and enforceable.

This brings us to the question of what “unfit for habitation” means. The Provincial Court of Alberta has followed the Ontario courts in extending the meaning to include “any loss of use, occupation or enjoyment of any meaningful portion of the premises or residence that results in the loss of the enjoyment of the residence as a whole.”  What this means is that it is not necessary that it be entirely impossible to live in the house. A basement apartment rendered unlivable would likely result in the court deeming the entire house “unfit for habitation.” Being unable to use specific rooms for their intended purposes could also qualify. In any case, before you write off your misfortune as bad luck, get the professional opinion of a lawyer.


Jame Young is an articling student with Kobewka & Associates

Posted in Real Estate

How you can help your child purchase their first home

Many parents want to help their children buy their first home, but are unsure how to proceed. Put yourself in the following situation. Your daughter has finished university and is employed in a full time career. She wants to purchase a home but has no down payment and does not qualify for a mortgage. You have some funds to help her but you do not want to gift this money since you may need it for your retirement. Continue reading

Posted in Real Estate