New Home Warranty Act

Date: 16 Jun, 2015| Author: Elliott Dale

Thumbnail-LogoThe following summary is for information purposes and very important to any purchasers of new homes or condominiums in Ontario.

Tarion Warranty Corp. is designated by statute under the Ontario New Home Warranties Plan Act to administer consumer protection and has the authority to administer new home warranties for purchasers of properties. It is a private and not for profit corporation which administers such Act.

When a purchaser buys a new home, the builder of this purchaser’s home is mandated to be registered with the government through this Tarion agency/corporation.  Tarion offers partial protection for deposits paid to builders and for defects that might be discovered before or after the closing.  Tarion provides a warranty that makes the builder accountable for major structural defects and disclosure in Purchase Agreements as to closing adjustments costs is mandated. However, notwithstanding such disclosure it is important to have your own lawyer review the offer, explain the various builder’s adjustments such as hydro, water meter hook up charges and new or increased development and educational levies imposed by the local municipality and usually incorporated in the offer of sale to new home purchasers and passed on as an adjustment. The role of the lawyer is to attempt to reduce or cap such adjustments even if disclosed but not all the amounts are mandated in a dollar amount to be disclosed. Our firm at Dale, Streiman Law LLP takes the responsibility to review the offer and prepare an amendment to cap such adjustments, and with our experience at times depending on the builder and the subdivision area, as the adjustments can amount to over $7,000.

Often contained in new home purchase offers are other items such as being permitted to change the design of the lot to a mirror image, i.e. with the garage reversed to the other side notwithstanding the rendering and layout provided to the purchasers. Further, if the grade does not permit and the builder department requires same, then the door from the interior of the garage may not be installed. Further there is the issue of the location of the “street furniture” on the lot, i.e. the hydro transformer box, the hydrant, cable and Bell switchboxes and importantly any catchbasin to collect the water as in a sewer located in the rear yard or even the front yard, the location of the community mail boxes near or in front of the lot being purchased.  The attending lawyer at our firm will point these issues and recommend that the purchaser inquire of these issues as to location of the “street furniture”, the location of any schools, commercial buildings, walkways, parks, churches, and flood control water and ponds that might be adjacent to the new lot being purchased. Of course these adjacent installations impact on the purchaser’s decision for buying that particular lot or to switch to another lot and the location of these installation and structures may have a detrimental effect on the future value or marketability of your new home at a later date.

We at Dale, Streiman Law take pride in assisting all our clients in these questions that arise on new home purchases. Please feel free to meet with any of the lawyers on our real estate team.


Purchasers of Condominium Units in Ontario

Date: 25 Mar, 2015| Author: Elliott Dale

The lawyer’s role in acting for a purchaser if a resale and not new condominium unit and this process begins with the purchasing retaining the solicitor to act on the client’s behalf, review the offer, either before it is signed, or if signed, review the conditions and if the offer as is usually the case, conditional upon a Status Certificate review by the purchaser’s lawyer, such condition usually runs 3 to 5 days from receipt of the Condominium Documents and the Purchaser/Client has the right to be satisfied and waive this condition or walk away from the transaction.

The Status Certificate is one of the most important documents in such condominium purchase transacton and should be less than 30 days old and will include insurance documents, copies of the declaration (the constitution of the Condominium Corporation), bylaws, rules, budget for current and future year, reserve fund study and should describe and match up the unit being purchased as in the Agreement of Purchase and Sale, the Offer, which my refer to a parking unit and locker unit which may be owned by the Vendor or the owner of the unit has exclusive use of such parking and/or locker unit. The amount of the monthly condominium fee is set out in such status certificate including any arrears, special assessments, litigation and suits by or against the condominium corporation, amount of the reserve fund, with annual contributions, and if there are anticipated increases and financial statements with auditor’s statements. There are rules as to pets, use of balconies, parking, visitor parking, type of vehicles permitted in or on the common areas, use of any recreation centre, shared facilities and other issues to be reviewed with an experienced solicitor who would recommend that the purchaser inspect the unit for damages and the parking unit and locker unit for any damages, oil stains etc.

This status certificate with the financial attachments, insurance certificate will be required by any mortgage lender and title insurer.

For new condominium purchases, these are similar save that the project will not be complete for l to 2 or more years, that a review of disclosure booklet with similar proposed declaration, bylaws, rules, budget etc. need to be reviewed within the cooling off period for new builder’s condominium purchases and note that the closing date, i.e. set for occupancy will require the purchaser to possibly pay further deposit or balance pursuant to the terms of the Agreement of Purchase and Sale and pay estimated common expense monthly fee, estimated realty taxes monthly and the builder will hold the difference from the purchase price less the deposit and possibly some adjustments on this interim occupancy period and interest will be calculated thereon at the rate prescribed under the Ontario Condominium Act. Taking occupancy is not the final closing which usually takes place approximately 3 months after the possession is obtained after a Tarion inspection for New Home Warranty if this is covered in this new project as opposed to a conversion of an existing building to a Condominium in which case there is no Tarion warranty coverage and only a limited warrant by the builder/developer. The final closing then takes place when the mortgage financing is registered with the Transfer/Deed and the purchaser pays off the balance owing to the builder plus any builder’s adjustments and any new or increased development and educational levies. It is important to have a lawyer in the cooling off period after signing this new build offer to review and cap such adjustments.

The costs for such purchase is set out in our website and we would be pleased to meet with any parties wishing such documents prepared.



Date: 05 Aug, 2014| Author: Elliott Dale

As senior lawyer practicing in residential real estate since 1971, Elliott Dale has vast experience in purchases and sales but vacation/rural property purchases and sales pose important issues that clients are advised to consider and these are as follows:

Country Properties contain septic systems that must be approved by the local health department and there can be violations and non-compliances with such local health department. In such case, a septic use permit, i.e. the permit approved by the local township or city’s health and building/zoning department when the septic system is approved is required and this will be proved to the Title Insurer to over-insure any violation, otherwise, letter of compliance requesting that there are no violations or non-compliances of such septic system with the local health, building/zoning departments is required. However, getting such confirmation or over-insuring a possible work order is not the full story.  The seller should be required to pump out the septic tank and produce a receipt and the purchaser should contact such septic company who may have serviced the property for many years to obtain a history of the septic tank and system and septic bed and any past defects or issues that arose to be apprised of any problems that may crop up in the future with such septic system.

If a purchaser has an inspector with experience and qualifications in septic systems and their condition, then you can rely on the report of such inspector. However, to be prudent, the purchaser should not rely on any warranty of such system or other warranties including that of potability and purity of the water taken from a well, but should engage a septic engineering company to have an inspection, report on the condition of the septic system for defects since replacement of a system and relocation of a septic bed can cost a purchaser over $20,000.  Ensuring that a purchaser takes the sample of water directly from the property to the health department to have same tested as to its potability, drinkability and purity is most important and not to rely on the seller to provide the sample. Further, if there is a well on the property, it is important to obtain a current well driller’s certificate confirming the flow rate and pressure is sufficient to supply the well water to the property.  Any realtor experience in such country purchases and sales will be able to assist a purchaser but obtain the proper professionals to confirm the status and functioning of various systems, including septic systems, ultra violet ray water purification system, well driller’s report and certificate is most important as is the obtaining of an up to date survey showing all building, house, outbuildings, garages, sheds, decks, fence locations to ensure compliance with bylaws and easements and encroachments or overlapping rights of neighbouring/abutting property owners.

Access to country/rural properties is most important including cottage properties adjacent or near to any lake or river. Bylaws should be checked for zoning for seasonal or recretational use or other zoning specific restrictions on these country and rural properties. There are many conservation authorities that have restrictions on these type of properties and these must be determined if affection the property with  restrictions including access into the water for any boathouse since the first 66 feet fronting on to the lake is usually owned by the local municipality or township and may be owned by the township. In Muskoka for example, a client who built a very expensive home fronting onto the lake, intended to build a boathouse but the architect/engineer engaged did not discover the ownership of the land into the lake – It is important to note that high water marks on lakes have changed over the years, survey showing such high water marks and shoreline may not be accurate at time of later purchase many decades later and in this Muskoka case, the land under the water was owned by the Township and after lengthy negotiation by the lawyer at Dale Streiman Law LLP, a lease was negotiated to permit the boathouse to be erected and installed for a nominal lease amount for next 99 years.  Access to roads may be private or assumed by the Township as private roads and if so, a survey up to date with inquiries to the local municipality/township is required.

Of course, clients that use Dale Streiman Law LLP will have the experience and advice in such purchases and sales of country or vacation rural properties.

Mortgage Tips

Date: 09 Jul, 2014| Author: Elliott Dale

Your home may be the biggest investment you’ll ever make. That means you want to be smart with your mortgage. Although we can’t say for sure what mortgage rates will do – or how the housing market will shift – we have compiled our top tips for the year ahead; sensible strategies for today’s homebuyers and owners.

Variables are back. Several lenders are offering strong “prime minus” rates that could  save you thousands in interest. And the Bank of Canada is still holding their key “overnight rate” very steady and very low… making variable-rate mortgages a sensible option right now. Fixed versus variable has always been a challenging mortgage decision.  Note variable rate mortgages attract penalties as do all closed mortgages, and such penalty is usually 3 months’ interest to prepay if you cannot port or transfer the mortgage to new property.

Don’t forget to approach your lender on your mortgage renewal. Don’t miss out on an opportunity to save thousands on your mortgage and you can approach the lender even before maturity to complete early renewal and fix rates and/or complete a fixed rate combined with a line of credit or variable rate combined with line of credit.

Pay your existing mortgage, debts, utilities, phone bill on time! Paying your mortgage and other debts on time has always been the most important credit habit. Equifax recently started to include phone companies on credit bureau reports – so your lender can see if you have any delinquencies with your phone bills. Look like a good borrower.

Keep other good credit habits. Don’t let your credit accounts exceed 30 per cent of your limit. Don’t cancel an old credit card without getting advice. And don’t sign up for store cards: they often have exorbitant interest rates, and the application triggers a credit inquiry.

Mortgage versus total debt. Consider consolidating high-interest debt e.g. credit cards and other loans outside your mortgage that you won’t be able to pay off in the next few months.  Think about rolling that debt into a new low-rate mortgage. This one, smart strategy could save you thousands… and boost your monthly cash flow. Note that the Federal Government has clamped down on refinance loan to value ratios depending on the value of your house by way of appraisals, i.e. 65% so it is important to consolidate your debts if you can come within this loan to value ratio or obtain second mortgage financing preferably from a financial institution or from private lenders for l or 2 years to consolidate your debts, save interest and then go back and refinance with new first mortgage lender at first mortgage rates to cover all debts and mortgages i.e. Debt Consolidation.

Don’t let anyone tell you prepayment penalties are “all the same”. They’re not. If you ever need to get out of your mortgage early, the right mortgage could save you thousands. Not all lenders calculate penalties the same way, and the differences can be substantial. It helps to know which lenders have the most fair prepayment penalties. Penalties can be 3 months’ interest or interest rate differential but for each calculation if you prepay the maximum permitted under your mortgage terms, i.e. l0% or l5% of the original principal if permitted at any time during the year, then the penalty will be calculated on the lower principal balance.  You can discuss with our lawyers how to make such savings on prepayment.

If one of you wants to keep the marital home. If you are going through a separation or divorce and one of you wants to keep the marital home, there are many favorable  mortgage options, including a mortgage to 95 per cent. Your home can be the asset that gives you both a fresh start! But for Family Law issues and settlement please consult the Family Law Specialists at Dale, Streiman Law LLP.

A paydown will pay it forward. Take every opportunity to beat down your mortgage principal using any prepayment privileges! Use tax refunds, bonuses, whatever. Or switch to weekly or bi-weekly payments. Every dollar you pay down on principal means every future payment goes further.

Thinking renovation? We see what you see. Your renovation or home improvement will add value to your home. That’s why we have a special “Refinance Plus Improvements” mortgage that lets you refinance up to a certain percentage but you have to qualify and either first mortgage refinance or even second mortgage may be the solution to home renovations for improvement to your home and its value.

Important of Inspections on Real Estate Purchases

Date: 08 Jul, 2014| Author: Elliott Dale

As the senior real estate lawyer at Dale Streiman Law LLP, I advise our clients on their purchases to retain a licensed home inspector, both for residential real estate purchases and for commercial real estate purchases. This is important to review the structural integrity of the building, whether there are any discoverable latent or other defects including roof, structure, heating and air conditioning, plumbing, drain, electrical and other systems. There have been many issues with lack of insulation, with mould present from water leakage and it may be possible but not guaranteed to find such issues with various infra-red cameras and other equipment by a qualified inspector. Some of these defects may not be detectable unless removal of drywall and other wall coverings are completed. However, in this day and age of illegal substances being present in residential homes, and the warranties that realtors insert that such building/home does not contain any such illegal substances, a qualified home inspector will examine the home to determine if the home was ever used or abused as a “marijuana grow operation” house. This is not such a rare discovery but there are tell-tale signs of such illegal operation in such a home being available to such qualified inspector.

For country and rural purchases, the following are required and if the home inspector does not have such qualifications, then our clients are urged to retain the proper inspection or engineering companies:

l. Water purification to ensure that the water is potable – such sample must be taken independently and not supplied by the Seller to avoid the sample not being from the home being purchased and such sample should be taken to the local city, township health department for examination and certificate issued or if the purchaser/client wishes to perform an independent laboratory for analysis and to obtain a certificate.

2. Well Driller’s Certification; this should be obtained to ensure that there is sufficient flow rate of the water to the home/buildings. The above will depend if this is a drilled as opposed to a dug well and there are ultra violet systems attached to the water delivery system to purify the water to the building. This must be checked as to its condition and warranty obtained.

3. Septic Tank Inspection: If possible, the original septic use permit approved by the city, town or township’s health or building department should be obtained and title insurance being placed on behalf of the purchaser(s) will over insure any issue with non-compliance(s) or work order(s) from such health and/or building departments. Notwithstanding the above, I still recommend a pump out of any septic tank, and discussion and report with the company servicing the septic system at that time and in the past as to the fitness of the system, and if there have been or are present any defects in the system. This will avoid any later lawsuit against the vendor for damages if such system is found to be defective.

4. Wood burning fireplace or other supply of heat, propane, oil: All such systems must be checked and wood burning fireplaces can be a fire hazard if chimney is unlined.

Any warranties by the seller of the property may not be enforced in court if the transaction closes and any defects that were discoverable by any inspection were found later. Caveat emptor maxim i.e. buyer beware may apply to bar any suit against the seller for defects and damages.

These issues must be reviewed if they arise with the solicitor acting at Dale Streiman Law LLP.

Buying Your First Home

Date: 07 Mar, 2014| Author: Elliott Dale

Despite the economic doom and gloom in the rest of the economy, the real estate market in Peel Region is alive and well. Realtors and mortgage professionals report of an upswing in activity. The combination of historically low interest rates and plentiful inventory of quality resale homes at slightly depressed prices has enticed many buyers off the sidelines and into the market. Many of these buyers are first time home buyers. Both the Federal and Provincial levels of government have tried to encourage the purchase of homes by first time homebuyers, by introducing the Home Buyers Tax Credit (allowing a maximum tax credit of $750 for qualifying individuals) and providing a $2,000 land transfer tax credit for first time home buyers of resale property.

If you have decided to purchase your first home, the process can seem daunting. Here is an outline for you with the simple steps you need to take to make for a smooth and easy buying process.

Step 1- Find out how much of a mortgage you can afford

The first step in the process is determining your budget. While there are many tools on the internet and elsewhere, the best and safest way to determine your house price budget is to consult a mortgage professional. Most of the major banks now have mobile mortgage specialists, who will come to your home to process the paperwork to qualify you for a mortgage. While home appointments are convenient, the mobile mortgage specialist can only talk about the products and services available by that particular bank. On the other hand, using the services of a mortgage broker allows you to shop for the best rates and terms from a number of different lenders. Many mortgage brokers deal with 30-40 lenders, rather than one. Many people shy away from using mortgage brokers assuming that they are more expensive than going directly to a bank or are only for people with poor credit. Both of these assumptions are untrue. Many of the banks give discounts to mortgage brokers that may not be available at a branch. Moreover, mortgage brokers are generally paid their fees by the lenders directly, resulting in no out of pocket cost to you for using their services. Whether you want to deal directly with a bank or use a mortgage broker, always try to get a referral to a mortgage professional from someone who has used that professional in the past as you want to be sure that the level of service they provide will be to your satisfaction.

Step 2- Hire a Realtor

Now you have your approval and budget from the bank. It’s time to go shopping for a home. The best way to do this is to hire a realtor who is familiar and works extensively in the area you wish to live. The realtor will know the homes that will meet all your needs, whether its access to schools, parks, shopping or recreation. The realtor will also know what homes are a good value and which ones are not. The most important thing to do is to hire your own realtor. Never use the services of a realtor who is also acting for the seller of a home as you want your realtor to only be concerned with your needs and not have to balance the needs of the sellers as well. Once again, get a referral to a realtor and interview several realtors before deciding on the one you wish to hire. Be wary of realtors who offer deep discounts on their commissions as you may not get the level of service you expect.

Step 3- Find the Home and Make an Offer>

So, you’ve got your budget, you’ve hired your realtor and now you found the home you wish to purchase and make an offer. Now what? Your realtor will recommend the price and the terms of the offer to purchase the home. If your offer is accepted, you will have to give a deposit to the seller in an agreed upon amount within twenty-four hours of mutual acceptance of the offer. Once the deposit is given, if there are conditions in the offer, each of the parties will take whatever steps they need to satisfy the conditions contained in the offer for their respective benefit. Once all conditions are satisfied, the offer then becomes firm and binding on both parties. Your realtor will prepare all the paperwork necessary in this respect.

Step 4- Hire a Lawyer

You’ve now got a firm and binding agreement to buy the home. Now, you will need a lawyer. The lawyer will in most cases be acting for you and the lender. The lawyer’s job is to check title and other issues related to the purchase of the property and advise you on any issues that may arise and complete the transaction on your behalf. How do you find a lawyer? The best way to find a lawyer is by referral from someone you trust who has experience with the lawyer. Retaining a lawyer who will charge you the least amount may not necessarily result in getting the service level you expect or want. Shop around, interview several lawyers and then decide which one to hire. Ask lots of questions of the prospective lawyers such as hours of service, years of experience in residential real estate, the portion of the practice devoted to residential real estate, prices and fees charged, availability of free parking and whether they will give you a written quote for the services to be provided. You can also call the Law Society of Upper Canada’s Lawyers Referral Service. They will refer you to a lawyer in your area for free who will give you a free 30 minute free consultation.

Step 5- The Closing

As the date for completion of the transaction approaches, your lawyer will contact you to set up an appointment to sign the documents for the transaction and require you to bring in the funds necessary to pay the lawyer’s fees and charges and to pay the balance of the purchase price of the home. Often this takes place several days prior to the actual date of closing. You will be asked by your lawyer to bring in either certified funds or a bank draft of the funds required to complete the transaction. If your bank is one that does not have branches, like ING Bank or President’s Choice Financial, it will take several business days to prepare a bank draft or certified cheque, so let your lawyer know this well in advance of the closing so that they can provide you with the closing figures in sufficient time for you to get your certified cheque from your bank.

Step 6- The Day of Closing

Now that the papers are signed, the day of closing has arrived. The process to close a transaction involves each of the seller and buyer delivering the closing documents and funds or keys (if you are the seller) to the other party’s lawyer. Make sure that you are available throughout the day by cell phone or otherwise so that your lawyer can contact you with any questions they may have or information they need.

For more information on the buying and selling process, visit our website at Dale, Streiman Law LLP has also put together a comprehensive DVD outlining the most common issues that may arise during a real estate transaction including:

[list type=”decimal”]

  • An overview of the process of buying and selling residential real estate
  • The myths about mortgage brokers and how they help clients save thousands of dollars in interest on their mortgages
  • What is title insurance and how does it help you
  • Family law issues related to buying a home
  • Home inspections and why you need one before buying a home.


This DVD has a retail value of $19.99. Contact Elliott Dale for your complimentary copy.

By: Elliott Dale

Interesting disputes occur when the wording in Real Estate Agreements of Purchase and Sale for properties are not clear and such wording is ambiguous.

Date: 07 Mar, 2014| Author: Elliott Dale

This occurs when chattels and fixtures are either included or excluded. For example there have been legal cases where the wording that built in cupboards, bookcases or other such items were included but in fact were not attached to the premises, did not form the requisite definition of fixtures but were chattels, and if that is the case and the offer calls for all existing fixtures, and no specific inclusion or exclusion for these built in furniture shelving or other items, then the Seller has full right to remove. The realtors acting for both sides must be careful in stating on any listing or any Offer what is included or excluded. This includes such items as hot water tanks which are usually rentals and to be assumed by the Purchasers and such hot water tank providers who leases this piece of equipment are Enbridge or Reliant Home Services, and notification to such providers should be given by the Sellers and the Buyers should inquire whether such tank is a rental or in the rare case, if such tank is owned by the Seller. There are other instances of removal of vegetation, trees, and other landscaping that should be noted in the offer if included in the sale price. For any disputes, the Clients are urged to deal with their realtor and failing resolution, deal with the lawyer handling the file at our DS law firm.

By: Elliott Dale

For clients of Dale

Date: 07 Mar, 2014| Author: Elliott Dale

For clients of Dale, Streiman Law LLP, in our Real Estate Department, we are faced with issues involving purchases with houses that had been in the past insulated with Urea Formaldehyde Foam Insulation (UFFI). This product installation in houses for insulation purposes was considered dangerous to the homeowner’s health but the installation ended in the early l970’s and most experts have now opined that the dissipation of the material from this type of insulation to this date does not impact on the homeowner’s health. Unfortunately, in most Real Estate forms of Offers, there is a warranty that the home has never been insulated with this UFFI insulation and of course if the home was purchased later than the l970’s, normally the homeowner would not have personal knowledge if such home ever was so insulated with UFFI.

More importantly in today’s purchase and refinance climate, a necessity is to have the home inspected by a qualified home inspector and/or engineer and existence of two of the current products or conditions in the home are mould and asbestos or verticuite as being perilous to the home occupant’s health. These items should be addressed and if necessary, removed by the Seller or the Buyer may not satisfy or waive the condition for inspection, thereby ending the purchase transaction. Such offers would be conditional upon a home inspection with terms satisfactory to the Buyer.

In summary, if you are a seller, do not sign any Seller’s disclosure statement since many representations made by sellers if not know or if such representations turn out to be not true can be the subject of a lawsuit. Secondly, if you are a buyer, then insist on completing inspections, get warranties on all items in the house, the equipment, chattels and fixtures and condition of the home and if swimming pool etc. warranties as to that these pieces of equipment are in good working order.

Elliott Dale, senior partner at Dale, Streiman Law LLP would be pleased to act and meet with any clients that have concerns in these type and any other real estate transactions.

Real Estate Newsletter

Date: 06 Mar, 2014| Author: Elliott Dale

Why you need to use a lawyer for Real Estate Purchases and Sales:

I often meet with clients to discuss representing them in their purchase and/or the sale of their residences or even commercial properties.

Condominiums: Such real estate may include a condominium sale which has many issues such as financial status of the condominium corporation, the reserve fund that is required under the provincial legislation of the Ontario Condominium Act and rules and regulations with respect to pets and type of automobiles that may be permitted to park on the designated parking spots, if in a garage in the case of a high rise condominium or in or outside of a garage in a townhouse condominium development. There are a myriad of issues to discuss and the first order of business if I am acting for a Purchaser of such condominium property is to obtain and review the Status Certificate which sets out the Declaration, Bylaws, Rules/Regulations, Financial statements and insurance and other issues.

Then on such purchases as in regular purchase of freehold property, i.e. detached, semi-detached houses, we have to review with the client the layout of the property and in freehold, obtain and review a survey to ensure that the fences are located on the property line, that there are no encroachments or easements that were not disclosed in the Agreement of Purchase and Sale which should have been reviewed in the first instance before such Offer or Agreement is signed. At such time the realtor should have recommended a home inspector and report should have been given with requisite conditional period for approval of such inspection report, financing and solicitor’s approval conditions, if any, should have been waived if the Purchaser were satisfied with the responses and information given for compliance with such conditions.

Manner of Taking Title may be taken in the case of husband and wife, as joint tenants, and that is the normal and usual way of being registered on title so that in the event of death of one of the co-owners, the surviving titled owner will automatically obtain title subject to a survivorship application being registered on the title to the property after the death of the co-owner, In such case and in every real estate transaction, our firm recommends that the client(s) consider preparation of a Last Will and Testament and under the l995 Substitute Decisions Act of Ontario, Powers of Attorney for Property so that the Ontario Government does not assume control of the client’s property in event of his/her disability and also a Power of Attorney for Personal Care and Health including the living will clause for non-rescussitation. These can be discussed at any time. The other manner of holding title is in percentages i.e. tenants in common as opposed to joint ownership with right of survivorship and such undivided interest can be devised or left to family/spouse under a Last Will and Testament.

There are creditor issues and issues under the Family Law Act to discuss with the client. If one spouse is at risk to being sued now or in the future by any creditors either existing at present or in the future, it is recommended to take title in the spouse/partner who is not at such risk but it is prudent to review with your mortgage lender or mortgage broker if that will be permitted and for parties with less than 20% down and CMHC insurance fee is required, the taking of title in one party’s name may not be permitted. Family Law issues: If you are married, the property is the family residence under the Family Law Act and subject to exceptions among others, e.g. if source of funds derived from resources or sale of another property, then this will be a family asset to be divided equally. If the parties buying are common law spouses, then a cohabitation agreement under the Family Law Act deemed a domestic contract, or if married, a Marriage Contract is recommended and one of the Family Law specialists at Dale, Streiman Law LLP (DS) can assist with an interview and instructions can be received and options considered.

Financing: It is important to deal with your financial institution or broker and obtain financing on a purchase with either a variable rate mortgage, fixed rate, with a line of credit or as many banks and other lending institutions offer, a combination of the two. If the sale of the client’s property is later than the purchase, a bridge loan is to be obtained from a bank or other lending institution. These issues are to be reviewed at the early stage of retainer of the real estate specialist at Dale, Streiman Law LLP and estimate for costs for the purchase and other issues will be given. Our Website sets out various estimates for fees and disbursements and you may feel free to discuss same with the real estate practitioners at DS.

For Sales, the client should attend and deliver all documents in his/her possession, the existing transfer/deed, tax bill if not paid through the first mortgagee, house insurance, utility bills, contact and names, addresses of any mortgage to be discharged and it is important at the early stage of retainer of DS’s real estate practitioners to determine if the client is to be charged any penalty and discharge processing fees on the sale and discharge of any existing mortgages. Discharge penalties can usually be 3 months interest penalty or interest rate differential, whichever is the greater. There are techniques that DS has managed to advise clients on how to reduce such mortgage prepayment penalties and waive any discharge processing fees, bridge loan costs and appraisal processing fees. Please feel free to consult one of our practitioners and clerks who would be able to assist you in your questions on any of the above issues raised above.

To be a client of Dale, Streiman Law LLP is to be an educated client not just in this area of law but we at Dale, Streiman Law LLP wish to be helpful in many other areas with 6 lawyers and one associate lawyer able to provide services including litigation area and with a special emphasis on family law. This latter reference includes rights of spouses in business and shared family assets.

We would be pleased to receive any comments and meet with any prospective clients to educate such clients in any of the above areas of law.

Determining Mental Capacity to Make a Will: Can a Person with Dementia Change their Will?

Date: 05 Mar, 2014| Author: Fred Streiman

Mental capacity is a very important topic when the validity of a will is called into question. There is no exact science to determining when a person is capable of making legally binding decisions, especially as it relates to their estate. Due diligence is required to ensure that the testator (person making the will) understands exactly what they are doing. With Canadians living longer than ever, questions relating to mental capacity, specifically for seniors with dementia, are on the rise.

There is a presumption in Canada that a person who has attained the age of majority can make a valid will. This presumption is rebuttable where there is evidence of suspicious circumstances that warranted further investigation. This can be anything that raises a suspicion in the preparation of the will, the capacity of the testator or a suggestion of coercion or fraud. Once this suspicion is raised, the onus shifts to the party seeking to enforce the will to establish that it was validly made. In terms of mental capacity, it is important to keep in mind that capacity is a legal definition and there is no set scientific standard that applies.

The recent BC Supreme Court decision in Moore v Drummond illustrates how the law evaluates a person’s mental capacity to make a will. Ms. Drummond died in 2011 at the age of 98. A year earlier, she made a new will that gave her entire estate to her neighbors of 40 years. Prior to this, she had a will drawn up in 1994 that left her estate to her son. However, her relationship with her son was tense and deteriorated over the years. Upon her death, the son claimed that the new will of 2011 should be excluded. In support of his claim he pointed to a medical opinion that was drawn up a week prior to Ms. Drummond changing her will. The report said she was incapable of making decisions regarding legal or financial affairs. The opinion was drawn up for the Public Guardian and Trustee of BC (PGT) using their standard form. The court also heard evidence that Ms. Drummond was suffering from dementia at the time. This raised suspicion that the will may be invalid on capacity grounds. Despite this evidence, the BC Supreme Court held that the will of 2011 was valid and that Ms. Drummond had the legal capacity to create a will at that time. The PGT report was insufficient evidence because it was drawn up specifically for PGT using a standard form. It was not a comprehensive medical opinion that addressed Ms. Drummond’s ability to create a will. Furthermore, at the time the will was made, her lawyer drafting the will took special steps to ensure that Ms. Drummond had capacity. The lawyer spent additional time with Ms. Drummond where they engaged her in conversation to evaluate her mental abilities. She was also able to fully remember the will and its dispositions more than 5 weeks later. This showed that she had sufficient capacity at the time the will was made and that she truly did intend to exclude her son from her will.

This case clearly shows that mental capacity to create a will does not mean perfect mental capacity. Diminished capacity raises a suspicion that the will is invalid, but the court can resolve this suspicion and declare the will to be valid. This is especially true when a lawyer drafting the will takes steps to ensure that the testator has the required mental ability to make a will. A medical opinion is not determinative in resolving issues involving legal capacity. They are informative and can be used to help make a legal evaluation. An experience lawyer will take specific steps to determine legal capacity and ensure that a will is validly drafted.

The lawyers at Dale Streiman Law LLP have over three decades of experience solving wills and estates issues. If you have a question about a will or the mental capacity to create a will, contact Dale Streiman Law and meet with our legal professionals to discuss your legal issues.