BUYING AND SELLING A PROPERTY
ABOVE ALL, RELY ON AN EXPERT
Buying or selling real estate is not a decision that is taken lightly. This is an important act with far-reaching consequences. The most basic caution suggests seeking expert advice. The notary is precisely the recognized expert in the field of real estate law. Also, before signing any document whatsoever for the purpose of buying or selling a property, do not hesitate to consult your notary. The latter will then be able to inform you about the exact nature of this document so as to avoid unpleasant surprises and to ensure, subsequently, the harmonious signature of the act of purchase and sale.
At the time when he documents the purchase-sale contract, the notary explains precisely to the parties their rights and obligations resulting from this act. His duties also oblige him to only give the sale proceeds to the seller after having made certain final checks in order to ensure the complete protection of all parties.
SELLING IS NOT ALWAYS A MERELY FACULTATIVE ACT
Selling your building to whomever you want and when you want seems to be an acquired right. However, on certain occasions, the owner may need authorization before being able to proceed with the sale of his building. So, for example:
- the owner needs the written consent of his or her spouse or, of his or her spouse if he is in a civil union, if it is a question of selling a family residence;
- the tutor to the minor may need certain authorizations to sell immovable property owned by the minor;
- the owner of classified cultural property must, in specific circumstances, obtain certain authorizations in the event of sale; the same is true on several occasions for the owner of agricultural land;
- the sale of a building located in a building complex is subject to the authorization of the Régie du logement.
Caution is therefore advised: selling without having the right directly questions the validity of the sale and may expose you to other civil remedies. The notary can inform you of all the required and necessary authorizations and, at your request, take steps to seek to obtain them.
SALE WITH LEGAL WARRANTY
The seller and the buyer of a building are subject to certain obligations towards each other. Thus, the buyer must take delivery of the goods sold and pay the price. As a corollary, the seller must deliver the goods. He is also bound by the legal guarantee, that is to say that the law obliges him to guarantee certain things to his buyer.
The seller is first bound by the guarantee of the property right. He is obliged to guarantee to the buyer that the building is free from title defect and that it is free from all rights, except those declared at the time of the sale. At the same time, the seller must guarantee his buyer against any existing encroachment (encroachment resulting from his act or, further, resulting, to his knowledge, from the act of a third party) and, within the limits fixed by law, against any violation of public law limitations (for example, the seller guarantees that the building does not contravene a zoning by-law). The guarantee against violation of the limitations of public law is not, however, absolute; also the buyer must be vigilant.
The seller is also bound by the quality guarantee, that is to say the guarantee against hidden defects. But, again, watch out! The quality guarantee covers only the major defects which exist during the sale, which are unknown to the buyer and which a prudent and diligent buyer could not have discovered…
NOT THAT EASY!
To the extent provided by law, the parties may add to or subtract from the legal warranty. The notary can perfectly well inform you about this and include, in the deed of sale, an extensive or limiting clause of liability which meets the wishes of the parties while being perfectly legal.
TITLE REVIEW: A NECESSITY
By carrying out the appropriate research, the notary is able to guarantee you an indisputable property title. First, his research consists in verifying:
- if the seller is the real owner of the building; if he has the right and the capacity to sell;
- if his spouse or others have to consent to the sale, etc.
Using the certificate of location, the notary then checks:
- if the dimensions of the land are exact;
- if the buildings are well erected on the land sold;
- if the house was built in accordance with municipal by-laws and zoning laws;
- if the neighbor's property encroaches on your land;
- if the windows meet legal standards;
- if there are rights of way, etc.
Finally, by examining the titles, the notary can detect the charges or real rights likely to affect, limit or devalue your property right, such as mortgages, foreclosures, judgments, easements, etc.
THE SALE PRICE
Do you want to pay cash? You then benefit of the protection of your money by the notary via his trust accounting. The latter will only remit the funds, to whom it may concern, after having carried out certain final verifications.
Mortgage assumption? To save the payment of a “penalty” that could become due in favor of your creditor, are you ready to remain liable, towards this creditor, in the event of default by the buyer? Ask your notary first about the possible alternatives and the consequences thereof.
Balance of sale price or new mortgage? The notary can help you compare the different funding methods and is able to assess, with you, the various proposals received, in order to respect your budget.
THE NEW HOUSE
DO YOU WANT TO BUY A NEW HOUSE WITHOUT EXPERIENCING THE HORROR OF LEGAL CONSTRUCTION MORTGAGES?
A follow-up after the act of sale is essential, because various construction subcontractors can still claim the sums that your builder failed to pay them. Considerable sums are often at stake.
L’acte de vente notarié: un écrit précieux
Le notaire rédige l’acte de vente avec la précision et la minutie qui le caractérisent, en y insérant toutes les clauses essentielles à la sauvegarde de vos droits.
De plus, le notaire instrumente tout acte relié à l’acte de vente: prêt hypothécaire, servitude, quittance et autres, tels que convention d’indivision, testaments, etc.
L’acte notarié fait foi, preuve en mains, de son contenu. Vous aurez une copie authentique de l’original, lequel est numéroté, répertorié et conservé dans le greffe du notaire. Pas de perte en vue… pour votre protection.
L’achat d’une propriété à deux
De nos jours, bien des couples, qu’ils soient ou non mariés ou unis civilement, décident d’acheter un immeuble en commun. En langage familier, on dit alors que la maison « est aux deux noms ». Par mesure de précaution, lorsqu’ils décident d’acheter à deux, les copropriétaires par indivision devraient prévoir, dans une convention, certaines règles applicables. Le notaire peut les conseiller adéquatement sur l’étendue d’une telle convention et rédiger l’acte approprié.
Consultez votre notaire: il ne laisse rien au hasard.
Les textes proviennent intégralement des brochures de la Chambre des notaires du Québec.