The Notary Group

The Notary Group

The Notary Group

We are members of the Society of Notaries Public of British Columbia. The Notary Group is the trade name for Janzen & Caisley Notary Corp., a Professional Notary Corporation. The information on this blog is just that – information – if you need legal advice, please contact us: info@thenotarygroup.ca, or www.thenotarygroup.ca.

You can scroll the shelf using and keys

10 Simple Ways to Help Keep Closing Costs Down

March 24, 2015

By Tim Janzen, Notary Public

Here are some simple tips to help you keep some of your costs down when you are buying or selling a house.

  1. Do your homework early: if you are buying, organize inspections and investigations early, so you can address any problems that arise before closing. Find out what utilities you will need, and get them organized. Get your insurance in place. Doing this work on closing could incur serious costs or delays – imagine finding out the day before closing that there was a grow op in the garage you never inspected! There goes your mortgage and your insurance, and your costs just skyrocketed. If you are selling, organize when you will cancel your insurance, and get final meter readings set up.
  2. Don’t assume others know what you want: hire good people to help you, then tell them early, often and clearly what you want. Your broker, movers, REALTOR® and your notary all know that this is an incredibly stressful time in your life, and we’re here to help, but in the end, it’s your deal…. It’s up to you to tell us what you need, so we have the best possible chance of making it work for you. Ask as many questions as you want, no matter how stupid you might think they are – the only stupid question is an unasked question. Repeat yourself if you need to. Repeat yourself if you need to. Repeat yourself if you need to. (See? How silly do I feel writing that, but you get the point!) The earlier you bring up a potential issue, the better (and less expensive), for everyone.
  3. Keep it simple: you can’t avoid every “wrinkle”, but the more wrinkles in your deal, the more expensive it is for you. Wrinkles include things like having unpaid liens or taxes on properties you are selling; being a first time home buyer; buying certain kinds of properties over others; using an “internet” bank (rather than a “bricks and mortar” bank) for a mortgage; using a Power of Attorney; or getting your purchase funds from other family members.
  4. Get your ID in order:  you need 2 pieces of current, valid, government-issued ID, and the names on your ID must match each other. For example, the names “John M. Smith”, “John Smith” and “John Mark Smith” do NOT match, even if they are all referring to you! We need to be able to read the ID issuer name, your full name, the ID number, and any expiry dates. Your Costco card, library card and bus pass will not work. Not having proper ID could cost you thousands of dollars, or a seriously delayed or even failed deal.
  5. Avoid “back to back” deals: if you are selling one house and buying another, try not to set the completion dates for both on the same day. Try to give us at least one day between closings, especially if the properties are in different towns. This will help us cut down problems immeasurably.
  6. Don’t rush to close! If you can set your closing date at least two weeks after the subjects come off your contract, you will eliminate a number of rush fees, potentially saving you several hundreds of dollars.
  7. Don’t leave town: just because your contract is signed doesn’t mean your work is done. If you are out of town in the week before closing, or for the day or two around closing, you will incur extra costs, and, depending on where you go, you might cause yourself some serious closing problems. Imagine trying to find (and pay for) a notary wherever you’re going who is fluent in English, able and willing to take your signatures, willing to act as our agent for ID verification, and then organizing getting the documents back to us properly, all the day before closing! Try to schedule any trips for 3-5 days after the closing date. It will save you hundreds of dollars.
  8. Plan your movers carefully: the possession date and time you negotiated is when the buyers get to move in, not when the sellers have to start moving out! If you are selling, try to get your possessions out at least a day before completion. If you delay your buyers’ movers, you might have to pay for their costs as well as your own. If you are buying, arrange with your movers to get to the new place well after the possession time, not on or before, or you could be paying the movers to sit on the lawn and watch the sellers clear out. If it helps with timing, consider paying your movers to store your stuff overnight, so you’re not still moving at 10:00 at night.
  9. Have your money ready: especially if you are buying, make sure you can access your funds easily, so you don’t unintentionally delay your closing while we wait for your money to arrive or become available. If your money is invested, get it liquid. If it’s in an “internet” bank (Tangerine, or PC Choice Financial, say), start the transfer process early – it might take 3-5 business days. If it’s in an RRSP, give yourself lots of time to fill in the right paperwork, and address tax questions. If your money is coming from another source – maybe parents? – check with your broker or lender – you might have to have that money in your bank account for several months before you can use it. If you are selling, make arrangements to come get your money the next business day after closing!
  10. Use a REALTOR®: if you are doing a “private” sale, your legal costs will most likely be higher (especially if you are buying), for several reasons. For example, your contract might be missing certain important elements; you may spend time asking your notary questions your REALTOR® would normally have helped you with; or you may have unintentionally negotiated a deal which is difficult or impossible to carry out.
Advertisements

Click here to download: Important Homework for Strata Buyers

Buying a strata property?

Recent changes to BC’s Strata Property Act make it more important than ever for buyers to read a strata’s documentation.  Reviewing these documents should be a “subject to”, or condition of your contract to buy the property.  Give yourself lots of time to read the documents, and if necessary, hire your notary or REALTOR® to help you go through them.

If you are using a mortgage to buy the property, you will very likely have to sign a statement for your lender that you have read these documents, and that you are satisfied that they meet the legal requirements. Your lender could refuse to fund your mortgage if you cannot assure it that the strata is meeting its legal requirements.

For example, does the contingency reserve fund meet legally required minimums?  Does the depreciation report contain the things required by the Strata Property Act?  Will your lender refuse to fund if there is no depreciation report at all?

Call us if you would like help reviewing these documents.

Visit our website for contact information.

February 5, 2014

The Notary Group welcomes Tom Anderson to Kelowna

December 24, 2013

The Notary Group is pleased to welcome Tom Anderson to its Kelowna (Spall and Enterprise) branch.

Tom’s Bio

Originally from Kelowna, Tom is moving from Victoria to join Tim Janzen. We are excited to have him join our team.

Why that foreclosure property might not be such a good deal after all

December 20, 2013

by Tim Janzen

Have you ever been tempted by the thought of buying a property at a ridiculously low price from an owner who is in default on their mortgage, so you can fix it up and then sell it later for a profit?

When an owner is in default on their mortgage, the lender will start foreclosure proceedings. This will usually result in the court granting the lender conduct of sale. These sales, while tempting, can sometimes cost more than you expected they would.

Is the owner willing?

Sales done by way of a conduct of sale order are different than those negotiated between a willing seller and buyer. The key word here is “willing” ‒ often the property owner is not cooperative, and that can cause all sorts of problems.

For example, will the owner actually move out when they are supposed to? The court order should give you vacant possession, but the process to enforce that order is not cheap or quick, and you may find yourself homeless while that process is underway.

The costs for these problems is yours, and you have little or no control over what they will amount to.

What condition is the property in?

You will buy the property on an as is, where is basis.

In most cases, you will not be able to do any research, investigations or inspections on the property to determine exactly how bad the current state of affairs is. If you buy the property and it turns out to have massive mold damage, unseen termite problems, or a crumbling foundation, you will have absolutely NO recourse against the owner.

As well, the owner may cause considerable damage to the property on their way out, or leave all kinds of debris or garbage that you did not anticipate having to deal with ‒ you may be having to hire cleaning or repair crews, or storing the old owner’s things (at your cost) before you can move in.

How do you tell what the property is worth?

Just because the property is in foreclosure doesn’t mean you will get it at a “sale” price. The bank has to try and get the best possible price in the sale, and the court will reject any unreasonable offers; don’t expect to get a steeply discounted price just because the property is in foreclosure.

Sometimes it’s not easy to tell what a reasonable offer might be. If the owner refuses to let any REALTORS® or appraisers into the property, then they can only do an assessment or appraisal based on the outside of the property ‒ this can lead to completely inaccurate valuations if the inside of the property is in terrible shape.

Be very careful to understand how the property’s listing price has been determined, and whether anyone has been able to get an inside evaluation done. You don’t want to find that you need to pay for substantial repairs over and above the purchase price before you can move in.

Is there a chance the owner could stop the foreclosure?

Until the court issues its vesting order (naming you as the new owner), the old owner can rectify the defaulted mortgage or refinance with another lender. If that happens, then the mortgage is no longer in default (or it is paid out completely and a new mortgage is put on in its place), and the foreclosure proceedings stop. You will lose the time, effort and any money you have spent in attempting to obtain the property.

Are there other bills that need to be paid?

If an owner is in financial trouble, it’s entirely possible that their mortgage isn’t the only payment they’ve gotten behind on. When you take ownership of the property, will you have to deal with other claims for things like unpaid personal or business taxes, or spousal claims? It might be a nuisance to have to keep telling the old owner’s creditors to go away.

Is the property taxable?

There are several kinds of taxes that need to be considered when you buy property. Usually the seller gives you the information you need about whether the property is taxable or not. In foreclosures, uncooperative (or missing) owners might make it impossible for you to get the information you need, and the lender has no ability to give you any information about the taxable status of the property. Your purchase of the property could be taxable, even if no one tells you it is. You could be going in blind.

For example, the Income Tax Act requires buyers to determine if the owner is a non-resident. If the owner is a non-resident, you could find yourself having to withhold some of the purchase money (potentially up to 50% of the property’s value) for non-residency taxes.

You may also find yourself paying GST on the property, even years after it has been transferred into your name.

Getting the court order right

All offers have to be approved by the court. There could be multiple offers made on the same property. Conditions are generally not allowed by the court, so you have to have your financing securely in place prior to making the offer (not just approved, but actually fundable).

If your offer is approved by the court, you must make sure that the court order contains the right price, dates, the full and correct legal names of all buyers, the way in which the property is to be owned (sole ownership? joint tenancy? tenants in common?), and that it clearly sets out how the net sales proceeds are to be distributed. Review the draft court order very carefully before it is finalized.

What will your closing and legal costs be?

Foreclosures generally mean increased legal and closing costs. Some lenders will require you to take extra steps or provide extra security before they will agree to a mortgage. Some lenders will not finance a foreclosure property at all. Some insurance packages will be more expensive because you simply don’t know what condition the property will be in.

As well, your notary may need to negotiate with the lawyer for the owner (or their bank) if there are issues with the terms of the court order. In some cases, buyers have had to go back to court to get a court order rectified. You should expect to pay more for foreclosure proceedings than a traditional purchase.

Contact us if you are considering buying a foreclosure property.Visit our website for contact information.

Wondering why the bank won’t let you use that Power of Attorney?

December 14, 2013

by Linda Caisley

Powers of Attorney are powerful, and dangerous documents. They name someone (called an “Attorney”) to make decisions for you about your finances, and to sign for you if you’re not able to, or if you’re not around.

Unfortunately, just because you have a Power of Attorney, doesn’t mean you will be able to use it. Banks have to be very careful about letting you use a Power of Attorney for someone. There are many reasons why a bank might not let you use that Power of Attorney you have for your mother ‒ but here are some of the more common problems:

Using the Wrong Document, or a Document from Another Province

People can make their own Power of Attorney, or they can ask a notary to make one for them. But there are strict rules about what makes a Power of Attorney valid, and these rules change from province to province. If the document doesn’t comply with these rules, it might not be useable.

For example, if you are trying to use a Power of Attorney that was made in another province, or which was downloaded online from another province, state or country, that Power of Attorney might not be acceptable for BC purposes.

The Adult didn’t know what they were doing, or was talked into doing something they didn’t really want to do

If the person who made the Power of Attorney (the “Adult”) was not legally capable (“of sound mind”) at the time they signed the Power of Attorney, then the Power of Attorney is not effective, and you can’t use it. When dealing with Powers of Attorney, legally capable means that the Adult has to be able to understand:

  • the nature of their family and their assets,

  • their obligations to other people and family members,

  • the nature and consequences of what they’re doing,

  • what would happen if the Power of Attorney is abused,

  • what happens if they don’t have a Power of Attorney,

  • that they can revoke the Power of Attorney.

For example, if the Adult is an active drug user, or is on morphine, or has been diagnosed with an illness affecting their decision-making capacity, like Alzheimer’s, then the Adult might not be legally capable, and any Power of Attorney they make could be unusable.

One of the reasons you use a notary to draft a Power of Attorney (rather than doing it yourself) is because the notary will test the Adult to see if they have legal capacity. The notary will also ensure that the Adult is making the documents freely and voluntarily, and that no one is forcing the Adult.

Notaries will not make a document for an Adult who isn’t legally capable, or who is being talked into doing something they don’t want to do. So, assuming there are no other reasons to refuse the document, the bank will rely on a Power of Attorney made by a notary more readily than they would a homemade document.

Banks generally refuse to honour homemade Powers of Attorney unless they can somehow prove that the Adult had legal capacity at the time the Power of Attorney was made, and that no one was standing over the adult threatening them (emotionally or physically) if they didn’t sign it. Your word alone will not be enough.

The Power of Attorney doesn’t allow you to do what you are trying to do

Some Powers of Attorney are restricted. For example, if the Power of Attorney says “my Attorney can only use this document to sell my house”, then you can’t use the Power of Attorney to pay the Adult’s bills, or take money from their account ‒ you can only use it to sell their house.

You are trying to give the Adult’s money or assets away

You must always act in the Adult’s best interests, and giving the Adult’s money away to others, even if the Adult told you to do that, is not allowed with a Power of Attorney, unless the Power of Attorney includes specific permission to do so. Nor can you give away any assets that the Adult specifically gave away in their Will.

For example, you cannot take money from the Adult’s account and give it to charities or family members, even if the adult asks you to do this, unless the Power of Attorney specifically says that you can. Nor can you sell the Adult’s home, and split the money among your siblings. That money has to be kept for the Adult’s care, even if the Adult doesn’t actually need or want it. If there is money left over after the Adult has died, then the Executor would deal with it according to the Adult’s Will.

If the Adult is capable, they can make their own gifts or loans, but you can’t use a Power of Attorney to do that unless it has specific, written permission in the document.

The Power of Attorney was suspended, revoked or has come to an end

If an adult is legally capable, they can revoke a Power of Attorney at any time. If the Power of Attorney has been suspended or revoked, you can’t use it. Some Powers of Attorney expire.

The bank has no easy, immediate way to tell whether the Adult revoked the Power of Attorney you are showing them. They might want proof that the Power of Attorney hasn’t been suspended or revoked, or they might want you to make a statement under oath that, to the best of your knowledge, you believe the Power of Attorney is still valid.

So what if it’s a bad Power of Attorney ‒ why does the bank care?

Banks try hard to protect their clients’ assets from fraud, or theft. If you give the bank a Power of Attorney that isn’t legally binding, and you use that Power of Attorney to transfer the Adult’s money out of their account, the bank is liable for that loss. So the bank is going to be very, very careful about whether you have a proper, valid Power of Attorney or not.

Ask your notary for more information about what makes a Power of Attorney valid. Visit our website for contact information.

What are those charges on my title, and do I care?

December 6, 2013

By Tim Janzen

When you buy your new home, you will get a copy of your title search from your REALTOR® or your notary. Your REALTOR® might even build a clause into your Contract of Purchase and Sale that says your offer is subject to review of this title search with your notary.

A title search is a record from the Land Title Office that shows who owns the property, and the charges that are registered on title ‒ these charges show you who else might have rights to the property these people are called charge-holders.

Some, but not all, of these charges might be removed from the title when the property is transferred into your name. Your Contract of Purchase and Sale will tell you which charges are going to stay on title, and which charges are going to be removed. You care which charges are going to stay on title because they can affect how you use the property, or what it is worth.

There are many different kinds of charges that could be registered on your property. This is a short list of some of the more common charges you might see registered on title to the property (in no particular order) there are many other possible charges, some of which are very important for you to review:

  • mortgage: a financial charge; usually the owner of the property has borrowed money from a lender, and the lender has various rights to sell the property if the owner is in default, even if that owner is you, not the original borrower
  • right of way: this charge lets a person or company (most often a utility company) come onto the property; in some cases, the area that can be accessed is clearly defined, and in other cases, it isn’t; the charge may also involve a “no-build” zone ‒ eg. you can’t put a pool in your back yard because the utility company needs access to it. In many cases you will be responsible for any additional costs the charge holder may spend to do what he is allowed to do if you or the previous owner has not complied with the terms of the right of way agreement
  • statutory building scheme: this is a set of rules about what you can and can’t do on or with the property; it might dictate the type or size of the home, or what you can do in the home; older building schemes might forbid chicken or cows on your property; some require you to use certain finishing materials, paint colours or landscaping materials ‒ eg. you must use a certain kind of tree in your front yard
  • covenant: this is a promise ‒ you are promising that you will do whatever the terms of the covenant tell you to do; in some cases you are promising to let a government or other service provider access the property; in other cases, you might be promising to use the property in a certain way, or they could lead to surprise maintenance costs
  • restrictive covenant: this is a promise that you will not do something; for example, you might not be able to build a shed in your back yard because the hydro company needs to access its cables
  • undersurface rights: generally speaking, the Crown owns everything under the dirt in BC ‒ in other words, if you are digging around in your back yard and come across gold, too bad ‒ it belongs to the government, not you; this charge will show which rights are involved, and who the government may have given those undersurface rights
  • easement: this indicates that you are sharing space with another property ‒ it might be something simple like a shared driveway or walkway, or it might be shared greenspace or lagoons ‒ it is very important to know whether someone else has rights to access your property, or whether you have access to someone else’s property, and whether you are required to pay for any special maintenance or other rights
  • builders lien: this means that a builder, or someone who provided materials in an improvement to your property is claiming that they were not paid to their satisfaction, and you will want to ask questions about how that charge is going to be settled and removed prior to the property being transferred into your name

Please remember, this list is not exhaustive. Your notary can order copies of these or any other charges from the Land Title Office if you have any questions about what they are, or how they affect your specific property. There will be a charge for getting copies of these documents from the Land Title Office ‒ the older the charge, the more expensive the retrieval charge.

If you are in doubt about what a charge does, or why it is there, have your notary order a copy of the charge for you, and review it with you. You should do this before you remove the “subject to review of title” clause in your Contract of Purchase and Sale ‒ once you have signed your contract, it’s unlikely that you will be able to negotiate for it to be removed.

Contact us for help reviewing your title. Visit our website for contact information.

What to Bring to Your Instruction Meeting for Wills, Powers of Attorney or Representation Agreements

October 27, 2013

Wills, Powers of Attorney, Representation Agreements, Advance Directives, Living Wills ‒ these are all different kinds of personal planning documents you might need or want to make. It will take at least two appointments for this process ‒ one to sort out which documents you want (or need), and another to review and sign the documents. Other meetings might be necessary, depending on your situation.

These are some of the things you will want to bring to your first meeting with the notary.

Your ID

First, bring identification. Bring two pieces of current, valid, undamaged government-issued ID, one of which is a photo ID.

For example, for the first piece of government issued photo ID, you might bring:

  • driver’s licence
  • passport
  • Permanent Resident card

For the second piece of ID, you might bring:

  • social insurance card
  • Government of Canada benefits card
  • Firearms Acquisition Card
  • Permanent Resident Card
  • Citizenship certificate
  • BC Care Card

We cannot use:

  • broken or damaged ID cards (eg. the health care card that has been in your wallet for the past 20 years and which is in 2 pieces, and your name is worn off)
  • expired ID
  • ID which does not show your full, legal name (eg. your name is Mary Ellen Smith, but your card shows Mary E. Smith, or Mary Smith ‒ both of your IDs must show “Mary Ellen Smith”)
  • the number of the card alone, or a faxed copy of the card ‒ we must see the original card

If you do not have current, valid ID which shows your full legal name, please call ahead to ask about how we can help you.

Next-of-Kin and Assets Listings

It’s very important that you are legally capable when you make a personal planning document. If you are not legally capable, your documents will be void. So your notary will ask you a number of questions about your family and your assets in order to prove that you have legal capacity. Please come prepared with a basic list of your assets, and the family, friends or charities that you want to include in your documents.

My Family?

Many people want to bring certain family members to their appointment, so their family can help them, or be an extra set of ears. Your notary may allow other family members to sit in on the first part of your meeting, so you can have a general conversation together, but your family members cannot be present when you tell your notary what you want. We need to make sure that you are doing what you want, not what your family wants you to do.

Questions?

If you have any questions, please contact your notary’s office for more information – visit our website for contact information.

What to Bring to Your Signing Meeting ‒ Buying or Selling a Home

October 27, 2013

Your ID

First, bring identification. Bring two pieces of current, valid, undamaged government-issued ID, one of which is a photo ID. If you are getting a mortgage, ask the conveyancer who makes your appointment with you if there are any other requirements for the kind of ID you must have. Some lenders require very specific kinds of ID.

For example, for the first piece of government issued photo ID, you might bring:

  • driver’s licence
  • passport
  • Permanent Resident card

For the second piece of ID, you might bring:

  • social insurance card
  • Government of Canada benefits card
  • Firearms Acquisition Card
  • Permanent Resident Card
  • Citizenship certificate
  • some (not all) banks will let you use a BC Care Card

We cannot use:

  • broken or damaged ID cards (eg. the health care card that has been in your wallet for the past 20 years and which is in 2 pieces, and your name is worn off)
  • expired ID
  • ID which does not show your full, legal name (eg. your name is Mary Ellen Smith, but your card shows Mary E. Smith, or Mary Smith ‒ both of your IDs must show “Mary Ellen Smith”)
  • the number of the card alone, or a faxed copy of the card ‒ we must see the original card

If you do not have current, valid ID which shows your full legal name, please call ahead to ask about how we can help you.

Other Information or Documents

If the conveyancer who made your appointment with you asked you to bring any other information or documentation (such as the contact information for your insurance company, or an original Power of Attorney), please bring that with you as well.

If you have any questions, please contact your notary’s office for more information – you can look on our website for your notary’s contact information.

%d bloggers like this: