Reasons why you need a real estate and property lawyer
Reasons Why You Need a Real Estate and Property Lawyer
Real estate is one of the most popular investment vehicles for Quebecers. Even during difficult periods, this market remains active, and the stakes of transactions only increase. This is why legal assistance in real estate matters is a service you need if you deal in this market.
From simple advice during a transaction to representation in the event of a dispute, a real estate lawyer is there to ensure your best interest throughout the process. But how do you find such a legal professional near you?
You let JuriGo take care of the research! Our partner lawyers work in the field of real estate, and we can put you in contact with them!
Real estate transaction: why consult a lawyer?
Much more than trial specialists, real estate lawyers are also clever strategists. This is why it is commonplace to see property owners calling on their services when concluding a significant transaction.
Not only does this make strategic sense, but it also makes legal sense since the lawyer ensures legal compliance at every negotiation stage. This is useful for drafting complete and valid offers, counter-offers, and even promises to purchase.
In commercial matters, a lease negotiation is another step essential to entrust to a lawyer. Once the negotiations are complete, drafting this same lease must also be handed over to a lawyer who can assist you if a disagreement arises in the future.
In the end, the help of a lawyer specializing in real estate law during a real estate transaction assures you of one thing: rigorous legal security. The stakes of such an approach are always significant, do not hesitate to contact a real estate lawyer!
Prices and rates for real estate lawyers: everything you need to know!
Whether it’s a latent defect, blurred promise to purchase, or prescription, lawyers are there to help you, but at what cost? This is a question you need to have the answer to before hiring a legal professional!
Real estate lawyer hourly rate
$150 to $300 / hour
File analysis/Legal opinion
$500 to $1000 and more
Sending the notice of denunciation
(Hidden defect)
$250 to $500
originating application
Latent defect file
Up to $1500
Commission attorney for a latent defect problem?
Damages granted for latent defects can amount to several thousand dollars. It may be worthwhile to hire a percentage lawyer, as it saves you having to take money out of your pocket to obtain the services of a specialist. The remuneration of the professional will come from the percentage of the earnings, quite simply.
Flat rate or hourly rate real estate lawyer, what are the advantages?
Flat-rate lawyer services generally apply to simple files such as drafting a legal opinion, sending a report of a latent defect, or another procedure of the sort. However, the “fixed price” method in real estate has the advantage of being predictable!
Regarding hourly pricing, you should know that most lawyers operate in this way, both in real estate law and other legal fields. Since the fees vary between $150 and $300 per hour, comparing a few offers from professionals is advantageous before choosing your professional!
When and how to bring an action for latent defect when buying a house?
The recourse for latent defects is an integral part of the work of lawyers. As sometimes substantial damage has been hidden from the buyer, sometimes even without the seller’s knowledge, disputes can escalate quickly. It is, therefore, crucial for both the buyer and the seller to quickly seek the services of a lawyer.
But is your cause admissible to the action for the latent defect? First of all, know that in Quebec, every seller must respect the legal warranty of quality which assures the buyer that the property is free from defects, both physically and in terms of the titles. However, this excludes defects that a so-called “prudent” buyer would have noticed himself or those that the buyer knew about.
When the property sold does not have these same qualities, the door to recourse for latent defects opens quietly, unless the sale took place without a legal warranty of quality, at the risk and peril of the buyer.
Such a sale is usually made at a reduced price, knowing that the property is not in splendid condition. This may have the effect of depriving the buyer of recourse for latent defects.
The latent defect is also subject to four conditions to exist. The concept of “hidden defect” benefits from a definition elaborated in the law, and each criterion must be met to initiate the recourse.
1) Date before the sale of the property
2) Be unknown to the buyer
3) Be serious
4) Be concealed at the time of the transaction
Not everything is always crystal clear! Indeed, each of these criteria is likely to be debated by the seller and the buyer when the defect is discovered. This is an excellent reason not to wait before obtaining the opinion of a lawyer because, on either side of the transaction, the financial consequences can be significant.
What are the possible damages in the presence of a latent defect? Concrete examples!
Substantial damages often accompany latent defect stories. This will present itself as good or bad news, depending on which side of the trade you are on. But how important are the amounts granted in terms of latent defects?
Here are some examples of compensation granted for various defects in real estate!
Sale price reduction
Lahaie v. Laperriere
Cracked foundations and nonconformity of the footing. Compensation granted in reduction of sale price: $44,955
Khalifa c. Root
French drain problem causing cracks in the foundation. Compensation awarded as a price reduction: $13,859
Rioux c. pear
Water infiltration, mold in the basement, and foundation problems. Compensation awarded: $20,349.27
Damages
Misrepresentation and attempt to conceal the defect from buyers. We award $15,000 in damages, including a reduction in the sale price.
As you can see, reducing the sale price is often the solution!
In terms of latent defects, the compensation most often granted is a reduction in the sale price based on the costs incurred by the buyer to correct the defect. Such a solution is generally fair and much more straightforward than canceling the transaction.
Is it more advantageous to obtain the cancellation of the sale of the house?
The cancellation of the sale is a possible recourse, but it is not often advantageous! This will be true if the buyer has done improvement or renovation work or if the house has appreciated it. Reducing the sale price is generally a more straightforward and advantageous solution for the buyer.
Whatever the defect affecting your property, it must be reported to the seller immediately, and action must be taken within three years!
Quebec law requires that the hidden defect be reported to the seller without delay, and above all, in writing! Moreover, a limitation period of 3 years begins to run from the discovery of the defect, so it is essential to act quickly with a lawyer in matters of latent defect to preserve your rights!
Easements and rights of way: the essential help of a real estate lawyer!
An easement is usually defined as a “burden” that the owner of a servant’s land must bear in favor of the dominant land owner. In reality, this charge can take several forms, such as the right of way, of view, of drawing water, and more.
These are essential privileges granted to the holder of the easement, and it should not be surprising that it is a source of litigation. It is still necessary that this servitude exists validly and that it is not extinguished!
This is why your lawyer will first analyze the existence of the easement. To exist, an easement must meet certain specific criteria. The first of these is having two separate funds belonging to different owners, that these funds are neighboring, that the servitude benefits one of these funds, and that the servient owner is bound.
It is also necessary that the easement be validly constituted at the origin by one of the four means provided for by law. These are, in particular, the contract, the will, the easement by destination of the owner, and that created by the simple effect of the law.
Is the easement in question extinguished? Although it was validly formed, nothing excludes that the servitude was extinguished over time. Be aware. However, that specific conditions must be found to extinguish a right as important.
The first of these is non-use for ten years, followed by renunciation by the dominant owner, by the arrival of the term (if there is one), by the redemption, or by the meeting of the fund’s servants and dominators.
Legal action to assert your rights against servitude! Once your lawyer has analyzed the easement at stake, he will be able to advise you on whether the avenue of litigation is the best one for you.
Acquisitive real estate prescription: EVERYTHING you need to know!
Buying land or a building is not the only way to access property in Quebec. Possession can also lead to the owner’s status, thanks to the principle of acquisitive prescription!
What is acquisitive prescription in real estate matters?
Acquisitive prescription is a way of acquiring a right of ownership through possession and the passage of time. Concretely, a person who owns a property and presents himself to everyone as the owner can access this status, even if he is not the holder of the right of ownership.
What are the conditions for prescribing real estate?
In real estate matters, it is often the land that is subject to prescription, although the prescription of any real estate is possible. You should know that in the real estate sector, the limitation period is ten years from the start of possession.
To help you understand, here is a concrete example of a prescription situation in real estate law!
For fifteen years, Mr. Tremblay has maintained the field near his country house. He even grows vegetables there and does some gardening!
He also built a small shed there to store his equipment. In the eyes of all, he presents himself as the owner of this same field.
One day the heirs of the valid field owner come forward to oust Mr. Tremblay from the field and recover their due.
They do not know that Mr. Tremblay can avail himself of the effects of acquisitive prescription.
By filing a motion with the court, Mr. Tremblay can prove public, peaceful, and continuous possession, making him the owner by acquisitive prescription of the field!
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What if you think you have prescribed real estate?
Even after ten years, the effects of the prescription do not operate automatically. To officially become the owner of the lot, land, or building, it is necessary to file a request before the court to formalize this status. It is also possible that the actual owner “wakes up” at this moment and that he disputes the request.
For this reason, the services of a lawyer specializing in real estate law are essential when invoking an acquisitive prescription!
Problem with selling or buying a house? Opt for a lawyer!
Buying a home pits the seller’s interests against those of the buyer.
It is, therefore, not uncommon for relations to deteriorate to the point of degenerating into litigation. And in general, these are the same problems that arise during a real estate transaction!
So what if the deal goes sour? You call on the real estate lawyer!
If the seller or seller refuses to complete the transaction
A promise to purchase has been signed, and the seller or the buyer wishes to abort the transaction? Not so fast! The promise to purchase is a preliminary contract that binds the parties, and only the conditions in the promise can allow them to get rid of it. Action in the passing of the title could be brought to force the sale of the house.
If the seller has sold the house to a third party despite the promise to purchase
When a house is sold to a third party despite a previously signed promise to purchase, the only recourse remaining is that of damages. It will be possible to claim an amount for losses incurred during the process.
If a defect is discovered following the pre-purchase inspection
Does the pre-purchase inspection reveal a non-negligible defect? Sometimes, the outcome will be to cancel the transaction or renegotiate the sale price.
However, such a defect can lead to a dispute between the buyer and the seller, especially if one wants to conclude the transaction. Once again, the real estate lawyer is there to defend your interests.
Between the moment of the first visit to the house and the appointment with the notary, there can be no problems. And real estate lawyers are there to defend your interests, whatever the nature of the problem.
When to contact a lawyer during a real estate dispute?
In addition to appeals for hidden defects or to contest an easement, several other situations require the rapid intervention of a qualified real estate lawyer. Acting without delay is extremely important in real estate matters because limitation periods run and could cause you to lose your recourse if you wait too long!
Prescription and encroachment are, therefore, the first reasons to contact a lawyer, regardless of which side of the dispute you are on. When someone builds a structure on your land, you have the right to demand, depending on the circumstances, that he destroys it or forcibly acquires the parcel on which he encroaches.
When the encroachment lasts uninterrupted for ten years, you especially risk having this parcel of land prescribed by this same owner, which could cause you to lose the right of ownership in respect of this parcel. You now understand why acting quickly is crucial!
During a real estate sale, the seller must provide a guarantee of ownership, confirming that he is the actual owner of the building sold and that it is free from defects of title. It is never recommended to buy without such a guarantee, and when such a defect is discovered, contacting a lawyer quickly could save you a lot of headaches.
Non -compliance with a promise to purchase is also the responsibility of real estate law. Although it is only a “promise,” it constitutes a valid, binding contract following which it is possible to force the seller or the buyer to conclude the transaction envisaged.
This is what the law calls “the action in the passing of title,” consisting of bringing an action to oblige the buyer or seller who refuses to conclude the sale. If the seller has already sold his house to another person violating the promise, an action for damages may be brought against him.
Divided co-ownership disputes, i.e., condominiums, are also part of the daily life of lawyers. Moreover, they have even developed expertise in settling disputes between owners of the same building through mediation.
When the co-ownership agreement is the subject of a disagreement, real estate lawyers can also advise the syndicate and the assembly of co-owners on the extent of each person’s rights. It is even advisable to specifically appoint a lawyer as chairman of the meeting to ensure a compliant and efficient process.
Mortgages are so-called “accessory” rights to the right of ownership conferring direct control over a property given as security. Whether it’s a legal construction hypothec or a mortgage granted on the house, the threat of foreclosure is natural and no joke.
Whatever real estate situation you find yourself in, seeking the services of a real estate lawyer puts the odds on your side to resolve the situation effectively! So what are you waiting for? Contact JuriGo!
Frequently Asked Questions About Real Estate Lawyer Services!
What is the legal value of a promise to purchase in Quebec?
A promise to purchase – or offer to purchase – is considered a preliminary contract. Despite this qualification, this document obliges the parties to conclude the contract envisaged, namely the sale of the house! Only the conditions in the promise can allow the contracting parties to get rid of it, without which recourse can be brought.
Is the real estate broker a qualified professional in the legal aspect of real estate?
The real estate broker is a professional able to advise clients on several aspects of a home sale, ranging from financing to managing offers. However, he is neither qualified nor authorized to advise on a legal nature. This privilege is reserved for lawyers!
Why call a lawyer BEFORE concluding a real estate transaction?
For significant real estate transactions, the advice of a lawyer can help ensure compliance with contractual agreements. The lawyer is also an outstanding advisor and a fine negotiator. This expertise can be beneficial in real estate matters.
In which court should you take your real estate dispute?
Real estate law cases can be brought before several courts in Quebec, and the amount claimed will dictate the court’s jurisdiction. The Court of Quebec has jurisdiction to hear disputes where the amount requested, is less than $85,000, while the Superior Court hears cases whose value exceeds this threshold.
What are the benefits of filing a claim in Small Claims Court?
The Small Claims Court has jurisdiction to hear cases valued at $15,000 or less. The advantage of bringing your real estate dispute before this body is that you save on legal costs and benefit from a simplified procedure because lawyers are not authorized before this court.
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Reasons Why You Need a Real Estate and Property Lawyer
