To assist you in selling your own home we have provided some useful explanations regarding elements that need to be considered when choosing to sell yoru own home which are intended to help us serve you more efficiently and make your transaction more understandable to you.
Specific topics covered below include:
MARKETING PROPERTY
MORTGAGE DISCHARGE
AGREEMENT OF PURCHASE AND SALE / OFFER
- Chattels
- Defects
- Deposit
- Description
- Fixtures
- Rental Items
- Survey
- Tenants
- – Warranties
Some people elect to sell their homes privately (without the assistant of a realtor). Some people think that they will save themselves a considerable amount of expense in real estate commission if they sell privately. If you want to sell your home yourself, there are pros and cons which you will have to weigh very carefully.
A realtor is a qualified professional who is experienced in the marketing of a property, negotiating of an offer, and assisting you with all of the details surrounding the listing, sale, and closing of your home. In many cases, the real estate agents are able to secure a better price for you, than you are able to yourself because they know the market better than you do and they know people who are interested in buying houses.
If you decide at this point (or if you are unsuccessful in selling your house by yourself) to list your house with a realtor, please contact us and we would be pleased to provide you with the names of professional and capable realtors who service the market in which your house is located. It is important to select a Realtor who services that area where your home is located.
If you do elect to proceed to sell your house yourself, the following points may be helpful for you.
You will have to decide how you will market your property:
- You will want to get a “For Sale” that you can place on your property to indicate that the property is for sale. You may or may not wish to have your telephone number on the sign.
- Advertising in a newspaper having circulation in the area in which your house is located, is helpful.
- There are Internet services that are available to assist you in marketing your home on your own.
If you have a mortgage on your property, it will have to be discharged on closing unless it is assumed by the purchaser. If your mortgage is assumed, the purchaser has to be approved by your mortgage company. You must also obtain written confirmation from the mortgage company that the mortgage company will release you, as the vendor, from the mortgage. If you do not obtain a letter of release from the mortgage company and the purchaser defaults on the mortgage, the mortgage company may pursue you as original mortgagor on the mortgage.
If the mortgage is to be discharged, you should confirm whether or not there will be a discharge penalty. Most mortgages provide for a discharge penalty if the mortgage is paid out before the end of the term. If your mortgage does have a pre-payment penalty clause, often the pre-payment penalty will be reduced or waived if the purchaser obtains their financing with the same mortgage company or if you buy another property and move your mortgage to the new property. You may wish to include a suitable clause in the Agreement of Purchase and Sale concerning the purchaser obtaining a mortgage with the same mortgage company.
AGREEMENT OF PURCHASE AND SALE / OFFER
When someone eventually decides that they would like to purchase your home an Agreement of Purchase and Sale (sometimes called an Offer) is prepared. On a typical real estate transaction, the purchaser prepares the offer and presents it to the vendor. When houses are sold privately, the process may vary. We can assist you in preparing an offer or reviewing an offer that has been prepared by a purchaser. An Agreement of Purchase and Sale is a binding legal document and should not be signed by you unless it has been reviewed by a real estate professional or a lawyer. It is recommended that you include a Lawyer approval condition.
- Description – The purchaser will need to know the legal description of your property before the Agreement of Purchase and Sale can be completed. This can be obtained from your survey, your deed, or your tax bill.
- Deposit – An Agreement of Purchase and Sale sets out all of the terms of the purchase including the amount of the deposit. The deposit is the legal consideration that makes the agreement firm and binding. A purchaser generally wants to provide as small a deposit as possible. As a vendor, you should try to obtain as large a deposit as possible. The larger the deposit the less likely the purchaser will be to walk away from the deal if they change their mind about purchasing your property. The deposit is normally made payable to your lawyer and held by your lawyer in trust until the transaction closes. Purchasers usually do not want to give the deposit money to the vendor, as they do not want the vendor to take the money and spend it before closing.
- Fixtures – The purchase price includes all “fixtures” in your house. A fixture is anything that is permanently attached to the property. It is not always easy too tell if something is a fixture (a mirror hung on a hook is not a fixture – a mirror glued onto the wall is a fixture – a mirror attached in other ways may or may not be a fixture). Anything which might be considered to be a fixture that you would like to be able to take with you when you move, should be excluded on the Agreement of Purchase and Sale. If you are including any appliances or furniture or other similar items, they should be individually listed in the Agreement of Purchase and Sale as being included. They should be specified with as much detail as possible.
- Chattels – A Purchaser may want you to include things in the purchase price that are not ‘fixtures’ – these are called ‘chattels’ and include appliances, lawn ornaments, furniture and other things that are not attached to the house or the property.
- Survey – A purchaser generally wants to obtain a current survey of your property (because a survey shows the location of the house and the location of fences and other improvements to the property). It will also identify whether any of your neighbours fences or buildings encroach on your property. The cost of a survey varies from surveyor to surveyor and from area to area. If you have an existing survey, the purchaser will often agree to accept that survey. You should have a copy of the survey available to provide to a prospective purchaser.
- Rental Items – If there are rental items in your house, and you expect the purchaser to assume those rental contracts, those must be specifically indicated to the purchaser and included in the Agreement of Purchase and Sale. Frequently, water heaters and water softeners are on rental or lease contracts. Sometimes furnaces, gas fireplaces and other equipment are also on similar contracts.
- Warranties – Purchasers often request warranties for various things. If your property is a rural (country) property serviced by a well and septic system, the purchaser will ask you to warrant that the water supply is safe and sufficient and that the septic system works satisfactorily. These are warranties concerning the state of the systems as of the date of closing and it is not an on-going warranty.
- Tenants – If the property that you are selling has tenants in it, and the tenants are to remain in the property following closing, all of the terms of the tenancy should be disclosed to the purchaser, including the amount of the rent, the amount of any pre-paid deposit, and any appliances owned by the tenants. The tenants’ rent and rent deposit will be adjusted on closing. An acknowledgment will have to be prepared by your lawyer and signed by the tenants confirming the terms of the tenancy. If there are leases, copies of those leases should be provided to the purchaser.
- Defects – If there are any defects with the property which you are aware of, they must be disclosed to the purchaser unless they are obvious defects. The law requires you to disclose a “latent” defect. A latent defect is a defect which is not discoverable by a purchaser on a reasonable examination of the property. A patent defect is one which should be discoverable by the purchaser on a reasonable inspection of the property. You do not have any legal obligation to bring patent defects to the attention of the purchaser. You may wish to do so in order to avoid misunderstanding later, but it is not required by law.
Even though your house is not listed with a realtor, a realtor may bring a purchaser to the property. Usually, the realtor is not prepared to disclose to you the name of the prospective purchaser unless you sign a short-term listing agreement (sometimes referred to as a ‘One Day Listing’). This may be an appropriate way of selling your home, and you may wish to include in your advertising, a provision that commission will be paid to a realtor who introduces a purchaser. If a realtor presents you with a short-term listing agreement, please speak to your lawyer or an independent real estate professional before signing the listing agreement to ensure that any necessary or appropriate amendments are made to any standard form of listing agreement that might be presented.
Feel free to contact us at any point for assistance or advice with respect to Real Estate law. We may be reached at 705-435-4339 / 1-877-85LEGAL (1-877-855-3425) or contact us via email .
