The Protocol (Alberta) Update

Transcription

1 Int Western Law Scieties Cnveyancing Prject The Prtcl (Alberta) Update Prepared fr the Legal Educatin Sciety f Alberta 39 th Annual Refresher Curse Real Estate May 6 10, 2006 Susan V.R. Billingtn, Plicy and Prgram Cunsel, Law Sciety f Alberta

2 Intrductin The cncept f the Western Law Scieties Cnveyancing Prject was first intrduced t the Alberta real estate bar at the LESA Banff Refresher Curse in May The cnsultatin paper that was presented in May 2000 sught directin frm real estate practitiners n the viability and practicality f intrducing revised real estate standards fr lawyers that wuld facilitate and expedite residential real estate transactins. The Law Sciety was prvided with an verwhelming degree f supprt fr the prpsal at the Refresher curse in May Tgether with ur law sciety partners in BC, Saskatchewan and Manitba, the Prject was funded, a prject directr hired and a prject plan was develped. The residential real estate Prtcls were develped fr each prvince and were effective as f February 15, 2001 acrss Western Canada. The main purpse f the Prject was t intrduce new practice standards in the residential real estate clsing prcess (the Prtcl) backstpped by the existing lawyers insurance prgrams. The main aspects f the Prtcl fcus n: 1) clsing the registratin gap ; 2) eliminating the lender s need fr a real prperty reprt (unless there is a knwn defect); and 3) prviding the lender with the ptin f a shrt frm pinin. In Alberta, the Prtcl practice changes are cvered thrugh the lawyer s mandatry insurance prgram - Alberta Lawyers Insurance Assciatin (ALIA). The Prtcl can be fund n the LSA website at under Publicatins and Plicies Cnveyancing Prtcl. This paper and the presentatin at the LESA refresher curse is nt intended t be thrugh revisiting f the reasns, purpses and peratin f the Prtcl. It is intended t prvide a brief update n sme cmmn questins asked regarding the peratin f the Prtcl. After five years in peratin, the Prtcl has prvided residential real estate lawyers with a new tl t meet their clients needs. Our experience ver the last five years indicates that the Prtcl clsing prcess has gained acceptance with lawyers and the lending industry. Overwhelming feedback frm Alberta lawyers and ur claims histry indicates that Prtcl clsings wrk well and that Prtcl claims are few and far between. Where there have been claims, they have been quickly and expeditiusly reslved. What is the Prtcl? The Prtcl is a set f revised real estate practice standards backstpped by the existing mandatry lawyers insurance prgram (ALIA) t facilitate the expeditius clsing f residential real estate transactins. It is nt that much different frm hw a real estate transactin is cmpleted the ld way but it des require a shift in thinking. The Prtcl bviates the need fr a transfer back, the tenancy at will and an unpaid vendrs lien caveat. It may als bviate the need fr interim financing. It allws the release f funds n the clsing day withut having t wait fr cnfirmatin f registratin f the transfer and the mrtgage. 1

3 When can yu use Prtcl? Cash deals Cash t assumptin f mrtgage Cash t new mrtgage transactins where the lender prvides Prtcl instructins Refinancings where the lender prvides Prtcl instructins See list f lenders this list may nt be exhaustive, s check yur instructins and ask! Prtcl applies t Residential real estate transactins Single family dwelling (including rental and vacatin prperties nt exceeding fur units) Multi-family r existing cndminium units t a maximum f fur (4) units Existing cndminiums Turnkey new hmes lien perid must have expired and/r lien fund held RPR recmmended fr the purchaser and lender Leasehld titles within Natinal parks All cnsents and ther steps fr Natinal Park transactins must be cmplied with the inclusin f natinal park leasehld titles has been the nly amendment t the Prtcl since the intrductin in February 2001 Prtcl des nt apply t: Cmmercial real estate Agricultural prperties Mrtgages n new cnstructin where the mrtgage is a draw mrtgage Sale f a cnd unit by a develper (sectin 14(3) f the Cndminium Prperty Act) Unrepresented party n the ther side 2

4 Hw d yu clse a transactin using the Prtcl? First, read the Prtcl! The Seller s lawyer s prcess is in Part D and the Buyer s lawyer s prcess is in Part E. The Prtcl is available n the LSA website at Publicatins and Reprts Cnveyancing Prtcl In Prtcl transactins: Cnduct all the same due diligence Cnduct all the same searches Prepare the mrtgage dcumentatin the same way Calculate the statement f Adjustments and shrtfall funds the same way Payut mrtgages and pay real estate cmmissins the same way. Ensure that the lender instructins prvide fr a Prtcl clsing. Fllw the lender s instructins and check the lender s reprting requirement. Sme lenders want the shrt frm pinin; thers have their wn frm. The Prtcl des nt change the bligatins under the real estate purchase cntract Seller s lawyer (Part D f the Prtcl) prepare usual transfer dcuments Prtcl trust letter sent t buyer s lawyer with transfer dcumentatin Buyer s lawyer (Part E f the Prtcl) Perfrm all usual due diligence; Obtain cash difference; Mrtgage dcumentatin executed by buyer and lender s requirements cmplied with; Insurance in place; Real prperty reprt and cmpliance in place On clsing day: Cnduct title search t ensure n surprise registratins Cmply with lender instructins n the release f funds d they need the shrt frm pinin at this pint? btain funds if nt already prvided by the lender Release funds t seller s lawyer Immediately submit dcuments t LTO fr registratin Reprt t lender as instructed when registratin cmplete 3

5 Real Prperty Reprts Lenders The Prtcl prvides that a residential real estate clsing can prceed withut a real prperty reprt fr a lender this wrks well fr refinancings An pinin can be prvided t the lender that an RPR is nt necessary unless there is a knwn defect Buyers We start frm the premise that the buyer needs and wants t knw the state f the prperty upn purchase. Find the prblem if there is ne and fix it!! Lawyers fix prblems. The standard real estate purchase cntract prvides that the seller is t prvide the buyer with an RPR with municipal cmpliance (r nn-cnfrmance) It is necessary therefre t deal with the RPR and cmpliance befre clsing - business as usual! If the standard cntract is nt used r the RPR clause has been crssed ut, advise the buyer f the ptins. If the buyer des nt want an RPR, btain a specific waiver frm the buyer cnfirming they have decided t prceed withut an RPR. See the CBA Real Prperty Sectin recmmendatins n RPRs available n the Practice Advisrs sectin f the Law Sciety website at Cnverted Prtcl One f the advantages t clsing n Prtcl is that the cash difference is nt required frm the buyer until clsing day If the transactin has prceeded the ld way, can the lawyers agree t cnvert t the Prtcl? Assuming the Prtcl is available (ie: the lender is n bard), yes, amend the trust cnditins t Prtcl trust cnditins and prceed; and then ask yurself, why didn t I d the Prtcl in the first place! 4

6 What if the Dcuments d nt register r there is smething wrng? First, dn t panic!! Lk and see what the prblem is. It may be that the prblem can be easily reslved. Als remember that the seller s lawyer has agreed t assist in crrecting any deficiencies. If the prblem is unlikely t be reslved quickly, reprt the matter t the Alberta Lawyers Insurance Assciatin. Prtcl Claims Few and far between!! Of 843 real estate related claims since 2001, nly 9 have been related t the Prtcl. Prtcl resurces Western Law Scieties Cnveyancing Prtcl (Alberta) Prtcl Lenders LESA Webcast Questins and Answers (with the permissin f LESA) Tp Ten Questins Brchure - Enhanced Legal Services fr Lenders Brchure - Quick and Efficient Real Estate Clsings The Western Trrens Prject - Cnsultatin paper - May 2000 Help Resurces - Prtcl Mentrs Legal Educatin Sciety f Alberta: Webcast August 19, 2004 Legal Educatin Sciety f Alberta: Real Estate fr Legal Supprt Staff- Prtcl Clsings - Nvember 9, 2004 Legal Educatin Sciety f Alberta: Western Law Scieties Cnveyancing Prtcl by Linda Wright: Laurier Law Office Edmntn Legal Educatin Sciety f Alberta: Western Trrens Prtcl February/March 2001 Legal Educatin Sciety f Alberta: 33 rd Annual Banff Refresher Curse Real Estate The Western Trrens Prject - May