When purchasing a property, a buyer hopes the process goes swimmingly, which is why there is often a team of professionals involved in any property transaction. Everyone from a real estate agent, to a home inspector, to a real estate lawyer, plays a critical role in the home-buying process. But what, exactly, does a real estate lawyer do for a buyer?
This blog post will provide general information about a real estate lawyer’s role in a property purchase and the importance of hiring an experienced real estate lawyer for your next deal. It is important to note that real estate lawyers are skilled professionals and their assistance may not be limited to simply assisting with the transaction.
The Difference Between a Real Estate Lawyer and a Real Estate Agent
Real estate lawyers and real estate agents play important, but starkly different roles in real estate transactions.
Real estate agents help clients buy and sell residential and commercial real estate in Ontario. If someone is buying a property, a real estate agent can help them determine the kind of property they are looking for, complete market research, and arrange viewings. If a person makes an offer on a property, a real estate agent will help coordinate inspections, negotiate with the seller, draft the contract for purchase, and work with a real estate lawyer to close the purchase.
A real estate lawyer typically becomes involved much later in the purchasing process. Often, a client will not deal with a lawyer until after the purchase and sale agreement has already been signed. A real estate lawyer handles the transfer of ownership between the vendor and the purchaser and ensures that the buyer obtains clear title for their new property.
A Bird’s Eye View of What Real Estate Lawyers Do for Buyers
In most cases, a real estate lawyer will begin their work once a party is committed to their purchase.
The following points provide a high-level overview of some of the more routine tasks that a real estate lawyer will complete on behalf of a buyer:
- Reviewing the legal title to the property to ensure that the seller can properly transfer the property to the buyer;
- Reviewing the contract of purchase and sale and informing the buyer of their obligations prior to the closing date;
- Gathering necessary information required to complete the deal;
- Working with a mortgage lender (if applicable) to ensure financing is in place;
- Meeting with the buyers to sign relevant legal documents, such as title transfer documents; and
- Negotiating with other parties regarding legal or procedural issues which may arise before the deal closes.
Can I Hire a Real Estate Lawyer Before Signing a Contract of Purchase and Sale?
While you are not required to hire a real estate lawyer before signing a contract – and, in fact, most people do not – there is nothing preventing someone from consulting a real estate lawyer to review the contract of purchase and sale or assist with due diligence tasks.
Can a Real Estate Lawyer Represent Both the Buyer and Seller?
Generally, a real estate lawyer cannot represent both the buyer and seller in the purchase/sale of a residential property. Under the Law Society of Ontario’s Rules of Professional Conduct, this would amount to a conflict of interest.
However, in limited circumstances, a real estate lawyer can represent both the buyer and seller. Here are a few of the circumstances where this kind of representation is permitted when:
- an estate trustee, executor, or administrator is transferring property to a person who is beneficially entitled to a share in the estate,
- the lawyer practices in a remote location and requiring the buyer and seller to hire independent lawyers could unduly inconvenience them,
- the buyer and seller are the same, and the transfer is occurring to effect a legal change (such as severance of a joint tenancy), or
- the buyer or seller is a government body (such as a Crown or municipal corporation).
Can a Real Estate Lawyer Help Me if a Dispute Arises?
Occasionally, issues can arise after a real estate contract has been signed but before the deal closes. For instance, the buyer’s financing could fall through, putting them at risk of failing to close the deal. The buyer will typically forfeit their deposit if they fail to close – or, in more drastic cases, the seller may even bring legal action against the buyer. Alternatively, real estate disputes can arise long after a deal has closed. For example, you might move into your new home only to later find out that there is a hidden defect in the property that was not discovered during the inspection, such as structural issues.
Depending on the type of real estate lawyer you’re working with, you may need to hire a real estate litigator. Real estate litigators are real estate lawyers who are trained to handle the “courtroom” aspects of real estate disputes, helping clients select the best alternative dispute resolution processes and tirelessly advocating for a client’s rights.
A real estate litigator can assist with several real estate disputes, including the following:
- Defending a buyer who is unable or refusing to close
- Suing a seller who is refusing to close
- Misrepresentation
- Failure to disclose a latent defect
- Breach of warranty
Oakville Real Estate Lawyers Representing Buyers, Sellers, and Professionals
When it comes to buying your first home, purchasing a cottage, taking on an investment property, or selling your home to downsize to a condo, the real estate lawyers at Campbells LLP can help. Our lawyers work closely with clients through each step of a residential real estate transaction. Our team takes care to ensure that clients understand all of their options at each stage of the process. We review all relevant paperwork and contracts, negotiate on your behalf, and defend your interests in any potential disputes.
We provide a wide range of legal services related to buying and selling property and we are here to meet your real estate law needs. To speak with one of our experienced real estate lawyers, contact us online or call us at 905-828-2247.
