My Bank/Realtor has told me I need a lawyer to complete my Real Estate purchase or sale transaction. What exactly will the lawyer do? Why do I need them? What real estate services are my legal fees getting me?
Standard Scope of Real Estate Transfer Retainer
Although we're awesome at what we do, we don't do everything. Realtors do 'realtor stuff' - and brokers do 'mortgage lending stuff' - and lawyers do 'lawyer stuff'. That lawyer stuff is what this article is all about.
Basically, lawyers work with their clients and other professionals (and government agencies) to ensure that there is a smooth transfer and valid registration of legal Title. Lenders also require real estate lawyers to represent both the client and the lender to make sure the mortgage loan is properly set up and secured (by registration of mortgage security).
Let's break that down a bit more . . . A retainer is a specific set of tasks which a lawyer agrees to do for a client (in Real Estate we call this a “Transfer Retainer”). When lawyers accept to act pursuant to a Transfer Retainer we agree to do the following:
First, we review the executed, unconditional, Real Estate Contract (“Contract”), and ensure that it is completed legally. However, in residential transactions our standard retainer does include assistance with Contract negotiations or contract amendments, as those are already unconditionally accepted by this point - usually with the help of Realtors);
Second, we complete standard due diligence. This includes a search of 'Title' to review legal description, ownership and registrations on the property (ensuring that the Seller can legally sell and that the property is not otherwise encumbered in a way that would prevent a sale); search tax records, and other relevant documents (things that may cause potential problems with the Title Transfer); One caution: once conditions are removed, both the seller and buyer are deemed to have reviewed and approved the status of title - and the seller is only obligated to remove financial related encumbrances (i.e. mortgages). So while lawyers will pull and review the Title, it won't be with the view of opening negotiations to address title issues.
Third, we coordinate with Realtors and Lawyers and Banks (where applicable) to confirm all parties are ready and able to close the transaction;
Fourth, we prepare a pile of documents and then meet with our Client to review and sign all that legal paperwork, explain the Transfer (and Financing) process, and answer any questions;
Fifth, on the day of Completion (usually the Possession Day!), we ensure that funds are transferred with minimal risk and that all title registration matters are complete or otherwise comfortably in queue. This includes:
ensuring the eventual removal of the Seller’s non-permitted registrations (e.g. old mortgage) and any other relevant discharges; and
ensuring that new registrations are completed (Transfer Registration and Mortgage with its related documents, where applicable.); and
Last, we report the above back to the Client and Bank (if applicable) and account for all funds involved.
But what happens if your real estate deal isn't 'normal''? What happens when there are surprises and additional 'stuff' needs to get done? Well, sometimes we can help (outside of our Transfer Retainer) and sometimes we can direct you to others who are more suited to take care of the issue.
Non-Standard Transactions | Supplemental Retainer:
Sometimes issues arise that are outside of the standard Transfer Retainer but that are properly 'legal' in nature and still within our real estate 'wheelhouse'. If that is the case, we can still help - and while there may be no additional costs to the client, often a small additional fee is necessary to cover the extra work needed ("Supplemental Retainer") . Additional fees for Supplemental Services will usually apply:
when assessing a legal issue or dispute;
administering and confirming the release of holdback funds, and
other substantive matters like second mortgages, rush closings, etc.
Common supplemental services (and their related fees) are described here (LINK)
Additional Legal Needs Beyond the Transfer Retainer
A standard scope of Transfer Retainer is sufficient to close the majority of Real Estate transactions - and sometimes Supplemental Retainer work is necessary to get across the finish line.
However, a small number or real estate transactions require a lawyer to engage in significant additional work, such as:
conflict resolution negotiations;
structuring and administering a settlement; or
making court appearances to obtain a legal grant or judicial order.
The lawyer may assist with these services directly or might refer the client to other counsel that focuses on specialized areas of law related to that issue. However, a new retainer or referral is most often necessary for Real Estate transactions requiring further intervention, negotiation, review, advice, or litigation post-closing.
This is not meant to be, and should not be construed as, legal advice for your specific situation. You should contact one of our lawyers here at Richards + Company for further information and to discuss your particular facts and situation.
Darren L. Richards practices real estate and corporate/commercial law with Richards + Company in Edmonton, Alberta; depending on who you ask he is either ranked #1 or one of the ‘three best real estate lawyers’ in Edmonton.