Oops, it's not in writing?
And more on title insurance

One of the things I continue to tell you, over and over, is the simple fact that if it's not in writing it probably is not binding. I am going to tell you a story that illustrates how important this is from every perspective.

Mary went into a sales office and executed an Agreement of Purchase and Sale. The Agreement provided that she could terminate based on her lawyer's review within three days of execution provided proper notice was given to the builder in writing within the three day period.

Mary messed about and on the third day called the sales agent and said she wanted out of the deal. All Mary had to do was deliver a notice in writing on that day and the deal would have been over. The sales agent did not tell her that, and she didn't see a lawyer in time. She didn't read the Agreement carefully enough herself and didn't realize what she had to do. The sales agent told her he would have to check with head office to see if she could be let out. Either the agent deliberately misled her or just didn't know what the Agreement said. He never called her back and when she went back to the office another agent told her she would have to have her lawyer call head office.

Mary is facing potentially large legal fees and a lot of aggravation and anxiety before this will sort out. The builder may be nice and let Mary out, but there is no guarantee.

OK, moral of the story; there are two:

1. Make sure if you have a clause that allows you a chance to have your lawyer review the Agreement, do it right away!

2. If it affects real estate make sure it is in writing - whether it is a promise from an agent as to what you are getting, or what you are not paying for, or a notice to the builder.

More on title insurance
I had an opportunity to spend some time with council for TitlePLUS. As you may remember TitlePLUS is the title insurance company owned by the Law Society and the one I subscribe to. The reason I met with him was to get a better understanding of what was being offered to the public. I am a registered lawyer with a program offered called GoodStart which is jointly offered by certain builders and TitlePLUS. What this program does is provide an opportunity for lawyers to use title insurance and reduce the cost to the consumer purchaser of disbursements. As you all know I keep providing disbursement lists to all of you in my articles. There are currently five sites subscribed to this program, and rather than the $500-$600 currently being spent on disbursements one of these deals should be able to be done for disbursements under $400. The fees charged by lawyers will vary, but frankly I see no reason why they should exceed the amounts advertised in this magazine. What I suggest you do is check with your builder before you sign to find out if they have signed up for the program and if he has then find a lawyer who is part of the program. Remember one thing, the difference between TitlePLUS and the other title insurance companies is that only TitlePLUS ensures that a lawyer handles your deal.
Some lawyers let a closing centre do all the work and just add on a fee, or you may be directed that you do not need a lawyer at all. UNTRUE! Only a lawyer can properly advise you, protect you, deal with problems with ONHWP, etc, and only a lawyer can legally provide legal advice.

Just so everyone understands, in less than 5 years all of Ontario will be on an electronic registry system. Title insurance will be the norm and most of the transaction will be done by computer-to-computer communication. Make sure the lawyer you select has taken the title insurance courses, has gone to the seminars on Terranet, the electronic registry system, and can properly advise you.

The Law Society passed a rule that every lawyer on a residential real estate deal must advise the client of title insurance, the different companies and how it works. Remember a lawyer survives by repeat business and referrals and a lawyer's mandate from the Law Society is that the client's best interests must come first.

 
Jayson Schwarz is a senior partner with the firm Schwarz Gillen Barristers and Solicitors. He can be reached at (416) 486-2040.