Why you need to use a Ontario Real Estate Lawyer?

Closing costs is an umbrella term for various fees and expenses that are payable on closing. These can mean anything from closing adjustments such as for prepaid property taxes and maintenance for resale properties, to builder adjustments such as paving, tree planting, Tarion fees, etc…to even Land Transfer Taxes and to even legal fees and disbursements. The term “closing costs” does not have a precise definition and will vary depending on whom you speak to.

The purchaser pays the closing costs, which are paid at the time of closing. These costs are added to the total that is otherwise due and payable. For example, if your closing costs are $4,450, then this sum will be added to the monies that are due to the seller, but will of course be disbursed by your lawyer to the appropriate parties on closing. Your lawyer’s fees and disbursements will be lumped in as well. The land transfer taxes will be paid by your lawyer to the Province and the other closing costs will likely be paid to the seller with your lawyer retaining the monies that are payable to him on account of fees and disbursements and HST.

Closings costs vary depending on the nature of the transaction. Newly constructed homes (i.e. builder purchases will include the cost of the Tarion warranty, the costs of tree planting, driveway paving, property tax adjustment, extension fees if any, NSF fees on deposit cheques if any, energization costs such as the installation of a hydro or water meter etc…). Not all builders charge the same closing costs. Resale homes do not have any of these costs. Closing costs are usually limited to an adjustment in respect of any prepaid property taxes, fuel oil tank (if any) and prepaid maintenance for the month of closing, in the case of condos. Again, your lawyers’ fees and disbursements may also be considered as closing costs.

There are generally no ‘closing costs’ in a refinance transaction, other than legal fees and disbursements.

Again, excluding the Land Transfer Taxes, the builder’s closing costs vary from builder to builder. A good rule of thumb is to budget for 1.0% of the purchase price on account of closing costs (excluding Land Transfer Taxes). Given the nature of the high prices, it is likely that the closing costs (excluding Land Transfer Tax) would constitute less than 1%.

Whether paying cash or purchasing with a mortgage does not change the closing costs. The only cost that may change are that the disbursements with the lawyer may be a couple of hundred dollars smaller.

Refinancing a property in Ontario is essentially a two step process. First, you must be approved for a loan by a willing lender such as a bank and second, you (and most of the time the lender) will retain the same lawyer to receive mortgage instructions from the lender. The lawyer will then prepare the mortgage according to the instructions received from the lender and invite you (the borrower) into his office to sign the new mortgage documents. The lawyer will then receive money from the lender and disburse that money as needed with the net left over to you, the borrower. At the same time, a new mortgage will be registered on your property and in a short while thereafter the old mortgage will be deleted from your property.

Many clients and agents ask this question to assist their foreign potential purchasers with purchasing a property.  The simple answer is YES.  Any legal entity (individual person, corporation, partnership or trust) whether foreign or domestic, may purchaser real estate in Ontario .

This is a problem.  Jokes aside, the seller will either have to bring money to the table on the sale (unfortunate as that may be).  Or other arrangement may need to be made.  This FAQ section cannot accommodate an explanation for this.  You will need to speak to your lawyer.  However, given that the foreigner likely had to put down 35% upon purchase and the property hopefully increased in value over time, this type of situation is rare.

NO. There are generally no restrictions.

Generally yes, unless of course there is some suspicion that this should not be done for legal reasons. Generally, there should be no reason why the seller would make such a request, unless perhaps the seller has closed all his bank accounts because he is emigrating to another country.

Generally yes. This is a question that should be directed to your local mortgage agent/broker. However, generally a foreigner should be able to obtain a mortgage loan in Ontario given enough of a down payment. Generally, a 35% down payment is required. Furthermore, the foreigner may need to prove some sort of income in his local country that would enable him to support the mortgage loan, but will likely require a reference letter from his foreign financial institution. Credit bureau checks do not account for as much because there is likely no bureau file. Again, this matter should be directed to the mortgage agent/broker.

There are two HST rebate programs. One program is for purchasers who intend to reside in the property and the other program is for purchasers who intend to rent the property. Since a foreigner will likely be purchasing the property for rental purposes, the foreigner will be able to apply for the HST rebate through the rental rebate program. This amount is the same as the amount provided under the owner occupied HST rebate program. The difference being is that on closing, the builder will not credit the HST rebate to the purchaser and the purchaser will have to pay this amount to the builder in addition to the purchase price. After closing however, once the purchaser has rented out the property he will be able to apply for the HST rebate through the rental program.

Yes. Given that mortgage payments, potentially maintenance payments, property taxes and utilities will need to be paid using a local bank account, the foreigner will need to open one. Also, rents will need to be deposited somewhere, obviously.

NO

NO. It may be a surprise to you, but the bank will, with a good standing client who will vouch for the person, be able to open a bank account for the foreigner without the foreigner being present. For details on this matter, you should speak to your local banker.

This is a complex question, but generally, if you wish to control the disposition of your property upon your death, then YES, you should have a Will prepared?

NO. But proper identification from the foreign country is required. Passport and credit card from a financial institution, or a driver’s license in English.

NO

NO. Other than the travel expenses, there are no additional costs to purchase.

Not in and of itself alone. Unlike some Caribbean countries that give out permanent residencies upon the purchase of a property, this is not the case in Canada.

NO. Generally this credit will not apply. The credit is given to individuals who are purchasing a home for the first time and have never owned a property anywhere in the world, and who are planning on making this building their principal residence within 9 months of the purchase. These circumstances generally do not apply to foreigners, especially the last one. There can be a case where the foreigner may qualify. For instance, a foreigner who has applied for a permanent residence status in Canada and has obtained it but has not yet moved to Canada but plans on doing so.

Sure, the lawyer does not necessarily need to release the money to the foreigner and can apply those funds to another pending purchase.

NO. Again, refer to the answer in the previous question.

NO. There may be accountant’s costs. There may be increased legal fees to deal with the monies that the lawyer has to hold back and ‘manage’ for a certain time, but as a general concept, there are no additional fees, taxes or expenses.

Generally, NO. A spouse only needs to sign consent on a mortgage that is being arranged on a matrimonial (family) residence. Given that the foreigner will not be residing in the property with his spouse, then the spouses’ signature is not required. This of course does not apply to situations where both spouses are purchasing the property and taking title. In this case, both will have to be present to sign the documentation.

Yes. Not all foreigners (i.e. persons living in Canada who are not Canadian permanent residents or Citizens) are non-residents for income tax purposes.

This is a very individualized question and is assessed on a case by case basis. Although, it is possible to complete a transaction in such a fashion, only a detailed discussion with yourReal Estate lawyer can determine whether that is possible.

Yes, a foreigner who is a non-resident can try to lie, but if the seller’s lawyer suspects that his client is a non-resident, he will not proceed with the transaction on any other basis and the seller will either have to comply with the process or change lawyers. The tax system in Canada is based on a voluntary disclosure system of honesty.

NO. A foreigner can sell real estate in Ontario just like anyone else.

In theory, you can. Again, you must think of the two step process referred to above. If you are able to find a lender willing to lend you money even though you are underwater with your current mortgage, then your lawyer will proceed to complete this new loan transaction according to the instructions that he receives from the new lender.

On closing, a seller must provide a special document to the purchaser that says whether the seller is a non-resident or not a non-resident. It is ultimately not the purchaser’s duty to determine whether the seller is or is not a non-resident, unless of course the purchaser has specific knowledge. If the seller advises his lawyer that he is a non-resident for tax purposes, then the procedure outlined above kicks in. If the foreigner signs a certificate stating that he is not a non-resident, then the procedure above does not kick in and the seller gets all his money on closing. The purchaser in this case is free of any liability, notwithstanding whether the foreigner was honest or not. It is the purchaser’s role to ensure that he either obtains a document from the seller stating that the seller is not a non-resident or otherwise ensures that the seller’s lawyer holds back the 25% of the purchase price.

YES. Foreigners selling real estate will have to undergo a special procedure that Canadian residents do not. A foreigner does not benefit from the Canadian exemption of income tax on principal residence for the obvious reason that the property is not his principal residence since he lives abroad. Thus, in order to ensure that the Canada Revenue Agency gets their share, they pin the tax liability on the purchaser. Therefore, the purchaser must ensure that the seller pays his fair share of the taxes. Because of this, a special procedure has been implemented when a foreigner sells property.

The procedure is as follows: When the deal comes to a closing with the lawyer, the seller’s lawyer (although the requirement is on the purchaser’s lawyer, but practice has developed such that the seller’s lawyer participates in this) will retain from the seller 25% of the sale price. For instance, if the sale price is $1,000,000, then on closing, the seller’s lawyer will hold back $250,000 from the seller and release to the seller only $750,000, less of course any mortgages, commissions etc…After closing, the seller will hire an accountant to submit to the Canada Revenue Agency a special application outlining the profits that the seller earned on this real estate. The profits are generally calculated by taking the sale price, subtracting all expenses (yes, including commissions), subtracting the purchase price and all expenses associated with the purchase price, and arriving at a final number. The Canada Revenue Agency will then assess this application and issue a certificate referred to as a Section 116 certificate. The reason its referred to as a Section 116 certificate, is because the certificate is issued pursuant to section 116 of the Canadian Income Tax Act. The certificate will be sent to the accountant and it will state how much money the seller must pay on account of the income tax. This figure will likely be approximately 25% of the profit (not the sale price). For instance, if your net profit was $200,000, then $50,000 will be payable to the CRA. The certificate will also say that upon the seller paying $50,000 to the CRA, the purchaser is free from any liabilities, because remember, the liability was on the purchaser to ensure that the seller pays his fair share of the taxes. The lawyer who represented the seller will then take $50,000 from the $250,000 that he was holding back, and pay that money to the CRA releasing the balance to the seller. The seller has 10 days to submit the application to the CRA after closing, otherwise there are very large penalties.