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This page gives general information about liens which apply to construction projects, such as building or renovating a house, and the basic steps to enforce a lien if money is owed. It is not intended to replace legal advice from a lawyer.
For contractors, subcontractors, suppliers and labourers:
For property owners:
When a supplier, worker, contractor or subcontractor provides goods or a service to improve a property, he or she automatically gets a legal right in that property that lasts until the goods or services are paid for. This legal right or claim against the property is called a lien or security interest, and it is covered by Nova Scotia’s Builders’ Lien Act.
Registering a builder’s lien on property is a way for a worker, supplier, subcontractor or contractor to try to collect money owing for work done on a property, and/or for materials or services supplied to improve a property. Once registered at the appropriate Land Registration Office, a builder’s lien affects the owner’s interest in the property, and can interfere with its sale or mortgaging.
For contractors, subcontractors, suppliers and labourers:
A lien may be filed by anyone who worked on or provided services or materials for a property, including:
If you do not fall into one of these categories, speak to a lawyer. There may still be a way for you to register a lien, or another way to make a claim for money owed.
Time limits are very important in making a claim for a lien. If you miss a deadline you may not be able to put a lien on the owner’s property.
Make sure you make a note of the last day you worked on a project or delivered materials to a project. Going back and making repairs to a completed project or cleaning up debris on a project may not count as the last day of work so make sure you note the day you last completed building work on a job.
The Builders' Lien Act says that unless you are a manager, officer or a foreman, every spoken or written agreement that you will not exercise your right to make lien claim is null and void. This means that you cannot give up your right to make a lien claim. You might voluntarily choose not to make register a lien but no one can stop you from making a lien claim by insisting that you, or someone on your behalf, agreed beforehand not to make a claim.
You have 60 days from your last day of work, or the last day you supplied materials, to register your lien at the appropriate Land Registration Office.
After the 60 days you can no longer register a lien, but you may still be able to sue the person who owes the money in either Small Claims Court or the Supreme Court of Nova Scotia for the amount of money you are owed.
Your lien must be filed with the Land Registration Office (Registry of Deeds) in the county where the property is located. There is a charge for this service. You may require a lawyer to register your lien at the Land Registration Office. Local Land Registration Offices are listed in the government pages of the telephone book under Land Registration, or visit: www.gov.ns.ca/snsmr/contact/service_locations.asp?service=Deeds.
Once your lien has been registered you should contact the owner of the property in writing and let them know that a lien has been placed on their property. This may stop the owners from continuing to pay the general contractor. Hopefully at this point the person who owes the money will pay voluntarily, or negotiate a settlement with you.
If you are not paid after registering the lien then you must take steps to enforce the lien. This is sometimes called ‘perfecting’ the lien.
To enforce your lien you must start a law suit in the Supreme Court of Nova Scotia. You must also file a document called a “certificate of lis pendens” (this means a certificate of “law suit pending”) with the Land Registration Office to let people know that you have started a law suit dealing with the owner’s property.
Starting a law suit in Supreme Court is a complicated process and you must file your law suit in Supreme Court by the deadline set out in the Builders’ Lien Act. Time limits for enforcing a lien are very important. If you fail to make a deadline you may not be able to get a lien on the owners’ property. You should contact a lawyer early in the process to help you with your application and to advise you of the proper time limits.
There may also be many people making lien claims on the same property. If this is the case, you may not get all the money you are asking for. Getting advice from a lawyer early in the process will let you decide whether it is worth it for you to make an expensive court application to enforce your lien.
To enforce your lien, you have 105 days from the last day of work and/or supply of materials (not from the date you registered the lien) to start a law suit in Supreme Court and to file a “certificate of lis pendens” at the Land Registration Office.
In some cases, however, where the construction contract you worked on was supervised by an architect or engineer, you may only have 30 days from the date you registered the lien to enforce your lien claim.
If you have missed a deadline for registering or enforcing your lien or if you don’t want to bring a claim for a lien you may be able to sue in Small Claims Court for money that is owed to you if you are suing for under $25,000. However, you will not be bringing a claim for a lien, you will simply be suing for the money owed to you. This means you will be following the normal processes of the Small Claims Court. If after you get your judgment in Small Claims Court the person who owes you money doesn’t pay you, you would have to pursue them as a judgment creditor in Small Claims Court. See http://www.courts.ns.ca/self_rep/self_rep_docs/small_claims_guide_for_creditors_10.pdf
If you missed a deadline and you can no longer make a claim for a lien you may also be able to make a claim for a “breach of trust”. You have to make a breach of trust claim in the Supreme Court of Nova Scotia regardless of whether the claim is for less than or more than $25,000, as Small Claims Court cannot deal with breach of trust claims. You will most likely need a lawyer to make a breach of trust claim for you.
Money that an owner receives to fund a construction project is said by law to be held “in trust” for the benefit of contractors on the project until it is paid over the contractors. This means that even though the money is in the owners’ hands, the law trusts that the owner will hold this money for the contractors. If the owner does not pay the contractors this money they can be said to have broken this trust agreement and the court may find that they have committed a “breach of trust”.
Similarly, money received by a contractor or a subcontract for other subcontractors, labourers and/or suppliers is said by law to be held in trust for other subcontractors, labourers and/or suppliers even though the money is in the hands of the contractor or subcontractor. If the contractor or subcontractor uses the money for their own purposes and fails to the pay the subcontractors, labourers or suppliers, the court may find that they have committed a breach of trust.
Bringing a breach of trust claim in Supreme Court may be particularly important where you have missed deadlines and can’t bring a lien claim anymore or where the person who owes you money might be declaring bankruptcy.
As this can be a complicated area of law, it is a good idea to hire a lawyer for advice about registering and enforcing a lien.
A lawyer can help you:
If negotiations are not successful, you will need a lawyer to handle the proceedings through the Nova Scotia Supreme Court. A lawyer can also give you advice on whether you should go ahead and sue on your own in Small Claims Court instead of making a claim for a lien. You can sue in Small Claims Court if you are asking for less than $25,000. However, you will not be making a lien claim, you will just be suing for money. You are allowed to represent yourself in Small Claims Court.
For property owners:
Yes. A lien claimant may register a lien even if you did not directly hire them to work on your property. They may have been hired by your contractor, or a subcontractor.
For example: You hired a general contractor to build your house, and have been making regular payments to him. Your general contractor subcontracted an electrician to do the electrical wiring in your home, but failed to pay her for the work. The unpaid electrician can register a lien against your property. Equally, if the general contractor paid the electrician, but she did not pay her employee who worked on the project with her, the electrician’s employee can register a lien against your property.
Sometimes there are disagreements about the quality of work done on a property. There may be deficiencies in the work, or the amount claimed under a lien is disputed. Even in those situations the person who did the work or supplied materials has the option of filing a lien and going to court to try to enforce the lien if the money is not paid or no settlement is reached.
Ultimately it would be up to the court to decide, after hearing from all sides, whether the lien claim is valid and how much money is owed, if any.
If a law suit (action) has not been started yet you may have a lien removed from your property if the money owed is paid voluntarily. The lien claimant then files a receipt at the Land Registration Office confirming that the money owed has been paid, and removing or ‘discharging’ the lien.
If the person who registered a claim against your property did not start a law suit in Supreme Court of Nova Scotia within 105 days after finishing work or delivering supplies to your property the lien may have expired. You should contact a lawyer to find out if the lien has expired.
If a law suit has already been started the court will decide whether or not the contractor, subcontractor, labourer or supplier is entitled to the money they are asking for. If you want the lien removed from your property before the court decides the case, you would need to apply to the Supreme Court to ask for an order to have the lien removed or ‘vacated’. To have a lien vacated you would have to pay money or a bond into court and the court would issue you an order to vacate the lien. If the court decides that money is owed to the contractor, subcontractor, labourer or supplier, it will be paid from the money that you paid into court. The court order vacating the lien would then have to be registered at the Land Registration Office in order to take the lien off of your property.
You should get legal advice about your particular situation.
As this can be a complicated area of law, it is a good idea to hire a lawyer for advice about disputing a claim for money, or removing a builder’s lien from your property.
Q- What should I look for when buying a home?
Prepare a needs list by deciding what it is you are looking for in a home in terms of size, bedrooms, location, type of neighborhood etc. Find out from your real estate agent if there are any developments planned for the neighbourhood that might affect your decision to buy. Then try to settle on a price range that you can afford. You will need a down payment usually around 5% of the house price. Do not forget to take into account other costs involved such as home inspection, deed transfer tax, other closing costs and your lawyers fees. Your lawyer will explain these costs to you in advance.
Q- Are there things to consider if I am buying in a rural area?
When purchasing a rural home you should ensure that the drinking water is tested. You should consider having both the quality and quantity of water tested. Most rural homes will be on a well so it is important that you ensure the water is safe to drink before purchasing. Most rural homes are on a septic system, and you will want to have someone inspect this to ensure it is in working order. Also consider how far you have to travel to services such as hospital, schools, work, shopping etc.
Q- Are there things to consider if I, buying a newly built home?
New homes may have fewer maintenance concerns, but there will be different kinds of questions you will want answered. Is it protected by a new home warranty? Have all the required permits been issued? Can copies be provided for your review?
Q- Are there things I should consider if Im buying a condominium?
You should find out what the monthly condominium fee is and what it covers. Are there plans to increase the fee? Have there been any maintenance or repair problems? How much is in the reserve fund to cover future maintenance and repairs? Are most units owner occupied or rented? Can you hear the occupants of the unit overhead or next door?
Q- Who is involved in the process of buying a home?
When purchasing a home, you will require the services of a lawyer, a real estate agent, and most likely financial assistance from a mortgage lender. You may also need the services of other professionals such as building inspectors, land surveyors.
Q- What is the role of a lawyer?
A lawyer will inform you of your legal rights and obligations when you are buying your home. You should have your lawyer review your offer to purchase. Your lawyer should explain the conditions that have to be met before you are legally obligated to buy, and the general terms of the legal contract you have entered into. He or she will also ensure that you understand any ownership interests, limitations of your new home such as restrictions on use of the property or rights of way over the property. Your lawyer will also review documents, ensure that you and the seller sign the documents, ensure that he or she has sufficient funds to complete the closing of the sale, make sure the appropriate searches are done and that any liens or mortgages are paid off on closing, and, following closing, file documents to register your mortgage and you as the new owner of the property.
Q- What is the role of the real estate agent?
A real estate agent provides advice on the type of property which will best suit your needs including balancing your wish list with any budgeting limitations. He or she will prepare the offer to purchase, as well as negotiate on your behalf with the sellers agent. When purchasing a home, the real estate agent has obligations to the seller, so ensure you ask your agent to explain fully the extent that this obligation may limit their duties to you as a buyer.
Q- What is the role of the lender/financial institution lending you the mortgage?
Your financial institution/lenders main role is to provide you with a mortgage to enable you to purchase your home. There are many different mortgage plans with varying interest rates. The financial institution should work with you to decide what kind of mortgage best suits your financial situation and your needs. Some buyers use a mortgage broker to find the best mortgage to suit their needs. A financial institution may give you a pre-approved mortgage enabling you to know for sure what you can afford, so that you can avoid getting your heart set on a home that you may not be able to afford. Dont hesitate to ask any questions you feel will help you decide what kind of mortgage best suits your needs.
Q- What should I look for when choosing a lawyer, real estate agent, or financial institution?
Take the time to understand what the services will consist of. You can ask family, friends or people you work with who they would recommend. Lawyers may have varying rates. You do not necessarily need to chose the first lawyer or real estate agent you approach to represent you, explore your options. Ask whether their practice is for the lawyer to meet with the client for a closing appointment. You should talk with different financial institutions and have them explain the different mortgage options available to you based on what you can afford. They will explain such things as fixed rates, variable rates, and help you determine the best mortgage repayment options. You can also use a mortgage broker to shop around for you.
Q- Can I use the same real estate agent, or lawyer as the seller?
Yes - but is recommended you hire a lawyer or real estate agent that is not representing the seller. This is to ensure that they will solely serve your interests in the home buying process.
Q- What costs are involved in purchasing a home?
Before making an offer to purchase a house, you should ensure that you understand and can afford all the costs of buying the home as well as the purchase price. Here is a list of the usual fees involved when you buy a home. You will want to find out what each is likely to cost so that you can keep to your budget as far as possible. The costs may include:
Dont forget to budget for insurance on the building and contents from the closing date. Usually, you dont pay your real estate agent as he or she takes a share of the fee paid by the seller to his or her agent.
Q- What happens if the seller doesnt accept my offer?
If the seller doesnt agree with the price you offer or with any of the conditions in the offer, he or she can make a counter offer. You then have to decide whether to accept it. You may also be able to make a further counter-offer. If you and the seller cannot reach an agreement then negotiation is at an end and you should look for another property.
Q- What if I or the seller does not satisfy the conditions in the agreement of purchase?
The agreement of purchase is a contract, and therefore it follows the general rules of contract if the terms are not carried out by either party. At any point if one party cannot satisfy a condition of the contract the other party may withdraw from it provided the contract allows the withdrawal for that breach. For example, if you decide not to complete the purchase because you find another house you like better, you might forfeit the down payment (deposit).There will be certain time frames in the offer for conditions to be satisfied. For example, you might have a certain time to get mortgage financing in place, if you cant get a mortgage then you may be able to withdraw from the agreement without paying a penalty. You should tell your lawyer or agent if you cannot meet a condition within the time frame provided.
Q- What is a property condition disclosure statement?
A Property Condition Disclosure Statement is a report that is provided by the seller. It discloses information about the existing condition of the property that is known to the seller. This statement will help the purchaser decide whether further inspections are needed. Review it carefully, and ensure you have all your questions answered to your satisfaction. For example, if the Property Condition Disclosure Statement says that the roof was last replaced 10 years ago, or there was water in the basement last spring, you may want to have the roof inspected to see if it needs repair or replacement and the basement inspected for current and possible future damage.
Q- Does the seller have to tell me about problems such as a flooding basement?
The seller is legally required to disclose what they know about the condition of the property. Specific questions about water leakage should be included in the property disclosure statement. A building inspector can also assess whether there is any evidence of past or present water problems. Again ask questions of your inspector and ensure any information you need is provided to your satisfaction.
Q- Should I have a building inspector inspect the home?
Yes. Purchasing a home is a large investment. You will want to ensure as far as possible that what you are about to purchase will not have any unexpected problems down the road. Hiring a building inspector will help identify any past or already existing problems with the house that may not have been apparent to you when you viewed the property. While it may cost money to have a building inspector look over the house you wish to purchase, the potential cost of not having a building inspected could be far greater.
The home inspector cannot identify every potential problem; however, if you are unsure of a particular aspect of the house such as wiring, structure, the roof etc. you can hire a specific tradesman such as an electrician, roofing specialist etc. to further investigate the part of the house in question. There is usually a time frame set out in your contract for this work to be done. Ensure you are aware of the time frames you have to meet. If the home inspection finds significant or costly problems there may be an opportunity to withdraw from the purchase or to ask the seller to fix or pay all or part of the cost of fixing the problems. Talk to your lawyer and real estate agent if you are concerned about the results of the inspection.
Q- What are restrictive covenants?
Restrictive covenants are conditions that come with the property you are purchasing. They may include such restrictions as size of building on land, prohibition against establishing a business on the property, and many others. Your lawyer will inform you of these covenants upon a review of the state of the title. The restrictive covenants are in place to protect the value of your property as well as the value of homes in your neighborhood. It is important to be aware of them when buying or when selling your home in the future.
Q- Will my spouse be included in the deed to the home?
You should discuss with your lawyer whether you and your spouse should jointly own the property and the options of how you take title to your new home. For example, as a sole owner, joint tenant or tenant in common. If your mortage lender is relying on both your spouses and your income to support a mortgage application, then it will require both names on the deed.
Q- When should I insure the property and its contents?
You should make sure that you have insurance coverage on the property from 12:01am on the day of closing. Your lawyer will require proof that insurance has been arranged in the form of a binder letter from the insurance company. It can be faxed to your lawyer before the closing date.
Q- What is title insurance?
Title insurance is specialized insurance that you should discuss with your lawyer. It provides protection against a number of events. It you choose to have title insurance it is a one time closing expense.
Q- What happens on the closing date?
The closing date is the day that you purchase your property in full and receive possession. Your lawyer will have prepared a closing statement showing all the money due to complete the purchase. You should ensure that you provided your lawyer with a certified cheque or bank draft payable to your lawyer in trust for the balance due from you. Your lawyer will also arrange to receive the mortgage funds from your lender. On the closing date your lawyer transfers the appropriate funds to the sellers lawyer. Your lawyer will ensure other closing costs such as deed transfer tax, legal fees, title search, and location certificate are taken care of. Your lawyer will register your deed and mortgage with the Land Registry Office and forward to you the original deed to the house once he or she receives it from the Registry Office.
Q- When can I move in?
Your purchase agreement may set out the exact time on the closing date that you are able to move in. However this will depend on whether your lawyer has received all the funds necessary to complete the purchase, from both you and the lender. You will complete a final inspection of the property and if this is satisfactory, and your money has been paid, your lawyer will arrange for you to have the keys to your new home.
Q- What is a Parcel Register?
The new Nova Scotia Land Registration system requires the seller to register all the title information in the parcel register at the government land records office. Every parcel register has a number (Property Identification Description or PID) and this number remains the same through all transfers of ownership. Your lawyer will review the details of your parcel register with you before the purchase.
Q- Is the property migrated
All properties that are to be transferred to new owners must be registered or migrated into the new Land Registration system. If the seller has not already done this, it will be set out in the contract that he or she will do it before the transfer is completed. For more information on the new Land Registration Act you can visit the website of the Land Registration Office of Nova Scotia.
Q- What is a location certificate?
A location certificate is a survey conducted by a Nova Scotia Land surveyor. It ensures that the building the seller is selling to you is within the boundaries of the lot. It ensures the property as you viewed it, is within the boundraries of what the owner has to sell.. The company giving you a mortgage will require you to get a Location Certificate to ensure the money it is loaning you is secure. Your lawyer will make the necessary arrangements to have a land surveyor carry out the survey
Q- Am I required to register my new home under the new Land Registration Act?
If the home you are purchasing is not yet registered according to the Land Registration Act, then it must be done before the home can be purchased. The registration process is sometimes called conversion or migration to the new land registration system. There is a fee for registration. It is up to the purchaser and the seller to negotiate who covers the costs involved. The practice has developed that the seller usually pays the cost of registration.Your lawyer will tell you if the property your are purchasing has been registered. Once a property is registered under the new registration system it will not need to be registered again. For more information on registering property and the new Land Registration Act you can visit the website of the Land Registration Office of Nova Scotia.
This page gives legal information about residential mortgages. It does not give legal advice, and does not replace advice from other professionals, such as a credit counsellor, licensed insolvency trustee in bankruptcy, or mortgage advisor. Look at the resources at the end of this section for help if you are having financial difficulties.
Talk with your lender right away if you are having trouble making your mortgage payments.
The process set out below is known as the “simplified procedure”. It applies to most foreclosures. However, the process may be different in your situation.
Foreclosure: a legal process which allows the lender to get ownership of the property and to sell it and use the sale proceeds to pay off the mortgage debt, legal costs, Sheriff fees and other costs.
Lender: A lender can be a bank, credit union, insurance company, private individual, or loan company.
Mortgagor: the borrower, or the person(s) borrowing money from the financial institution.
Mortgagee: means the lender, or the financial institution lending you money.
Mortgage a loan agreement or contract between a borrower and lender, where the borrower’s property is promised as security for the loan. Mortgages can take many forms and can be taken by a mortgagee to secure obligations of the borrower whether or not the money being borrowed is for the purchase of the property. Here, we are talking about a mortgage as a way to borrow money using the home you are buying as security for the loan.
|Usual steps in a foreclosure
|1. Default||Borrower defaults on mortgage|
|2. Demand Letter||Lender sends Demand Letter to borrower|
|3. Notice of Action and Statement of Claim||If demand letter fails, the lender starts legal proceedings and serves the borrower, in person, with court documents starting the foreclosure process (Notice of Action & Statement of Claim)|
|4. Defence||After getting the Notice of Action and Statement of Claim, the borrower files a defence or applies to court for other relief within: 15 business days, if served in Nova Scotia; 30 business days, if served in Canada, but outside Nova Scotia; 45 business days, if served outside Canada.|
|5. Motion to Court for Order for Foreclosure, Sale and Possession||If no agreement is reached, and no defence is filed within the required time after Notice of Action and Statement of Claim is served on the borrower, or any defence is unsuccessful, the lender makes a Motion to court for Order for Foreclosure, Sale and Possession|
|6. Order for Foreclosure, Sale and Possession issued by court||Court grants Order for Foreclosure, Sale and Possession|
|7. Notice of sale of the property at Public Auction||Notice is published twice in a local newspaper, with a copy sent to borrower by regular mail at the mortgaged property (or last known address if different from mortgaged property) at least 15 days before sale|
|8. Sheriff’s sale of the property by Public Auction||Property is sold at a public auction in the county where the property is located. Generally, homeowner (borrower/mortgagor) should be ready to move out on the date of the public auction.|
|9. Claim for Deficiency or Surplus after the sale||Application(s) to court to deal with any deficiency or surplus based on the proceeds of sale.|
|10. Confirmatory Order||The lender obtains an order from the court confirming that the foreclosure is complete|
Most people who buy a home need to borrow money from a bank or other financial institution to help cover the purchase price of the home. Usually the loan is secured by a mortgage on the property. If you default on your mortgage your lender may take legal steps to foreclose on your property.
Default means you have broken the mortgage terms. The most common default is not making mortgage payments when they are due.
Failure to make mortgage payments is not the only form of default. Mortgages have many promises the borrower must follow. Breaking any of these promises can be a default. Some mortgages even allow the lender to demand repayment of the mortgage in full and subsequently foreclose at any time at their discretion without default.
Most mortgages have an ‘acceleration clause’, which usually says that if you miss a payment the entire amount owing on the mortgage is payable right away.
The lender can start the foreclosure process if you default on your mortgage. Default means you break any of the terms of your mortgage, including falling behind on mortgage payments.
When you arrange a mortgage, it is a contract between you and the lender, where you agree to pay back the principal and interest according to a set schedule. You are the legal owner of the house, but the lender will record the mortgage with the Land Registry, to protect their interests. The house is security for the loan. If you do not make payments as scheduled, the lender has the legal right to force a sale of the house.
Lenders usually do not want foreclose, and will make reasonable efforts to get you back on track so you can keep your home, including refinancing or setting up a payment plan. Talk to your lender right away if you are having trouble making your mortgage payments. Do not wait until legal proceedings have started against you.
A demand letter:
If you get a demand letter:
This is formal notice that the lender is foreclosing, and that they have started the court process.
Notice of Action and Statement of Claim: If you do not respond to a demand letter before the deadline in the letter, or cannot negotiate an agreement with the lender, the lender, may start the foreclosure process.
The lender starts foreclosure by having a legal document called a Notice of Action and a Statement of Claim filed with the Supreme Court of Nova Scotia and delivered to you. They are required to deliver this notice to you in person (‘personal service’). It is not something they may drop off in your mail box or courier to you, unless the lender has applied to the court to get permission to have you served (notified) in an alternative way, called substituted service. However, a court generally only grants substituted service if the lender proves to the court that they have tried all reasonable ways to serve the borrower in person.
It is not a good idea to evade personal service as this will increase the lender’s legal costs, and so will increase the amount the lender is looking for when foreclosure is complete.
A Notice of Action is a court document that tells you that the lender is starting a legal process against you because you broke the terms of your loan or mortgage. It tells you the basics of who is involved in the foreclosure process, and how long you have to file a defence.
A Statement of Claim is a court document attached to the Notice of Action. The Statement of Claim outlines the details of what the lender is claiming against you in court. It may include the following:
1) The date of the mortgage
2) Details of the registration of the mortgage at the Registry of Deeds or Land Registration office
3) The property involved
4) Details of the default (for example, you defaulted because you did not make a payment or broke some other term of the mortgage)
5) Details of any agreement(s) that might have changed your mortgage
6) The total amount outstanding on the mortgage or amount unpaid. This will usually include the principal balance, interest, property taxes, legal fees and out-of-pocket expenses of the lender, generally known as “protective disbursements”
7) A statement asking for foreclosure and sale of the property (‘Order for Foreclosure, Sale and Possession’) if the total amount of the mortgage, interest and costs are not paid
8) A statement asking for a deficiency judgment to cover the balance of the loan if the property is sold for less than what is owed to the mortgage lender.
Once you are served the Notice of Action and Statement of Claim you may:
The form and general instructions for filing a defence are on the Nova Scotia Courts website under How to Defend an Action on the Supreme Court-Court Forms page. Try to get legal advice if you want to file a defence. Contact a lawyer in private practice, or there is a Free Legal Clinic in Sydney and Halifax, for people who are going to Supreme Court without a lawyer.
If you want to file a defence, you must file it within the required time.
If you disagree with what is in the Notice of Action & Statement of Claim, you should file a defence with the Supreme Court of Nova Scotia within the following time:
The days are business days, so weekends and weekdays when the court is closed are not included. The 15 day timeline applies to most circumstances, so do not miss the deadline.
If you choose to file a defence, it should include why you feel your property should not be foreclosed on.
Some examples of defences may include:
1) That the mortgage was not signed
2) You never received money from the lender
3) You repaid the lender
4) You have not broken any mortgage terms and you are not in default.
You must file your defence with the Supreme Court of Nova Scotia and serve the lender or their lawyer personally with a copy of your defence. The court will then give you a court date for you to dispute the lender’s claim to a foreclosure.
If you do not either file a defence or apply to court for other relief, such as applying to court to have the foreclosure discontinued, the lender will apply to a judge for an Order for Foreclosure, Sale and Possession of the property. This court application is called a motion, and is usually ‘ex parte’, which means without notice to you. The idea is that you were already notified of the court process when you got the Notice of Action and Statement of Claim and chose not to participate by not filing a defence.
At the hearing for the Order for Foreclosure, the judge can:
Negotiate: The easiest way is to negotiate with the lender. If you have missed payments, contact the lender and talk about your situation. The lender may be willing to give you time to catch up with payments. You may be able to refinance, so that you have lower mortgage payments over a longer term. Never ignore the lender’s letters or inquiries.
Redeem: You may “redeem” the mortgage by paying the full amount owing on the mortgage, including the interest, principal and any penalties or costs, before the sale of your property at public auction. This way you keep the equity built up in your home.
This may mean:
Apply to Supreme Court to discontinue the foreclosure (‘reinstate’ your mortgage): This option can only be used once during the life of a mortgage. You can apply to court to have a foreclosure action discontinued (have the mortgage ‘reinstated’). This is a right under a provincial law called the Judicature Act. If the default is non-payment of the mortgage, you will have to pay all the arrears and the lender’s legal costs (legal fees and out-of-pocket expenses). If the default is a breach of a covenant (promise), you will have to perform the promise, and pay the lender’s legal costs. You can apply to court to discontinue the foreclosure even if the lender is refusing to accept payments. However, you can only apply to court to discontinue the foreclosure before the lender has made the motion and obtained a court order for foreclosure and sale (see ‘If I do not file a defence’).
Defend the action: if you file a successful defence, the foreclosure process may be stopped.
Yes, you may try to sell the house or property up until a foreclosure order has been issued by the court.
If no defence is filed, usually only the plaintiff’s lawyer will be at the foreclosure court hearing.
The notice will contain the time and place of the auction.
Although unusual, if the lender has an offer to purchase the property from a third party and all subsequent encumbrancers agree with the sale, the lender may apply to the court for approval to sell the property privately. However, in most cases the property will be sold at a public auction.
The Sheriff, or person appointed by the court, will hold the public auction at the time and place in the notice. If you wish to bid, you must go personally or send someone to bid on your behalf.
The successful bidder will have to pay 10% of the sale price at the end of the auction and then has 15 days to pay the rest If you are the successful bidder, and you have not paid the rest within the 15 days, you will lose the 10% deposit, as it will be applied against the amount owing to the lender. You cannot recover this money.
The rules requiring 10% down payment at the auction are firm. If you are the highest bidder and do not have the full 10% in guaranteed form (cash, certified cheque or solicitor’s trust cheque) with you at the auction, your bid may be unsuccessful and the property will go to the next highest bidder. The Sheriff has the discretion to allow the highest bidder a short amount of time to get the funds but is not required to do so and may refuse. Even if the Sheriff provides you with a short time to get the funds, in practice it is as little as 20 minutes. Therefore, if you want to be the successful bidder, you should ensure you have the 10% available at the auction.
If the lender is the successful bidder they may still ask for a Deficiency Judgment.
Deficiency: Following the sale, a lender may apply to the court for a Deficiency Judgment, which is a request by the plaintiff to get a judgment against the borrower for the shortfall amount; that is, the difference between the amount owing on the mortgage (plus interest, costs, out-of-pocket expenses, Sheriff fees, property taxes), and the amount received from the sale of the property.
The lender must show that the amount obtained from the sale of the property is a fair market price. This is determined either by actual sale or though an appraisal.
The borrower and anyone else who may have to pay the deficiency amount will get at least 10 days’ notice of the deficiency hearing. The plaintiff has 6 months to apply for a Deficiency Judgment, from the date of the Sheriff’s sale.
You should try to get legal advice if you wish to make a claim for surplus.
The court has the power to overturn the sale in exceptional cases. An example would be if the directions in the foreclosure order were not followed.
The 2 to 3 months consists of:
1. The 15 days to file a defence after being served the Notice of Action (longer than 15 days if you are served outside of Nova Scotia, as set out above).
2. If no defence is filed, the lender can schedule the Motion to court for Order for Foreclosure, Sale and Possession, with 2 days’ notice.
3. The 15 days’ notice required between the Order for Foreclosure, Sale and Possession and advertisement for the sale at public auction.
4. The 15 day time limit for the successful bidder at the auction to pay the full purchase price.
The days are business days, so weekends and weekdays when the court is closed are not included. The rest of the time involved will depend on how quickly the lender decides to proceed, and the availability of a judge to hear the case and grant the orders.
If a defence is filed, the above timeline can vary a lot. The lender may make a motion to court for summary judgment, and how long things will take will depend on the success of the defence, as well as the court schedule.
For help and information:
Reviewed December 2017
What is title to land? Does it matter if you don't have clear title to land? What are 'squatters rights'? Read on for answers to these and other questions about land titles.
The following is general information about land titles. It does not replace a lawyer’s advice about a specific legal problem. Everyone’s situation is different, so you may need to get legal help about your matter. Click here to download this information in pdf.
The Province owns about 35% of the land in Nova Scotia, and the rest of the land (about 65%) is owned privately, or by the federal and municipal governments. The majority of the publicly owned land is managed by the Department of Natural Resources. This land is often referred to as Crown lands.
The Province has been working to buy more land, and does not sell a great deal of the land it owns because the percentage of public land ownership in Nova Scotia is small compared to the rest of Canada. From time to time, the government does sell land if the purpose is for economic development or to assist a municipality or community – people can apply to buy land through the Department of Natural Resources.
Most of the land in the province is listed in the name of an owner. Some lands are listed in the land records as “owner unknown”. This happens when the municipality cannot identify who the owner is. “Owner unknown” lands can be sold for unpaid taxes.
“Title to land” means ownership of the land. A person who has “title to land” has satisfied the legal requirements to own the land and can exercise the rights of land ownership, including the right to:
“Title to land” can also refer to a legal document such as a deed, which proves ownership.
A person who has title to land can exercise all the rights landowners enjoy. These rights include any lawful use such as:
These rights are subject to restrictions imposed by laws such as municipal land-use bylaws.
Courts will enforce those rights and make sure that others, including governments, respect them.
Where a person does not have title to a specific piece of land, they may be denied the opportunity to exercise these rights.
Having title to land means that the landowner must comply with the legal obligations of land ownership. These obligations will vary depending on where that land is located. In Nova Scotia, the main legal responsibilities of landowners include paying municipal property taxes and following land use bylaws. If you don’t pay taxes and follow applicable laws, the consequences can be severe – you may need to pay a fine or you could lose title to your land.
Clear title to land means there is legal certainty about who owns the land. In many cases, it is easy to identify the legal owner of a piece of land; however, sometimes several different people claim to own the same piece of a property. For example, two siblings may both claim to own the same parcel of land. If you have clear title, there are no claims on the land from others.
Clear title to land is important because it provides landowners with legal certainty that they can enjoy the rights and obligations of land ownership. Clear title to land enables landowners to develop, sell, lease, mortgage and transfer their land within the bounds of the laws where that land is located.
Without clear title to land, the landowner’s rights may be limited or restricted by other people’s claims to the same land. This could stop the landowner from developing or selling their land. Also, it could result in family conflicts about the current and future uses of the land. For example:
A person can get clear title to a parcel of land in several different ways – the three mentioned below are the most common ways.
A claim of a right of way or an easement (easements allow one neighbour to cross over the property of a neighbouring landowner) over a parcel of land will not challenge the owner’s title to the land, but those interests can impact the legal owner’s ability to fully enjoy the rights that go with having title to land. For example, a person who has a right of way may have the right to use your driveway to access their property.
Squatters’ rights are rights of land ownership that are gained through use and occupation of land that is legally owned by someone else. These rights eliminate the ownership of the person who has legal title to the land. Another name for squatters’ rights is adverse possession.
To claim adverse possession of someone’s land, a person must show that:
Squatters’ rights can also be claimed against the Crown (government) but the squatter must show 40 years of continuous use and occupation.
If a person has enough evidence to establish that they have used and occupied privately owned land for more than 20 years, they can ask a lawyer to register their ownership interest in the land under the Land Registration Act.
If the person is making a claim against the Crown and has good evidence of 40 years of use and occupation of Crown lands, they can apply to the Department of Natural Resources for a certificate of release. If the department is satisfied that the evidence proves that the Crown’s ownership right has been wiped out, the certificate of release is issued to let everyone know that the Crown no longer owns the land. The person then must get a lawyer to register their ownership interest in the land. Ownership claims can also be proven in court using the Quieting Titles Act.
Land registration is a process that gives landowners a way to be certain that they have clear title to their land. Once land is registered in the system, the landowner has priority over all other persons who may claim an ownership interest in the same land.
Land registration is important because it provides certainty. It ensures that the registered landowner has all the rights of ownership including developing, selling or transferring land. It makes it easier for landowners to avoid conflicts regarding the title to their land so that the land can be used as the owner wishes.
If you want to register your land, you will need the help of a lawyer who is certified to register land titles. Certain transactions, including the sale or mortgage of previously unregistered land, automatically require the land to be registered, but a landowner also may voluntarily register their land.
In certain situations – especially those involving fraud or prescriptive easements – land title registration may not provide absolute protection for registered titleholders against competing claims, but land title registration provides the maximum legal protection possible against competing claims.
Provincial and municipal governments and public utilities such as Nova Scotia Power and the Halifax Water Commission can take (expropriate) private land, but only if it is for a public purpose. Usually, this would be to build roads, or to expand or improve public services. If your land is needed for a public purpose, the government must compensate you by paying you the market value of the land.
Visit novascotia.ca/natr/titles-clarification/ , or contact the Department of Natural Resources, Land Services Branch for information about:
Visit www.novascotia.ca/sns/access/land/land-registry.asp for information about Land Registration
The information on this page was made possible by the Nova Scotia Barristers' Society, with support and input from various individuals and organizations.
Do you rent? Are you a landlord? Here you will find basic information, and links to other more comprehensive resources, about the Residential Tenancies Act (‘RTA’), which is the law that sets out the rights and responsibilities of residential landlords and tenants in Nova Scotia, and provides a way to resolve disputes.
The Residential Tenancies Act does not apply to commercial leases, on-campus university or college residences, hospitals, municipal homes, prisons, some nursing homes, and hotels.
All tenants get security of tenure immediately
Security of tenure means that a landlord cannot end a tenant’s lease without a good reason.
All tenants get security of tenure right away. This means:
Examples of reasons for a landlord to give notice under the Residential Tenancies Act are that the landlord claims the tenant:
Notice to quit process for unpaid rent
A landlord can give a 15 day notice to quit if the tenant is 15 days late in paying the rent. This applies to a yearly, monthly, or fixed-term tenancy.
A tenant who gets a notice to quit for unpaid rent has 15 days to:
If the tenant does nothing, and is still in the property 15 days after getting the notice to quit, the landlord can apply to Residential Tenancies for an order requiring the tenant to leave (‘order for vacant possession’). If the landlord does this the law says Residential Tenancies is not required to investigate, try to mediate, or hold a hearing. Residential Tenancies can simply make the order for vacant possession and mail it to the landlord and the tenant. The tenant has 10 days from the date of the order to appeal to Small Claims Court. If the tenant does not appeal then the Sheriff can evict the tenant.
No hearing is required, so it is up to the tenant to apply for a hearing within the 15 days if they want to contest the notice and have their say.
Tenants who need to get out of their lease early
To end a yearly lease a tenant must normally give 3 months' written notice before the anniversary date.
However, a tenant in a yearly lease may give the landlord just one month’s notice to quit if the tenant has:
The tenant must provide a doctor’s certificate, or proof of acceptance into a nursing home.
These short notice rules also apply to tenants in a fixed-term lease.
The tenant must give a copy of the notice to quit to any other tenants living with them, at least 1 month before the tenancy ends. The tenancy then ends for all tenants, but the remaining tenants may negotiate a new lease with the landlord. The landlord must agree to do this, unless there is a good reason not to.
There is a further exception to the normal notice periods for ending a lease: a victim of domestic violence may end a yearly or fixed term lease by giving the landlord just 1 month’s written notice, along with a certificate from the Department of Justice, Victim Services.
A victim must first apply to Victim Services for a certificate. Victim Services may give a certificate if either:
Although there is no appeal if Victim Services refuses to grant a certificate, a tenant can apply again if something new happens. Victim Services is not required to hear from the alleged abuser when deciding whether to issue a certificate.
For more information about ending a lease early because of domestic violence:
Some other rules
For more information
For more information about these and other Residential Tenancies Act rules, or for help with a landlord/tenant issue:
The Residential Tenancies Act and regulations are available online: nslegislature.ca/legc/statutes/residential tenancies.pdf and gov.ns.ca/just/regulations/regs/rtgenrl.htm
For more legal information or legal advice:
Reviewed December 2016
Know your rights as a renter in Nova Scotia.
Download Dalhousie Legal Aid's Tenant Rights Guides below:
|pdf Tenant Rights Guide 2019 (1.78 MB)|
|pdf Finding a Place and Being a Good Tenant 2019 (473 KB)|
|pdf Public Housing Guide 2019 (579 KB)|
|pdf Manufactured Home Parks Guide 2019 (675 KB)|
|pdf Residential Tenancies Legal Procedures Guide 2019 (539 KB)|
|pdf Tenant Rights for Legal Professionals 2019 (797 KB)|
Dalhousie Legal Aid's Tenant Rights Guides are posted on the Legal Information Society of Nova Scotia's website with permission from Dalhousie Legal Aid Service.
The tenancy guides are meant to inform the public of their rights and obligations as a tenant. They were created in an attempt to address the clear knowledge imbalance found in tenancy relationships and provide support to all residents of Nova Scotia.
Dalhousie Legal Aid Service is a legal aid clinic based in the North end of Halifax and connected to the Schulich School of Law at Dalhousie University. It is comprised of community groups, law students, community legal workers and lawyers all working together. The mandate of Dalhousie Legal Aid is threefold: to provide services to low-income community members in need of legal assistance, to engage in community development and law reform work and to provide a meaningful educational experience for third year law students. It also does community outreach, public education, and lobbying to protect low-income individuals in Nova Scotia.
The clinic was the first legal service in Nova Scotia for low-income communities, getting its start in 1970 as a summer project of five Dalhousie law students. It is the oldest clinical law program in Canada and the only community law clinic in Nova Scotia.
You can contact Dalhousie Legal Aid Service by phone at 902-423-8105.
The following is general information about property taxes. It does not replace a lawyer’s advice about a specific legal problem. Everyone’s situation is different, so you may need to get legal help about your situation. Click here to download this information in pdf.
Note: Some of this information is only about property taxes in the Halifax Regional Municipality. Please contact your local municipality for tax information specific to your community.
Information about the Property Valuation Services Corporation and property tax appeals applies across Nova Scotia.
The city collects property taxes from property owners. Property taxes are one of the most important ways money is raised to pay for things like schools, fire and police departments, streetlights and community centres.
Your municipality will send out a tax bill. For example, in the Halifax Regional Municipality the city sends a tax bill every six months. Payments are due at the end of April and the end of October. The Cape Breton Regional Municipality sends an interim tax bill in April, and a final tax bill in September. Please check with your local municipality for details in your community.
You can generally pay your property taxes in several ways, including: online banking, online credit card payment, in person with a cheque or money order, or as part of your mortgage payment.
Property taxes are calculated as a percentage of the value of the property. The value of a property or “assessed value” is determined by a not-for-profit organization called the Property Valuation Services Corporation (PVSC).
Assessments are determined by market value, which varies by community and type of home. Tax rates are set by the city, looking at services provided (e.g.,fire, police, schools, sidewalks, transit), along with mandatory contributions for services such as education and corrections.
Property taxes are based on the market value, or the price a willing seller would receive from a willing buyer for the property. Any houses or buildings that are on a property affect its value. For example, a property with a house will usually have greater value than a property with no house.
You have the right to appeal your property assessment if you disagree with it. You must appeal within 31 days of receiving your Assessment Notice in the mail or epost.
Assessments are mailed out in January each year. You can appeal your assessment by mailing or faxing an appeal form that explains why you are appealing the assessment to the PVSC. The appeal form is attached to your Assessment Notice, and must be received by the PVSC by the date (deadline) indicated on your Assessment Notice.
Contact PVSC toll free at 1-800-380-7775 or visit their website at www.pvsc.ca/en/home/howassessmentworks/appealinformation/default.aspx for more information about the appeal process.
If your property taxes are not paid on time, the account will fall behind. This is called being “in arrears”.
If this happens, interest will be charged on the amount you owe. For example, in the Halifax Regional Municipality the interest rate charged for accounts that are in arrears is 15% per year (for example if you owe $1,000, after one year you would owe an additional $150 – a total of $1,150). The interest rate on arrears may differ in other communities across the province, so check with your local municipality.
If property taxes remain unpaid for more than one year, the city has the option of selling the property at a tax sale, or trying to sue on the debt as an alternative to a property tax sale.
Property can be sold at auction if property taxes remain unpaid for more than one year. These tax auctions or sales are open to the public.
The city must try to notify the owner as well as all lien holders about the upcoming tax sale. Notice must be sent by registered letter.
The owner will receive information indicating:
When it is not possible to notify the owner, the property is posted with a Tax Sale Notice, which is stuck on the door of the property. Properties are sold for the amount of outstanding taxes, interest and expenses owed to the government, which is usually much less than the market value of the property.
Paying property taxes is an essential part of owning property. Municipalities across Nova Scotia offer some tax relief options, including tax payment deferrals or exemptions for those who have a lower income. Please check with your local municipality to find out what options are available in your community.
The Halifax Regional Municipality offers three tax relief programs that may help prevent property owners from falling behind on their tax bill, or help if you have already fallen behind on payments. The three programs are payment plans, rebates and deferrals. It is possible to combine these programs or use them individually.
PAYMENT PLAN Instead of making two large property tax payments in April and October, smaller payments can be made every month.
PROPERTY TAX REBATE Rebates are available if the combined net income of the adults living at a property is less than $32,000 per year. The rebate amount is calculated based on the combined income of the adults at the property and the amount of tax owed. This program can change from year to year and is tied in with the cost of living (consumer price index).
DEFERRAL OF PROPERTY TAX PAYMENTS Tax payments can be put off (“deferred”) if the combined income of the adults living at a property is less than $32,000 per year. Owners can choose to defer their entire payment, or just a portion of it. A small interest rate is charged to the deferred tax amount. The interest rate on deferrals in 2014-2015 is around 1%. This program can change from year to year and is tied in with the cost of living (consumer price index). The deadline to apply for these programs is March 31 each year, although this deadline is subject to change, so check with HRM. To apply you must provide proof of income based on your Notice of Assessment (received from the Canada Revenue Agency after income taxes are paid) and an application signed by the property owner. Depending on the individual circumstances, you may need to provide supporting documents to assist with the application. The HRM is pleased to assist those interested in these programs to complete their applications over the phone.
Arrears – money that is owed and should have been paid earlier. The amount accumulated from the date when the first missed payment was due.
Lien holders – someone who has a right or potential claim against someone’s property. The lien holder is usually a bank or another financial firm. For example a person or financial institution has given you money on loan to buy property or has made improvements to the property.
Market value – amount the property would probably sell for on the open market, with buyer and seller making an informed, voluntary deal. All real property is assigned a market value assessment by professional assessors employed by Property Valuation Services Corporation, on behalf of the Province. This value is based on such factors as construction quality, location and age of the property. This value may be adjusted annually to reflect changes that could go up or down in the market value of property in your area.
Notice of Assessment – a notice sent to property owners advising them of the current assessed property value for property (municipal) tax purposes.
Property assessment – the process of establishing a dollar value for property for property tax purposes. Property Valuation Services Corporation (PVSC) – responsible for property assessments in Nova Scotia.
Taxable Assessed Value – the assessment used to determine annual property taxes.
Property Valuation Services Corporation (PVSC)
Preston Outreach on-site facilitator
Email: [email protected]
This information was made possible by the Nova Scotia Barristers' Society, with support and input from various individuals and organizations.
This page only gives legal information. If you have a legal problem you should contact a lawyer.
SCAN is a Nova Scotia law called the Safer Communities and Neighbourhoods Act.
SCAN deals with illegal activities that adversely affect a neighbourhood that:
For example, SCAN covers specific activities like:
SCAN allows anyone to complain anonymously to Nova Scotias Public Safety Investigation Unit if they are concerned that these types of activities may be happening on a regular basis in their community.
Anyone can make a complaint if they believe activities like illegal sale of alcohol, possession of drugs, gambling, prostitution, are regularly happening in their community. Complaints are confidential.
Once you make a complaint you are referred to as the complainant. Your identity cannot be revealed unless you agree in writing. To make a complaint contact Nova Scotias Public Safety Investigation Unit at 1-877-357-2337. Youll find more information online at www.gov.ns.ca/just/Public_Safety/safer_communities.asp
Call the Public Safety Investigation Unit at 1-877-357-2337 to make a complaint.
After a complaint is made the Director of Public Safety or public safety investigators may:
The Director may decide not to act on a complaint, or to stop action on a complaint, and must tell the complainant about this decision in writing.
The Director does not have to give reasons for a decision.
A Community Safety Order is a court order that requires people to stop doing specific illegal things on a property, and may also order people to leave a property.
A Community Safety Order:
Depending on the situation, a community safety order might also:
A Community Safety Order might be put in place if the court is satisfied that
Specified use includes: illegal sale of liquor, prostitution, illegal gambling, illegal possession, use, sale, transfer or exchange of drugs. The activities must be happening on a regular basis.
If you have been served with a Community Safety Order and do not agree with it you should get legal advice right away. You may be able to get legal advice from Dalhousie Legal Aid or Nova Scotia Legal Aid. If you do not qualify for Legal Aid, you may contact a lawyer in private practice.
You may apply to the Court (Supreme Court of Nova Scotia) to ask a judge to change the Community Safety Order if you live in the property but are not the owner (for example - you are a tenant), and the order:
If you are not sure whether the order does any of these things, call the Public Safety Section, Policing & Victim Services Division, Nova Scotia Department of Justice, at (902) 424-2504.
You must apply to court within 14 days of the date you were served with the order.
A property owner or anyone who lives at the property, including a tenant, may apply to Court to change part of an order that says the property must be closed. You must apply to court before the date given for closing the property.
Applying to Court does not stay the Community Safety Order. This means that even if you apply to Court to try to get the order changed, you still have to follow the order until the Court says differently.
If you are a tenant the Court might change the community safety order by, for example:
You should get legal advice right away if you want to appeal a decision under SCAN. If you want to appeal you must apply to the Nova Scotia Court of Appeal within 14 days of the order you are appealing from. An appeal can only deal with questions of law, which are basically legal issues the judge made a decision about, not decisions on the facts. You must first get the courts leave (permission) to appeal.
The penalty is different depending on your offence. See the list below for offences under SCAN and the possible penalties:
For legal advice:
Q- What is my first step if I plan to sell my home?
You should get an idea of the market value of your home, that is, what you can expect to sell it for. One way to do this is to get a professional appraisal. They are listed in the yellow pages of the phone book under Appraisers. It costs around $200 for an appraisal. Appraisals are based on what houses similar to yours sell for in your area as well as replacement costs. Another option is to contact a real estate agent. He or she will be able to give you a good idea of what you can expect to sell your house for based on what other houses are selling for in your area.
Q- How do I list my house with a real estate agent?
There are many agents to choose from. You should find someone who knows the area you live in. Family, friends or people you work with may be able to recommend an agent. Real estate agents fees may vary so you should find out as much as you can about how much an agent charges. Some owners choose to sell their house without using an agent and there are businesses that provide services to help people do this for example by providing signs and draft documents. Although this costs less than hiring a agent, you will have to be prepared to advertise and show the property yourself and will not have access to the same resources as a professional agent.
If you decide to hire an agent, you will have to sign a listing agreement. Carefully read through the agreement and be sure that you understand the charges and commissions you can expect to pay and what to expect from the agent. You and your agent will discuss whether it should be a multiple or exclusive listing. Multiple listings give you broader exposure, but you may pay a higher commission. Generally, the agent will be entitled to his or her commission when a buyer who is ready, willing and able signs an offer to purchase your home at the price you and your agent agreed to sell it for. Depending on the listing agreement, even if the transaction falls through, you may still have to pay a commission. You may also have to pay a commission if you sell the house yourself while the listing agreement is in effect, or if you sell it after the listing agreement has expired, and the agent was the effective cause of the sale. For example, the buyer came to an open house arranged by the agent and later makes an offer to purchase after the listing agreement has expired.
Q- Can I have the same real estate agent as the purchaser?
Yes but is recommended you hire a real estate agent that is not representing the purchaser. This is to ensure that he or she will solely serve your interests in the home selling process. If one of your real estate agents clients wishes to purchase your property, the agent must inform you. An agent who represents both the seller and the purchaser, is not permitted to advise one party against the interests of the other party. As the seller you still pay the agents fee.
Q- Do I need a lawyer if Im selling my home?
Yes. Your lawyer will advise you, ensure that the documentation is prepared and that the property is registered prior to closing, receive the money from the purchasers lawyer on closing day, pay off the amount owing on your mortgage, and provide you with an accounting of the proceeds from the sale. You should not use the same lawyer as the purchaser.
Q- Do I have to pay off my mortgage before I can put my house up for sale?
No. You should contact the financial institution holding your mortgage to find out exactly how much is left owing on the mortgage. Find out if you can pay off the mortgage early, and if so, is there a penalty. Ask that this information be put in writing for you. If you sell your home and you owe money on a mortgage, on the closing date for the sale, your lawyer will arrange for the amount owing on the mortgage to be paid off from the proceeds of sale and for a release to be issued by the financial institution. You can also ask the financial institution if the mortgage is assumable. That is, can the purchaser simply take over the mortgage from you, the seller? If it is assumable, will you be released from any further obligations under the mortgage? Again ask for this to be put in writing.
Q- What happens when an offer is made on my house?
Your real estate agent will review any offer made with you in detail. He or she will ensure that you fully understand the offer and you are satisfied with it. If you are not satisfied with the offered price or with any of the conditions, you can reject the offer. You can also make a counter offer. Your real estate agent can help you prepare a counter-offer. You can decide whether to make this your final offer or whether you will consider a counter-offer from the purchaser. If you and purchaser cannot agree on an acceptable offer, you can end the negotiation. If you reach an agreement, the purchaser makes a deposit on the house which is held by the estate agent in trust until closing.
Q- When I sell my home, what fixtures are included in the sale?
When someone buys your house, all fixtures are included, unless you clearly exclude them in the agreement to purchase. Legally, fixtures include anything that is attached to the house in a permanent way so that its removal would leave obvious damage or a scar. Permanent attachment can include anything that is plastered, bolted, screwed or nailed in place. For example, wall to wall carpeting, a sink and central air conditioning would all be considered fixtures, while a throw-rug, free standing cupboard, and washing machine would not, unless you have agreed with the purchaser to include them.
Q- What is a property condition disclosure statement?
A Property Disclosure Statement is a report prepared by the seller for the purchaser. It discloses information known to the seller about the existing condition of the property. It contains information that the seller is aware of about such things as the age of the roof and electrical wiring, any problems with leaks or water damage, etc. Your lawyer can advise you on preparing this statement. The statement may help the purchaser decide whether any aspects of the house need further inspection, for example, the roof, electrical wiring or heating system.
Q- Do I need to add sales tax to the selling price?
Generally speaking no, sales tax (HST) is not collected from the sale of used private homes. I if you are selling the home that you currently live in it is unlikely that you will have to collect HST. However, if you have done significant renovations or the house you are selling is a newly built house, you should contact the Canada Revenue Agency to find out if you need to collect any taxes. You should also talk with your lawyer. The Canada Revenue Agency is listed under Taxes in the government blue pages of your telephone book
Q- Must I register my home under the new Land Registration Act before I sell?
If the home you are selling is not yet registered under the new Land Registration Act, it must be registered before the completion of the sale of the home. This is also referred to as having the property migrated or converted. There is a registration fee. It is up to the purchaser and the seller to negotiate who covers the costs involved. The practice has developed that the seller usually registers the property and pays the registration fee. Usually the cost will be between $500 and $1000 plus tax. Your lawyer can provide advice on this and on other costs involved in selling your home. Once a property is registered under the new registration system it will not need to be registered again. For more information on registering property and the new Land Registration Act you can visit the website of the Land Registration Office of Nova Scotia.
Q- When do I have to move out of the house?
The purchaser is entitled to vacant possession once the funds are released to your lawyer and the sale is complete so you must arrange to move out on or before closing day. Most often the agreement to purchase will contain a closing date. This is the date the house must be vacant. Usually the exact time of day is not included. Keep in mind you do not receive your sale proceeds until the house is vacant, and most often you will require the proceeds to purchase your new home.