I've seen an increase in the number of new home purchases coming across my desk.

This means I'm spending more time reviewing New Home Agreements. So I made a video about them, earlier this week.

There's an issue I keep running into with clients that's worth a conversation:

How the Builder is Applying the HST Rebate on Closing.

And right now, the answer to that question varies across builders.

Here's what I'm seeing come across my desk...

Some builders are still using the old format: they apply the $24,000 HST rebate (the old maximum) upfront at closing, and the purchaser then applies for the balance of their rebate after closing.

That's the traditional approach. It's familiar, and required no changes to their Agreements of Purchase and Sale.

Others have added addendums that change things entirely. Some are now structuring the agreement so that no HST rebate is applied upfront at closing at all, meaning the client pays the full HST and then applies for the rebate afterward on their own.

It's a significant difference in how much money the client needs to bring to the table on closing day.

And I've heard of some builders who are moving in the other direction applying the larger rebates upfront, but I haven't seen one of those agreements come across my desk yet.

– – –

In other words, the purchase price in a new home agreement is never the whole story.

How the builder is treating the HST rebate directly affects what your client actually needs to bring in on closing day.

Two clients buying comparably priced new homes could have meaningfully different closing fund requirements depending entirely on how their builder has structured this.

So when you're working with a client on a new home purchase, it's worth asking the builder's rep early how they are applying rebates right now.

That one question gives your client the information they need to actually plan their closing.

Latest YouTube Video:

The closing process looks very different than it did five or six years ago.

Before I was a lawyer, I was a Realtor. And at that time, every closing signing was in-person.

Clients went to the office, sat across from their lawyer, signed a stack of documents by hand, and then had to make a separate trip back to the office to pick up the keys on closing day.

That was just how it worked.

My video earlier this week walks through the changes in the closing process over the last few years and what your clients should expect when they close today.

Here's the short version:

Virtual signing is now the norm. We use software that creates a video signing room (video conference and e-signatures combined). No trip to the office. Some clients sign right from their work desk.

Key exchange has become more efficient too. A lockbox is left on the property, and once the deal is closed, we release the lockbox code to the buyer. They head straight to the property. That extra stop at the lawyer's office is gone.

Beyond the convenience of skipping the drive, something more significant has shifted.

Clients are no longer limited to whoever practices closest to their home. They can choose a lawyer based on what actually matters: communication, experience, expertise, and fit.

A client closing in Niagara can work with a lawyer in Toronto. A client in a small town doesn't have to settle for whoever's down the street.

That's a meaningful change. And it's worth thinking about what it means for you.

When a client has a bad experience at closing: a lawyer who's hard to reach, slow to respond, or drops the ball on something, that memory doesn't just stay with the lawyer. It stays with the deal.

And you, as the Realtor, can do everything right. Negotiate hard, manage the process, deliver on every promise. But if they have a poor experience with their lawyer, the client's lasting impression of the transaction is negative. That's not fair, but it's reality.

The practical upside of virtual closing is that your clients can now choose a lawyer based on their track record, communication style, and fit.

Geography doesn't have to be the deciding factor anymore.

That's worth something when you're thinking about who you recommend.

Latest YouTube Video:

When I'm reviewing a status certificate, we're mostly looking for red flags. Things like financial issues, special assessments, litigation, anything that signals a problem with the corporation.

That part of the review is about identifying what's wrong.

But there's another layer of the status certificate that works differently:

The condo rules.

Condo rules aren't about being right or wrong. They're about fit.

A rule that's a dealbreaker for one buyer can be a selling point for another.

For example...

A building that bans smoking entirely is a problem for a buyer who smokes, yet a positve thing for a buyer who doesn't want to smell it around the building.

A building that prohibits short-term rentals is an obstacle for a buyer planning to list on Airbnb and a positive for a buyer who is moving in personally and wants security and stability.

This week I put together a video walking through 4 condo rules that get discussed most often with my clients... pets, smoking and cannabis, short-term rentals, and balcony use.

If you work with condo purchases often, it's certainly worth a watch.

The point isn't to read the rules and look for something objectionable. It's to make sure the client is reading them against their own lifestyle before they waive that status certificate condition, not after.

Latest YouTube Video:

By far, the most common question I get from condo buyers: 

"Is $X.XX enough in the reserve fund?" 

Sometimes the number in question is $500,000. Sometimes it's $2 million. 

And the honest answer is that number, on its own, tells you almost nothing.

This week's video covers condo fees, including how the reserve fund fits into your monthly fee. Worth a watch if you have buyers in the condo market.

But for this newsletter, I want to clarify how I’m addressing that common question above when reviewing a status certificate on a condo deal.

There's no objective minimum for a reserve fund balance. There's no rule that a reserve under $500,000 is universally bad. 

Every condo is different: in size, age, building components, amenities... etc.

A high-rise building with 400 units needs a fundamentally different reserve fund than an 80 unit mid-rise. 

So the total balance isn't the right question. 

The right question:

Is the Condo following the funding recommendations of the Reserve Fund Study?

Under Ontario's Condominium Act, every condo is required to conduct a reserve fund study at least once every three years. 

This is where an engineer assesses the physical state of the building. The major components, their expected remaining useful life, and the projected cost of eventual repair or replacement. 

From that assessment, the study produces a Future Funding Plan: essentially how much the corporation needs to be contributing to the reserve fund each year to be financially prepared.

That funding plan is the benchmark.

When I'm reviewing a status certificate, I'm looking to see whether the board has adopted the funding recommendations from the most recent reserve fund study. 

A board that hasn't adopted the recommendations could be a red flag. It doesn't necessarily mean don't buy, but it acts as a sign to investigate further. 

Why haven't the recommendations been adopted? Is there a shortfall being deferred?

It’s best to get these answers before a client firms up.

Now, in practice, It’s rare to see a board that hasn't adopted the funding recommendations. But when it comes up, it's a red flag and it's exactly the kind of thing the status certificate review is there to catch.

So remember, the balance of the reserve fund alone isn't the full story. 

The relationship between that number and the reserve fund study is.

Latest YouTube Video:

It may not be the 2021-22 market, but I know many of you still deal with offer deadlines, and multiple offer situations.

This week I put together a video breaking down what Ontario's Trust in Real Estate Services Act actually requires in those situations.

The short version:

1. Listing agents are required to disclose the number of competing offers to every buyer making one.
2. If a commission arrangement exists that could influence which offer the seller accepts, the details of that arrangement have to be disclosed to every competing buyer before any offer is accepted.
3. Sellers have the right to direct their listing agent to share the substance of competing offers openly (though many of you include a clause in your offer that restricts this).

That's what the legislation says.

But I started my career as a Realtor back in 2016, and while multiple offers were picking up then, I was out of the brokerage side before TRESA came into force.

So I don't know what this looks like on the ground right now and I'd rather hear about your real experience.

A few things I'm curious about...

• On the number of offers — when you're representing a buyer, are you submitting an offer summary only and waiting to finalize price at the deadline or are you relying on the listing agent allowing you to revise your offer if others come in?
• On the commission disclosure — are these type of arrangements still common after the TRESA changes? What reduction amounts are you seeing?
• On transparent bidding — has anyone ever actually been in a deal where the seller directed their agent to share offer details? I'm curious how it plays out logistically.

Just hit reply — I want to know what you're seeing out there.

Or let me know if I missed anything...

Latest YouTube Video:

On Monday I made a video on land transfer tax, specifically the first-time buyer rebate and how it works in Ontario.

One piece of that video that always gets questions is the spousal rule for the rebate.

Who counts as a spouse? What if only one of the buyers has prior ownership? What if the spouse owned a home before the relationship?

These are good questions. And they open up something I find genuinely interesting about real estate law: the word "spouse" doesn't have one definition.

It has several. And which one applies depends entirely on what you're trying to determine.

In a single transaction, the same couple can be spouses for one purpose and not spouses for another. The definitions don't all line up.

Here are the three contexts where it comes up — and which definition governs each one.

Land Transfer Tax

Whenever we're dealing with Land Transfer Tax. We're using a definition of spouse that comes from Section 29 of the Family Law Act.

This would apply to the determination of the land transfer tax rebate or spousal exemptions when transferring title

Under this definition of spouse, spouses are:

• two married persons,
• or two people who have cohabited continuously for at least three years,
• or two people who are in a relationship of some permanence and are the parents of a child together.

Common-law couples qualify. But the threshold here is three (3) years.

Matrimonial Home and Spousal Consent

This is the narrower definition of spouse.

The matrimonial home protections under the Family Law Act, including the requirement for spousal consent on a sale or mortgage, use the definition of spouse in Section 1 of the Family Law Act.

Yes, the Family Law Act has two different definitions of spouses...

Here it defines a spouse as:

• Two people who are married to each other.

That means a common-law couple of ten years has no matrimonial home rights. No consent requirement. No possessory rights under the FLA.

Law Society of Ontario Rules

Whether a lawyer can act for both parties in a real estate transaction is governed by the Law Society's Rules of Professional Conduct.

There is typically a requirement for two lawyers in the transfer of real estate.

However, one of the exceptions to this rule is if:

The transferor and the transferee are related persons as defined in Section 251 of the Income Tax Act.

Of course, the Income Tax Act also has its own definition.

For the purpose of this Act, related persons, or persons related to each other, are

(a) individuals connected by blood relationship, marriage or common-law partnership or adoption;

And Common-Law Partner is defined as:

common-law partner, with respect to a taxpayer at any time, means a person who cohabits at that time in a conjugal relationship with the taxpayer and

(a) has so cohabited throughout the 12-month period that ends at that time,

So we have a different timeline for determination of common-law partner under the Income Tax Act.

– – –

One word. Three definitions. The answer changes depending entirely on what you're asking.

Latest YouTube Video:

On Monday I put out a video walking through what actually happens on closing day: from the morning of closing to the moment the buyer gets their keys.

I made it because closing day is a part of the deal clients find stressful, and most of that stress comes from not knowing what's happening behind the scenes.

When you understand the sequence, the waiting makes a lot more sense.

There's one point in that video I want to go deeper on here, because it's the one your clients sometimes bring to you: why doesn't the deal just close first thing in the morning?

After all, a lot of the closing work is done before closing day. We've collected the funds ahead of time, met with the clients and signed all the documents, ordered the title insurance, and gathered everything the deal needs. There's no meeting to attend and no paperwork left for the client.

So why the wait?

Anyone who's been reading this long enough has heard me say most deals close between 2:00 and 5:00 p.m.

Here's what's actually driving that:

1. Banks

It usually starts with the lender. The mortgage funds have to land in the buyer's lawyer's account, and then be resent out to the seller's lawyer along with any other required funds.

There can be delays in the mortgage funds being delivered, and delays in the subsequent wires. Also sometimes mortgages are being administered by 3rd parties... for example a TD Mortgage is handled differently when it comes direct from them or arranged through a mortgage broker.

Until that money is delivered, and then rerouted to the seller's lawyer, closing can't happen

2. The Other Law Firm

We're never closing alone. Every deal involves another lawyer too. We exchange documents, confirm receipt of funds, and wait for them to release the transfer.

All of that depends on the other side being ready to respond, and most reputable firms are managing several closings in a day. It gets busier at month-end and on Fridays, which appear to line up with buyer's and seller's preferred closing dates.

A lawyer with eight closings on a Friday has many steps to manage on each, which all add up.

3. Same-Day Closings

This is a big one. When a client is selling and buying on the same day, the purchase can't fund until the sale closes first. They need the equity out of the old place to complete the new one.

So your client's closing now depends on a completely separate deal, with its own lender and its own lawyers, closing ahead of it.

And if the buyer of their home is in the same position, waiting on their own sale, you get a domino effect. Each deal waits on the one before it, and any delay affects all the subsequent closings. This is why it's recommended to avoid same-day closings when possible.

4. Possession and Move-Out

Sometimes it's simpler than any of that. The seller hasn't finished moving out. Most deals require vacant possession, so the seller's lawyer holds off on closing until the property is confirmed empty.

The Standard APS allows for 6:00 p.m. as the latest time to close. A good lawyer will ensure that they're not completing closing until they know their client is actually out.

If the movers are running behind, your client's closing may be too.

– – –

None of this is a delay in the real sense. It's just the order things have to happen in. The deal closes when the last piece falls into place, and on most days that happens in the afternoon.

The reason this matters for you: when a client messages at 10:00 a.m. asking why they don't have keys yet, sometimes you're the one who gets that message, not me.

Knowing the sequence is what lets you answer it without missing a beat. You already know the money is probably still moving, or the other firm is working through their deals, or the sale has to close first.

And if you've worked with us before, you know we cover this at the signing meeting with the client... and we make sure you, the agent, hear from us the minute we've closed.

Latest YouTube Video:

Just a note on the last email.

The reply button had the wrong email address loaded by default.

If you were trying to respond to the survey, just hit reply directly on the last email and send your answers through. I'll get them.

Sorry for the confusion!

Zachary Soccio-Marandola

I put a lot of time into this newsletter and our YouTube channel every week.

And I want to make sure that time is actually useful to you. The best way to do that is to keep listening to those actually reading and watching.

So I have three quick questions for you.

If you can take a moment to answer them, It helps me to create better content and tools.

1. What tools or resources could I provide that would actually help your day-to-day business?
2. When a client asks you to recommend a real estate lawyer, what matters most to you?
3. List any topics you'd like to see covered in a future newsletter or YouTube video.

Latest YouTube Video:

Earlier this week I made a video about the insurance clause in the OREA APS.

Of course, the Insurance clause requires a determination of "Substantial Damage" in order to be triggered.

One thing my video doesn’t have is a real analysis of what makes damage “substantial”? 

Pordell v. Crowther is a case that deals with exactly that.

The Facts

A fire broke out in a Toronto property two months before closing. The seller hired a contractor and completed repairs.

The buyer, who had been trying to get information about the damage since the fire, ultimately received only a contractor’s estimate and some invoices five days before closing.

The buyer was not comfortable with the information provided and ultimately didn’t close.

Buyer sued for their deposit back, seller countered for damages 

One of the issues is whether the fire caused "substantial damage"? 

The Arguments

Both parties hired structural engineers to give expert testimony.

The seller's position was that repairs cost about $19,000 on a $1.6 million purchase. Just over 1% of the price.

They claimed the damage was cosmetic, and an experienced restoration contractor would have identified any structural issues if they existed.

The buyer's position was that cost wasn't the point.

Fire damage is different. Smoke migrates into walls, heat damages wood and steel, and water used to suppress a fire can cause studs to rot. None of which shows up in a visual inspection or a contractor's invoice.

The buyer's expert pointed to a second restoration quote, nearly $26,000, which proposed opening walls and testing for smoke migration throughout the house. The gap between the two quotes was itself a signal that something warranted a closer look.

The Court's Analysis

Substantial damage is not determined by cost of repair alone. The quality, character, and consequences of the damage must also be considered.

Two very different restoration quotes, one proposing to open walls and test for smoke migration and one not, was evidence that the true scope of damage was genuinely uncertain.

No professional had been retained to properly assess it.

The court found that the buyer could therefore rely on the insurance clause and ultimately ruled in favour of the buyer.

The case itself is worth a read if you're interested in the finer details.

Latest YouTube Video:
What Happens if There's a Fire BEFORE Closing

Earlier this week I posted a video on representations and warranties: what they are, which ones we see often, and why your buyers should care.

Today I want to focus on enforcing the most common one... the good working order clause.

If your buyer finds a chattel not working on closing, and the seller won't cooperate, enforcing the clause typically means small claims court.

So as a practical exercise, I read through a number of decisions to understand what successful plaintiffs have in common.

Here's what they prove and how they do it:

1. Contractual basis

First you need standing. The good working order clause has to exist in the agreement. Remember, it's not in an APS by default, it needs to be specifically included. And just as important, the clause has to survive closing. Without both, there's no legal basis for the claim.

The Seller represents and warrants that the chattels and fixtures as included in this Agreement of Purchase and Sale will be in good working order and free from all liens and encumbrances on completion. The parties agree that this warranty shall survive and not merge on the completion of this transaction, but apply only to the state of the property at completion of this transaction.

2. Breach

This is the hardest element to prove and where most cases are won or lost. You need to show the item was not in good working order at closing, not just that it's broken now.

The difference matters because the warranty only speaks to the state of the property at completion.

I ranked the type of evidence that seems to carry the most weight here:

• Professional reports — an HVAC technician, plumber, pool contractor, etc. who can not only confirm the defect exists but speak to how long it's been developing. "The furnace is broken" is far less useful than "this heat exchanger has been cracked for years." The backward-looking opinion is what ties the defect to the seller's time of ownership. Very valuable.
• Photo/video evidence — time stamped photos and videos of the defect taken at possession are some of the most straightforward evidence you can have. It's hard to argue against a video taken at 3:15 p.m. on closing day showing the dishwasher won't turn on.
• Timing of communication — the moment your client takes possession and finds a problem, it helps when it's on record. I've relied on email chains where a client took possession at 3:00 p.m. and I had a written record of the issue 37 minutes later. This works well in combination with photos and videos.
• Testimony — affidavits and in-person testimony still matter, but they're strongest when they're supported by the above. When it comes down to one party's word against another's, the more organized and credible account tends to win.

3. Damages

Lastly, you need to show what the breach actually cost. Invoices, repair estimates, replacement costs... whatever can document the loss in real numbers.

Getting these quickly after possession matters too. A repair estimate dated two days after closing reinforces the same timeline you're building with the rest of the evidence. This is usually the most straightforward element, but it still needs to be there to contextualize the claim.

Latest YouTube Video:
Representations and Warranties in Real Estate

I made a long form video on home inspections — how they lead to negotiations, and what those negotiations look like in the agreement.

A few Realtors have come to me asking about repair clauses, so that's what I want to focus on here.

First, a piece of free advice: when you're representing a buyer, push for the price adjustment whenever possible.

It keeps your client in control of what gets fixed, when, by who, and to what standard.

But... I understand that this isn't always an option.

And when you're stuck working with a repair clause, the drafting really, really matters.

After looking back at a few of the better repair clauses I've seen, this is the framework that most of them follow:

1. Scope of Work

They detail exactly what work needs to be done. The issue, the location, the required fix. No vague language like "repair the roof".

I love clauses that reference and attach the home inspection report. It usually includes pictures and a detailed description of the issue.

2. Standard of Work

They define the quality of the work. Who has to do it (a licensed contractor, a qualified trade), whether permits are required, and whether the work needs to comply with applicable codes.

The more you set objective standards, the stronger the clause becomes.

3. Timing

They set hard deadlines that gives the buyer options before closing. Using "By closing day" leaves no room to respond if there are issues.

I like to see at least a week before closing. Repairs almost always take longer than people expect, plus it leaves time if things were not done right.

4. Inspection

Really good clauses give the buyer the right to inspect the completed work. Inspection catches issues while there's still leverage to deal with them, instead of chasing the seller after the deal has closed.

In my experience, there's a clear correlation between smoother completions and well-drafted clauses that build in time to inspect the repairs.

5. Remedy

The clause needs to define what happens if the work isn't done, isn't done on time, or isn't done to standard. Without a defined remedy, the clause doesn't have much weight behind it.

This is the hardest piece to draft well. The remedies I see most, in order of severity: termination of the APS (which effectively turns the clause into a condition), a holdback (may need lender consent), or language allowing the buyer to complete the work after closing and charge the seller back (which lets the clause survive merger). Each has tradeoffs. The right one depends on the deal.

– – –

You'll notice I haven't dropped a sample clause here.

Every deal is different. A clause that works on one will create problems on another.

Anything I put on the page today will get lazily copied and pasted and quoted back at me on a deal where it didn't belong.

The framework is the value here.

Latest YouTube Video:
Your Home Inspection Found Problems. Here's What to Do Next.

Keeping it short this week.

You've all seen the headlines about HST rebates for new homes in Ontario... $50,000. $80,000. $130,000. First-time buyers. All buyers. Federal. Provincial.

It's noisy. And I've seen a lot incomplete and incorrect information out there.

So, I put together a couple of resources to clarify.

The first is a video. I walk through all the programs, who qualifies for each, how much you can save, and most importantly, which ones are actually in effect right now versus which ones are still proposed and not yet law.

You can watch it here: New Housing HST Rebate Video

The second is a worksheet. It maps the programs side by side as a reference tool — who qualifies, the maximum savings, and the current status. I'll keep it updated as things change.

Download it here: New Housing HST Rebate Worksheet

One thing worth flagging for now: the two largest proposed rebates — the Ontario First-Time Buyer Provincial Rebate and the Ontario Enhanced Rebate from the 2026 Budget — are not yet in effect.

The expectation is that both programs will be implemented. But technically they're still only proposed.

Latest YouTube Video:
New Housing HST Rebates EXPLAINED

A buyer called me a couple of weeks ago with a question I get fairly often:

Can I cancel a real estate offer?

They'd put an offer on one property, then found another they wanted to pursue, and were trying to pull the first before submitting the second.

The answer was no — I walked through the full reasoning in a video this week. The irrevocability clause at the top of the OREA APS is the reason.

But the same principle came up in a completely different context this week.

I was doing some work on our website and came across a domain name I liked. It was owned by someone else, so I reached out and made an offer.

They countered. Higher than I wanted to spend. I let it go and moved on.

Two days later, they came back with another new offer. Still too high. I ignored it.

The day after that, I got a notification that they had "accepted" my original offer.

By that point I'd made other arrangements. I told them I wasn't going through with it. They pushed back.

I explained: you countered my original offer. That counter ended it. You don't get to keep fishing for a better price and then circle back to accept something that was already off the table.

They didn't have much of a response, because there isn't one.

Here's the legal principle:

A counter-offer does two things at once.

It rejects the original offer, and it puts a new offer on the table in its place.

The rejection is permanent. The original offer is dead, and no one can "accept" it later.

This is where a subtle point gets missed.

Irrevocability and rejection are two different things.

The irrevocability clause is a promise by the offeror not to revoke — it says nothing about what the offeree can do.

The offeree is always free to reject, and a counter-offer is a rejection.

So "This offer shall be irrevocable until Monday at 5:00 p.m." prevents the buyer from pulling the offer back before Monday. It does not stop the seller from killing the offer by countering on Saturday.

This common law rule of contract exists to prevent the following behaviour:

• A seller gets a $1,000,000 offer.
• They sign back at $1,100,000. Buyer says no.
• Seller tries $1,050,000. Buyer says no.
• Seller tries $1,025,000. Buyer says no.
• Then the seller circles back and says fine, I'll take the original $1,000,000.

The moment a seller counters, the buyer's original offer is dead. Even if the irrevocable was for four days and the counter goes back on day one, the remaining three days are meaningless.

The buyer is released. The seller can't come back on day three and try to accept the original terms after the fact.

If you're representing the seller, this matters before you sign a counter. You're giving up the ability to take the original deal.

If you're representing the buyer, it matters too. The moment that counter comes across, your client is free to walk, pursue another property, or negotiate from scratch.

One caveat worth knowing. Not every response is a counter-offer. A request for clarification, a question about terms, or a general negotiation comment isn't necessarily the same as signing back an offer.

A signed-back APS with changed terms almost always is. The wording matters, so when the line is blurry, it's worth getting a proper opinion before assuming the original is gone.

Latest YouTube Video:
Can you CANCEL a Real Estate Offer in Ontario?

This week I made a video on sale of property conditions: what they actually mean for a seller, and the tips to protect them, before accepting.

In this newsletter, I want to focus on one thing the video touches on that I think doesn't get enough attention:

How to assess whether the condition has a real chance of being fulfilled.

Because the time is the risk.

The standard OREA sale of property condition is remarkably thin.

It says the offer is conditional on the sale of the buyer's property. That's it.

• It doesn't require the buyer to list their property.
• or list it at a reasonable price.
• or make a genuine effort to sell at all.

A seller can accept one of these conditions and watch their listing sit conditionally sold on MLS for three or four weeks while the buyers haven't done a thing.

I've seen it.

Then the condition expires. The deal dies. And the listing has to go back to market with other buyers wondering why someone walked away.

That stale listing problem is real, and it's where sellers feel the cost most directly.

So before advising a seller to accept one of these, here's what you can look at:

Is the buyer's property already listed?

This is the first question. If it's not already on MLS, that could be a concern. Are they close? Are pictures done? When are they planning on listing?

The buyer is asking your seller to accept risk before they've taken even the most basic step toward fulfilling the condition.

It doesn't make the offer unacceptable, but it impacts timelines and informs the conversation about what obligations need to be established.

Is it priced in line with the market?

A listed property that's overpriced is almost the same as one that isn't listed at all. The condition isn't going to fulfill. You're just waiting longer to find that out.

Pull up the listing. Look at the comparables. If the price is out of range and the sellers seem attached to it, that's a signal.

The conditional period isn't going to fix a pricing problem.

Is there co-operating brokerage commission?

Seems like a no-brainer... I know. But I've seen it happen.

A seller agreed to an SOP conditional offer, only to find out that the buyer was listing their own home as a FSBO.

Don't let that happen.

— — —

None of these are automatic deal-killers. Sometimes the offer is strong enough, the other property is realistic enough, and accepting the condition is the right call.

But the standard clause gives you nothing to work with on its own.

These 3 things are what you need to pay attention to.

Latest YouTube Video:
SALE OF PROPERTY CONDITIONS: 3 TIPS BEFORE ACCEPTING

As Realtors, you're the ones drafting the Agreement of Purchase and Sale.

And conditions are one of the most important parts of that document. I'm seeing more of them drafted from scratch for specific situations, not just pulled from the OREA standard clauses.

If you're going to be good at drafting, you need to understand the mechanics behind what you're building.

I made a "Conditions 101" video earlier this week, and I've written about the anatomy of a condition here before.

But today I want to go one layer deeper: the different options of fulfillment.

Every condition falls into 1 of 3 categories. These get taught in the real estate course, guaranteed to show up on the exam... but very few agents walk away with a real understanding of how they work in practice.

Condition Precedent

This is the standard. If you've written a conditional offer, you've almost certainly used one.

A condition precedent means something has to happen before the deal becomes firm.

The buyer has a window to complete their due diligence, and if they're satisfied, they deliver written notice to the seller confirming the condition is fulfilled. Once that happens, the deal goes firm.

If the buyer doesn't deliver that notice by the deadline, the deal is null and void and the deposit is returned.

It also usually includes an option to be waived.

Here's a common example using financing:

"This Offer is conditional upon the Buyer arranging, at the Buyer's own expense, a new first mortgage satisfactory to the Buyer in the Buyer's sole and absolute discretion. Unless the Buyer gives notice in writing delivered to the Seller not later than [date] that this condition is fulfilled, this Offer shall be null and void and the deposit shall be returned to the Buyer in full without deduction. This condition is included for the benefit of the Buyer and may be waived at the Buyer's sole option."

The important thing to notice is the default outcome. If the buyer does nothing, the deal dies.

The buyer has to take action to keep the deal alive.

This is what 97% of conditions look like.

Condition Subsequent

A condition subsequent looks very similar on paper. But the default outcome flips.

Instead of the buyer having to deliver notice that the condition is fulfilled, the deal is treated as firm unless the buyer delivers notice that the condition is not satisfied.

Here's what that looks like using the same financing example:

"This Offer is conditional upon the Buyer arranging, at the Buyer's own expense, a new first mortgage satisfactory to the Buyer in the Buyer's sole and absolute discretion. This condition shall be deemed to be fulfilled unless the Buyer gives notice in writing delivered to the Seller not later than [date] that this condition is not satisfied, in which case this Offer shall be null and void and the deposit shall be returned to the Buyer in full without deduction. This condition is included for the benefit of the Buyer and may be waived at the Buyer's sole option."

The difference is in the bolded language. If the buyer does nothing, the deal goes firm.

The buyer has to take action to get out of the deal, not to stay in it.

That's a significant shift. Same condition, same due diligence, but the consequences of silence are completely reversed.

True Condition Precedent

This one is different from both.

A true condition precedent is a condition that neither the buyer nor seller can fulfill or waive.

It depends entirely on a third party.

The example I always use is a condition on severance consent.

I've facilitated a few Agreements of Purchase and Sale for land that was conditional upon the municipality granting a severance.

In these cases, the municipality has to approve the severance before the transaction is legally possible. The buyer can't fulfill that condition. The seller can't fulfill it. Neither side can waive it. It's completely outside both parties' control.

The deal simply cannot proceed until the third party acts.

You won't see these as often as the first two, but when you do, recognize them for what they are. No amount of negotiation between buyer and seller changes the timeline. The deal waits.

– – –

Understanding your options as a drafter puts you in a better position to build the right fulfillment mechanism for the deal and your client's needs.

Latest YouTube Video:
REAL ESTATE CONDITIONS EXPLAINED: DON'T SIGN UNTIL YOU WATCH THIS

Earlier this week I posted a video on closing dates: what to watch for before agreeing to one, and why the date itself matters more than most people think.

One of the things I talked about was the risk of scheduling a purchase and sale on the same day.

I want to go a bit deeper on that here, because the mechanics of what actually happens when things go sideways are worth understanding.

The reason same-day closings create risk isn't complicated.

When your client is buying and selling on the same day, the proceeds from the sale are almost always what funds the purchase.

That means one deal has to complete before the other can. They're not just connected by a calendar date, they're financially dependent on each other.

Most of the time, it works. But when it doesn't, the situation moves fast.

If the sale runs into a delay, for any number of reasons, your client can't close on the purchase on time.

And at that point, they're in breach on the purchase.

Best case scenario: the seller of the purchase agrees to an extension. But they have no legal obligation to do that, and there's often a price. Extension fees on residential deals can be significant and the seller usually has the leverage to set the terms.

Worst case scenario: they say no. Or they had a change of heart about the deal to begin with, and the breach gives them the opening they needed. That puts the deposit at risk and turns a closing delay into something much more serious.

A deal not closing on time has the potential to affect a whole chain of closings, not just the two your client is involved in.

Bob Aaron, another Toronto real estate lawyer, wrote a good article about a 2024 case that shows that domino effect in action:

• The buyers on one deal couldn't close on time because their mortgage funds were delayed.
• The sellers, who were relying on those proceeds to fund their own purchase the same day, were forced to pay $75,000 to get an extension from their seller.
• They then successfully sued their buyers to recover it.
• The court found the outcome was foreseeable: when proceeds from one deal are funding the next, a delay anywhere in the chain creates liability everywhere in it.

Link to the full article here.

Latest YouTube Video:
The Biggest Closing Date Mistakes Buyers Make

A Realtor asked me this recently:

What happens if a seller dies after the APS is signed but before closing?

It's one of those scenarios that feels unlikely until it happens on your file. And when it does, the answer depends on a few things.

Here are the three (3) scenarios:

1) There's a joint tenant on title.

This is best-case scenario for the transaction.

When property is held as joint tenants, the right of survivorship means the deceased's interest automatically goes to the surviving owner(s). No court process. No probate.

From there, the surviving owner(s) can execute the transfer and close the deal. In most cases, the original closing date is still possible.

There's a little paperwork involved, but nothing that would cause a significant delay.

2) Property is exempt from probate.

If there are no joint tenants, the next question is whether the property qualifies for something called the First Dealings Exemption.

This is a provision in Ontario's land registration system that allows certain properties to be transferred without going through probate.

The easiest way to explain it... if a property was purchased in the 1990s or earlier and was never sold, it might qualify.

I actually recorded a full video on the exemption this week if you want to understand how it works.

If the property qualifies, the estate trustee named in the will can work with a real estate lawyer to complete the sale without waiting on probate.

With a cooperative trustee and proper legal support, the deal has a chance to close on time.

3) Probate is required.

This is where things slow down considerably.

If the property doesn't qualify for the exemption and there's no surviving joint tenant(s), the estate will need to go through probate before anyone has the legal authority to sell.

That process takes time, and the chances are slim that the estate will be in a position to close on the original date.

At that point, the parties have a few options:

• They can agree to extend the closing date by mutual agreement.
• They can sign a mutual release and walk away from the deal.
• Or, if the estate can't close on time, the buyer may have a claim for damages.

None of those are ideal. But that's the reality when probate is the only path forward.

Latest YouTube Video:
First Dealings Exemption

Earlier this week I published a video on deposit forfeiture in Ontario — what a deposit actually is, why you lose it if you default, and the narrow circumstances where a court might step in to give it back.

But I want to use today's newsletter to go one level deeper.

Because a recent Ontario court decision — Menon v. Simpson, (December 2025) is an extreme example of when damages go well beyond the deposit.

Here's what happened:

• In May 2023, a buyer signed an Agreement of Purchase and Sale for a property in Mississauga at a purchase price of $8,385,000.
• The seller granted an extension, in exchange for an additional deposit and per diem payments.
• The closing was extended again to September 14, 2023. Then again, to a final closing date of October 16, 2023.
• The buyer still didn't close.
• The seller relisted and ultimately sold the property to another buyer for $6,550,000.
• That's a difference of $1,835,000 from what the defaulting buyer had agreed to pay.
• On top of that, the parties agreed the seller's carrying costs (mortgage interest, property taxes, and related expenses) accumulated while the property sat back on the market.
• Total damages claimed: $2,385,000.

This wasn't a dispute about whether the buyer had to pay the seller damages... but rather how much?

And the buyer's defence was mitigation.

They argued that the seller hadn't done enough to minimize their losses, that they should have listed at a lower price from the start, and that they should have accepted a $7,000,000 offer that came with a $2,000,000 vendor take-back mortgage.

The court rejected the arguments and granted judgment in the seller's favour.

How the seller mitigated:

• Relisted the property within two weeks of the breach
• Listed at the same price as when the original APS was signed
• Reduced the asking price on several occasions over time
• Engaged in active discussions around further price reductions
• Explored leasing the property as an alternative
• Marketed beyond MLS — including in limited-circulation publications targeting high-end buyers in that market

The court found that was enough.

The seller took reasonable steps, which is the legal test.

The resulting sale price reflected the real market loss.

On the VTB offer specifically:
The court noted that a vendor take-back mortgage is not the same as cash. Accepting that structure was not comparable to the deal the defaulting buyer had signed, and the seller had no obligation to take it.

So what does this case actually tell us about mitigation?
Reasonable steps don't mean perfect steps.

Relist promptly. Price reasonably. Reduce over time. Market properly. Consider alternatives. That's the framework the court looked at.

The seller was awarded $1,835,000 in lost sale proceeds, $550,000 in carrying costs, prejudgment interest, and just over $20,000 in legal costs.

Latest YouTube Video:
What Happens to Your Deposit If You Walk Away From a Deal?

I've reviewed seven status certificates over the last two weeks, and it got me thinking about one of the documents I use for insights.

Also, I made a more in-depth YouTube video on the review process — if you haven't seen it yet, the video link is here.

But here today, I want to talk about the budget.

Status certificate packages come in a couple different forms — sometimes a single large document, sometimes a folder with 15 to 20 documents inside.

Either way, the budget will be in there.

It's easy to read, and it answers two good questions.

When are condo fees likely to increase next?

The budget will show you the corporation's fiscal year somewhere near the top of the page.

Condos issue their new budget for the start of a new fiscal year.

And most of the time, that means an increase in condo fees.

So, if the fiscal year runs June to May, the owners should expect a change in the condo fees starting June 1st.

How much did fees go up last year?

This one takes a bit of simple math.

The budget will show you the current year's Common Element Fee — that's the technical term for what buyers know as condo fees.

It will usually also show you the same line item from the prior year.

Divide the current year number by the prior year number, and you've got the year-over-year percentage change.

In the example above, that's a 4% increase.

Like most things in a status certificate, that number needs context before you draw any hard conclusions. It's a starting point, not a verdict.

– – –

I'm not suggesting this becomes part of your standard process — that's what we're here for.

But if you're curious, or you just want a better sense of the buildings you're looking in, this is a quick and easy way to get there.

Especially for those of you doing a lot of condo business in Toronto, building up that kind of working knowledge over time is genuinely useful.

Latest YouTube Video:
The Condo Status Certificate Review

This week I answered a handful of real estate Reddit questions on camera. Real scenarios, real legal answers.

One of them was about exactly this situation, and if you haven't watched it yet, the video is here.

But I want to go a little deeper on it.

Because the Reddit question was written from the buyer's perspective, someone asking whether they were entitled to the hot water tank outright.

And the answer is yes.

What the post didn't get into is what happens when you're the buyer's agent and the amendment request lands in your inbox.

That's where it gets interesting.

Here's the scenario: a property sells with a hot water tank rental. The rental is listed on MLS. But when you submitted the offer, Clause 6, the rental items section was left blank.

The listing agent didn't catch it. The seller signed. The deal went firm.

A few days before closing, someone on the seller's side figures it out. And then your phone rings.

The framing is usually some version of: it was an honest mistake, everyone knew it was a rental, can we just do a quick amendment?

It's going to feel like a reasonable request. It isn't.

Here's the legal reality: the APS governs the transaction, and it's assumed to have been drafted intentionally.

When you reviewed that offer with your client, the blank Clause 6 reflected that they were not agreeing to assume any rental contract.

Whether it was an oversight or deliberate doesn't change that. The seller signed an agreement saying the buyer assumes no rentals, and typically, a rental item like a hot water tank is treated as a fixture, meaning without that clause, it's included in the deal.

We don't go by what the MLS listing says. It doesn't form part of the agreement.

I had this come up on a file not long ago. Seller's side called with the same pitch: mistake, oversight, can we amend.

We reviewed the APS, confirmed the clause was blank, and held our position. The seller had to pay out of pocket to buy out the rental contract before we closed.

The amendment request puts subtle pressure on the buyer's agent to be cooperative, to smooth things over, to just sign.

But signing an amendment in that moment means your client is voluntarily assuming a financial obligation they were never legally on the hook for.

That's not cooperation — that's giving something away for nothing.

Your job isn't to fix the other side's drafting error. Your job is to know your client's position and protect it.

In this case, the position is strong. Use it.

Latest YouTube Video:
Real Estate Lawyer Answers REDDIT Questions

You’ve been hearing about Joint Tenants vs. Tenants in Common since your first real estate exam.

And I’m not going to bore you with the distinctions for the hundredth time.

(But if you do want a refresher, I recorded a full video on it this week)

Today, I want to cover a lesser-known point about joint tenancy:

Joint tenancy can be severed... unilaterally.

When two or more owners take title as joint tenants, they get the right of survivorship.

Meaning: if one owner dies, their interest passes automatically to the surviving owner(s), outside their estate.

And while that may have been the plan when they purchased, plans change.

Maybe one owner later decides they don’t want the other owner to automatically receive their share if they die.

Here’s the part that surprises people:

You don’t need the other owner’s consent to sever a joint tenancy.

It's not an “amendment” that requires everyone to agree.

Joint tenancy is fragile.

A single joint tenant can take steps to sever it.

The most common method is to register a transfer to themselves that breaks the joint tenancy.

This has the effect of converting the ownership into a tenancy in common.

And once it’s severed:

• the right of survivorship is gone, and
• that owner’s share no longer “automatically” passes to the other owner(s) on death — it passes through the owner’s estate instead.

I’ve even had a situation once where a surviving spouse called to do the Survivorship Application after her husband passed away, only to learn the joint tenancy had been severed earlier, without her realizing it.

Latest YouTube Video:
Joint Tenants or Tenants in Common?

Earlier this week, I made a video about disclosure requirements and stigma. 

Here’s the legal baseline in Ontario:

• Real estate transactions are governed by caveat emptor... buyer beware.
• Sellers do not have to volunteer every fact that might matter to a buyer.
• Sellers must disclose known latent defects that make a property dangerous or unfit for habitation.
• Stigma (death in the home, prior criminal activity, etc.) generally does not require disclosure unless it creates danger.
• Sellers cannot misrepresent or mislead. If asked directly, they must answer truthfully.

So knowing that, how do you protect your buyer client?

Don’t rely on voluntary disclosure, they won't always be there.

That means, you need to have the conversation. What does your buyer actually care about?

• Prior illegal activity?
• An unnatural death?
• Reputational issues?

You should be able to clearly explain what a seller does and does not have to disclose — because that tells you what needs to be addressed proactively.

Once you identify a concern, take two steps:

1. Make specific inquiries in writing. Create a record.
2. Draft it in the offer.

Use targeted representations and warranties.

For example, a clause where the seller represents, to the best of their knowledge and belief, that the property has not been used for the growth or manufacture of illegal substances. Or that there has been no unnatural death or suicide in the property.

The goal is not to turn every deal into a risk audit.

The goal is clarity.

If it matters to your buyer, it belongs in the agreement.

Latest YouTube Video:
What Sellers Don't Have to Tell You

If you’re preparing for a new listing, one of the best ways to avoid surprises during the selling process is to do a pre-listing title search.

As a Realtor, having a basic understanding of title can help you catch problems early... when they’re easier to fix.

It’s also a great way to prove your value to your client at the listing stage.

You can obtain a Parcel Register (commonly referred to as a Title Search) through your GeoWarehouse access, or through the public site OnLand.ca, usually for under $40.

I also made a video showing how to do it here.

Anyways — here are 4 things I recommend checking when you’re preparing a new listing:

1) Registered Owners

First, make sure the "Owners' Names" match the person(s) you’re dealing with.

Sounds obvious, but I often see Agreements that are missing a name, or include someone who is not actually on title.

• You’re speaking to one spouse, but both are on title
• The “seller” is actually an estate trustee
• Someone thinks they own it… but they don’t

2) Mortgages / Charges

What (and how many) mortgages are registered against the property?

Mortgages appear under the instrument type "Charge".

Is there one mortgage? Two? Is it a Private mortgage?

You will see who the lender is (under "Parties to" column), and pay attention to the "Amount" registered.

If the mortgages are higher than the value of the property, you can run into a real closing problem:

• the seller may not have enough proceeds to pay out the debt
• they may not be able to convey clear title
• and yes… it impacts whether commission can be paid.

So check this, and don't work for free.

3) S/T, T/W or Easements in the Legal Description

Look at the legal description for flags like S/T , T/W or Easement — which signal the property may be subject to rights-of-way or easements.

Why it matters: you want to be able to convey accurate information to potential buyers.

If the seller isn’t clear on any rights-of-way or easements that do appear in the description, have them engage a real estate lawyer early — we can give an opinion so you're able to explain it properly to potential buyers.

4) "Other" Registrations (liens, cautions, notices, etc.)

Finally, scan for registrations that should trigger further investigation.

• liens
• cautions
• notices

And pay special attention to recent registrations — newer entries are more likely to reflect an active dispute, unpaid issue, or something that can delay (or prevent) a clean closing.

Even if it turns out to be nothing, finding it early gives you time to deal with it instead of discovering it when the buyer’s lawyer raises it right before closing.

– – –

If something looks odd, this is where a quick call to a real estate lawyer can save you from a surprise objection mid-deal — and it helps you give cleaner, more confident information to buyers upfront.

Latest YouTube Video:

How to READ a Title Search in Ontario

If you’ve ever had to explain chattels vs. fixtures, you’ve probably used one of these sayings:

If it is not nailed, screwed, or glued to the house, it is a chattel; if it is attached, it is a fixture.

If you turn the house upside down, anything that falls out is a chattel, and anything that stays put is a fixture.

These are industry sayings, helpful to a point, but they don't fully articulate the legal nuances.

So for those of you that like to nerd out on this stuff, I've summarized the legal test that courts apply when deciding chattel vs. fixture:

Start with attachment

This sets the presumption

• Not attached (resting by its own weight) → presumed chattel.
• Attached (screwed/bolted/plumbed/built-in) → presumed fixture.

How attached is it?

The degree of annexation

• To what degree is the item physically connected to the land or building?
• Would removing it cause appreciable damage (to the property, or the item)?
  → favours fixture.
• Can it be removed cleanly with little to no impact. → favours chattel.

Why is it attached?

The purpose or objective intention of the item

• Is it attached to improve the property as a property? (ex. security system protecting the home) → favours fixture.
• Attached mainly to help the item function as an item (ex. picture hung on a wall) → favours chattel.

The Real Takeaway

There are no hard and fast rules here.

These are fact-driven questions, and small details can change the result.

Which is exactly why the goal isn’t to “know the test” so you can argue about it later — the goal is to avoid the dispute in the first place.

Build the right habits:

The more specific you are on inclusions and exclusions, the better.

Even noting the make, model, or colour of an appliance can save you a lot of trouble if the seller tries to pull a fast one on closing.

Latest YouTube Video:
What's Included in Your New Home (Chattels and Fixtures)

Most early buyer conversations are about financials and budget.

What can they afford? How much cash do they need to close?

If you understand the breakdown of closing costs, you can set proper expectations and setup your clients for success.

Here's what buyers actually pay, beyond the Purchase Price:

Closing Adjustments

This isn't necessarily a cost — it's an adjustment on a pro-rated basis. Property taxes can result in a credit to either buyer or seller depending on the time of year. For condos, common expenses are adjusted. For tenanted properties, rent, rent deposits, and interest are adjusted.

This can result in your client sending a little more or a little less to the seller on closing depending on where these fall.

Land Transfer Tax

A tax on transferring property ownership. In Toronto, buyers pay twice — provincial and municipal. First-Time Homebuyers receive a Rebate of up to $4,000 on provincial LTT and $4,475 on Municipal LTT.

Registration Fees

The government charges $85 per document registered on title. All purchases require the registration of the Transfer document. If there's a mortgage, that needs to be registered as well — meaning most buyers pay $170 total ($85 + $85).

Title Insurance

A one-time premium protecting against title defects, fraud, and survey issues for as long as they own the property.

Legal Fees

What the lawyer charges to handle the transaction.

– – –

Example

Purchasing a $700,000 condo in Toronto

– – –

The $128,725.87 is what the buyer sends to their lawyer in order to close.

And remember, they've already paid the $35,000 deposit out of pocket earlier in the process.

Total out-of-pocket cost to the buyer: $163,725.87 (assuming 80% LTV mortgage)

A significant portion of the out-of-pocket cost is the deposit and down payment. For transparency, here are the actual transaction costs:

Total Transaction Costs: $24,168.96

This includes:

• Land Transfer Tax (Provincial + Municipal + Admin Fee): $21,065.89
• Registration Fee: $170.00
• Title Insurance: $448.20
• Legal Fees: $2,484.87

Land Transfer Tax is over 85% of the total transaction cost.

These calculations can get confusing, and of course they change for properties outside of Toronto, or when the buyer is paying cash, or if there are more significant adjustments.

To make it easier, we built our Legal Fee Calculator to actually calculate all of these costs, so you or your clients can have a full picture at the click of a button.

Latest YouTube Video:
The REAL Cost of Buying a Condo in Toronto

Back in 2023, I wrote about exterior maintenance in residential lease agreements and the use of a "severable contract".

The issue was this: under the Residential Tenancies Act (RTA), landlords are responsible for maintaining “common areas.”

So, any clause in a lease that tries to shift that responsibility to a tenant is unenforceable.

If you wanted the tenant to handle grass and snow, it had to be done through a separate agreement — completely unrelated to the lease.

But the confusion was always around single-family homes.

Even though there are no “common areas,” the LTB was still applying the same exterior maintenance rule across the board.

Which meant the only solid legal advice at the time was: always use a severable contract.

Then in 2024, we got this Court of Appeal decision:

Crete v. Ottawa Community Housing Corporation (2024 ONCA 459) 

And finally, we have a real precedent that distinguishes “common areas” and exclusive-use spaces in the context of the RTA.

So here’s how I now summarize this area of law:

• Common Areas: The landlord is responsible for maintenance under the RTA, and a lease clause shifting that duty to a tenant is unenforceable. (Use a separate agreement)
• Exclusive Use Areas: A lease clause can assign exterior maintenance to the tenant, as long as the area is truly for that tenant’s exclusive use.

To help clarify, here’s the RTA definition:

“exterior common areas” includes roads, pathways, parking areas, garbage storage areas, grounds for the use of tenants and, in a mobile home park or land lease community, the sites on which homes are situated

Latest YouTube Video: 5 ILLEGAL Lease Clauses

Over the years, I’ve had a few Realtors ask if they should include a clause like this in the APS:

RELEASE OF DEPOSIT:
Should the Buyer fail to complete this agreement on the completion date, at no fault of the Seller, the deposit shall be deemed to be released by the Buyer and paid to the Seller by the deposit holder, without deduction. This clause shall constitute the Buyer’s irrevocable consent to release such deposit and no further written release shall be required.

But there’s a problem: it doesn’t work.

If you read the clause carefully, you'll notice the words:

“…at no fault of the Seller…”

This is a legal determination of fact.

Who decides whether the seller was at fault?

You can bet the seller thinks they weren’t. And I bet the buyer disagrees.

Someone has to decide.

And when it comes to enforcing contracts and deciding the facts — that someone is a judge.

So even with this clause included in the APS, you end up exactly where you started.

There are no shortcuts for the deposit release.

They get released under 3 circumstances:

• The deal closes
• Both parties sign a Mutual Release, or
• A court order directs the deposit to one side

That’s it.

Latest YouTube Video:

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It’s hard to believe I’ve been writing this newsletter for over two years now.

What’s been most rewarding are the relationships that have come from a few hundred words landing in your inbox each week.

This year was a big growth year for us, and I’m excited about what’s coming in 2026.

The substance won’t change, but over the last few weeks I’ve been building a more intentional, connected flow of topics, while still leaving room to react to what I’m seeing in practice week to week.

Thank you for reading, engaging, and sharing your feedback throughout the year.

I genuinely appreciate it.

I’ll be taking the next couple of Fridays off from writing and will be back with fresh insights on January 9, 2026.

Wishing you a wonderful holiday season and a happy New Year!