Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to making a Will or what to do where a person dies without a Will,  you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you.

So what happens if someone who lives in Ontario dies without a Will?

Please keep in mind that a Power of Attorney and a Living Will have no relevance or bearing at this point because the person is dead (they only apply when the person is alive).

Basically, in Ontario, an application is made in the court office for the area (e.g. county, district, region, or metropolitan municipality) in which the deceased resided at the date of death. In Toronto, the appropriate court is the Estates Court office located at 393 University Avenue, 10th floor, 416-326-4230 (otherwise, you make an application to the Ontario Superior Court of Justice).

Applications for Certificates of Appointment of Estate Trustee are processed by Ministry of the Attorney General court staff.   They perform the duties of an estate registrar in the Civil Office of the Superior Court of Justice. These duties are prescribed by law. Staff must review each application to confirm that the application and all accompanying documents are complete and comply with the Rules of Civil Procedure (the rules of court) and other applicable legislation.

Section 74.05 of those Rules require that an Application for a Certificate of Appointment of Estate Trustee (Form 74.14 or 74.15) be accompanied by:

1. An affidavit (Form 74.16) attesting that notice of the application (Form 74.17) has been served on all persons entitled to share in the distribution of the estate (including special ways to serve minors under 18 years old and mentally incapable persons).
2. A renunciation (Form 74.18) from every person who is entitled in priority to be named as estate trustee and who has not joined in the application;
3. A consent to the applicant’s appointment (Form 74.19) by persons who are entitled to share in the distribution of the estate and who together have a majority interest in the value of the assets of the estate at the date of death;
4. The security required by the Estates Act; and
5. Any other additional material which the court may direct.

You should definitely consult with a lawyer about getting these and other necessary documents properly drafted and filed.  These forms can be found here.

If court staff have concerns about the application or accompanying materials, the application must be referred to a judge for direction. The judge may require further materials to be filed or steps taken by the personal representative in relation to the application.

The Ministry strives to process certificates of appointment of estate trustee with or without a will within 15 days after the application and accompanying materials are complete and judicial direction, if required, has been obtained.

If a Certificate of Appointment of Estate Trustee Without a Will is issued, it will be in Form 74.20 (as per the Rules).

If you want to read more about priorities of beneficiaries in cases where a person dies in Ontario without a Will (thereby triggering the rules in the Succession Law Reform Act), check out my previous blog on that topic.

To avoid headache and delay, be sure to consult with a lawyer about applying for a certificate of appointment of estate trustee.

written by admin \\ tags: affidavit form, applicable legislation, certificate of appointment, certificate of appointment of estate trustee, incapable persons, legislation section, ministry of the attorney general, ontario lawyers, ontario superior court, ontario superior court of justice, professional assistance, rules of civil procedure, section 74, superior court of justice

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to a mistake in a Will,  you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you prepare and draft a Will.

A Will is only valid if the Testator knew and approved its content.  If words have been mistakenly inserted into a Will without such knowledge or approval, then a court may strike out those specific passages or phrases.  In Barylak v. Figol, 9 E.T.R. (2d) 305, for example, a residuary clause had been inserted by mistake.  That clause gave the residue of the deceased’s estate to a fund to create a scholarship for needy students of Ukrainian origin. The Testator never gave his solicitor instructions to include that offending residuary clause. There was no evidence that the Will was ever sent to the Testator prior to its execution for review by him. Even if it had been, there was no evidence as to whether the Testator’s command of written English was such that he would have fully understood it. Also, there was no evidence that a true copy of the executed Will was left with the testator or that a copy was sent to him. Overall, the Ontario Court of Justice (General Division) held that the Testator knew nothing about the residuary clause and that it did not reflect his expression. Accordingly, the Court deleted the clause from his Will based on the doctrine of mistake.

written by admin \\ tags: brampton, court of justice, educational purposes, legal advice, mississauga, needy students, ontario court of justice, ontario lawyers, ottawa, passages, professional assistance, residuary clause, solicitor, testator, true copy, ukrainian origin, Wills and Estates

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice as a dependent, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you in this regard.

What if you have been inadequately provided for in someone’s Will?  Well, if you’re a dependent in Ontario, you might have some legislative recourse.

Section 58(1) of the Succession Law Reform Act allows a deceased’s dependents to apply to the court for support where the deceased (either through a Will or absent one) has not made adequate provision for their proper support.  A dependent is defined under s. 57 of that Act to include your spouse, former spouse, common-law spouse, parent, grandparent, child, grandchild, brother, and sister. A dependant may have to prove that they are a dependent and entitled to financial support under s. 58(1) in court. If the court decides that the person is a dependant and that person can show a need for financial support, then it may order that a certain amount of money be paid to them out of the estate.

If you think that you may be entitled to more from an estate than the amount provided for in a Will, or if you need to determine the rights of others when preparing your Will, consult with a lawyer (by making a post on Dynamic Lawyers).

written by admin \\ tags: adequate provision, brampton, brother and sister, common law spouse, dependant, dependents, educational purposes, legal advice, ontario lawyers, professional assistance, regard, succession law reform act, toronto, Wills and Estates

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to a Will or International Will, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you prepare and draft a Will or International Will.

Along with other provinces and countries, Ontario is a contracting party to the Convention Providing a Uniform Law on the Form of an International Will.  This means that, if a Will is made in the form of an International Will (i.e. in accordance with the form prescribed by that Convention in the Schedule and Annex in the Succession Law Reform Act) concerning two or more contracting parties, then the Will is valid as between those parties irrespective of where it was made, the location of the assets and of the nationality, domicile, or residence of the testator. At present, some the contracting parties to the Convention include: Belgium, most Canadian provinces (Manitoba, Newfoundland, Alberta, Saskatchewan, Prince Edward Island, New Brunswick, and Nova Scotia), Cyprus, Ecuador, France, Italy, Iran, Portugal, the Russian Federation, the United Kingdom, and the United States of America.  An important difference with an International Will is the requirement that an authorized person (in Ontario, this means a lawyer) attach to the Will a Certificate establishing that the obligations of the Convention have been complied with.

written by admin \\ tags: brampton, canadian provinces, domicile, educational purposes, legal advice, mississauga, nationality, new brunswick, ontario lawyers, prince edward island, professional assistance, russian federation, succession law reform act, testator, uniform law, Wills and Estates

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to a Will,  you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you prepare and draft a Will.

In this blog, I’ll be discussing what a Will is.

When you die, you may be leaving behind valuable assets, such as real estate, bank accounts, and personal possessions.  Taken together, these assets are referred to as your “estate”. A Will is a legal document which declares your final wishes concerning the disposal of your assets after you die. According to section 1(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26, a Will also includes a “Codicil”, which is a document that cancels certain parts of your Will or adds new parts to it and which must be read together with your Will as one document.  A person who makes and signs a valid Will is referred to as a Testator (for a man) or Testatrix (for a woman).

A Will identifies who will responsible for administering your final wishes.  While this individual is commonly referred to as an “Estate Trustee”, “Administrator”, “Executor”, “Personal Representative” or “Liquidator”.  He or she will pay out liabilities, manage remaining assets, and distribute the remaining funds of the estate (the “residue”) to the beneficiaries designated under the Will. A Will may also identify Guardians in the case of minor or incapable dependents left behind.

written by admin \\ tags: bank accounts, beneficiaries, brampton, codicil, dependents, estate trustee, executor, guardians, legal advice, legal document, liquidator, mississauga, ontario lawyers, personal possessions, personal representative, professional assistance, succession law reform act, testator, testatrix, Wills and Estates

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to your offer or agreement of purchase and sale (or wanting to back out of one) you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you with your offer or agreement of purchase and sale.

In this blog, I’ll be discussing what happens if you change your mind after singing an offer or purchase agreement?

Once an offer or counteroffer has been made, it cannot be withdrawn unless there is a time limit on the offer or counteroffer which passes without being accepted.

An Agreement of Purchase and Sale may also be terminated if it becomes impossible to perform through no fault of either party (lawyers say such a contract is “frustrated”).  An example is property destroyed in a flood or a fire before the buyer has taken possession.

If there is no relevant termination clause in the Agreement of Purchase and Sale, a party cannot claim frustration if the supervening event resulted from a voluntary act of the buyer or seller.  Furthermore, frustration is not available if the parties contemplated the possibility of the supervening event arising during the term of the agreement and provided for in the agreement. In Dinicola v. Huang & Danczkay Properties, 2 R.P.R. (3d) 267, a condominium developer failed to develop 3 buildings and returned all deposits and down payments. The condominium unit purchasers, however, sued for breach of contract. In its defence, the developer argued that the municipal council’s refusal to approve the site plan for the development of the buildings frustrated its agreements with the purchasers. The Ontario Court of Justice (General Division) rejected that defence and found the developer liable to pay damages assessed at $4.9-million.  The court reasoned that frustration was not available as a defence because the developer and the purchasers had contemplated the possibility of the municipal council’s refusal at the time the purchase and sale agreements were entered into. That possibility was also provided for in the agreements.  Frustration was also not available because the developer relied on its own refusal to negotiate terms of the approval with the municipality to excuse itself from liability under the agreements.

Purchasers of new condominium units in Ontario have a cooling-off period of 10 days to back out of their purchase agreements.

Once the offer or counteroffer has been formally accepted, the buyer and seller are bound legally by its terms. If you walk away from a deal you may not only lose your deposit, but may also be liable for any damages suffered by the other party, such as the lost opportunity to sell to someone else, expenses arising from a delayed move, or the seller’s loss of deposit on another home intended for purchase. The legal remedy, called “specific performance” (making you complete the purchase), is an unlikely event, but a court could still hold you responsible for the entire purchase price, plus expenses and court costs.

written by admin \\ tags: brampton, breach of contract, condominium unit, counteroffer, court of justice, dinicola, down payments, educational purposes, legal advice, mississauga, ontario court of justice, ontario lawyers, party lawyers, professional assistance, termination clause, time limit, voluntary act

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice because you are or believe you are a victim of real estate fraud, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to review your situation and advise accordingly.

As a homeowner, the thought of being a victim of real estate fraud is scary. While uncommon, identity fraud exists and should be guarded against. A fraudster, for example, can impersonate the registered owner of real property and transfer the property to him, herself or a third party. Moreover, a fraudster could acquire a mortgage fraudulently through false information or identification and then run away with the money. This could happen several times with the same property before the fraud is discovered.  If you are a victim of real estate fraud, you should consult with a lawyer immediately to discuss your legal options – some of which are discussed below.

Title Insurance
First, you might be able to make a claim to your title insurance company under your policy.  Have a lawyer review your policy to determine whether your claim would be eligible for coverage.  Claims should be in writing and include your policy number, contact information, and all relevant documents related to your claim. Claims should be submitted as soon as reasonably possible. If your claim is covered, then the title insurance company may (depending on the policy):

• pay your actual loss and out-of-pocket expenses;
• pay the amount required under the policy;
• prosecute or defend a legal proceeding related to the claim (and pay for doing so);
• negotiate a settlement of any claim; and
• if applicable, pay for rent until you can live on the property or the claim is settled.

It is important to note that, once your title insurance company assumes the claim, your rights are transferred and you will generally have no recourse against it for failing to pursue your rights or if amounts are not recovered.

Civil Action
Second, if coverage under your title insurance is not available, you may still be able to sue the fraudsters in civil court for, where applicable, deceit, conspiracy, and unjust enrichment among other things. To establish the tort of deceit, there must be proof of fraud as demonstrated by a false representation made knowingly, without belief in its truth, or recklessly and carelessly as to whether it is true or false.  The motive of the fraudster is immaterial.  If two or more fraudsters are involved, then the tort of conspiracy by unlawful means may be available.  Here, there must be an agreement or combination between two or more persons, a predominant intention to injure you (or unlawful conduct which the fraudsters knew would likely result in injury to you), and actual injury or damages suffered by you.  Finally, a claim for unjust enrichment may be available.  An unjust enrichment exists where there has been an enrichment or conferral of a benefit to the fraudsters, coupled with a corresponding deprivation to you, and no juristic reason for that enrichment.  If a court finds that wrongs have been committed it may, among other things, award damages and legal costs and rectify title to the rightful owner.

Criminal Action
Third, you may consider contacting the police to have them lay charges against the fraudsters and prosecute them in criminal court.  Where applicable, the police may charge the fraudsters with fraud, criminal theft, forgery, uttering forged documents, and possession of property obtained by crime.  These are all very serious charges, all of which carry maximum penalties of up to 10 years imprisonment (with the exception of fraud, which carries a prison term of up to 14 years in certain cases).

Legislative Offences
Fourth, real estate fraud offences committed under the Land Titles Act, R.S.O. 1990, c. L.5 or the Registry Act, R.S.O. 1990, c. R.20 carry fines of up to $50,000 for individuals ($250,000 for corporations) or imprisonment of up to 2 years, or both.  A court imposing such penalties may also order the fraudster to pay compensation or make restitution.

Land Titles Assurance Fund
Finally, the Ontario Land Titles Assurance Fund (“LTAF”) is a government fund designed to compensate people for certain financial losses due to real estate fraud. There are currently two procedural tracks that apply to claims made to the LTAF: (1) the traditional process for claims arising before October 19, 2006 and (2) a new earlier payment process for claims arising on or after October 19, 2006.  October 19, 2006 is the date that new amendments were introduced to the Land Titles Act which created the two-track system.

In cases of fraud that occurred before October 19, 2006, claimants must follow the traditional process.  In these situations, the LTAF can only be turned to as a fund of last resort. The LTAF can cover clear financial losses and reasonable legal fees where a judgment has already been made and/or rectification has been ordered. To be eligible to apply to the LTAF, you must commence your claim within 6 years of the date of the fraud. There are a number of rules concerning eligibility, such as the requirement that you must have tried other avenues (e.g. criminal, civil, title insurance, etc.) to rectify the fraud before applying to the LTAF. You will not be entitled to recover out of the LTAF if (among other things) your negligence caused or contributed to the loss or if you knowingly participated or colluded in the fraud. After a claim is made, it will be assigned to a hearings officer for investigation. You may be asked for additional info or documentation to help clarify the claim. If compensation is not paid out directly, hearings may be held by the Director of Titles to determine if you have met the requirements for compensation and how much you will be paid. You will be notified of the Tribunal’s decision in writing. That decision can be appealed to the Superior Court of Justice within 30 days after the date of mailing of the Tribunal’s decision; in the event of no appeal, no further action will be taken by the Tribunal pending the outcome of the court process.

For frauds that occurred on or after October 19, 2006, the new earlier payment process is available. This process is available to homeowners and individuals who are purchasers, in good faith and for valuable consideration of land used for residential purposes. Importantly, this new process makes the LTAF a fund of first resort for eligible fraud victims where the loss is not covered under a policy of title insurance. This means that applicants no longer need to pursue their loss through other means (e.g. civil, criminal, etc.) prior to being entitled to compensation from the LTAF. Straightforward cases can be resolved (and title rectified) within 90 days of being reported where there is no court action and all parties are cooperating.

Remember: if you believe you are a victim of real estate fraud, contact a lawyer immediately to discuss your options.

written by admin \\ tags: Civil Litigation, criminal prosecution, fraud under land registration legislation, ltaf, mortgage fraud, ontario land titlkes assurance fund, ontario lawyers, real estate fraud, title insurance coverage

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to reviewing your agreement of purchase and sale, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you review your agreement of purchase and sale.

This is the first of a series of blogs about Agreements of Purchase and Sale in Ontario.

In this blog, I’ll be discussing what is an Agreement of Purchase and Sale (which can be found here) and the first page of the APS – which deals with the information section (including the purchase price and the deposit), the irrevocability clause, and the completion date.

What is an Agreement of Purchase and Sale?
An Agreement of Purchase and Sale is a written and binding agreement concerning the purchase and sale of real property.  It typically appears as the Ontario Real Estate Association’s ["OREA"] Agreement of Purchase and Sale (a standard form).  Almost all Realtors use this form.  Purchasers and sellers use this form to list their conditions which must be met in order for the deal to be transacted.  Common terms and conditions include: financing, home inspection, title, fixtures and chattels, status certificate (in the case of a condo), etc.  The Agreement of Purchase and Sale generally begins as an offer made by the buyer; once the seller accepts, the agreement can only be terminated according to the terms and conditions of the agreement itself or by mutual agreement.  Parties may also try to call ‘foul’ on the other side and terminate the agreement unilaterally on the basis of, among other things, undue influence, duress, fraud, misrepresentation, etc.  It’s important to note that, as per the Ontario Statute of Frauds, all agreements dealing with real estate must be in writing to be valid.

The Information Section
The Information Section is the first part that appears in OREA’s standard form Agreement of Purchase and Sale.  Here, you need to include:

• the date of the agreement;
• the full legal names of the parties;
• the legal description of the property (check with a Realtor and Lawyer to confirm this);
• the purchase price; and
• the deposit.

Purchase Price
Here a few points worth mentioning about the purchase price.

If you’re buying a new home, you will be liable to pay GST (presently at 5%) on the purchase price to the builder.  So while you probably will not be dealing with a Realtor to buy a new home (you can make a deal with a builder directly) and can avoid paying their commissions, you’ll end up paying GST.

If you’re purchasing a resale home, then you don’t have to pay GST.  Also worth mentioning is that, if you’re selling a home that is your principal residence, you don’t have to pay capital gains tax.  Whether your home qualifies as a principal residence is the stuff of another blog…so let’s keep going…

A common question that may come up is: how is the purchase price determined?  You should definitely speak to a Realtor about this.  They’ll look at a number of factors to help gauge what the fair market value of the property is, including:

• Location of the property;
• Size of the property;
• Age of the property;
• Condition of fixtures and chattels;
• Features and amenities;
• Upgrades (e.g. finished basement, pool, hardwood floors, ceramic tiles, etc.);
• Comparative properties that have sold in the area very recently;
• Relative location to schools, hospitals, etc.;
• General market conditions;
• Client’s budget;
• Potential future value (for investment purposes);
• Rent-ability;
• Propensity for a bidding war;
• Easements and restrictive covenants;
• Time the property has been on the market;
• Proximity to highways; and
• Municipal by-law, zoning, taxes, etc.

Deposit
A deposit is not legally required, but the purchaser typically includes provisions for a deposit to give the seller reassurance that the deal will get done.  The deposit is part of the purchase price and is adjusted as a credit to the purchased on closing.  Under the additional terms and conditions (at the end) of the Agreement of Purchase and Sale, the buyer’s agent or lawyer will try to include a provision saying that the Deposit shall be refunded to the buyer if the conditions of the Agreement of Purchase and Sale are not met.

So what should the deposit be?  Realtors in the GTA will likely say between 2 to 5%, although a higher deposit may make the offer look more attractive to the seller.

What Happens to the Deposit Upon Default
What happens to the deposit if the deal does not go through?  If the purchaser refuses to close the deal without legal cause (e.g. the vendor has satisfied all of the conditions to closing or they have otherwise been waived), then the deposit may be forfeited to the vendor.  If the vendor refuses to close, the purchaser would be entitled to their deposit.

When an offer to purchase is made, the purchaser usually gives the seller a deposit toward the purchase price.  A deposit is not legally required, but the purchaser typically includes provisions for a deposit to give the seller reassurance that the deal will get done.  The deposit is part of the purchase price and is adjusted as a credit to the purchaser on closing.  It is typical to see the buyer’s Realtor or Lawyer include provisions in the Agreement of Purchase and Sale saying that the deposit shall be refunded to the buyer if the conditions of the Agreement of Purchase and Sale are not met.

The deposit is generally only released in very limited circumstances:

• a mutual release signed by all the parties;
• performance and completion of the Agreement of Purchase and Sale;
• a term or condition concerning the deposit in the actual Agreement of Purchase and Sale; or
• court action leading to a judgment.

With respect to court action, if the buyer refuses to close without legal cause (e.g. the vendor has satisfied all of the conditions to closing or they have otherwise been waived), then the deposit may be forfeited to the seller.  If the vendor refuses to close without legal cause, the purchaser would be entitled to their deposit.

In Iyer v. Pleasant Developments Inc., [2006] 210 O.A.C. 90, 45 R.P.R. (4th) 147, the Ontario Divisional Court set out the following principles about the nature of “deposits” in Agreements of Purchase and Sale where there was uncertainty (i.e. no provision to the contrary) as to what happens to the deposit upon default by the purchaser:

• A deposit may be forfeited without proof of damages.  In other words, even in the case where the seller resells at a purchase price that is high enough to compensate for any loss from the first sale, the seller may nevertheless retain the deposit.
• The use of the word “deposit” in an Agreement of Purchase and Sale, while not determinative, will imply that the payment is intended for forfeiture upon the purchaser’s breach. If the agreement is silent and the purchaser defaults, the deposit, by its very nature is forfeited to the seller.
• There are circumstances where the loss of a deposit may be subject to relief from forfeiture. If there is relief, the deposit is returnable, in whole or in part, to the defaulting purchaser.

Whether a Court will return a deposit to a defaulting purchaser depends on a three-part test (all of which must be satisfied):

• Was the conduct of the purchaser reasonable in the circumstances?
• Was the purpose of the deposit to secure the payment of the purchase price?
• Was there a substantial disparity between the value of the property forfeited and the damage caused to the seller by the breach?

In Gajasinghe v. Dewar, 2007 CarswellOnt 5738, the Ontario Superior Court of Justice applied this three part test and refused to return a $20,000 deposit to the defaulting purchaser.  Although the Court found that the purpose of that deposit was to secure the purchase price and that there was a substantial disparity between the amount of the deposit and the amount of damages suffered by the seller, the purchaser’s conduct was not reasonable.  Specifically, the Court found that the purchaser’s actions were “indicative not of a purchaser who was ready and willing to close but rather of one who was searching for an excuse not to close”.

Deposit Held in Trust
The deposit gets placed “in trust” with the listing real estate brokerage (unless otherwise arranged) pending completion or other termination of the Agreement of Purchase and Sale.  The standard clause says that it will be placed in a NON-INTEREST bearing trust account.  If the buyer is placing a large amount of money as a deposit and wants interest, they’ll need to specify that in the Agreement of Purchase and Sale. The deposit can be made within 24 hours of acceptance of the agreement or otherwise (e.g. in due course or forthwith or in increments of 30 days, etc.) as per the terms of the Agreement of Purchase and Sale.

Irrevocability Clause
The irrevocability clause says that the offer cannot be revoked or taken back for a set period of time (specified in this clause).  If the offer is not accepted after that time, then the Offer is automatically terminated – deemed null and void – as per OREA’s standard form).

Completion Clause
This is the closing date, plain and simple.  Typically, vacant possession takes place no later than 6:00 p.m. on the date of closing.

written by admin \\ tags: agreement of purchase and sale, binding agreement, completion clause, deposit in agreement of purchase and sale, financing home, irrevocability clause, ontario lawyers, ontario real estate association, professional assistance, statute of frauds, Toronto real estate lawyers

If you need a Barrie, Ontario lawyer, go to Dynamic Lawyers and make a post (it’s 100% free and anonymous!).  Don’t waste time looking at lawyer ads or flipping through the Yellow Pages!  Make the smart move: make a post and get Barrie lawyers and attorneys to respond to you with free information and quotes!

Barrie is the 35^th largest municipality in Canada.  It is home to over 130,000 residents and about 185 lawyers (excluding Crown Attorneys).  I thought it would be worthwhile – seeing as how Dynamic Lawyers has recently expanded to Barrie – to review the web presence of those lawyers.  Think of it like a follow up to our first report (“Solo and Small Firm Toronto Lawyers and the Internet”), wherein we researched 1,000 random Toronto solo and small firm lawyers and found their web presence lacking (in terms of having rich websites with meaningful content).

Unfortunately, Barrie lawyers’ web presence fared much worse than their Toronto counterparts.  Of all of Barrie’s lawyers researched, only 40% had websites!  While virtually all of those websites indicated the legal area(s) practiced by the lawyer (which is a good thing), practically all of those websites were not search engine optimized for basic keywords (e.g. “Barrie lawyers”, “Barrie family law”, “Barrie criminal lawyers”, etc.). To learn more about online legal marketing and search engine optimization, just download a copy of our FREE eBook (“4 Steps to Online Legal Marketing. For Lawyers. By Lawyers”).

Notwithstanding the importance and relative ease of setting up and maintain a blog, we only came across 1 website with a blog (www.sbhlawyers.com)!  Moreover, we only came across one website (www.oatleyvigmond.com) that had videos.

Overall, Barrie lawyers can and should be doing a better job with their web presence!  Their websites should be search engine optimized, appealing to look at, easy to use, and offer high quality and regularly updated content.  Furthermore, Barrie lawyers should be reaching out online to build relationships and backlinks to their website in order to help improve their search engine rankings (which will help prospective clients find them).

If you are a Barrie lawyer and are interested in learning more about how Dynamic Lawyers can help you market yourself online, just send an e-mail to michael@dynamiclawyers.com.

written by admin \\ tags: barrie, barrie attorneys, barrie lawyers, Dynamic Lawyers, DynamicLawyers, lawyers in barrie, ontario lawyers

Please keep in mind that this is not legal advice.  The information provided herein is for educational purposes only. If you would like to get in touch with a lawyer to help you draft, interpret, negotiate or resolve a dispute about a shareholder agreement or unanimous shareholder agreement, then you are encouraged to seek a professional (e.g. make a post on Dynamic Lawyers).  We have Ontario lawyers who can assist you in this regard (I would know, I’m one of them!).  If you want to get in touch with me directly, feel free to email me at michael@dynamiclawyers.com to discuss all your shareholder agreements needs!

This is the second blog I’ll be making about unanimous shareholder agreements.  Specifically, I’ll be discussing a basic template and things you should consider/pay attention to when thinking about unanimous shareholder agreements.  For the purpose of this blog post, I’ll be discussing unanimous shareholder agreements in the context of the Canada Business Corporations Act.

Parties
Make sure to properly identify the parties.   You should have the correct spelling of the parties’ names.  Also, identifying features such as “X is a corporation incorporated under the laws of Canada with a mailing address at” is also good.  If you have too many parties, you may want to use a Schedule, where all of the parties for example are holders of a particular class of shares, etc.

Recitals
Here, you’ll want to put some basic information about the corporation, the parties, and the reason for their entering into a unanimous shareholder agreement.   It’s pretty common to see something in this section like:

• The authorized capital of the Corporation is X;
• The issued and outstanding shares of the Corporation is X;
• The parties want to enter into this agreement to fix and determine their respective rights, duties, obligations, etc. with respect to each other and the Corporation.

Preliminary Matters
In the first real section of the unanimous shareholder agreement, you’ll probably want the parties to confirm the truth and completeness of the recitals and define terms used throughout the Agreement.

Business of the Corporation
In this section, you may want to define the business of the corporation.  This will come in handy with respect to non-compete provisions and agreements which restrict parties’ ability to compete with the Corporation in the business (however that is defined).

Operation and Control of the Corporation
Here, it’s typical to find provisions that say that the discretion and powers of the directors to manage and supervise the management of the corporation are being restricted and usurped by the Shareholders.  Essentially, the Shareholders are relieving the Directors of their powers.

The provisions in this section go on to provide details – often akin to the Corporation’s by laws – on how the Shareholders as both the Directors and the Shareholders will conduct meetings (e.g. nominees, notice, quorum, casting votes, elections and appointments, passing resolutions, etc.).

The provisions in this section may also include specific requirements for the Corporation to enter into contracts (e.g. X number of Directors required) or for the Corporation to do things with respect to issuing shares, borrowing money, selling or leasing Corporate property, amending the Corporation’s articles, continuing the Corporation in another jurisdiction, winding up or dissolving the Corporation, etc.  These things may require special majorities (i.e. majorities which are not specified anywhere in the Act).

You’ll also find provisions in this section of the unanimous shareholder agreement dealing with things like who the officers of the Corporation will be, keeping proper books of account, appointing a banker, etc.

Restrictions on the Issue and Transfer of Shares
This is a very important part of any shareholder agreement: restrictions on share transfers.  There are many ways to restrict transfers on shares, some of which include:

• General prohibition against the Corporation and the Directors for issuing new shares.
• General prohibition against existing shareholders from transferring, selling, assigning, etc. their existing shares.
• A requirement that any party that does, through one of the permissible ways of acquiring shares, acquire shares becomes bound to and a party of the unanimous shareholder agreement.

Here are some of the ways in which share transfers are permitted/restricted:

• Consent Sale: a shareholder can transfer their shares after obtaining the consent of a pre-determined number or percentage of other shareholders.
• Right of First Refusal: a shareholder who receives an offer from a third party for the purchase of their shares must first offer the other existing shareholders the opportunity to purchase those same shares on terms, for example, that are equivalent to the third party’s offer.
• Shot Gun Buy-Sell: a shareholder can name a price at which it is willing to either buy or sell its shares.  The offer is then presented to other shareholders who have a specific amount of time to decide whether to accept the offer.
• Right to Come Along (Piggy-Back): when a shareholder who sells to a third party, the other shareholders are entitled to have their shares sold on, for example, the same terms to that third party.
• Right to Take Along (Drag Along): when a shareholder sells to a third party, the other shareholders are forced to have their shares sold on, for example, the same terms, to that third party.
• Option to Purchase (Call Option): this right gives a shareholder/Corporation the option to purchase shares in certain circumstances (these are called Triggering Events) from the Corporation/shareholder.
• Option to Sell (Put Option): this right gives a shareholder/Corporation the option to sell shares in certain circumstances from the Corporation/shareholder.
• Auction: an auction is a mechanism whereby shares are sold to the highest bidder (or on certain terms of the auction) to third parties.

In each of these circumstances, there are a few common variables: timing or an event occurring, valuing the shares, and rights/obligations affecting the other shareholders, closing provisions, identification of the buyer/seller/third parties (if any), etc.

Confidentiality
If a Shareholder receives Confidential Information (which should be a defined term) in the course of being a Shareholder, Director, Officer, employee, etc. then they should be restricted in what they can do with that information.  I’ve previously blogged about confidentiality agreements, so you can refer to that blog for more information about drafting, understanding and negotiating confidentiality agreements here.

Proprietary Rights
This section will deal with things like defining intellectual property rights (remember that there should be a definition for both proprietary rights and developed proprietary rights), who they belong to, the waiving of any moral rights under the Canada Copyright Act, and an agreement to obtain protection of intellectual property rights.

Non Competition
This section will deal with the repercussions, if any, of a Shareholder who starts competing with the corporation in the Business (which should be a defined term).  To make these provisions enforceable, they should be specific enough (e.g. by identifying parties, the Business, a time line, etc.).

Termination
Here, provisions may be put in place to initiate termination of the agreement where:

• There is only 1 shareholder left.
• A shareholder dies, becomes disabled, or goes bankrupt, etc.
• There is a breach of the shareholder agreement.
• A specific number or percentage of shareholders mutually agree to terminate the agreement.

General Terms
Here, you’ll find terms dealing with things like (but not limited to):

• Notice (how do the parties give notice under the agreement for things like termination).
• Arbitration.
• Assignment (e.g. is this to be done by the parties having to consent in writing?).
• Survival of terms (i.e. if a term is found by a court to be void, should the rest of the agreement survive?).
• Governing Law (which jurisdiction governs the interpretation and enforcement of the agreement?).
• Amendment (how is this to be done?).
• Entire Agreement (i.e. this agreement supersedes all other agreements – whether oral or written – relating to the same subject matters in the agreement)
• Waiver.
• Interpretation.
• Independent Legal Advice
• Currency.

Please keep in mind that there are many other kinds of terms and conditions you can find in the general terms section of this agreement.  You should consult with a lawyer to address these general terms.

Execution
The final section of the agreement (other than any schedules or exhibits) requires that the parties, or duly authorized representatives of the parties with the power to bind, execute the agreement.  It is sometimes a requirement that witnesses be present and sign their names alongside the parties’.

In conclusion, this blog has discussed a basic unanimous shareholder agreement template.  You should note, however, that the particular details of a unanimous shareholder agreement vary depending on the needs of the shareholders and the business.  These documents should be put together by lawyers (such as myself) who are trained, knowledgeable, and experienced professionals.

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