Whether buying or selling land, it is strongly recommended that you retain your own Attorney to act on your behalf in the transaction. In Ontario and New Brunswick a lawyer is mandatory! An Attorney is bound to ensure that the interests of the party she represents are protected. For the seller this can be as simple as ensuring payment of the purchase price is secured before the property is transferred to the purchaser. For the purchaser, as important as ensuring that the property you have chosen and bought is the one that is transferred to you and there are no liens or charges for which you now find yourself responsible. 

i. Down-payment/Deposit – A down payment is an amount required by the seller to secure your interest in the transaction and is always paid up front, while a Deposit is the minimum amount required by the mortgagee/financier to secure a mortgage against the property. For example, a seller may require you to make a down-payment of 5% of the purchase price while your bank may only secure a mortgage of 90% of the purchase price leaving you to pay an additional 5% deposit against the purchase price of the property. A deposit can be paid at closing or as a condition of the mortgage before an undertaking is issued by the mortgagee. Requirements tend to differ in each jurisdiction.

ii. Transfer Tax – This is a tax payable on the transfer of a property from one person to another, like in a sale transaction and is paid at closing. It varies depending on the jurisdiction and can change at the Revenue’s descretion. For example, transfer tax is currently 2% of the market value of the property in Jamaica and is normally paid by the seller, while in New Brunswick, transfer tax is 1% and is paid by the purchaser.

iii. Stamp Duty/Registration fees – these fees are found mainly in Jamaican transactions where the cost to stamp the Sales Agreement and Transfer instrument are shared equally between the seller and purchaser and are due at closing.

iv. Attorneys fees– often based on the purchase price of the property and are either fixed or range from 1-3% and due at closing. These fees can also include the cost of preparing the Sales Agreement, Transfer instrument and Letters of possession in Jamaican transactions.

It is important to remember that despite the authority that the title Lawyer evokes, the client is the one essentially steering the boat. The Attorney-client relationship is instigated by the Client who “instructs” the Attorney along the whole course of the matter. A Lawyer is a counsellor, in effect, a “creature of instruction”, whose job is to provide legal advice and the options available to bring your matter to a successful resolution. We will discuss with you all avenues available, the pros and cons of each and the associated costs. The final decision is yours however. 

Attorneys are also duty bound to the court, fellow Attorneys and to the public. We weigh all of these duties against your instructions and may not accept your instructions should a conflict arise. Our various Law Societies and Councils establish Codes of Conduct and Ethics that Lawyers must follow to ensure a beautiful balance of all our obligations.