Closing real estate deals during COVID-19
Friday, June 12, 2020 @ 11:16 AM | By Mark Weisleder
The three main areas for a real estate law firm to adapt are the signing of documents with a client, the exchange of money between law firms at closing and the exchange of keys at closing. Practical solutions have been and are being developed so that most of the real estate transaction can be conducted safely, without putting clients or staff at risk.
Signing of documents
The Law Society of Ontario is now permitting documents to be signed via videoconference and scanned provided the method used verifies the identity of the client securely. Still, some lenders and builder lawyers require lawyers to attend with the client personally for an original signature, particularly when HST rebate applications need to be submitted by the builder to Canada Revenue Agency (CRA) to collect the rebate after closing. It is unfortunate that CRA has not also agreed to accept the same method as the law society recommends and it is also unfortunate that some lenders still require this.
At our firm, we still prefer not to have clients attend at our office to sign anything. We have developed our own enterprise solution to sign clients up through a secure videoconferencing meeting, while also verifying their ID. If necessary, we will still travel to our client homes, wearing personal protective equipment, if documents need to be signed in person.
Under the standard agreement used by real estate agents in Ontario, the closing funds can be paid by bank draft, certified cheque or wire transfer. Our office prefers to receive and send only wires at closing, as we only deal with irrevocable funds. This ensures that the money is final and irrevocable while also avoiding having to rely on couriers to send or receive a bank draft or certified cheque on the day of closing.
If a courier is delayed for any reason and arrives after 6 p.m., the buyer is in default and must negotiate an extension. We also have a trust account at every major bank and are set up with cash management software to wire directly from our own computer system so we do not have to attend at a bank branch to send any closing funds to other law firms. Other law firms are also using this practice to ensure the entire process remains safe and efficient.
Over the years we have also registered our law firm as a bill payee at all major banks so that most of our buyer clients can transfer the closing proceeds online directly to our trust account without having to line up with a mask at a bank branch on the day of closing to either wire funds or obtain a bank draft. We pay our sellers through electronic funds transfer at closing as well to avoid any of our staff having to attend at a bank branch to close a real estate transaction. As the funds are final and irrevocable, clients have immediate access to their funds with no holds put on the same by the bank.
We continue to be frustrated that the major banks will still not permit law firms to discharge a mortgage from title by wiring the funds directly to the financial institution. This still requires us to send staff to the branch to line up to pay off any mortgage in person after closing. It is hoped that the pandemic may cause the banks to change their processes as it is frankly not necessary and not safe.
It was typical for a seller law firm to deliver the keys to the buyer law firm to be released to the buyer at closing. Several years ago our law firm started the practice of providing our sellers a lockbox to leave the keys for the buyer at their home. Then when we received the buyer lawyer closing funds, we released the lockbox code to the buyer law firm.
One of the reasons we did this was to avoid having to rely on a courier to get to the buyer law firm in time, especially during the winter. This also creates convenience for the buyer as they can go directly to their new home without having to go to the lawyer’s office for the sole purpose of picking up a key. This solution has now been adopted on almost all real estate deals, so that keys can be picked up by the buyers at closing right at their new home, to avoid having to travel anywhere else just to pick up keys.
If all lawyers work together we can do a real estate transaction from beginning to end, safely and securely, to continue to provide this essential service to consumers during the pandemic.
Mark Weisleder is a senior partner with the law firm Real Estate Lawyers.ca LLP and is also an author, newspaper columnist and keynote speaker. He has practised real estate law for over 30 years and has written best-selling industry books for homebuyers and sellers, residential landlords and real estate salespeople.
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