Legal questions: the documents, the rules, your inclusions and the notary
The purchase or sale of an immovable property is not to be taken lightly. It is a serious act full of consequences. At the time of signature, the notary explains the rights and obligations of the parties to the deed. He is duty-bound not to remit the sale price to the vendor until the necessary verifications have been completed and all parties are fully protected.
Promise to sell/purchase
The promise to sell or purchase is the most common document signed by all interested parties prior to a sale. Contrary to popular belief, such a document is not one that can be easily disposed of after signature. It is a preliminary contract that imposes obligations on the parties. Once the promise is signed, it becomes extremely difficult to alter its terms and withdraw from the obligations thereby contracted.
Selling, there are restrictions
Selling your immovable property to whom and when you please appears to be an acquired right; however, sometimes, an owner must be authorized to sell his property. Here are some examples:
- The owner of a family residence must have the written consent of his or her spouse to sell;
- A tutor to minor child shall often obtain certain authorizations to sell an immovable owned by the minor child;
- The owner of classified cultural property must, in well-defined circumstances, obtain authorization to sell; the same is often true for the owner of agricultural property;
- The sale of an immovable that forms part of a housing complex is subject to authorization by the Régie du Logement.
Prudence is therefore recommended. If you sell without right, you jeopardize the sale and expose yourself to civil action.
The sale with legal warranty
The seller and the buyer of an immovable have certain obligations towards one another. The purchaser must take possession of the property and pay the sale price. The vendor must deliver the property and is bound by the legal warranty, that is, the law obliges him to guarantee certain things to the purchaser.
First, the vendor is bound by the warranty of ownership. He must guarantee to the purchaser that the immovable has no title defects and is free of all charges, except those declared at the time of sale. The vendor must also guarantee that the immovable does not suffer from encroachments (an encroachment on his part or an encroachment caused before the sale by a third person with his knowledge) and, within the confines of the law, does not contravene public law restrictions (for example, the vendor guarantees that the immovable complies with zoning regulations). The warranty of compliance with public law restrictions is, however, not absolute; the purchaser must remain vigilant.
Second, the vendor is bound by the warranty of quality, that is, the warranty against hidden defects. The warranty of quality covers only major defects that existed at the time of the sale, that was unknown to the purchaser, and that a prudent and careful purchaser would not have discovered. To the extent permitted by law, the parties may add to or reduce the legal warranty.
The title search, a necessity
After carrying out the necessary title search, your notary is in a position to guarantee that title to the property will not be contested. First, his search consists of verifying whether:
- The seller is the true owner of the property;
- The seller has the right and capacity to sell it;
- The vendor’s spouse or other persons must consent to the sale;
With the aid of a certificate of location, your notary then verifies:
- Whether the dimensions of the lot are correct;
- The buildings have been properly erected on the lot to be sold;
- The dwelling has been built in conformity with municipal by-laws and zoning regulations;
- The neighbor’s property encroaches on the lot;
- The windows conform to legal standards;
- There exist rights of way;
The sale price
- You will have the benefit of the administration of funds by the notary in his trust account;
- The funds will not be released until all verifications have been made.
The notarial deed of sale, a valuable document
Your notary drafts the deed of sale with the care and attention to detail that characterizes all of his work, putting into this document all the clauses essential for the protection of your rights. The notary also draws up all other deeds related to the deed of sale: hypothecary loan, servitudes, mortgage acquittance, co-ownership agreements, wills, etc. You will be given an authentic copy of the original deed of sale, which is numbered, recorded, and registered for your protection.