Question:
What date should be inserted into the Agreement of Purchase and Sale for the Title Search date?
Answer:
Buyer’s Interest
From the perspective of the Buyer’s lawyer, you can leave the posted title search date right until closing.
Seller’s Interest
From the Seller’s lawyer’s perspective; that would simply lead to an aborted transaction, assuming that there is an issue. Working things backwards, you need to provide the Buyers with 10 days’ notice of an application to Court in respect to a motion dealing with a title problem. That includes Saturdays and Sundays, but day 10 has to fall on a date when the Court is open. Applications can be made on short notice, but that will cost more money.
Time for Seller’s Court Application
When I say 10 days, that means that the Court material has to be ready. Two weeks, really only leaves 4 extra days for the lawyer to prepare the material. Remember that day 14 was the first day that they heard about the problem, and that could have been rather late in the day. Day 13 (from the closing date) the Seller’s lawyer appreciates that there is a problem. Day 13 and Day 12 are going to be pre-occupied with title insurance as a possible solution. Because that is usually the easiest, quickest and less expensive remedy. Day 11, there is an unresolved problem and ALL the Court material has to be ready to go because Day 10 is the day for service of the Court documents.
The Likely Need for a New Lawyer
This is something of an issue since the unresolved problem does not get solved by a conveyancing lawyer, it gets solved by a lawyer who does real estate litigation. By the time this new lawyer, likely at a different law firm gets involved, we are basically out of time. The investigation needs to begin, the affidavits need to be signed and the application has to be made.
Actually, that’s not so much of a problem, the real estate litigation lawyer will now likely double or triple the fees, by reason ONLY of the matter being on short notice.
So, with all the effort to avoid saving a couple of hundred dollars on starting a title search a week early, we now have a $5,000.00 fee about to escalate to $15,000.00.
The “Right” Time Period
In my view, 2 weeks is the absolute shortest time you could select. I would prefer at least 4 weeks, particularly if the closing is 90 days away. If the closing is over 90 days, then there’s nothing wrong with 6 weeks. In commercial transactions, most Seller’s lawyers will request at least 6 weeks. This is good practice. It is in the client’s best interests since it permits sufficient time to resolve matters at reasonable expense.
Very, very short notice just unnecessarily escalates the costs of resolving an issue!
Brian Madigan LL.B., Broker