by: Kristi Sargeant-Kerr, Real Estate Lawyer
After making the difficult decision of whether one person is staying in the home or if the home is to be sold, you will need to find a real estate lawyer. If one person is staying in the home and taking sole ownership of it, they need to retain a lawyer and, at the very least, the person who is leaving needs to obtain independent legal advice and preferably, their own real estate lawyer.
For the transfer to be completed, 2 key documents will be required:
1. a copy of the written and signed separation agreement; and
2. written mortgage instructions for the new mortgage in the name of the person taking sole ownership.
These documents will allow your lawyer to prepare the necessary closing documents in a timely fashion. More importantly, the terms of the written separation agreement will allow the transfer to be completed without the payment of Land Transfer Tax by the person taking sole ownership.
If you are selling the home, typically the parties agree on hiring one real estate lawyer to represent both of them. Despite this, however, your lawyer should make every effort to ensure that both parties are comfortable with how information is communicated (e.g. sending individual emails requesting information a party may not want to share with their former spouse) as well as schedule separate closing meetings.
Upon the sale of the home being completed, your lawyer will then rely upon the terms of the separation agreement to disperse the sale proceeds and to ensure that everything is paid out according to the agreement.
Recognizing that refinancing and/or selling a family home upon a separation is a very emotional and often overwhelming process, at Scott Petrie LLP, we take the time to ensure that our clients are informed of each step and supported throughout the process.