Jim speaks with a Calgary man who is hoping to get his hands on what may be the rarest of royal wedding swag - a Kate and William pez dispensers currently up for auction on EBay.
Click to listen to interview:
Monday, April 11, 2011
Jeff Kahane Quoted in Financial Post Article: Escaping From Mortgage Prison
Let's just say you owed somebody a ton of money but there was no legal way to force you to pay it back?
Would you? What if it was one of those evil corporate banks that make for an easy target? Did the answer just get a little easier?
Not for 60% of Americans who say it is never OK to simply stop making payments on your home, according to a survey by Eagan, Minn.-based findlaw.com, a free legal information website.
Another 34% say it's OK to walk away from a mortgage, but only if you can't make the monthly payments. Only 3% believe you should be able to walk away from a mortgage anytime you want, according to the survey, which interviewed 1,000 American adults and had a margin of error of plus or minus three percentage points.
It's an interesting survey given that U.S. law in a number of states allows consumers to simply hand over the keys to their homes without the lender going after their other financial assets -something that is all but impossible in Canada.
That is not to say that walking away from a mortgage isn't affecting the credit of Americans who do so. They might not be able to buy another house for years unless they do so with cash.
Despite what the survey says, Americans have been walking away from mortgages in droves because it makes financial sense.
Think about it. You have a home with a $500,000 mortgage on it. The present value of it is $250,000. Why would you not walk away, if you could?
"We just asked people what do you think of the idea, not would you do it yourself or have you thought about doing it yourself," said Leonard Lee, the researcher behind the survey. "There is a practical argument, but there's a whole philosophical argument."
If you were shareholder in a company that owned a $250-million building but kept making payments on a $500-million mortgage even though the company had the ability to walk away from the debt, how would you feel? Would the executives be breaching a fiduciary responsibility?
The U.S. real estate industry even has a term for all this: strategic default. "You are asking at some point, doesn't it make more sense to walk away from the mortgage where you are unlikely to recoup your original investment," Mr. Lee says.
Ted Rechtshaffen, certified financial planner and president of TriDelta Financial, says once you put aside the moral issues, it would come down to a simple choice.
"It will impact your credit rating, but from a financial perspective, why wouldn't you do it? You are getting a $250,000 head start. Another investment is probably going to be better than your current house," Mr. Rechtshaffen says.
But Benjamin Tal, deputy chief economist with CIBC World Markets, says while it might not make economic sense, there is evidence Americans are not actually walking away from property as much as they probably would if they were listening to a financial advisor.
"Whatever the default rate is now in the U.S., people say it's 8% and that's extremely high. I say that's surprisingly low," Mr. Tal says. "You have up to six to seven million households that could default any day, namely because they are in a negative equity position."
What's in it for them to keep paying? There is something to say for wanting to stay in your home where you have been living and raising a family. There is also a stigma that comes with somebody slapping a foreclosure sign on your property -suddenly your neighbours know a little more about your financial situation.
"At the end of the day though, that's the rational thing to do. You are talking about houses that are under water more than 20%. Based on an economics textbook, that would be the rational thing to do," Mr. Tal says.
In Canada, it's pretty tough to do. For starters, if you have an insured mortgage backed by the government, the bank will get paid off for its loan. But the insurance company, whether it's Canada Mortgage and Housing Corp. or a private insurer, will go after you for any deficiency created by proceeds from the property being less than the mortgage.
It's the case in most of the country for uninsured mortgages, too, says John Turner, director of mortgages for Bank of Montreal. Rules are slightly different in Alberta and are designed to protect consumers, but Mr. Turner says banks can elect to go after other assets in some circumstances.
There's also the scenario where you might have bought a condominium as an investment before it was built and put down, say, a 20% payment. If you think you can walk away if prices dropped by 50% once the building is up, forget it. You'll be sued.
"As lawyers, we can't advise someone to break a contract. The law is not you don't have to obey it, the law is the consequences of not obeying [the contract]," says Calgary lawyer Jeff Kahane. "You haven't broken the law, you've broken your promise. Is it any different than saying why would I want to pay for a chocolate bar at 7-11 when I can put it into my pocket and steal it if I can get away with it."
Thursday, April 7, 2011
Residential Real Estate: Terminating an AREA Purchase Contract for Breach Prior to Closing
Baker v. Warshawski, 2010 ABQB 219 (“Baker”) is a recent decision of Alberta Court of Queen’s Bench that considered a purchaser’s right to rescind a purchase contract prior to close for breach of the sellers’ requirement to provide the property in “substantially the same condition” and for a misrepresentation inducing the purchaser to enter the contract.
This first blog post will focus on the breach of a sellers’ obligation to provide property in substantially the same condition on closing. The Court’s decision provides some instructive lessons in this regard for agents of both sellers and buyers and, obviously, for their clients.
Section 4.2 of the AREA Residential Real Estate Purchase Contract provides that “When the Buyer obtains possession, the Property will be in substantially the same condition as it was in when this Contract was accepted.” In other words, the Buyer must not substantially alter the property between the time of acceptance and the time of closing. But what does substantially the same mean for the courts? How should agents advise their clients? What lessons can be learned to help agents and clients avoid nasty and expensive litigation when deals fail to close because of this situation.
In Baker, the sellers demolished a courtyard wall after the purchaser discovered that the courtyard crossed onto the neighbours’ property by four inches. The sellers were aware of the encroachment prior to the offer being accepted and they were also aware that the neighbour would not sign an encroachment agreement. Unfortunately, the encroachment was not disclosed to the buyer by the sellers at the time the offer was made despite the buyer’s agent asking if there was a real property report (“RPR”) with a compliance stamp on it. Instead, the sellers’ advised the buyer that there was a RPR with a compliance stamp, but they were silent about the fact that the RPR indicated a significant encroachment problem and that the neighbour was not cooperative.
The courtyard was an important selling feature of the house, it was emphasized by the sellers in promotional material, and the buyers were particularly attracted by the courtyard and the security that it would provide for their young children. The courtyard wall provided a privacy screen for the three principle rooms of the main floor which all opened onto the courtyard in a ‘c’ shape, including the kitchen, the living room, and the dining room. Without the courtyard wall those same rooms would have opened directly onto the neighbours’ driveway.
In order to remedy the encroachment created by the courtyard and in order to comply with the warranties and representations given in section 6.1, the sellers decided to demolish the courtyard (without notifying the buyers) prior to the closing date. However, the buyers refused to close on the basis that demolition of the courtyard was a fundamental breach of the contract entitling them to rescind or treat the contract as discharged. The seller refused to return the $100,000 deposit and litigation ensued.
So what did the court have to say about the requirement to provide the Property in substantially the same condition?
The court noted that the destruction of the courtyard and the resulting “material alteration to the aesthetics and utility of the main floor” went to the root of the obligation to provide a property in substantially the same condition. The material alteration was a “substantial breach” of that contractual ‘promise’.
However, here it gets complicated. The court determined that the ‘promise’ to provide the property in substantially similar condition is the kind of contractual term that can be treated either as a term that gives rise to a right to damages only (a payment of money) or a right to terminate or rescind the contract. In other words, not all breaches of the promise to provide a property in substantially the same condition will entitle the innocent purchaser to repudiate the contract prior to closing and have the deposit returned.
The Court stated that it was not clear from the contract or the commercial circumstances what kind of term it was. The substantially similar provision is not in the ‘Conditions’ section of the contract and it is not in the ‘Representations and Warranties’ section of the contract. If the promise was a Condition it would more clearly entitle the innocent party to refuse to close. If the promise was a Warranty it would more likely entitle the innocent party to monetary damages only.
As a result, the Court looked at other factors like the gravity of the breach and the intentions of the innocent party to determine how to treat the breach of the promise. The court noted that the breach was substantial with respect to both aesthetics and utility, even though the cost to rebuild the courtyard wall was small compared to the total value of the property. In addition, the court noted that the Courtyard was a key feature of the property, that it was marketed as such, and that it was of importance to the buyer. Finally, the court noted that the seller had not disclosed the encroachment originally and had demolished the courtyard without notice, and both factors allowed the purchaser to view the sellers as unreliable and unlikely to remedy the breach satisfactorily.
As result of all of the above, the court held that the breach was sufficiently serious to allow the purchasers to treat the contract as at end and have the deposit returned. What lessons can be learned by real estate agents in light of the Courts decision?
The obvious lesson is that the issue is complicated and the advice of a lawyer should be sought prior to advising your client on how to proceed. This is true whether you are the agent for a seller who ise proposing an alteration to a property or the agent for the buyer who discovers that an alteration has been made.
Second, and this may be less clear, advice should be obtained as soon as possible and definitely prior to closing to determine whether termination of the agreement might be possible. After closing, terminating the agreement will be much more difficult.
Third, if a seller is in a situation where an alteration to the property might be necessary, consult with the buyer, involve them in the process, and get the buyer’s agreement (in writing if possible) to all the changes to be made.
In a best case scenario, the realtor has advised the property owner to make changes to the property prior to listing and all these problems will be avoided.
Jeff Whyte practices in the areas of business law, litigation and real estate at Kahane Law Office. Jeff would be happy to meet with you and discuss your real estate related concerns.
Is a Unanimous Shareholder Agreement Right for Your Business?
Is a Unanimous Shareholder Agreement Right for your Startup Business?
What is a unanimous shareholder agreement?
A unanimous shareholder agreement, or USA, is an agreement or contract entered into by all of the shareholders or owners involved in a startup company. It’s used as the ‘go to’ document or rule book governing the relationship among the shareholders. In fact, the USA often extends beyond shareholder relationships and includes restrictions on the freedom of the directors to manage the business of the corporation. Many lawyers and entrepreneurs refer to the shareholder agreement as a ‘pre-nup’ because rules governing how shareholders exit the corporation are typically included.
Really, there are three primary reasons that unanimous shareholder agreements are used in closely held start-up corporations:
1) setting the rules for governing or managing the corporation;
2) providing a mechanism for resolving deadlocks; and
3) providing mechanisms for the liquidity or transfer of shares.
When is useful?
A unanimous shareholder agreement is particularly useful in closely held startup companies where the shareholders do not want to rely on corporate lawyers and litigators to settle shareholder disputes. Why? The framework for decision making and the clarification of expectations at the initial stages of organizing the corporation provide and inform the mechanisms to resolve many disputes that typically arise in start-ups.
What are the drawbacks?
As with any good thing, there are potential negatives for entrepreneurs to consider when contemplating executing a unanimous shareholder agreement. One of the primary concerns is that some companies will require equity injections from new investors in order to continue growth. New shareholders will become subject to the unanimous shareholder agreement and will have the same rights as the original shareholders in the management of the corporation. Many shareholders of closely held companies will not want to add new shareholders into the management equation. In fact, many shareholders may have entered into the unanimous shareholder agreement precisely for the reason of protecting themselves against having unwanted partners in the business.
Additionally, to the extent that the unanimous shareholder agreement removes powers and responsibilities from the directors and gives it to the shareholders, the shareholders may become subject to the liabilities the directors would otherwise have. Protection from liability for shareholders is an important factor in deciding to incorporate a business in the first place. Consequently, any loss of that protection should be carefully weighed.
Typical clauses
1) Governance
a. Vetoes’. Allows shareholders to set rules over how important decisions are made, for example by providing shareholders with a certain amount of holdings veto rights over specified decisions.
b. Mediation or arbitration clauses. Allows the shareholders to provide an alternative mechanism to the courts for resolution of disputes.
2) Shares Issues and Restrictions
a. a unanimous shareholders agreement can set out preemptive rights on new issues and restrictions on the transfers of existing shares. Such restrictions allow existing shareholders to participate in new offerings and approve new or replacement partners to the business.
b. “Buy-sell” or “Shotgun” provision. A Shotgun provision allows one shareholder to offer to either buy the shares of the other shareholders or sell their own shares for a certain price. The non-offering shareholders can then decide to either buy or sell. The theory behind this provision is that the offering party will set a fair price because they will not be certain whether they will ultimately buy or sell. The shotgun provision is an important provision to resolve deadlock and allow for the removal of a shareholder.
c. “Piggy Back” or “Tag-along” provision. If a shareholder is able to sell shares to a third-party, a piggy back or tag-along allows the non-selling shareholders to include their shares in the agreement with the third-party buyer. In other words, a shareholder could tag-along with the seller and exit the corporation.
d. “Drag-along” provision. If a majority shareholder decides to sell its shares it can require the minority shareholders to sale their shares to the buyer as well. This allows a majority shareholder to exit the corporation without a minority shareholder blocking the sale.
Summary
There are advantages and disadvantages to entering into a unanimous shareholder agreement. We recommend that you discuss your options with your trusted advisors as early in the business organization phases as possible. Fortunately, your lawyer will have precedents that he or she can use to draft and an agreement that fits your unique requirements. Consequently, having a unanimous shareholder agreement prepared will not cost much.
About the Author:
Jeff Whyte practices business law and litigation at Kahane Law Office. Jeff would be happy to meet with you and discuss the best approach for you in organizing your business.
Sunday, March 20, 2011
Incorporating your business start-up
There are many obstacles to be met by a prospective business owner prior to getting a start-up running. For example, an entrepreneur must decide whether to operate as a corporation; and, if so, further determine what the optimum time is to incorporate the business in the start-up cycle.
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