One of the significant hidden elements of a successful purchase of a condo rests with your lawyer. Whether you are buying a resale or a presale condo, I have repeatedly published that it is absolutely imperative that you have a lawyer involved at each step along the way.

The codicil here is that your lawyer is a condo specialist lawyer and not a generalist real estate lawyer. Condominiums are a highly specialized area of real estate and therefore real estate law. Most lawyers are confident that they can handle anything, kind of like most other areas of endeavour (I know of models who say they can ride horses even though they have never sat on one in an attempt to get work in a commercial, one such model ended up with a broken collar bone resulting totally from this type of false bravado).

A substantially changed Condominium Act was enacted in Ontario in 2001. In an ideal world every lawyer in the Province who is contemplating professionally representing clients with respect to purchasing a quarter million dollar and up investment would have thoroughly updated themselves with this corner stone for the industry.

Unfortunately, like many professions only a select sampling of lawyers specialize in the "niche" market of condos and thereby keep themselves up-to-date with respect to changing issues within the condo industry.

It is difficult as a professional to publish issues such as this, however as the premier Internet web site for global condo Buyers of Toronto condos, townhomes and/or lofts, I hold an obligation to prepare Buyers for any/all pitfalls that they may come across in their buying strategy.

I certainly am not opposed to or negative toward lawyers although I understand that they frequently are the fodder of jokes and sarcasm and with some merit I must add. As a professional Realtor I tell everyone that it is absolutely imperative that they have legal council. I advise all of my clients to contact a minimum of three (3) law firms and quiz them before "signing up".

As a professional Realtor I am not supposed to "endorse" one lawyer over another. In real estate terms this is called "steering" and is something that I cannot do. I am constantly asked for a lawyer referral and I always fulfill my obligations under our industry code of ethics and all Provincial laws in instructing everyone to contact a minimum of three lawyers and discuss your goals. Ask their fees and specifically "HOW MANY RESIDENTIAL CONDOMINIUM TRANSACTIONS THEY HAVE DONE IN THE PAST TWELVE MONTHS".

The reason that I seem to be beleaguering this point is not so much to direct you to any one law firm (I receive no compensation whatsoever from any law firm for sending them clients) as to tip you off to the downside of retaining a lawyer who is not involved in the day to day pulse of the condo industry.

Condos are a totally different beast to any other form of real estate and therefore demand unique knowledge and expertise. If your lawyer is not up to speed with the new Act and/or is unsure of conventional procedures and nuances they can quickly represent a major hurdle in buying your condo on your best terms and conditions and sometimes can negatively affect the price.

In all of the transactions that I have done over the past couple years with isolated lawyers whose names aren’t prominent from a real estate perspective I have had a problem. The problem is quite understandable to me and I don’t even take it personally.

When you write the numbers of Offers that I write each year, the documentation becomes almost "boiler-plate". The Toronto Real Estate Board has standard Offers Of Purchase and Sale that we use with adequate verbiage within each clause to protect both parties. The unique and proprietary software that I use for my Offers is licensed exclusively to me and my ID is stenciled into each document produced. When you purchase a condo there are certain unique clauses (unique to condos) such as a condition on Status Certificate as well as conventional conditional clauses like financing, etc.

Strategically, it is important to sculpt the Offer to make it as agreeable and as acceptable to the Seller as possible. In downtown (core) condos you can expect that the Seller will have a professional Realtor representing their interests and therefore sculpting the Offer to be agreeable to the Realtor as well can pay dividends especially when we are trying to knock the price down.

The entire buying process is a psychological game comparable to chess. Knowledgeable professional Realtors know how to play this game. Your lawyer becomes a piece in the game. If he/she is not aware of their role, deals can hiccup. I’ve never seen a lawyer admit to a client that he doesn’t know or is not up to date on condominium law. It would be like me trying to lease out a shopping mall - no background - no expertise!

Despite this apparent logic (apparent to me), it does not hold up when it comes to outsider lawyers jumping into the equation. The first tip usually is when my client’s lawyer ends up out of town. I had a disappointing introduction to a lawyer in Ancaster Ontario (about two hours outside of Toronto). A client of mine who was moving here from Ancaster listened attentively to my description of his need for a hands-on local condo lawyer to handle the transaction but told me that his father’s lawyer "would do it for nothing". My retort that "nothing is for nothing" and "you get what you pay for" landed on deaf ears.

The first curve thrown at me by this lawyer who did not understand the Condominium Act was an assault against me for not having included in my Offer of Purchase and Sale a "Condition" that the vendor would deliver me the Estopple Certificate (terminology dropped months earlier in the new Act and replaced with Status Certificate) with "10 Days". He went on to attempt to scold me for not having made the Offer "Conditional Upon Lawyer Approval".

My shocked client (shocked by my curtness with "his father’s lawyer") as I informed him that I did not have the time to invest in educating him regarding the Act stipulating that first off, we cannot contract outside of the Act. In other words we cannot agree to something outside of the Act and the Act clearly states that Condo Corporation or Management Company representing the Condo Corporation shall have up to Ten (10) Days to deliver the Status Certificate after receipt of a written request and payment of $107 ($100 plus GST).

My most recent experience with one of these out of town lawyers involves a Vaughan Ontario lawyer representing a young female client of mine who in making an investment in a rental income condo for herself in downtown Toronto. She asked me for the name of a lawyer and I had given her the name of one condo lawyer that I have had a great number of dealing with "Mr. Myles Waxman" at Lipman, Zener and Waxman, LLP on Eglinton Avenue West. My professional advice to clients who ask me for a lawyer referral is that they contact Mr. Waxman and at least two other lawyers (I give them the Law Referral Society Information).

My client got back to me with her lawyer info on December 18/02. Her lawyer had told her that the Offer should go to him first and I followed my client’s instruction faxing the Offer over to the lawyer’s office. On December 23/02 the documents came back to me with three specific hand written insertions by the lawyer:

1. In the Status Certificate Clause the lawyer added the words "and shall be provided with (I’m assuming they mean "within") 10 business days of acceptance" . . . . . REALITY = A lawyer knowledgeable about the Condominium Act would know that (a): "no-one can contract out of the law" (the Act says 10 Days and no matter what is said, the law is 10 Days) and; (b) the vendor cannot be made to guarantee the mandated obligations of the condo corporation whose burden it is to deliver the "Status Certificate within 10 Days of request of same". The introduction of this mute point resulted in a negative call from the seller’s agent immediate upon receipt and mysteriously she suggested that "the client’s lawyer must have looked at the offer first";

2. "Add back into condition re: inspection" . . . . . My client and I had discussed striking this clause as the building is under two years new. The rare condo inspections that I have seen undertaken are limited to checking the electrical outlets as there is no roof to check for leaks or basement to check for leaks in a condo. The cost of such an inspection runs around $350.

3. "The Vendor warrants and it is a condition of this Agreement that the Purchaser is permitted to have tenants at the property and any required approvals of the Condominium Corporation have been or will be obtained prior to closing" . . . . . Owners of condominiums in Toronto are entitled to do what they choose with their own private property. Co-ops do have restrictions regarding renting and condo documents set out what can and cannot be done with a condo. I am not aware of condos in Toronto with any rental restrictions (usually limited to Florida markets and other seasonal destinations).

None of these issues are substantial on their own but when you introduce them into an Offer that is substantially "light" on asking price (we’re trying to knock $25,000 off of a $230,000 condo) you are introducing barriers.

Strategically, in introducing another "condition" to the Offer and burdensome, redundant clauses imposed substantial stress onto the Seller leading him to turn down our Offer without "treating" it. Psychologically we want the Seller on friendly terms. The added burden of these three clauses introduced sufficient distraction to both the Seller’s Realtor and the Seller that we did not get our chance to negotiate the sale (achieving a cut in the asking price consistent with other transactions that I’ve done recently). Let’s remember this is a Seller’s market with the majority of good listings still selling "above asking"!

I know that a lawyer has got to introduce something into the document or there may be the appearance to their client that they have not been worth the fee being charged by them however, a collaborative relationship between your lawyer and your Realtor (instead of the instinctive abrasive approach by these guys every time my clients bring them business) will pay you (the Buyer) major dividends in the end!