Tenancy at Will: Not The Magic Wand To Solve Everything
On a regular basis, we are asked to solve a problem with tenancy at will. Tenancy at will comes up in the context of people buying a home. If there are delays or unforeseen problems in closing on time, tenancy at will can be a solution. However, there are very specific situations and requirements for tenancy at will to be applicable. The lawyers at Kahane Law Office in both our Alberta locations (Edmonton and Calgary) are ready to help you both close on the purchase of your home and better understand tenancy at will. Connect today in Calgary 403-225-8810 and for Edmonton help 780-571-8463.
What Is Tenancy At Will?
Tenancy at will is where a buyer is able to move into a property they are buying without first paying for it. There are several situations that come up where the mortgage funds are not able to be drawn and paid to the sellers. In these cases, this type of possession allowance allows the buyers to take possession and move in. The standard real estate contract in Alberta foresees this type of tenancy and sets out some of the rules around it. This is very different than renting a home and tenancy resolution does not apply in a tenancy at will situation.
What Do You Need To Get Tenancy When You Are Not Otherwise Able To Close?
Generally speaking, in order for a lawyer to secure tenancy for their buyer, the following things must be in place. In Alberta, your buyers’ lawyer will have to confirm the following with the sellers’ lawyer:
- Insurance is in place (not for condos);
- A transfer back (transferring title back to the sellers) is in place;
- The mortgage is unconditional and fully executed;
- The buyers lawyer has the rest of the non-mortgage money needed to close in his or her trust account; and lastly
- The buyer signs a tenancy agreement.
What Would a Buyer’s Lawyer Not Be Able To Get The Mortgage Money To The Seller’s Lawyer?
There are several reasons why a buyer’s lawyer could not get mortgage funds to the seller’s lawyer. The following examples are few of many instances. Tenancy is usually a given when there is a delay in closing due to the seller’s fault. When the delays are a result of the buyers, the seller can refuse to give possession in this way.
Tenancy when the seller cause delays:
- failure to provide an up to date real property report with compliance
- estate sale and seller cannot provide title
- dower rights issues
- seller not able to sign paperwork
Tenancy when buyers cause delays:
- no mortgage in place;
- conditions outstanding on mortgage;
- buyer not able to sign paperwork; and lastly
- buyer cannot access their non-mortgage funds.
What Are The Standard Terms Of Tenancy At Will?
There are three main terms of these agreements. Of course there are other terms, however these are the tenancy at will terms most asked about. These terms are:
- Interest is payable (Prime plus 3% if buyer’s fault & buyers mortgage rate at the buyers’ mortgage amount if the sellers’ fault.)
- The sellers can evict the buyers with 24 hours notice
- The buyers returns title if the sellers are not paid at the buyers’ cost.
Real Estate Lawyers In Calgary To Get You Possession
The real estate lawyers at Kahane Law Office in Calgary and Edmonton, Alberta help with you when you need tenancy at will during the home buying process. We make sure to help you understand all the ins and outs of this process. CONNECT NOW. We can be reached in our Calgary office at 403-225-8810, or in our Edmonton office at 780-571-8463 or toll-free at 1-877-225-8817 or email us directly here.