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Buying a Property under Power of Sale?

May 23 2019

Before we get into what is involved in purchasing a property being sold under Power of Sale, it is important to differentiate between ‘foreclosure’ and ‘power of sale’:

Power of Sale is a clause written into a mortgage documents that allows the lender to sell the property in the event of default, in order to repay the mortgage debt. 

Foreclosure on the other hand, is a legal proceeding in which the lender gets a court order to terminate the right of the borrower to the property.

Buying a property from the homeowner itself is different from buying a property through power of sale – that is, when the lender is selling it. The following are a few factors you should consider:

  •  Don’t expect items such as refrigerator to be included in the sale – the lender may not have ownership of it.
  •  Remember that lender will not give any warranties about the condition of the property. Therefore, make sure your offer is conditional on how satisfied you are with a home inspection – this means, get a home inspection no matter what!
  •  Check to see if the lender has included a ‘right of redemption’ clause: this means the sale can be cancelled if the owner repays the lender before the deal closes.
  •  There might be other clauses included. For instance, if there is a tenant on the property, the lender will not give any   guarantee about the length of any lease or the amount the tenant may be paying in rent. If the property had a   business running in it before the lender took over, or if it had been substantially renovated, then this extra HST has   to be paid by the buyer on closing.
  •  Don’t expect a substantial discount on the property price as lenders usually sell at market rate  but consult a lawyer – sometimes, they just might be able to negotiate a good deal.

You may also want to get copies of the survey, inquire about permits and documentation that relate tot he property at your municipality offices, and talk to neighbors.

The key is to ask questions from your lawyer and real estate broker before you make an offer on a power of sale home.

If you are unable to connect with a lawyer prior to signing the agreement, make sure to include that it is “conditional upon the approval of the Buyer’s solicitor”.

Feel free to contact us if you’re looking to purchase a property under power of sale.

* If you’re looking to learn more about the process, feel free to read this post that we think might be helpful.

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