Naiya Gill Professional Law Corporation

What Is a Writ of Mandamus and What Is It Not?

admin — Fri, 07 Jun 2024 03:49:43 +0000

A Federal Court application seeking a writ of mandamus asks the Court to order IRCC to issue a decision regarding a delayed immigration application. An applicant may request a writ of mandamus to be filed for any immigration-related application delays, such as: Citizenship application delay Permanent residence application filed via Express Entry delay Application for a Federal Skilled Worker (FSW) processing delay Application for a temporary resident visa delay (a student visa processing delay, work permit processing delay, or visitor visa processing) Electronic Travel Authorization (ETA) processing delay Criminal rehabilitation application delay Spousal or common law sponsorship delay Parental sponsorship (PGP processing) delay However, a writ of mandamus is not a letter to IRCC submitted via one of IRCC’s various portals or a request to a consulate. What Are the Key Prerequisites for Seeking a Writ of Mandamus at the Federal Court? While you can find the general prerequisites in our Writ of Mandamus FAQ, here’s a quick breakdown. A delay affecting the application in question While we only utilized this remedy for exceptional delays before the COVID-19 pandemic, given the sizable backlog IRCC is delaying, IRCC is likely to action the relevant application to avoid litigation, even if the delay may not justify granting the writ when proceedings commence. Even though we haven’t had a case related to COVID-19 make it to a hearing, even if your case reaches that stage, an extra six to 12 months will likely be added to the delay by the time it does. As a result, in the worst-case (and most unlikely) scenario, you would still be able to present a strong argument regarding the delay at the time of the hearing. So, there is nothing to lose by seeking a writ of mandamus at Federal Court. A prior demand for performance You cannot proceed with a writ if you haven’t asked IRCC to complete processing your application yet. Federal Court jurisprudence states that a simple update request is enough to meet this requirement, and most of our clients do this through a Case Specific Inquiry submitted via webform.

Why you should Order a Title Search before listing a Property?

admin — Wed, 22 May 2024 11:42:00 +0000

Are you considering listing your property for sale? As a seller, your primary obligation to the buyer is to deliver a clear title, where the property will not be subject to any financial encumbrances or charges. However, some financial charges are more obvious than others. Before listing your property, a title search can ensure that there are no hidden charges registered against your home. If there are any charges that you don’t agree with, be sure to contact a real estate lawyer to review your options for handling the charge.

Mortgage

A mortgage is an interest given on a piece of land, in writing, to guarantee the payment of a debt or the execution of some action. When having to pay out that mortgage to remove it from the title of a property, it is crucial to be aware of discharge fees, prepayment penalties, repayment of any cashback incentives, legal fees, and property tax adjustments.

Banks offer various types of loan products, but as long as those loans are secured against real property in BC, they are normally all considered mortgages.

There can be a lot of confusion when people have a line of credit. If that line of credit is secured against your home, it is called a Home Equity Line of Credit. A Home Equity Line of Credit (HELOC) is a secured form of credit where the lender uses your home as a guarantee that you’ll pay back the money you borrow. Home equity lines of credit are revolving credit—you can borrow money, pay it back, and borrow it again, up to a maximum credit limit. In short, a HELOC is a mortgage, so when clearing a title, you will need to pay out and discharge that HELOC. Even though a person may never have drawn from that HELOC, there will likely be discharge and administration fees owed to the lender for the paying out and discharge of that HELOC.

An “all monies” mortgage is a mortgage that secures all amounts owed to the mortgagee under any loan, credit facility, guarantee or money judgment (including future obligations) regardless of how they arise. For instance, some banks offer credit cards that can be secured against a home. Those credit cards will also need to be paid out and discharged upon sale.

Some people have an inter-alia mortgage, which is a mortgage that is secured by more than one property. If you are only going to sell one of those properties, contact your bank beforehand to see how much you can pay them to discharge a single property mortgage. Often, the bank will only ever discharge the inter-alia mortgage when the loan is paid out entirely.

There are instances where mortgages remain on a title even though the borrower paid it off many years ago. When a homeowner pays off their mortgage on their own (i.e., it was not by the real estate lawyer or notary public during a sale or refinance), banks will prepare and execute the appropriate discharge documents and forward them to the homeowner. The homeowner is then supposed to file that paperwork at the appropriate land title office. However, homeowners often do not bother visiting the land title office—thus, the mortgage remains on title. If you still have the originally executed discharge paperwork, give it to your lawyer so they can file the discharge on your behalf. If you do not have it, contact your lawyer immediately so the lawyer can contact the bank. It may take longer than normal for the bank to respond, as the mortgage account was closed awhile ago and will not be in their present system.

Property Tax Deferment

For seniors (55 or older), widows/widowers, and persons with disabilities, owners may be able to defer the payment of their annual property taxes (at a low-interest rate). If you have applied to have your property taxes deferred and the application was accepted, a restrictive lien will be registered against your home. When you sell your home, you will have to pay the outstanding property taxes in order to clear that lien.

Government Debts

If you owe money to the government (i.e. income taxes, MSP premiums, outstanding property transfer taxes, etc.), the government may file a lien against the property. The debtor cannot sell or mortgage the land until the lien is paid.

Judgment

In the context of real estate, a judgment is essentially an order made by a judge whereby a debtor is required to pay the judgment holder a specific amount of money. To enforce that judgment, the judgment may be registered against the debtor’s property. The debtor cannot sell or mortgage the land until the judgment is paid. This registration is good for two years and can be renewed every two years for up to a decade. Besides the amount owed under the judgment, you may also have to pay the accrued interest and the legal fees associated with enforcing and discharging the judgement. If you see a judgment that you do not agree with, you should contact a real estate lawyer immediately (i.e. prior to accepting any offers) to go over your options.

Certificate of Pending Litigation

A Certificate of Pending Litigation (CPL) is a charge that can be registered against a property that advises prospective buyers that a piece of property is subject to a lawsuit. It is very common for spouses who are in the middle of a separation/divorce to instruct their family lawyer to register a CPL to prevent the other spouse from transferring/selling their share in a property to another party. Although a CPL does mean that a party obtained a court order, the effects of a CPL tying up a property are virtually the same as registering a judgment on a title.
Besides the amount owed under the CPL, you may also have to pay the accrued interest and the legal fees associated with enforcing and discharging the CPL. If you see a Certificate of Pending Litigation that you do not agree with, you should contact a lawyer immediately (i.e. prior to accepting any offers) to go over your options.

Builders Lien

A builders lien is a lien on land. It secures a claim for payment for work done on—or materials supplied to—a construction project, repairs, or renovations made to an existing structure. When a lien is registered in the Land Title Office, it becomes a charge against the title to the land or property involved.
Besides the amount owed under the builders lien, you may also have to pay the accrued interest and the legal fees associated with enforcing and discharging the builders lien. This discussion specifically relates to people selling their not-substantially removed home. There are builders lien issues that developers and builders will have to deal with, but that is beyond the scope of this blog post. If you see a Builders Lien that you do not agree with, you should contact a litigation lawyer immediately (i.e. prior to accepting any offers) to go over your options.

Non-Financial Charges

Though the seller can remove financial charges, non-financial charges usually remain on title despite a transfer of ownership. Many of these non-financial charges affect how an owner can use or build on the land/property. Examples include statutory rights-of-way, easements, covenants, and building schemes.
The standard Contract of Purchase and Sale already takes into account some exceptions to a seller’s obligation to provide clear title. If a Buyer is demanding that a non-financial charge be cleared, speak with your lawyer before agreeing to do so.

Conclusion: Order a Title Search BEFORE Listing!

When considering listing your title, you may want to order a title search of your property to see what charges are actually registered against your home. If you see a Judgment or Certificate of Pending Litigation or Builders Lien that you do not agree with, you should contact a real estate lawyer to go over your options. This should be done BEFORE accepting any offers to purchase.

How Does An Easement Affect You And Your Property?

admin — Wed, 22 May 2024 11:41:09 +0000

What is an Easement?
For better understanding, an easement can be seen as a legal right granted to another person or entity by a legal authority to use your land for a specific purpose. We are saying here that if someone is granted an easement, the person can use their land in a certain way. However, it should be noted that an easement only permits someone to use part of somebody’s else property for specific purposes; they do not become the owner of such property. Easements are usually granted to utility companies, government entities, or neighboring property owners. For example, a utility company might need to access an electrical pole on your land, or you might need to use a part of your neighbor’s property to reach your garage. It all depends on the situation. Easements are different from leases or rentals because they do not involve payments for the use of the property. The property owner has given someone else the legal right to use their land in a specific way.

An easement is a right that allows a third party to use your land for a specific purpose. The most common easement is a right of way, allowing one party to cross your land without trespassing. For example, a right-of-way easement with a utility company will enable them to maintain overhead wires without disputes from the homeowner. You can find any easements on your property title. Additionally, you may inherit pre-negotiated easements when buying a home in Canada. Continue reading to become an easement expert with as little as five minutes.

What Are The Types of Easements?

There are several types of easements, and in this section, we shall look at some of them:

Easements for utilities: This easement gives utility companies such as electricity companies, telephone service providers, broadcasting Companies, etc., the right to use part of your land for the benefit of everyone in the community. It should, however, be noted that this easement does not give utility companies the absolute right to do whatever it is that pleases them on your land. The easement only covers things that are beneficiary to the community at large. Lastly, contrary to the common misconception, Utility easements will not affect the value of your property!
Right-of-way easements: This easement grants someone the right to cross your property to reach their property. For example, if your garage is not easily accessible, you may need to use a part of your neighbor’s property to reach your garage.
Easements for drainage: This easement caters to water flow in drainages. In that, it gives a person the right to make use of another person’s drainage
Easements for access: Assuming that someone is trying to gain access to a property that, unless they pass through yours, they won’t get access to such property. This type of situation is exactly what easement of access caters to.

Kindly note that each easement we have briefly discussed above affects property rights differently, so it’s important to understand the terms of any easement on a property before buying it.

How to Know When There’s an Easement On Your Property

When buying a property, you must check if there’s an easement. This assessment is something you can do all on your own. Hence, this section will show you how you can go about that.

Check the property deed: To check if there is an easement on your property, you should refer to the property deed. A property deed usually indicates if there is an easement on a property.
Look for signs of an easement: Another solution is to check for utility poles, pipelines, or other physical signs that indicate the existence of an easement on your property.
Scan through public records: You can also visit your local county to check if they have any recorded easements on your property.
Lastly, you can ask your new neighbors: This is the easiest way to know if there is an easement on your property. All you have to do is ask your neighbors for information (since they’ve lived in that area longer than you) If you have concerns about an easement affecting your new property.

What are the Consequences of Having an Easement on Your Property?

Having an easement on your property can have several consequences, they include:

Limitations on using your property: One of the negative impacts an easement can have on your property is that it can limit how you use your land/property. For example, if a utility company erects a communication tower on your land, it will take much land, thus limiting how you use your land.
It may or may not affect the value of your property: We are sitting on the fence here because only some easements can affect the value of your property. For example, your neighbor using your property to reach his garage will not reduce the value of your house. The only time the value of your property could pummel as a result of this is when the Utility company installs heavy machinery on your property.
Maintenance and repair costs: You may be responsible for the maintenance and repair of the easement, which can be costly.

Buying a Home With Easements

– If you are interested in purchasing a property that has an easement attached to it, it is essential to learn as much as you can about what this means and what limitations it places on your use of the land. It is also crucial to understand how to search for existing easements on titles so you can make informed decisions when buying real estate.

Selling a Home With Easements

– If you are selling a home with easements, it is important to understand its implications for the buyer. You should always consult a legal professional before selling a property with any existing easements.
– When selling a home with easements, you will need to disclose all of the limitations this places on the buyer’s use of the land. It is also essential to find a buyer willing to accept these limitations.
– If you cannot find a buyer who is willing to accept the easements, you may need to renegotiate the sale price or consider cancelling the sale altogether.

How to Remove an Easement from Your Property
If, after buying a property, you realize that an easement is affecting you negatively, then you should have it removed. So, below are ways you can have an easement removed from your property:

Negotiate with the easement holder: if you need to remove an easement from your property, you should consider talking to the easement holder.
Seek legal advice: If the negotiation doesn’t materialize into anything significant, you should contact a real estate attorney for guidance on removing the easement.
Buy the easement: You may not know this, but you can buy an easement from the holder to remove it from your property. This method is less cumbersome but will cost you much money.
Terminate the easement: You can terminate it if it is no longer used for its intended purpose.

It should be noted that not every easement can be removed. For example, utility easements such as power lines, telecommunication towers, etc.

Negotiate with the easement holder: if you need to remove an easement from your property, you should consider talking to the easement holder.
Seek legal advice: If the negotiation doesn’t materialize into anything significant, you should contact a real estate attorney for guidance on removing the easement.
Buy the easement: You may not know this, but you can buy an easement from the holder to remove it from your property. This method is less cumbersome but will cost you much money.
Terminate the easement: You can terminate it if it is no longer used for its intended purpose.

It should be noted that not every easement can be removed. For example, utility easements such as power lines, telecommunication towers, etc.

CONCLUSION
An easement is a legal right that can affect how you use your property. It is important to be aware of any easements associated with your land and understand how they may impact you or your use of the property.

Have More Questions? Call Now!

What Is The Difference Between A Will And A Power Of Attorney In BC?

admin — Wed, 22 May 2024 11:39:27 +0000

A will outlines your wishes for you after you pass away while a power of attorney gives someone the authority to act on your behalf if you become incapacitated and unable to make those decisions for yourself.
In British Columbia, there are two types of power of attorney documents — enduring power of attorney and representation agreements.
Your enduring power of attorney designates someone to make decisions related to your property and finances (such as paying bills and selling assets). The representation agreement, on the other hand, appoints a representative to handle future decision making about your personal care (including healthcare, nutrition and shelter).

A Representation Agreement in which a trusted person is provided legal authority to make decisions regarding your medical care in the event of mental incapacity;

Advanced Directives in which written instructions are provided about the types of health care that you do or do not wish to receive in the future if you become incapable of expressing your wishes;

What Is A Living Will?

A living will is the common term for a ‘personal directive’ or “advance directive”, which is a document that captures your wishes and preferences for medical and personal care in the event that you’re unable to advocate for yourself. In Canada, you can create one of these documents as stipulated in your province to legally appoint a caregiver to make healthcare decisions on your behalf, and provide guidance for doctors on things like whether you would or would not want to be put on life support.
Like the name suggests, a living will deals with end-of-life affairs while you’re alive (unlike a regular will which comes into effect after death). While your will is guaranteed to come into effect some day, a living will is only there if you need it.

Why Do I Need A Living Will?

You need a living will for the same reason that you need insurance. While you hope you’ll never need it, it’s important to know that you’ll be covered should the worst happen.
A living will keeps you in the driver’s seat of key decisions, and prevents your loved ones from shouldering the burden of making difficult decisions in a crisis.
Living wills aren’t just for seniors considering end-of-life care. Whether a bike crash, ski accident, brain tumour, or stroke, emergencies can happen to anyone at any age, and when they do, they often leave families in crisis. When you write a living will, you’re looking out for the mental wellbeing of your loved ones as much as you’re looking out for yourself.

Living will, personal directive & power of attorney

What’s the difference between a living will and a personal directive?
Living wills, advance care directives, and personal directives are all terms used interchangeably to describe a type of document that outlines your medical wishes for the end of life. Legally speaking there is no such thing as a “living will” in Canada, even though it’s the more commonly recognized term.
To keep things interesting, every province has a slightly different legal name for this document. You’ll need to make sure you fill out the document according to the guidelines in your province, and we’ll outline how to do so later in this article.

What’s the difference between a living will and a power of attorney?
The main difference between a Power of Attorney for Personal Care and a personal directive (commonly referred to as a living will) is that the former mostly refers only to “who” will make decisions, while the latter includes “who” but also details “what” you’d like your care to look like, and “how” those decisions should be made. If you provided care instructions as part of a Power of Attorney for Personal Care, then the two documents act the same when it comes to making decisions about medical care. Keep in mind, there are two types of power of attorney: one that makes decisions about your assets and possessions (a power of attorney for property) and one that makes decisions about your medical treatment (a power of attorney for personal care). You can appoint the same person to act in both capacities, or you can appoint them separately.

What To Include In Your Living Will

To write a detailed living will, you should consider including the following:

Who will make decisions on my behalf?
This person is your “attorney”, “representative”, or “proxy. Most people choose a family member such as a spouse, or an adult child.

When assigning a representative, consider:

Proximity: ideally, you should appoint someone who lives nearby.
Trustworthiness: choose someone whose values and decision making tends to align with your own.
Assertiveness: this person needs to be able to advocate for you.
Willingness: this is a big responsibility, so you need to be sure your representative is comfortable stepping into this role.

What level of authority will my representative have?
You can specify whether the decision-making powers your representative should have as:

Specific, limited authority
Full authority subject to your instructions
Full authority and the ability to override your instructions

What healthcare treatments do I consent to? Which do I refuse?
This can encompass your preferences, or religious concerns. Consider the following:

Life-prolonging medical care. This can include blood transfusions, CPR, dialysis, drugs, respirator use, and surgery.
Food and water. Some patients can live for a long time when provided intravenous fluids. Some would want to, while others would not.
Palliative care. This is care given to reduce pain when forgoing life-prolonging treatments.
What happens to my loved ones while I’m incapacitated?
If you have children who are minors, you’ll want to communicate care instructions for your children while you’re incapacitated.
This is separate from the instructions in your last will, which only comes into effect after death.

Hello world!

admin — Sat, 18 May 2024 03:51:30 +0000

This is the world

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