Breakwater Law
I’m going to be starting a litigation blog, designed for sharing some of my thoughts and insights that have been hard-won over the years.
The target audience is fellow litigation lawyers, whether fresh or seasoned, as well as more sophisticated self-represented people in the family courts.
I probably won’t post often, because I’m very busy.
Stay tuned.
An issue I ran into recently is, what if you buy a property that was being used by the seller as an Air BnB?
I’m not a tax lawyer, but, I did out of curiosity wade through copious volumes of Canada Revenue Agency publications, the Excise Tax Act and several articles. As typical with CRA publications, which don’t seem to be written for regular human beings to consume, they left me with a lot of questions, and a refreshed appreciation for how many potential landmines there can be in property transactions.
One thing was abundantly clear, and that is: if you are going to buy any residential property, you need to make pretty extensive inquiries of the sellers to make sure that the sale is not subject to GST.
Air BnBs are stealthy ninjas. Any ordinary looking single family dwelling, or condo, could have been operated as an Air BnB by its owner. You, as purchaser, are liable for GST unless a sale is exempt… a property used chiefly for short term rentals, where the seller was claiming GST input tax credits in respect of the property, is almost certainly subject to GST. There are other ways the property could be subject to GST. You could end up footing a stiff GST bill if you fail to make the right inquiries about the sellers’ use of and relationship with the property, and fail to protect yourself in the sale contract, regardless of how you intend to use the home.
You could end up paying GST on a $1M home (ouch!) that you intended to just use as your principal residence, just by not realizing it was an Air BnB. That’s a $50,000 mistake.
Caveat emptor, or, buyer beware: instruct your realtor to make the right inquiries, and protect yourself in the sale contract accordingly. Ideally, engage your lawyer before any conditions on the contract are removed.
Jo McFetridge is a lawyer in Victoria, B.C.
This post represents my personal thoughts on picking a litigation lawyer.
Litigation is rarely open-and-shut. That means, picking a lawyer is sort of like picking someone you want to marry: you’re in for a long haul, it’s up close and personal, and that person has some serious control over your financial health. I get a lot of new clients who have realized they and their previous counsel weren’t a great fit, and they developed relationship regret.
“Fit” isn’t necessarily a commentary on the quality of your lawyer. Let’s be honest: as a layperson, you’re probably not in the best position to know whether or not the lawyer you’re about to hire is very good. No insult intended… how are you supposed to know if the legal advice you’re getting is good or bad? That’s why you’re hiring a lawyer! Rather, in picking a lawyer, recognize what you can realistically pick for, and what you can’t. “Fit” is more about whether or not a lawyer is right for YOU.
One good way to select for quality is to meet up with lawyers who were specifically recommended to you by people you trust: friends, family, colleagues. A lawyer who retains the good professional opinion of their client after a long or grueling litigation file is probably a decent bet. Did the lawyer in question handle the file in a sensible and practical way? Did they know which battles were worth spending time and money on, or did they turn every little disagreement into a court application? Did they stay calm under fire, or did they head for the hills when the going got tough?
Another good way is to interview a number of lawyers before making your decision. Most lawyers will offer a complimentary or low-priced initial consult to new clients. See what sort of advice you get, and how it’s delivered to you. At the end of your interview process, which lawyer did you feel was the best fit for you?
There are a couple things to look for, in my experience. First, and most importantly, did you feel comfortable with the lawyer? Did they speak to you in language, in terms, that you understood, or did they pepper you with self-aggrandizing statements, or legal gobbledegook? The way a lawyer communicates with you in that initial consult is an excellent indicator of how they will communicate with you throughout your legal matter. It won’t help you much if the advice you’re getting sounds like a gatling gun of Latin or legalese. How are you supposed to make good decisions if you can’t understand what the heck is going on?
Take a look around the lawyer’s firm, their office, and at the way they present themselves. An expensive suit or fancy watch is a terrible indicator by itself of a lawyer’s quality, though it does tell you one of the things they find important. That can be a good thing, or a bad thing. Some lawyers dress well because they want to show a type of respect to their clients that they find respectful themselves, or indicate their level of success as an advocate through their ability to purchase nice things. But, there are some lawyers who dress well because they don’t know their elbow from an elephant, and they’re hoping a nice suit and watch will fool you into thinking they do. They want you to feel less than them, take a position of power over you, because they’re dressed better than you are. They’re often the same lawyers who pepper you with legal gibberish. Beware these people.
Other lawyers wear jeans around the office, or more casual attire. This doesn’t mean they lack respect for you or are broke because they’re terrible advocates. Rather, often, these are people who are making a concerted effort to make you feel less intimidated, more relaxed and comfortable in their offices and in their presence. I find that many of the younger generation of lawyers take this approach, especially around family law, estate law, or other areas of practice that involve a lot of difficult feelings or topics that can make people feel vulnerable. That said, if your lawyer looks like they just rolled out of bed and hasn’t showered in a week, that might be an indicator of someone who can’t devote enough care and attention to you and your case. Beware.
Make sure you look at and also past what a lawyer is wearing, or how fancy their office is. Ask questions, and try to evaluate the quality of what the lawyer is saying, how they are treating you, not judge their quality just from what they’re wearing.
For my part, when it comes to family and estates lawyers, I always look to see whether the lawyer in question has a box of kleenex in their meeting room or office. Tears are liberal in these types of law, and that’s okay, because they’re emotional topics. Crying is totally OK. If your lawyer isn’t comfortable with and welcoming to a crying family or estates law client, then…. yikes!
Cost of services is all well and good, but again, it’s not an indicator of a lawyer’s quality. To be honest, the cost of legal services in any given market is generally more about the market than it is about the lawyer. I practice out of a number of communities, all over B.C., and I’ve noticed that the smaller and more remote communities tend to have higher priced lawyers. Victoria actually has the cheapest average hourly rate, in my experience. And, there’s no correlation, from what I have observed, between the higher priced lawyers in smaller places and quality, versus the lower priced lawyers in Victoria. In fact, if anything, I’ve noticed the opposite is usually true: you can find better lawyers for a lower price in markets where those lawyers have to compete for their business! Makes sense, doesn’t it? So no, your lawyer’s hourly rate is not a guarantor of their quality.
All in all, your lawyer’s value to you is subjective, and personal. Do you feel confident in your lawyer? Do you understand them when they communicate to you? Do you feel their rate is reasonable? Does the lawyer make you feel comfortable? Good! Then hire THAT person. Don’t just hire the high priced, smooth-talking mumbo jumbo lawyer in a fancy suit because you think they must be better. Nope. Trust your gut.
And, if you realize you made the wrong choice, then consider getting a divorce, so to speak. Don’t labour along in a relationship that isn’t working just because you feel like it’ll be too expensive or too much hassle to end it. Coincidentally, that’s usually also my advice to family clients 🙂
Jo McFetridge is a family lawyer, estates lawyer and business lawyer in Victoria, B.C., and has a virtual office in Terrace, B.C.
By Jo McFetridge, Family Lawyer in Victoria, B.C.
I consider this a public service announcement.
Please, please don’t use one of those “free”, do-it-yourself separation agreements that you can download on the Internet. Please consult a family lawyer instead.
This is kind of like a Holmes on Homes blog post, because while I’d love to be a TV star, I’m sure the Law Society would frown upon me running a TV show where I swoop in and rescue people from their legal DIY disasters.
These DIY agreements are atrocious. They really will not save you money or trouble. They aren’t acceptable to lenders on a mortgage refinance, either.
I’ve yet to see one in this office that wasn’t a piece of garbage. I can’t tell you how many people per year come in to my office, needing to be rescued from the fallout from these little gems. The most common issues include:
– agreement fails to deal with all issues and claims arising from the relationship;
– agreement fails to deal with one or more significant assets;
– agreement is frankly incomprehensible;
– agreement is ambiguous with respect to significant issue(s); and, my favourite:
– agreement fails to deal with the “what if” when one party isn’t able to follow through with their end of the deal, chiefly around refinancing the family home in that person’s sole name.
A binding, proper separation agreement drafted by a lawyer generally runs around $1,200 plus tax. On the other hand, litigation over a DIY disaster can cost you triple, five times that.
Perhaps more importantly, the holes these DIYs create by what they miss or treat incompletely open up fertile opportunities to wriggle out of the DIY, or renegotiate key issues around your separation. And preventing that was, of course, the point of getting an agreement in the first place.
