Are you thinking about buying a new condo that hasn’t been built yet? This is called buying a condo “off-plan.” Before you buy, you must pay careful attention to two documents: the preliminary contract and the “memorandum.”
Preliminary contract: an essential document
If you will live in the condo you’re buying, you must sign a preliminary contract with the developer or builder. The preliminary contract is similar to an offer to purchase: you promise to buy the condo under certain conditions. But the preliminary contract offers more protections than an offer to purchase.
The preliminary contract isn’t necessary if you buy the condo with the plan of renting it to someone else.
A preliminary contract is usually similar to an offer to purchase. However, there are a few added sections that must be included in the preliminary contract. Here are some examples:
Right to withdraw
The preliminary contract must give you a certain number of days to change your mind about buying the condo. This is your “right to withdraw.” The minimum time period is 10 days after you receive the memorandum (see the next part of this article).
- The developer or builder can require that you pay a fee if you exercise your right to withdraw.
- The fee for withdrawing can’t be more than 0.5% of the sale price you agreed on with the developer or builder.
Refund of the down payment
Most builders and developers ask you to give a down payment. A down payment is an amount of money you pay when signing the preliminary contract, before the sale takes place. The builder or developer must guarantee that your down payment will be refunded if the condo isn’t ready on the date provided in the preliminary contract.
The contract must indicate whether the price of the condo includes GST and QST.
You can negotiate with the developer or builder to add, change or remove certain sections in the preliminary contract. Here are examples:
Choice of notary
You can usually choose which notary will draw up the deed of sale. However, builders and developers often want the same notary to handle the sale of all condo units in a project. In this case, the notary’s name is indicated in the preliminary contract. Even if the seller chooses the notary, the notary has a duty to act fairly.
Protection against legal hypothecs of construction
People hired to build a condo have up to 30 days after the work is finished to publish a “legal hypothec” on your condo. This means these workers can seize your condo if the builder or developer doesn’t pay them.
You can therefore negotiate to protect against this possibility. For example, you could ask the notary to hold on to some of the money owed to the developer or builder until 30 days after the end of the work. You can also ask the developer or builder to get what is called title insurance.
Refer to the website of the Autorité des marchés financiers (an agency that oversees financial markets and products) to learn more about title insurance.
What to check in the memorandum
The developer or builder selling the condo unit must give you a “memorandum.” Until you receive the memorandum, you can change your mind about buying.
Here are some items the memorandum must contain:
- names of the architects, engineers, builders and developers of the project
- where applicable, a plan for the project and a summary of the work to be carried out
- a budget forecast that details the condo fees for the current year
- a copy or summary of the declaration of co-ownership and the condo’s bylaws
This information will be useful to have throughout the project. Pay careful attention to the declaration of co-ownership and bylaws, which explain how decisions are made with the other co-owners (syndicate of co-owners).
To learn more about condos, visit the website Lacopropriété.info (French only).