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5: Looking Before You Leap: Ownership and Legal Considerations
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will completely and therefore is not covered by probate tax However, including a trust in your will may create uncertainty If your will is challenged by some interested third party who wants the judge to vary the will in favour of the person contesting the will, the trust may be subject to review Because this book is about real estate investing, rather than wills, we suggest you speak with your lawyer or an estate planner about strategies to minimize the liability your estate could face You can prime yourself with the insights offered in Margaret Kerr and JoAnn Kurtz s Wills & Estate Planning For Canadians For Dummies (Wiley)
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Avoiding Litigation
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Sometimes you can t avoid a confrontation; it comes looking for you Patience really is a virtue if you want to avoid legal fees! Keeping your cool helps stave off anger and prevents disputes from ballooning into lawsuits When cooler heads don t prevail, use the tips in this section to address the situation and defuse the crisis
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Controlling emotions
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Remember the old school-yard rule of counting to ten before unleashing your anger on someone The same tactic can help you as an investor when you feel that you ve been wronged No matter how upset you are, remain professional and have as clear-eyed a look at the situation as you possibly can Give yourself some time, perhaps several months, to see if the dispute really requires legal action A dose of legal advice may give you a more reasonable, even philosophical, perspective on the situation getting under your skin Although the lawyer you ve selected for your advisory team may be skilled in litigation, you may need to look further to find a lawyer that has some expertise suited to your particular situation After all, you wouldn t choose a lawyer who practises family law to handle a case of medical malpractice! The same holds true for real estate disputes Before deciding what course of action to take, ask at least three lawyers for objective feedback on your chances at trial, the possible length of the court proceedings, and the approximate costs The process is essentially the same as for selecting a lawyer for your advisory team, something we discuss in 4 After you ve received the opinions of various lawyers and before deciding whether to pursue legal action, take time to sleep on it
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Part II: Preparing to Buy: Financing Real Estate Investments
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Don t commence your action before you have all the facts! This may sound simple, but a lawyer may point out gaps in your case that you ll want to address before you take the matter to court Without all the facts, your lawyer will have trouble arguing your case effectively We hope you can control your emotions just enough to not make any rash decisions Most court actions have to take place within a specified time of the incident that you re targeting Don t wait too long, or you may find yourself unable to sue Time limits vary from province to province and according to the action, so make sure you don t miss your chance!
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Assessing your chances
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Many people assume that if they re right, they will win at the end of the day However, court proceedings can take surprising turns; few issues in law are as black-and-white as the prosecution or the defendant try to argue! Moreover, even a victory can mean a financial loss as an award of costs typically garners just 15 to 35 percent of your legal fees And the responsibility is yours to collect the judgment, which could mean another legal wrangle Before rushing into court, consider whether: You have a chance of winning: We advise in the previous section to consult three lawyers before launching your case Your consultations should shed some light on whether you have legitimate grounds for a case, and its chances for success The defendant has enough cash to pay up if you win: Winning the court battle doesn t mean winning the war The defendant you re tackling may have no assets in his name or have all the assets tied up with debt A corporate entity could be a hollow shell without any net worth Objectively assess the real potential of collecting on a judgment Your lawsuit may only deepen your losses, especially if the costs end up being more than the judgment you hope to collect Though the learning experience may be rewarding, watching how other people conduct their court cases is a cheaper way to find out what goes on in court The exercise is worth the time, money, and cost to your reputation: Launching a lawsuit, especially if you re trying to establish your portfolio, could paint you as a litigious hound That s not a great reputation to have Instead of going for the jugular of your opponent, assess the relative pros and cons of litigation Take into account lost time and productivity Keep in mind, too, that the defendant may decide to launch a countersuit, protracting the battle An unsuccessful suit will bolster neither your reputation nor your bank account, and to add insult to injury may even leave you liable for your defendant s court costs
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