Introducing the MLS HPI – Everything You Need to Know!

On February 6th, TREB finally released more information about the widely anticipated MLS HPI (MLS Home Price Index).  TREB, together with CREA and four other major boards across Canada developed this system together to measure home prices and home price growth in a more elaborate way than simple average.  If you’ll recall, our first blog was on Toronto Home Affordability (click here for the article) and it was based on a home price and income growth indices with 1977 as the base year.  The MLS HPI is very similar to this (I should have waited a few months before writing that article to save myself all the work!)

The MLS HPI is similar to the Consumer Price Index (CPI) used to measure Canada’s consumer price inflation. The base month/year is January 2005, where the indices are equal to 100. In January 2012 TREB’s HPI was 143.6, meaning prices grew up 43.6% between January 2005 and January 2012. TREB’s HPI was up 0.28% from December 2011, and up 7.6% year-over-year compared to January 2011.

Here’s how it works, pasted straight from TREB’s news release for simplicity:

Each month, there will be two key outputs published using the MLS® HPI:

1.       A series of price indices – The MLS® HPI price indices work in a similar fashion to the Consumer Price Index (Canada’s measure of consumer price inflation).  The indices have a base month/year of January 2005, where the indices are equal to 100.  In January 2012 TREB’s composite HPI was 143.6.  This means that the composite price index grew by 43.6 per cent between January 2005 and January 2012.  On a month-over-month basis, TREB’s composite HPI was up by 0.28 per cent compared to December 2011 and also up by 7.6 per cent year-over-year in comparison to January 2011.

2.       A series of benchmark home prices – The MLS® HPI has also been used to establish benchmark homes down to TREB’s Community level of geography for major home types including single family (detached and attached), townhouses and apartments.  A benchmark home is composed of a set of attributes typical of homes in the area where it is located, and remains constant over time.  This allows for an apples-to-apples comparison of price over time.

These numbers will be published in TREB’s monthly Market Watch publications in a new section called “Focus on the MLS Home Price Index”.  Below are some charts and graphs as well as some interesting Q&As found in TREB’s news release.

Q: How is the MLS® HPI calculated?

A: The MLS® HPI is calculated using multivariate regression analysis, a commonly used statistical technique.  Using a hybrid modeling approach that merges the Repeat-Sales and Hedonic Price approaches, the MLS® HPI model reflects contributions made by various quantitative and qualitative housing features toward the home price, including:

  • Number of rooms above the basement level
  • Number of bathrooms & half-bathrooms
  • Square footage for main living & basement areas
  • Whether it has a fireplace and/or finished basement
  • Lot size
  • The age of the property
  • Parking
  • How the home is heated
  • Foundation, flooring, siding & roofing types
  • Whether the property has waterfront or panoramic view
  • Whether the property has been sold previously (newly constructed and previously unsold, or repeat sale)
  • Proximity to shopping, schools, hospitals, police stations, churches, sports centres, golf courses, parks, and transportation (including the train station, railways, and airports)

The MLS® HPI can also be used to calculate the price for benchmark homes, whose features are typical of homes sold in a given area.

Q: What is a benchmark home?

A: A “Benchmark home” is one whose attributes are typical of homes traded in the area where it is located, with one benchmark being generated for each supported sub-area and home type.

Benchmark property descriptions are based on median values for quantitative property attributes (e.g. above ground living area in square feet), and the most commonly occurring value (i.e. modal value) for qualitative attributes (e.g. basement is not finished).

The attributes of Benchmark homes remain constant over time, allowing for an apples-to-apples comparison of price over time.

Q: How is the MLS® HPI different from average and median home price calculations?

A: The MLS® HPI is based on the value homebuyers assign to various housing attributes, which tend to evolve gradually over time.

This means that price changes calculated using the MLS® HPI are less volatile than those derived using common measures like average and median, which can swing dramatically in response to the changing mix of home sales over time.  

It is often difficult to determine if average or median price fluctuations really reflect changes in buyers’ willingness to pay for certain housing attributes, or just changes in the volume of very expensive or inexpensive home sales from one time period to the next. The MLS® HPI removes that uncertainty.

Q: How can the MLS® HPI be used with average and median prices?

A: Comparing the MLS® HPI value for a given home type in a given market with the average selling price for the same home type and market can provide useful insights.

For example, if there is a change in the average home price that is well above the change in the MLS® HPI value, it may point to an increase in the proportion of high-end homes sold during a given period.MLS HPI CHART JANUARY 2012

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by suttonadmiral on February 11, 2012  •  Permalink
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Posted by suttonadmiral on February 11, 2012

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Contractual Obligations

Last month we discussed the statutory duties and obligation imposed by Ontario legislation on agents which in part govern the relationship and conduct between agents, their clients and prospective buyers and sellers. As you may recall, in addition to statutory duties, agents are subject to contractual and fiduciary duties. This month we will focus on the contractual nature of an agents duties and will conclude this discussion next month by exploring the nature and extent of their fiduciary obligations.

Unlike statutory duties, which as previously discussed are governed by the Real Estate and Business Brokers Act, 2002 (the “Act”), which is supported by the Real Estate Council of Ontario’s Code of Ethics, the Ontario Real Estate Association, the Canadian Real Estate Association and the Toronto Real Estate Board, contractual duties can be far less precise depending on whether they are express or implied, written or oral. Clearly, express written contracts are preferred to implied oral contracts and this position is supported by the above legislation which in part requires that an agent reduce any agreement or contract with their clients to writing.  Such contracts must expressly state, in clear and precise language, the essential terms of the contact such as the start and end date, the amount of commission payable and what steps the agent will take to fulfill the contract. Additionally, in the context of real estate, the common law has imputed into all contracts the duty to exercise reasonable skill and care and as we saw last month the duty to disclose all relevant information.

This was evident from the decision in Krasniuk v Gabbs ({2002} M.J. No. 13) where a Manitoba court held that an agent had to forfeit her commission because she did not disclose to her client that a verbal offer had been made to purchase her property. Manitoba law, as is the case in Ontario, requires that all offers must be in writing.  However, when weighing the statutory obligation of procuring offers in writing vs. the duty to make full disclosure to your client, the court found that the “overriding duty was simply to disclose all material information to the sellers.”

In terms of exercising reasonable skill and care, which is a more subjective obligation and is judged against the skill and care that the average real estate profession would exercise in similar circumstances, the case of Mohn v Dreiser [2002] O.J. No. 4989, 119 A.C.W.S. (3d) 352 (Ont. S.C.J.) provides a good example. Here, prior to entering into a firm agreement for the purchase of a motel, the seller’s agent provided to the buying agent a profit statement which the buying agent relied on without making any further inquiry. The statement showed annual profits of $60,000, when in fact the records, upon further inquiry after closing showed that the motel had lost money for four straight years.  When the buyer sued his agent, the court concluded that the agent breached his contractual obligations by failing to exercise the skill and care a reasonably competent agent in similar circumstances would have by failing to obtain additional financial information.

While this may be an extreme example in terms of the agents obligations, what is clear from this and other contract cases is that courts are reluctant to read terms into a contract.  This makes it imperative that all agreements not only be reduced to writing but are clear and unequivocal with respect to the intentions and obligations of each party so as little as possible is left open to interpretation.

ABOUT THE AUTHOR:  Jeremy Mandell is an associate with the law firm Garfinkle, Biderman LLP, a full service firm of 19 lawyers located downtown Toronto.  Jeremy’s areas of practice include all areas of commercial and residential real estate as well as aspects of corporate law.  He can be reached at (416) 869-1234 or by e-mail at jmandell@garfinkle.com.

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by suttonadmiral on February 4, 2012  •  Permalink
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Posted by suttonadmiral on February 4, 2012

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What to Expect in 2012

According to TREB, prices will continue to grow in 2012.  TREB’s Market Watch publications now include an MOI (Months of Inventory) indicator, which shows how long it would take to sell all actively listed homes, on average, assuming an unchanged level of sales and no additional homes being listed. It is calculated by dividing the 12-month moving average of active listings by the 12-month moving average of sales.  A shrinking MOI is an indication of a tightening market with fewer listings, ultimately creating competition among buyers and rising prices.

The average MOI was 2.3 months over the last 2 years, according to TREB.  During years 2000 through 2007 (leading up to the recession) it was 3.0 months.  “The low months of inventory over the past two years resulted from very strong sales relative to the number of homes listed.  In 2011 in particular, there was a shortage of listings in the GTA.  We continue to experience tight market conditions and considerable upward pressure on the average selling price,” said TREB President Richard Silver.

TREB expects the average price to continue rising in 2012 by approximately 4-percent to around $485,000 based on the current tightness of the market and the continued positive affordability thanks to low mortgage rates.  A more moderate price increased compared to the 8-percent spike in 2011.

January 2012 So Far

The results of the first two weeks of January are in.  Already, we’re seeing increases and the year has barely begun.  GTA Realtors reported 1,506 sales during the first two weeks of 2012, representing a 6-percent increase compared to the same period in 2011.  New listings were also up, by 3.7-percent, which could be a sign of a balancing market but not quite yet, as the market continues to lean toward sellers’ market conditions.

The average price for the first two weeks was $444,473, an 8.5-percent increase compared to the same period of 2011.  Can’t wait to see what the rest of 2012 brings!

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by suttonadmiral on January 28, 2012  •  Permalink
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Statutory Duties

The nature of agent’s duties to their client(s), and the profession at large, can be grouped into three primary categories; statutory, contractual and fiduciary. Over the next few months we will focus on the nature and extent of these duties beginning with statutory obligations.

In Ontario, statutory duties and obligations are governed primarily by the Real Estate and Business Brokers Act, 2002 (the “Act”), which is supported by the Real Estate Council of Ontario’s Code of Ethics, the Ontario Real Estate Association, the Canadian Real Estate Association and the Toronto Real Estate Board.  The Act is divided into eight parts each consisting of its own defined set of circumstances aReal Estate Lawnd corresponding rules.  However, for the purpose of this article we will focus on Part VI of the Act, titled Conduct and Offences.  Part VI consists of 18 sections which range from the duty of the brokerage (section 26), prohibitions against breaking contracts (section 33) to orders for compensation and restitution (section 41).

The general focus of Part VI is designed to govern the conduct of agents and brokers.  Arguably, one of the most fundamental and straight forward, yet problematic, sections of Part VI is section 32.  Section 32 of the Act mandates that all agents and brokers, when acting in their personal capacity, disclose in writing that a) they are a brokerage, broker or salesperson; and b) that they make full disclosure of all facts within their knowledge that affect or will affect the value of the real estate.  While the vast majority of agents in my experience are very careful to comply with this section, there are certainly those who have failed or neglected to comply with section 32 and the consequences can be quite serious.

As descried in “Legal Responsibilities of Real Estate Agents” by R. Bocska and M. Rumack, the case of Beaver Lumber Co. v. 222044 Ontario Ltd. illustrates an extreme example of the consequences that can result when the purchasers failed to disclose their status as a broker and agent.  In this case, a sales agent and broker purchased a property but failed to disclose their status as such, as was required under the former section 31(1), now section 32 of the Act.   After acquiring the property, the two subsequently re-sold the property for $500,000 more than they originally paid. The court found the agent and broker collectively liable to the seller in the amount of $542,000, plus 13% interest for knowingly making deliberate false and fraudulent representations.  In addition both parties had their licenses revoked for conduct the court described as “reprehensible and certainly deserving of the courts disapproval and chastisement.”

What is abundantly clear from this and other similar decisions is that not only should agents and brokers alike always disclose their professional capacity when acting on their own behalf but in general, and as will be discussed next month as a general rule of thumb, when in doubt, disclose!

ABOUT THE AUTHOR:  Jeremy Mandell is an associate with the law firm Garfinkle, Biderman LLP, a full service firm of 19 lawyers located downtown Toronto.  Jeremy’s areas of practice include all areas of commercial and residential real estate as well as aspects of corporate law.  He can be reached at (416) 869-1234 or by e-mail at jmandell@garfinkle.com.

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by suttonadmiral on January 7, 2012  •  Permalink
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November 2011 Market

According to the Toronto Real Estate Board’s Market Watch, the Fall market  continued to display vitality throughout the month of November.  GTA transactions were up 11-percent from November 2010, from 6,384 to 7,092.  As well, new listings were up 14% year over year.  The average price was $480,421, a 10-percent increase year over year.

It is expected that the New Year will bring with it a more balanced real estate market, with more listings entering the market hopefully stabilizing the fast growth pace of average prices experienced so far in 2011.

Year over Year Overview

2011 2012 % Change
Sales 7,092 6,384 11.1%
New Listings 9,786 8,586 14.0%
Active Listings 15,551 15,813 -1.7%
Average Price $480,421 $437,494 9.8%
Average DOM 29 34 -14.9%
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by suttonadmiral on December 17, 2011  •  Permalink
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Posted by suttonadmiral on December 17, 2011

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GTA Condo Sales in Q3 2011

Condominium sales in the GTA were responsible were about a quarter of all resale transactions in Q3 this year. This is expected to increase to even more in the upcoming year. Not surprising, considering there are new condo buildings going up on almost every other block!

GTA reported 5,770 condo apartment transactions in Q3 2011, a 24% increase compared to Q3 2010. The average selling price was $333,352 which represents a 9% increase from the same period last year. Condominium apartment completions have been high so far this year. Usually, by the time these projects are completed, investors’ and owners’ needs change causing them to sell or rent, which could account for a large number of the condo transactions.

According to Jason Mercer, TREB’s Senior Manager of Market Analysis, “The average annual rate of price growth remained strong in the third quarter, despite the upward trend in completions and active listings. This is because the pace of sales remained brisk, keeping sellers’ market conditions in place.”

           Condo Apartment Market Overview

2011

 2010

Sales

 Avg Price Sales Avg Price
Total TREB 5,770 $333,352 4,648

$306,134

Halton Region

 88 $296,067 62 $255,024

Peel Region

 875 $253,246 744

$229,831
City of Toronto 4,156 $356,182 3,298

$329,917

York Region

 539 $319,399 445 $287,337
Durham Region 101 $201,503 84

$201,978
Other Areas 11 $272,455 15

$213,703

Click Here for the Full TREB Condo Market Report

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by suttonadmiral on November 21, 2011  •  Permalink
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Posted by suttonadmiral on November 21, 2011

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Reviewing Home Inspection Reports with your Clients

As an agent, your responsibilities extend beyond showing properties.  You are in charge of the (probably) biggest purchase of someone’s life, and that is a heavy responsibility so it is extremely important to see it through to the end, not missing any details.

There was a court ruling in January 2011 regarding a 2006 purchase of a house, where the home inspector was found 50% liable, the agent 25% liable, and the purchaser 25% liable.  The plaintiff and purchaser, Glenda Halliwell, sued her agent and brokerage, her home inspector who was recommended by her agent, and the seller.  Here is her story.

One of the clauses in the agreement was a home inspection, which was waived after the home inspector found no major issues with the house.  Four months after the inspection, the house was showing signs of mould, rot, rust, drywall issues, and moisture.  The problem lies in that the agent did not thoroughly review (or even read) the inspection report with the client and simply approved that the clause can be waived, trusting the inspector.  The buyer was particularly concerned with mould due to her allergies, and was assured by the home inspector that there were no concerns in that house for moisture penetration.  The summary of major defects failed to include obvious damage to the parging on the exterior wall at the driveway and the driveway surface was missing an 18-inch strip of asphalt along the exterior wall of the house, both of which were highly relevant in assessing moisture penetration.

In short, there were no signs of moisture penetration but seeing as the purchaser made it clear that mould is her main concern because of her allergies, the inspector fell short in advising her of the potential of moisture penetration, and the agent simply assumed it was the inspector’s responsibility and so did not read the report.

To protect yourself from potential issues (and prevent getting sued), ensure you cover all the bases before, not after, this kind of thing happens to you.  The time and effort you put into it will not only protect you from long-term and costly damage, but result in a positive relationship with your clientele.

The same applies to sellers’ agents.  Cover all the bases!  If you are representing a seller, ensure that everything that may potentially cause problems in the house is disclosed.  Note that the sellers were not found liable in the discussed case, but ONLY because they actually had no idea about the issues in the home.  If you or your client know of existing issues… disclose!

To view the actual ruling, click here or copy and paste the URL into your browser:  http://www.canlii.org/en/on/onsc/doc/2011/2011onsc390/2011onsc390.html

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by suttonadmiral on November 19, 2011  •  Permalink
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Posted by suttonadmiral on November 19, 2011

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The Right to Assign an Agreement of Purchase and Sale

Over the past few months I have seen several instances where a Purchaser enters into an Agreement of Purchase and Sale (the “Agreement”) and prior to closing seeks to assign the Agreement to a Third Party Assignee. Notwithstanding that the property was not purchased in trust, nor was there a specific provision included as a schedule to the Agreement allowing the Purchaser the contractual right to assign the Agreement, the Purchaser and Third Party Assignee, on the advice of their respective lawyers, proceeded to draft and execute an assignment agreement, without the consent of the Seller, which to their minds constituted a valid assignment.

What in effect was created between the Purchaser and the Third Party Assignee was a valid agreement between the two parties whereby the benefit, pursuant to section 53 of the Conveyancing and Law of Property Act, R.S.O. 1990, of the Agreement was assigned to the Third Party Assignee. However, as a result of the doctrine of privity, which in part dictates that the liabilities cannot be assigned absent the consent of the Seller or a clause in the Agreement permitting the assignment, the original Purchaser remains liable to the Seller for any default that may arise under the Agreement. Moreover, in the event the Third Party Purchaser is not able to complete transaction on the Closing Date, as defined in the Agreement, the Seller’s only recourse is against the original Purchaser as evidenced by the contract relationship between the Seller and the original Purchaser, as there is no direct contractual relationship between the Seller and the Third Party Assignee.

In support of this position Ontario courts have held that “a person who signs an agreement of purchase and sale can only avoid personal liability therefore, if, in the agreement, there are express and unequivocal words of qualification to this end.” The court added that caution must be taken when adding such language to an Agreement because having added
“without personal liability”, which will serve to exempt the Purchaser of liability, has the corresponding effect of denying the Purchaser any benefit
under the Agreement and the opportunity to sue. Accordingly, where a Purchaser intends to assign an Agreement, the parties should consider adding the below clause
to protect the Purchaser from liability under the Agreement, keeping in mind that in exercising their right to assign the Agreement they are similarly
contractually eliminating their right to claim any benefit under the Agreement:

The Seller acknowledges and agrees that the Purchaser shall have the absolute right and is permitted, prior to the closing of this transaction, to assign this Agreement and all the benefits contained herein or the rights under this Agreement with respect to the Property, to any person and upon such assignment, all of the respective obligations and liabilities of the Purchaser will cease and the Seller will deal with the Assignee as if it had been the original party to this agreement and the Purchaser thereafter shall have no personal liability hereunder.

The parties are however strongly advised to consult their respective lawyer prior to executing the Agreement as each transaction is unique and where an assignment clause is to be added, the clause should reflect the exact nature of the transaction contemplated therein.

ABOUT THE AUTHOR:  Jeremy Mandell is an associate with the law firm Garfinkle, Biderman LLP, a full service firm of 19 lawyers located downtown Toronto.  Jeremy’s areas of practice include all areas of commercial and residential real estate as well as aspects of corporate law.  He can be reached at (416) 869-1234 or by e-mail at jmandell@garfinkle.com.

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by suttonadmiral on October 29, 2011  •  Permalink
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Posted by suttonadmiral on October 29, 2011

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September and October 2011: Strong Third Quarter!

Real Estate CartoonGTA Realtors reported 7,658 transactions through the Toronto MLS system in September 2011, representing a 25% increase compared to September 2010. In the first three quarters of 2011, we have seen 70,588 real estate transactions, a 2.6% increase compared to the first three quarters of 2010.

However, the shortage of listings experienced so far this year has improved only slightly. Competition continues between home buyers, leading to even higher home prices—by close to 10% year-over-year. October 2011 witnessed 3,477 transactions during the first two weeks, an increase of 20% compared to the same period last year. The average selling price for the first two weeks of October was $475,743, a 7.5% year-over-year increase. Thankfully, the interest rates are still at a record-low, helping to balance out the high prices.

All in all, this year has thus far been the second best year for sales under the current TREB market area. As the market becomes “better supplied”, we should see a more balanced market in 2012. So far in October, we’re already seeing more listings—a 21% increase in new listings compared to the first two weeks of October 2010 beat the growth of sales for the same year-over-year comparison by 1%.

Based on reports from the Toronto Real Estate Board.

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by suttonadmiral on October 22, 2011  •  Permalink
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Posted by suttonadmiral on October 22, 2011

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First Time Home Buyers and Related Rebates

The rising cost of residential real estate in Ontario has made it increasingly difficult for first time home buyers to gain entry into the real estate market. This problem has been magnified in the GTA since the introduction of the Municipal Land Transfer Tax (“MLTT”) in 2007, passed under the City of Toronto Act which places an additional burden on purchasers in the GTA by essentially doubling the amount of land transfer tax due on closing. When coupled with escalating costs associated with owning a home it becomes crucial that agents, often acting as a buyer’s gateway into the market, make certain that their clients are aware of and understand the additional costs associated with purchasing and carrying a home.

In Toronto and Ontario, land transfer tax rates are calculated as follows:

Toronto
0.5% of the sale price up to and including $55,000
1% of the sale price between $55,000 up to and including $250,000
2% of the sale price exceeding $400,000

Ontario
0.5% of the sale price up to and including $55,000
1% of the sale price between $55,000 up to and including $250,000
1.5% of the sale price between $250,000 up to and including $400,000
2% of the sale price exceeding $400,000

In an attempt to assist first time buyers, both the Province and the City have implemented rebate programs for first time buyers. However, to classify as a first time home buyer, a purchaser or their spouse, if applicable, cannot have previously owned a home anywhere in the world, regardless of whether they personally occupied the home.

With respect to the provincial rebate, the maximum available amount is $2,000. Toronto by comparison offers a more generous rebate of up to $3,725. For example, if a qualified, first time buyer purchases a home in the GTA for $650,000 the provincial portion of the land transfer tax due on closing would be $9475 less $2,000 for a total of $7475. The Toronto, or municipal portion due on closing would be $8725 less $3725 for a total of $5000. Any unused portion of the provincial and municipal rebate cannot be carried forward.

Often situations arise where a married couple has purchased a property and only one of the two spouses qualifies for the rebate. In such circumstances, leaving aside issues of estate, tax and family law, the couple can be registered on title as tenants in common with the eligible spouse owning a 99% share of the property with the non-qualified spouse retaining a 1% interest. In this situation, the eligible spouse will be entitled to 99% of both the provincial and municipal land transfer tax where applicable.

ABOUT THE AUTHOR: Jeremy Mandell, LLB, is an associate with the law firm Garfinkle, Biderman LLP, a full service firm of 19 lawyers located in downtown Toronto with a satellite office at Yonge and Sheppard. Jeremy’s areas of practice include all areas of commercial and residential real estate.  Tel: (416) 869-7608 jmandell@garfinkle.com.

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by suttonadmiral on October 15, 2011  •  Permalink
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Posted by suttonadmiral on October 15, 2011

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