Power of Sale: What is it and how can you avoid it?

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In the spring/summer of 2017, a massive amount of media coverage was devoted to the Ontario real estate market and the drastic changes in property values, supply, and demand.  While real estate purchases and sales have cooled significantly from a year ago, there is still plenty of housing talk heading into the warm months of 2018 stemming from new mortgage rules and rates.  Even though buying and selling may be down, fluctuating rates have caused people to look at their mortgage and lending options, pushing the volume of mortgage, refinance, borrowing, and lending transactions higher through the first part of the year.  But while there appears to be an increasing number of available lending sources entering into the market, we have also seen an increase in the number of borrowing agreements that have been forced into Power of Sale situations.  So, what is Power of Sale, and how can one avoid it?

The term “Power of Sale” is a clause that often gets written in to a mortgage agreement that grants the lender the right to sell the property in order to collect on the debt in the event that the borrower breaches or defaults on the agreement.  Examples of mortgage breach/default by the borrower could include a failure to pay property insurance, property taxes, or pay back the mortgage on time.

Should a breach/default occur, there are a series of steps that the lender must take during the Power of Sale process, but opportunities for the borrower to bring the mortgage back into good standing also exist.

1.       The lender gives written notification outlining the terms of the defaulted mortgage

The borrower then has 15 days to rectify the terms

2.       If the borrower does not act, the lender can deliver a Notice of Sale Under Mortgage

The borrower has 35 days to bring the mortgage into good standing

3.       If the borrower does not act, the lender is able to issue a Statement of Claim for the collection of the debt owed and for possession of the property

The borrower can then file a Statement of Defense

4.       If the Statement of Defense is not filed, the lender can move forward toward evicting the borrower/occupants and sell the property


How can this be avoided?

It sounds silly, but the number one tactic for avoiding Power of Sale is to fully understand your mortgage agreement.  Many borrowers simply focus on the final net amount that they will receive without paying close enough attention to their mortgage terms and stipulations.

Next, never be afraid to ask for a second opinion.  Whether through a financial institution (such as a bank) or using a mortgage broker, professionals in both situations should have the client’s best interests in mind.  However, some specialists may have access to different lending sources than others.

Finally, involve a lawyer as early in the process as possible.  This will help you fully understand the mortgage agreement terms as well as ensure that all administrative tasks are correctly executed, including reviewing legal documents, confirming property taxes are up to date, guarding against claims on the property, confirming valid title, etc.


Having problems with a Power of Sale?

9 Benefits to Filing a Patent Application

Are you in possession of the next great idea or invention?

Do you have a piece of equipment or technology that will set you apart from other competitors in your industry?

Is it time for you to take steps to protect yourself and your intellectual property?

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If you answered YES to the first or second question above, then congratulations.  You have an exciting opportunity to distinguish yourself from others in your chosen field.  If you are looking for help to answer the third question, then you have come to the right place.  But one thing that you should be aware of is the fact that there will likely be no cookie-cutter response as to whether you should or should not pursue a patent.  In our experience, every person who has come to us looking for the same information has had to realize that the answer is dependent on their own specific set of circumstances as well as their particular business and personal objectives.  Ultimately, only you can decide whether it will be in your best interests to file a patent application. In order to help you with this important decision, we are offering the following 9 benefits of patents for you to consider.

The main advantages of filling a patent are as follows:

1. Exclusive Legal Rights

First and foremost, obtaining a patent will provide the owner with exclusive legal rights to make, use, or sell the patented invention.  Without legal exclusivity, as soon as an invention is launched into a marketplace (often at great cost in terms of product development, tooling, packaging, inventory, promotion, and advertising) and proves to be successful, then competitors will be enticed and entitled to copy it in direct competition. Further, without exclusive rights being protected, those same competitors will be able to get a free ride on the innovator’s efforts without having to incur many of the costs of product development and creation of market demand.  This means that competitors would be able to undercut the innovator’s prices, thus reducing the inventor's maximum profit return and increasing the chances of their failure.

There is more than one type of business model where legal exclusivity of a product (or lack thereof) will affect the success or failure of an innovation's introduction into a marketplace.  Consider the following situations:

a. The patent owner itself manufactures and sells the inventive products into the marketplace. Without a legal right to prevent competitors from copying the invention (i.e. to stop infringers), the patent owner’s investment, future profits and growth potential will all be at risk.

b. The patent owner sells or gives an exclusive license of the invention to another person (a licensee), who in turn manufactures and sells the inventive products into the marketplace and makes payments (e.g. royalty and/or lump sum payments) to the patent owner. Without a legal right to stop infringers, the licensee’s investment, future profits and growth potential (and the patent owner’s future royalty stream) will all be at risk.

c. The patent owner grants non-exclusive licenses to the invention to several licensees, who in turn make and sell the products and make payments (e.g. royalty and/or lump sum payments) to the patent owner.  Unless the patent owner stops infringers, no licensees will wish to make royalty payments to the patent owner because they would then be competing with the infringers who, not having to pay the patent owner, could undercut the prices of legitimate licensees to their detriment.

2. SCARE OFF, DELAY, OR AFFECT POTENTIAL COMPETITORS

Apart from actually having to enforce legal rights, the mere fact that the innovator has a patent may scare off, or at least delay or otherwise affect, potential competitors.  A potential competitor, reviewing the patent, may realize that their proposed product would be, or at least arguably may be, covered by the patent.  The potential competitor may therefore realize that launching its product(s) into the marketplace may result in patent litigation. Exposure to this risk may lead the potential competitor to decide not to launch its product or to strike an agreement with the patent owner.
Short of scaring off a competitor entirely, there can nevertheless be other beneficial effects from having a patent.

EXAMPLES

a. It will take time for the competitor to assess the patent and make its decision as to whether or how to proceed. Delay of the competitor’s product launch is the usual result. To the patent owner, that delay represents additional exclusivity within the marketplace, during which time the patent owner will be continuing its efforts to buttress its marketplace position.

b. The competitor may feel compelled to try to re-design its product so as not, in its view, to infringe the patent. Such a re-designed product (whether it infringes the patent or not) may have important differences from, or may not have all of the capabilities or features of, the patented product. These facts may provide to the patent owner certain marketing advantages or opportunities, e.g. the ability to point to the better features or originality of its own product. Also, all amounts spent by the competitor on re-design and tooling and in having to launch a somewhat different product will increase its cost base, thus not allowing the competitor to undercut the patent owner’s prices by as much as it might otherwise have been able.

The above advantages can apply even in a case where a patent application has merely been filed, i.e. where the patent is merely “pending”. In the case of a patent application which is pending but made public, the scope of the patent has not been finally confirmed by the patent office in question. There is thus a higher level of uncertainty to a would-be competitor as to the potential scope of the eventual patent. The points mentioned above may be heightened further with this higher level of uncertainty.

In the initial stages of a patent application, the owner usually prefers to keep the application confidential in the patent office for the available confidentiality period. During this period, however, the owner is not prevented from marking its products with a “patent pending” notice. Seeing such a notice, and not being able to review the patent application during the confidentiality period, there is an even higher level of uncertainty to a potential competitor in assessing whether to copy a product or not.

3. Patents are valuable assets

Patents and patent applications can be considered valuable assets due to the legal rights that come with them.  As such, they can be used or disposed of directly like other assets, such as by being sold or used as security or collateral in a financing transaction.

Patent assets can also be used or disposed of indirectly.  For example, if owned by a business organization such as a corporation or a partnership, the patent assets can add value to the business and of the underlying shares of the corporation or the partnership interest.  In turn, those underlying shares can be valued at a higher level than they otherwise would have without the patent assets. Those higher value shares can in turn then be old or used as security or collateral in a financing transaction.

In many businesses, particularly those without significant physical or other common assets, a significant patent portfolio may be among the most valuable and impressive assets of the business. Particularly in the case of a large patent portfolio, sometimes the value attributed to it will be determined according to the number of patents in the portfolio rather than on a detailed analysis of the merits of each individual patent.

In short, patent rights can be a very positive factor in the sale, financing or liquidation of a business, as well as the successful navigation of which can be critical at various stages in the development of a business.

4. Marketing Tool

Many businesses find it is extremely useful to their marketing efforts to publicly promote the fact that its products are patented — either in relation to a particular product or in relation to the activities of the business in general. These businesses consider that a product marked “patented” or “patent pending” or “The Patented BRAND X Widget” will make more of an impression on potential customers and stand out from the competition. This type of promotion also helps develop the business’s general reputation as innovative and forward thinking.

5. Improved ability to find investors, financing, or licensees

Many inventors of modest means will find it difficult to bring a new product to market without financial or other help. Thus, many will seek to have family, friends, or others (such as venture capitalists) invest in the project - either by way of loan or by way of ownership shares (e.g. especially shares in a corporation). A patent is a specific asset for the inventor to offer to potential investors to buy into, in exchange for financial contributions. Thus, without the patent rights, it may be very difficult or even impossible to move forward with the project.

Alternatively, the inventor may wish to entrust a licensee with bringing the product to market. As the person who would take on most of the financial investment and risk in doing so, a licensee can be considered as another type of investor. Again, as noted above, the exclusivity of the patent rights represents something more tangible for a licensee to “buy into” than a basic raw idea without substance.

In addition, in any of these types of situations, having a patent or pending application will at least underscore to any potential investor that the inventor has confidence in his/her own self and project, thus enhancing the chances of a successful outcome for the inventor. In other words, the patent rights become part of the inventor’s “sales pitch”.

6. Third Party Inquiries

By applying for and securing a patent, a significant amount of information about the product is submitted for review and then made publicly available.  Anyone interested in the invention, such as potential buyers or licensees, can contact the patent owner via the information in the patent or through the patent office.  There are certain investors and businesses who regularly search patent applications looking for opportunities to connect with innovators, so the patent process can sometimes be viewed as advertising for potential business partners.

7. Defensive Comfort

Some businesses find it useful to obtain patents on products that they do not even necessarily intend to market, at least at the present time.  One reason is to prove to the world that it is the true inventor of a particular technology to guard itself from someone else, especially a competitor, from eventually independently developing the same invention, get a patent and then deny the first company the ability to use the technology (which, in fact, they may have developed it first).

EXAMPLE

Say Company A invents a new toaster but decides that it is not yet ready to introduce to the public for the sake of further development. Then, six months later, Company B coincidently and independently develops the same toaster. If Co B obtains a patent on the toaster then, even though Co A may have invented the toaster first, Co A would not be entitled to make, use, or sell the toaster. If Co A had, in the very least, filed for a patent application, then Co B may never have obtained a patent and Co A could never have been precluded from offering the toaster in the future.

Patents can also sometimes be used in cross-licensing situations.

EXAMPLE

Say Company X owns a patent on a basic mousetrap. Company Y invents an improved and very useful version of the mousetrap and wants to put it on the market but cannot because of Co X’s patent. Co Y should consider obtaining a patent on their improved mousetrap, not because they necessarily wish to maintain exclusivity for themselves, but simply because they may be able to use their own patent as bargaining leverage with Co X.

Both companies may see value in coming up with an arrangement whereby each company licenses the other. A cross-license can exist where both companies produce and sell their products without the payment of fees or royalties to each other.

8. Publication Credit

In some cases, filing for and/or obtaining a patent will be viewed by a university or other institution in the same favourable light as a publication or published work.  Adding a patent or patent pending to an academic or professional’s curriculum vitae (resume) may increase that person’s ability to successfully secure a significant job opportunity or boost their status and security in his or her field.

9. Personal Pride

While the majority of these patent benefits have to do with increasing profitability or capitalizing on a business opportunity, there is also something to be said for gaining an emotional boost as well.  Sometimes the ability to simply point to the existence of a patent application or patent may be important to an inventor/applicant as a matter of a personal or professional pride. In fact, many people often obtain framed or wall-mounted plaques of their patents.

BONUS TIP

While the 9 points listed above may paint a convincing picture that securing a patent for an innovative product should be an automatic part of any business strategy, it is important to understand that there are other factors that also need to be considered. Yes, we have identified a number of potential advantages of a patent or patent application, but these should be weighed against all costs and risks, such as the following:

  • Potential for not making enough money from the project to recoup at least the financial costs of patent filing;
  • Business risk(s) and threat to maximum profitability associated with not filing a patent application;
  • Requirement to make certain technical information about the invention publicly available in order to file the patent application;
  • Time restraints - the patent application process can be a time-consuming and lengthy process, meaning there could be market or technology changes that could affect the invention's validity and profitability by the time a patent is granted;
  • In the case of a possible infringer, one must be prepared to defend their patent, including accepting potential legal costs; and,
  • Patents are territorial, so you will only be able to stop competition in the country in which you hold a patent. If you believe your invention has potential in other countries, and you intend to develop those markets, you will also need to budget for the cost of applying for a patent in your target countries and offset this cost against the patented item's projected income over the lifetime of the patent

In making the decision as to whether to proceed with a patent application or not, you should take the time to develop a very clear picture of the numerous potential advantages available to you if you do proceed and, conversely, of the lost opportunities or risks if you do not.

Carson Law welcomes Spencer Cuddy to the firm

Congratulations to Spencer Cuddy on being called to the bar in Ontario. Everyone at Carson Law Office Professional Corporation is very proud of you. Our clients are very lucky to have you working for them.

Spencer M. Cuddy,
Lawyer

Office Phone: (905) 336-8940
spencer@carsonlaw.ca

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Executor and Estate Planning Seminar

Ryan Carson is honored to be asked to provide his legal expertise at the Estate and Executor seminar being provided by Jennifer Aubertin and RBC Dominion Securities in Burlington, ON. Attendance is open to the public and complimentary, but seating is limited so anyone interested should RSVP sooner than later.

Thursday, October 5, 2017

6:00 p.m. – 6:30 p.m.
Reception and light dinner

6:30 p.m. – 8:00 p.m.
Panel discussion and Q&A

RBC Dominion Securities
4475 North Service Rd., 4th Floor
Burlington, ON (Appleby exit)

Please contact Tammy Lawson at 905-332-2583 or tammy.lawson@rbc.com to reserve your seats.

How are you planning for the future?

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Carson Law - Top 3 in Burlington!

Carson Law is proud to announce that we have just been ranked by the independent review site, threebestrated.ca, as one of the Top 3 Real Estate and Estate Planning Lawyers in Burlington, ON.

Many thanks to our past and existing clients for their loyalty, as well as to all those who have provided their feedback and reviews.

We look forward to continuing to work hard to provide Burlington and the Golden Horseshoe with exceptional legal services.

 
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Buying/selling a house in an unknown market… Being proactive and having a Plan B.

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There are 2 situations that we have recently been experiencing with clients more frequently and with greater consequence as a result of recent housing and real estate market uncertainties:

1) A client makes a purchase and is having difficulties selling their current house, has sold but at a drastically reduced price, or their sale is falling apart due to lack of funding on the other side; and,

2) A client has signed an agreement to purchase, but the bank’s appraisal of the property is less than what they have agreed to pay for it.

Use the following tips to help prevent and/or recover from these unfortunate scenarios.

Be Proactive

  • Try to take emotion out of the equation. Seeing the purchase/sale of a house for the TRANSACTION that it is, will help you to make sound, safe decisions.
  • No unconditional offers. Under no circumstances should any offer be made UNCONDITIONALLY (ie. without inspection, appraisal, title search, or condition of selling/financing).  Having proper conditions in place helps to protect both sides of the deal, not just purchasers.
  • Get a home inspection. Especially if one hasn’t been pre-done by the seller.  After all, you wouldn’t buy a car, particularly a used one, without test driving it first to make sure it runs as expected.
  • Base your mortgage on an actual appraisal, not just pre-approval figures. If the lender's or mortgage insurer's assessment determines that you overpaid, or the property has faults, your pre-approval can become void or your final mortgage amount can be less than expected.
  • Involve a lawyer early.  Lawyers can provide insight into the history of the property’s ownership as well as review initial offers for areas of concern.

Plan B Options

  • Ask for a closing date extension. First and foremost, ask for more time to secure funding or complete your sale.
  • Refinance from other asset pools, such as cottages or recreational properties.
  • Vendor Take Back Mortgage. Consists of the seller offering to lend funds to the buyer to help facilitate the purchase of the property.
  • Private 2nd Mortgage.  While arranging a second mortgage with a private lender will likely cost more than receiving lending from a financial institution, it will still cost less than what might happen if forced to walk away from a signed agreement.

Legal ramifications should you walk away from a signed purchase agreement

  • Immediate loss of initial deposit
  • Potential for being sued for the difference between what you agreed to pay and what the seller is able to get with a new deal (if the new deal is less)
  • Possibility of being sued by realtor for lost commission(s)
  • Responsibility to cover additional legal and carrying costs

If you have run into the above issues, or for more information about how we can help with your home, your business, or your future, feel free to call 905-336-8940 or e-mail ryan@carsonlaw.ca.


Carson Law named the Official Law Partner of the Toronto Rock Athletic Centre and Oakville Rock lacrosse team

Carson Law is very excited to announce that we have become the Official Law Partner of the Toronto Rock Athletic Centre (TRAC) as well as the Oakville Rock lacrosse team.

The TRAC is a beautiful 80,000 square foot, climate-controlled sports facility and event centre located on Invicta Drive in Oakville, Ontario.  Though the facility was primarily designed for use as the National Lacrosse League (NLL) Toronto Rock's practice facility, it also accommodates many other sports such as ball-hockey, rugby, football, soccer, and baseball.  The TRAC is responsible for running popular youth lacrosse development camps and leagues.

The Oakville Rock is a men's Senior "A" box lacrosse team that plays in the 6-team Major Series Lacrosse (MSL) league within the Ontario Lacrosse Association (OLA).  This is one of the highest levels of lacrosse available in Ontario, second only to the NLL, as most of the players in the league currently play or have played at the professional level. The Oakville Rock's 2017 season is currently underway.  Contact us to see how you could obtain a complimentary season's pass for home games.

Lacrosse is becoming a popular sport in the Golden Horseshoe area and Carson Law is proud to be supporting its growth at the grassroots level.


2017 Pinnacle Wealth Brokers Investor Forum

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Many thanks goes out to the organizers of the 2017 Pinnacle Wealth Brokers Investor Forum for inviting our founder and president, Ryan Carson, to participate as one of the speakers and workshop mediators for this year's event.  Held on Saturday March 4 and Sunday March 5, 2017 at the award-winning International Centre in Mississauga, ON, this event continued the tradition of being Canada’s leading conference for education in real estate and property investing by providing access to trusted investors and industry leaders.

Complete list of this year's speakers