26 March 2020
Execution of legal documents during COVID-19: Land transactions
The novel coronavirus, or COVID-19, pandemic has disrupted Canadian life in ways that our citizens and residents have not experienced since World War II. Mobility has been restricted to unprecedented levels, but still, commerce continues, albeit conservatively.
Land related transactions are one of the most common occurrences at a lawyer’s office where, almost always, the lawyer is required to witness their client’s execution of documents. Where transactions are subject to the Land Title Act, Sections 42 to 48 of that statute requires that an individual executing an instrument appear before an officer.
Despite advances of technology, lawyers are not permitted to employ remote or videoconferencing witnessing, and the word “appeared before” require a physical presence before the authorized witness (an “officer”) who is usually a lawyer or notary public (First Canadian Title Insurance Company v. the Law Society of B.C.).
In these unprecedented times, where we as lawyers need to maintain social-distancing and help safeguard the health and safety of those around us, requiring clients to attend our offices so that we can witness document execution no longer seems to be a practical or viable solution.
Fortunately, Section 49 of the Land Title Act prescribes certain situations where, even if the signature of a transferor is not witnessed by an officer, the senior official of the Land Title Office (the “registrar”) may exercise his or her discretion and still receive the instrument for the purposes of registration if circumstances require it.
In practice, where an officer’s witness is not possible, it must be accompanied by an affidavit of execution providing reasons for the lack of officer certification. Where the transferor was in British Columbia, the registrar will exercise his or her discretion to determine whether the reasons justify its use. Where the transferor executed the instrument outside of British Columbia, the registrar will accept affidavits without further justification.
The registrar must be satisfied that the circumstances in each case justify an affidavit of execution in lieu of an actual officer certification. Successful past examples include the remoteness of the location of the person signing the documents or the presence of a physical disability. There is no exhaustive list and there is no guidance as to what ‘circumstances’ will be acceptable to the registrar.
Due to the Covid-19 pandemic, persons needing to execute Land Title Office documents justifiably would not wish to, or may not be able to, attend a lawyer’s office to sign them, and the employment of the option provided in Section 49 offers some people a potential alternative.
Please contact our Business Law Group if you have an upcoming land transaction and wish to discuss your options.
Learn more at our COVID-19 Resource Centre.
Henry Ka is an Associate in our Business Law Group.