English version of my latest article…

If you replace Ontario by Québec and lawyer by notary, here is the link to an interesting summary of the notary’s work for real estate transaction published on the Desjardins website de Desjardins :

http://blogues.desjardins.com/co-opme/2014/04/19-things-you-might-not-know-your-lawyer-does.php

This article well summarize the various steps of a file of purchase with a mortgage. However, it seems incomplete to me. The uninitiated might not realize the importance of the notary and of the tasks he(she) does for the benefit of his(her) clients.

Accordingly, let me clarify each of those 19 things by underlining what I accomplish as a notary in addition to what is specified in the article for such a file:

1.   I do much more than reviewing the vendor’s documents. I also make sure the vendor provides to the purchaser all of the documents he undertook to deliver: title deed, certificate of location, declaration of co-ownership, indivision agreement, etc., and that those documents are certified copies when required. Moreover, I verify that those documents are complete. It could be for example a modification to the offer to purchase for anything the vendor and the purchaser may have agreed upon after the initial offer to purchase. Moreover, I make sure that the documents are accurate and I obtain revised documents as the case may be. For example, do the instructions received from the mortgage creditor contain any mistake with regards to the interest rate, the amortization, amount borrowed, etc.?  If the documents provided show any irregularities, I will obtain the appropriate correction prior to the transaction. For the certificate of location, it might be necessary to get a servitude for example. For the statements of municipal and school taxes, I will ensure to pay out of the proceeds of the sale (vendor’s funds) any arrears and interests.

2 and 3.   If the title examination shows any irregularities, I will make sure the appropriate correction is done prior to the transaction at the vendor’s costs. If such correction is not possible, I’ll inform the purchaser, who will then have the opportunity to negotiate with my help another settlement (ex : reduction of the sale price, obtaining of a title insurance) or simply get out of the deal if the severity of the irregularity justifies it.

4, 5 and 6.     If the parties to the transaction are individuals, I’ll obtain copies of their IDs. If the parties are companies instead, I’ll verify in particular their registration with the Registraire des entreprises and I’ll obtain the appropriate resolutions of their board of directors. As for the capacity of the parties to the transaction, I’ll get any pertinent proof of their matrimonial status (marriage contract, divorce judgment, etc.) as well as the signature of any spouse if required. When a party to the transaction is represented under the terms of a power of attorney or a mandate in case of incapacity, I’ll obtain a confirmation of the validity of the said power of attorney or mandate in case of incapacity together with a copy of the judgment homologating the mandate in case of incapacity.

7.         In the case of a condo or an apartment held in joint ownership (indivision), I’ll obtain 2 confirmations of insurance: one under the name of the Syndicate of co-ownership or the names of all the undivided co-owners for the building as well as one under the name of the buyer for his personal belongings, the improvement and the civil liability. I will make sure that any insurance confirmation is complete and does not contain any mistake. It often happens that I have to get corrections to the insurance confirmation received: name or address of the mortgage creditor missing or incorrect, name of the insured incorrect, effective date not corresponding to the date of the closing, etc.

8 and 9.   At the time of the interview for the signature of the mortgage by the purchaser, all documents are read and explained to him les documents. I usually take advantage of this meeting to show the certificate of location to the purchaser and discuss with any particularity of the file. It could be for example explaining to him which additional insurance he should take if the property he is buying benefits from acquired rights for the non-respect of the municipal by-laws.

10 and 11.   I’ll have the Registry Office correct any mistake it may have made in publishing the deed of hypothec (mortgage). I must verify that the deed of hypothec has been published on the right property, that the name of the parties are spelled correctly on the index of immovables, that the amount published is the same as the one in the deed of hypothec and that the notice of address of the mortgage creditor has been duly indicated on index of immovables.  This step is repeated at the publication of the deed of sale.

12.  I also have to verify that the mortgage creditor has sent on the requested date the proceeds of the mortgage and that the amount is accurate.

13.  There are 3 documents to prepare with regards to the financial side of the transaction: the adjustments, the statement of disbursements of the purchaser and the statement of disbursements of the vendor.

14.  The purchaser has to provide the adjustments in addition to his cash down by bank draft or an electronic transfer of funds when available. No personal or certified cheque personnel accepted ! I oblige the adjustments not to be paid to the vendor by regular cheque as a security measure for him (just imagine if the personal cheque of the purchaser for the adjustments would be NSF !). I will ensure that the purchaser’s funds are provided in a timely way to respect the rules of banking clearance and that the amount is sufficient to cover the transaction.  All funds must be avaiIable in my trust account at the time of execution of the deed of sale.

15.  Once again, at the meeting for signature of the deed of sale, the said deed will be read to the parties and all necessary explanations and advices will be given to the parties. This meeting does not consists in only having the parties sign a sheet of paper. As a notary, I must make sure that each party understands the documents signed and that each consent has been given in a free and informed manner as required by law. I withhold the funds of the vendor until such time as the deed of sale is published without adverse entries. In case of an adverse entry (ex : a mortgage under the name of the vendor published between the time of the execution of the deed of sale and its publication), all appropriate measures will be taken to avoid any consequence on the purchaser and his mortgage creditor. Which means for example that I would pay out of the funds of the vendor this new mortgage and that I would obtain the discharge at the costs of the vendor. If the funds are not sufficient, the vendor would have to provide additional funds without delay to solve the situation.

16.  Once the mortgage of the vendor is duly cancelled, I will confirm with a final report to the mortgage creditor of the purchaser that its mortgage is the sole registered against the property.

17.  The specific aspects of the file may also be related to the parties instead of the property itself. I may have to do additional researches for example on the matrimonial status of the vendor if he married in another country in order to determine if the consent of his spouse is necessary or not for him to sell the property. It is sometimes necessary to obtain a judgment from the court to force the execution of a deed of sale by a party to the transaction or by his spouse or to settle the disbursement of the funds.

18.  I must also keep in my file a copy of all the documentation for a minimal period of 10 years as well as the originals of the deed of sale and the deed of hypothec (mortgage) until such time I ceased to practice as a (retirement, resignation or death).  Moreover, I’ll keep in my file the copies of documents on behalf of certain mortgage creditors and remit the same to them upon request.

19.  This is probably the most important aspect of my profession of notary, together with ensuring the security of the transaction!