I practice real estate, but I do not have access to electronic registration. What are my obligations under the Rules of Professional Conduct and/or the draft electronic registration practice guidelines?
A lawyer has an obligation to perform any legal services undertaken on the client's behalf to the standard of a competent lawyer.
In the electronic registration system, documents are prepared electronically at a computer terminal and at the appropriate time, are released for registration.
A lawyer practising real estate should equip himself or herself with the required technological tools to properly service clients. A lawyer who does not acquire such tools will be incapable of producing any registered documentation under electronic registration. This may result in
- the lawyer's failure to fulfill his or her duties to the client,
- the client's failure to meet his or her contractual obligations, and
- inconvenience to other lawyers acting for other parties in the transaction who are equipped to complete transactions in electronic registration.
Practice Guideline 2 - Obligations Regarding Document Preparation and Section 3.1 - Competence
You act for both the purchaser and the mortgagee in a real estate transaction. On the date of closing, the Teraview system is not functioning and you are unable to register documents. What are some of the ways that you might consider dealing with this situation?
- Consider obtaining instructions from your clients to enter into arrangements with the other parties to the transaction to deal with the situation. Depending on the circumstances of the individual transaction, these arrangements might include amending the agreement of purchase and sale to extend the closing date of the transaction or entering into escrow closing arrangements.
- Explore whether there is title insurance coverage available that would protect your clients' interests and permit you to close the transaction, subsearch title and register documents at a later date. If so, consider obtaining the instructions of your clients to procure such coverage and to complete the transaction on the closing date.
- Consider whether it is possible to register documents at the Land Registry Office in paper format. Section 5 of Ontario Regulation 16/1999 of the Land Registration Reform Act provides as follows:
If access to the electronic or imaged records or documents of a land registry office is not available for any reason and documents may be registered under the Land Titles Act in the office in an electronic format, the Director may authorize the land registrar to accept for registration copies of electronic documents delivered to the office in a format approved by the Director.
In such circumstances, registration of documents in the following format has been approved by the Director:
a document in preparation generated from the electronic registration system and signed by either the clients named in the document or the lawyer, or
the Polaris form of document signed by either the clients named in the document or the lawyer.
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