Two-Lawyer Requirement for Transfers of Title to Real Property

  • Determine whether you are being requested to act for or represent both the transferor and the transferee with respect to a transfer of title to real property. 

  • If so, determine whether there is a conflict of interest that would preclude a lawyer from acting for both the transferor and the transferee in the transaction or whether this is a situation where it would not be prudent for a lawyer to accept such a retainer. If there is such a conflict, then you either cannot or should not act for both parties. 

  • If there is no such conflict, then determine whether the transaction falls within one of the following exceptions to the two-lawyer requirement: 

    • the transferor and the transferee are the same and the change is being made to effect a change in legal tenure (e.g. severance of a joint tenancy)
    • the transferor and the transferee are the same and the transfer is being made to effect a severance of land
    • the transfer is a transfer from an estate trustee, executor or administrator to a person who is beneficially entitled to a share in the estate
    • the transferor or the transferee is a government body including, the Crown in Right of Ontario, the Crown in Right of Canada, a Crown corporation, any agency, board or commission of the Crown or a municipal corporation
    • the transfer is being made to effect the transfer of an easement
    • the transferor and the transferee are related persons as defined in section 251 of the Income Tax Act (Canada)
    • the transfer involves a transfer where the lawyer practices law in a remote location where there are no other lawyers that either the transferor or the transferee could without undue inconvenience retain for the transfer.
     
  • If one of these exceptions applies, then you may act for both parties provided that you comply with the rules in Section 3.4 of the Rules of Professional Conduct on conflicts of interest including the joint retainer provisions [Rules 3.4-5 to 3.4-9]. 

  • Before accepting the joint retainer, you must advise the transferor(s) and the transferee(s) that: 

    • you have been asked to act for both or all of them;
    • no information received in connection with the matter from one can be treated as confidential so far as any of the others are concerned; and
    • if a conflict develops that cannot be resolved, you cannot continue to act for both or all of them and may have to withdraw completely
     
  • If the clients are agreeable to retaining you on these conditions, then you must obtain the informed consent of each of the clients by: 

    • having the client sign a written consent; or
    • obtaining the client’s oral consent and then sending that client a letter confirming his or her consent as soon as practicable.
     
  • If one of the clients in the joint retainer is more vulnerable or less sophisticated than the other(s), you should consider having this client obtain independent legal advice before accepting the joint retainer. 

  • If you have a continuing relationship with one of the clients for whom you act regularly, before accepting the joint retainer, you must advise the other client(s) of the continuing relationship and recommend that the other client(s) obtain independent legal advice about the joint retainer. 

  • Once you accept the joint retainer, you must assume complete professional responsibility for all documents that you electronically sign using the electronic land registration system and must comply with the rules in Section 3.4 of the Rules of Professional Conduct on conflicts of interest.