Standard Closing Documents
Are you using the Standard Closing Documents? If not, why not? Kathleen Waters, CEO and President of LawPRO and Jeffrey Lem, Director of Title and Law Society Bencher, have both endorsed their use in residential resale transactions.
Why Use the Standard Closing Documents?
The vast majority of residential real estate resale transactions in Ontario close pursuant to OREA Form 100, the Agreement of Purchase and Sale (“APS”), which has been in widespread use since January 1, 1996. The APS is now available to all lawyers under agreement with the Ontario Real Estate Association (“OREA”).
As the rights and obligations of vendors and purchasers are now standard across Ontario under the APS, the Working Group on Lawyers and Real Estate and FOLA decided to review the standard closing documents already being used very successfully in Ottawa, Barrie, Cambridge, Hamilton, Lincoln/Welland and Windsor with a view to creating and promoting standard closing documents for all of Ontario. In drafting them, the Working Group wanted to end the repetitions found in the old forms, and delete any statements, declarations and so on that the vendor is not obligated to give under the terms of the APS. The theory is that vendors, and their lawyers, should not be delivering anything that is not required under the APS, as doing so imports liabilities that are not required by the contract. Any purchaser who wants additional statements, declarations and so on may seek to contract for them at the time the APS is negotiated.
If you have questions about the documents, please contact either the TLA or Merredith.MacLennan@stewart.com or Past FOLA President, Eldon Horner firstname.lastname@example.org.
Update Re: Solicitor Statement 9185 and Discussions with the Ministry of Finance
Merredith MacLennan, FOLA Real Estate Chair reports:
Further to our last update of January 8, 2018, we have not received any further response from the Ministry of Finance following our telephone conference call of January 4, 2018, but we understand that the Ministry and the Law Society have had further discussions on the issues raised. We will provide a further update once a further response from the Ministry has been received.
Land Transfer Tax Statements
Merredith MacLennan, FOLA Real Estate Chair reports:
We have been advised that the Ministry of Finance is prosecuting lawyers for false statements contained in Land Transfer Tax statements (relating to the first time homebuyer rebate, as far as we know). Pursuant to section 6 of the Land Transfer Tax Act (LTTA), it is an offence to make, participate in, assent to or acquiesce in the making of a false or deceptive statement, affidavit, return or other document prepared, submitted or filed under the LTTA. We have been asked by one such lawyer to inquire as to whether others are being investigated and/or prosecuted in an attempt to determine the extent of such actions and to possibly put such lawyers in contact with one another. If you have been or are the subject of an investigation or prosecution under the LTTA, please let us know (and confirm whether or not you wish to be connected with others).
Centralized Email Access point for LRO no. 66/80 Toronto - starting January 29, 2018
The Toronto Land Registry Office has been chosen by the Director of Titles to participate in a pilot project starting Monday January 29, 2018. TLA members are invited to access certain services at the LRO via a new centralized email address: LROclientSubmit@ontario.ca.
At this new email address, the LRO will be accepting all (i) PIN corrections; (ii) pre-approvals of complex documents; and (iii) general inquiries that lawyers would otherwise have put to Land Registry Office staff by directly calling or visiting the Land Registry Office. The following documents provide all of the details:
Are you ready for the new Teraview?
RSA SecurID is an authentication technology that uses both hardware and software based Tokens. The Tokens generate an authentication code at fixed intervals which is then used to provide secure login access. Teraview® on the Web will be using an RSA token value along with your Teraview® password when you Sign Electronic Instruments for completeness / release.
You will be able to request either a physical token or a soft token for your smart phone for each Teraview® User in your account and should make these arrangements before the move to Teraview® on the Web.
Roll out begins in Toronto on February 12, 2018.
Update re Solicitor Statement 9185
On January 4th, the FOLA Real Estate Committee met with representatives from the Ministry of Finance, the Law Society, LawPRO and OBA, in an attempt to clarify the Ministry’s position on Statement 9185 and to express its concerns with it. The Ministry confirmed its intent that the Statement is to be completed in all Transfers. However, the Ministry is taking concerns regarding the Statement under advisement. In the meantime, the Ministry has confirmed that Statement 9185 is not a mandatory statement in Teraview® and that Transfers will be registered without completion of this Statement. Until the concerns with respect to the Statement are resolved, the Ministry has advised that it will not be auditing Transfers to confirm completion of the Statement and will not be imposing any penalties for non-completion.
Statement 9185 reads as follows:
SOLICITOR STATEMENT (To be completed when the declarant is an individual licensed to practice law in the province of Ontario): I have fulfilled my obligations as the solicitor of [INSERT NAME OF TRANSFEREE(S)] for the conveyance, in relation to the Law Society of Upper Canada’s Rules of Professional Conduct and its By-Laws, as well as the Land Transfer Tax Act, and have reviewed with the transferee(s) their obligations under the Land Transfer Tax Act that are material to the conveyance described in this document.
The Committee expressed concerns regarding the following:
The instructions that the Statement is to be completed when the declarant is a licensed Ontario lawyer is inconsistent with the Ministry’s position that the Statement is required in every Transfer registered in Ontario.
The requirement for lawyers to confirm that they are adhering to their professional obligations each time a Transfer is registered contradicts the Ministry’s stated recognition that lawyers “are held to high ethical standards and are required to follow LSUC’s Rules of Professional Conduct and its By-Laws, through professional regulation by the LSUC” and appears to be usurping the role of the Law Society in the professional regulation of lawyers.
The obligations of lawyers under the LTTA are not clearly stated, yet the Statement requires lawyers to confirm that they have been fulfilled.
An update will be provided on this issue once a further response from the Ministry has been received.
Letter to Lenders re First Canadian Title
The County of Carleton Law Association's Real Estate Committee has prepared the attached letter that it would like to send to lenders outlining the concerns raised by First Canadian Title's practises.
The Committee is seeking input from real estate lawyers about the letter before sending. Please send your comments to TLA by email to: email@example.com. TLA will forward all comments to the CCLA Real Estate Committee.
Standardized Real Estate Closing Documents
The TLA is pleased to endorse the use of Standardized Real Estate Closing Documents (see below). The Working Group on Lawyers and Real Estate initiated this project, which has also been endorsed by FOLA (Federation of Ontario Law Associations), in their mandate is to improve the business of law for the private bar. These documents, if used regularly and appropriately, are a step toward that goal.
The benefits of these documents will only reach the practicing bar if they are widely distributed and their usage promoted. We encourage our members to share this information with solicitors who are not TLA members.
We now have confirmation from Do Process that the documents will be added to the Conveyancer software and that LawyerDoneDeal has added the documents to RealtiPLUS. Users will have to ensure they import the package.
One eastern Ontario solicitor has begun adding the following language to initial communications:
Our office uses Ontario's Standardized Closing Documents for all residential resale transactions where the agreement between the parties is based on an OREA contract. These documents have recently received the unanimous approval of all 46 County law associations in Ontario and are endorsed by the Federation of Ontario Law Associations and the Lawyers Working Group. The rationale document supporting the use of these documents can be found at http://www.lawyersworkinggroup.com/ and the use of standardized documents for these transactions has been strongly encouraged by LawPro and the current Director of Titles. Should you wish to amend these standardized documents or if you are requesting additional documents from the Vendor we will require confirmation as to the contractual obligation of the Vendor in this transaction to provide such things.
Thank you in advance for your assistance in promoting this initiative.