Frequently Asked Questions

What is the difference between a lawyer and a notary and should I choose one over the other?

Both lawyers and notaries can transfer title in real estate. The main difference is that lawyers have the legal training to deal with any legal issues that may come up during a conveyance such as deficiencies in the Agreement of Purchase and Sale, a buyer or seller who breaches the Contract of Purchase and Sale, disputes over the deposit, defects in title etc. While a notary can process the paperwork and transfer title, only a lawyer can provide legal advice. With a lawyer, you obtain a different service and gain and additional peace of mind.

What is Title Insurance and do I need it?

Title Insurance is an insurance policy that protects a buyer from a number of risks or defects in title. These risks or defects in title would not normally be discovered by the investigations carried out by lawyers or notaries. Title Insurance typically covers defects in title that would be revealed by a new property survey, risk of fraud, forgery or false impersonation and risk of errors in public records. Often Title Insurance is obtained instead of a new property survey, especially in the absence of an existing survey. Often financial institutions will require you to obtain Title Insurance as a condition of a mortgage.

How is ownership in real estate transferred?

British Columbia uses the Torrens System, named after Robert Torrens. Under this system a buyer can rely on records of the Land Title Registry to determine the ownership and state of title of real estate.

Transfers of ownership are made by registering appropriate documents with a Land Title Office. It is also possible to register other interest in land such as mortgages, other charges, easements, rights of way etc.

If the Contract of Purchase and Sale does not indicate otherwise, a transfer involves an exchange of cash for clear title. However, this is impractical and impossible when the buyer needs financing and/or the seller has an existing mortgage which needs to be discharged.

In practice, title is normally transferred on the basis of undertakings made by lawyers and notaries. A standard Agreement for Purchase and Sale has a clause which allows closing based on undertakings. Essentially, the buyer’s registers the transfer document and mortgage document in a Land Title Office and makes the balance of funds available to the seller on closing day in exchange for an undertaking made by the seller’s lawyer or notary to discharge any existing encumbrances to title such as mortgages or other charges.

If I am buying a property with another person, how should we register our co-ownership?

There are two ways of holding title with another person or persons. One is as tenants in common where each individual can have a different percentage of interest. Upon death of an individual his or her interest passes to the estate. The other is as joint tenants where each individual has an equal and undivided interest in the property and, on his or her death, his or her interest passes to the surviving individual or individuals.

Typically, spouses hold title as joint tenants. In case of death of one spouse, the other becomes the sole owner of the property without any tax consequences.

What are the special considerations for buying strata property?

There are a number of issues that buyers of strata property should be aware of.

Strata Bylaws can have certain restrictions such as on pets and rentals. It important to review Strata Bylaws before accepting a Contact for Purchase and Sale. It is also important to determine how parking and storage are allocated. If parking spots are not limited-common property, you may want to get a representation from the seller regarding parking.

There are also specific costs associated with strata. Strata properties charge monthly strata fees and may also charge move-in and move-out fees.

Disclaimer

Please remember that the information provided on this website is not legal advice and is intended as general information only. We try to keep this website as accurate and up-to-date as possible but laws, regulations, policies and practice are constantly changing. Please talk to one of our lawyers. Contact us