Can Any Alberta Lawyer Close Your Home Purchase? What Matters

You already have a lawyer you trust, perhaps for your business or your family matters. Now you are buying a home and wondering if that lawyer can handle the closing, or whether you need to find someone who does only real estate.

The short answer is that the law cares about whether the person is an Alberta lawyer and whether they can act for you without a conflict. Beyond that, how much real estate experience you want is a practical choice. This article explains what a closing involves so you can judge it.

This article covers the law of Alberta.

Does Alberta law require a lawyer at all?

No Alberta government page says a buyer must hire a lawyer. Alberta's Land Titles information only suggests getting legal advice and help when you deal with property.

What the law does restrict is who may give legal advice. With certain exceptions, only an active member of the Law Society of Alberta can practise as a barrister or solicitor, so reviewing title, drafting documents and advising on a purchase is reserved to Alberta lawyers, not to realtors or notaries.

The exceptions cover articling students, Court of Justice agents and university law students, and conveyancing is not listed as an exemption. Some lenders may also have their own requirements about who handles your closing. Those are practical rules rather than statutes, so ask your lender directly.

What a lawyer actually does on a purchase

A purchase is completed by registering an Application for Transfer of Land at Land Titles, and a mortgage is registered on the mortgage form. Registration, not signing alone, is what transfers or charges the interest.

Alberta uses the Torrens system under the Land Titles Act, and registering documents is what creates and ends legal rights in the land. That is why the steps below are more than paperwork:

• Searching title to see the current owner, mortgages, caveats, easements, builders' liens and other registered interests.
• Confirming the seller is the registered owner, because a certificate of title is generally conclusive proof of who owns the land, with some exceptions such as fraud the owner took part in or land included by a wrong boundary description.
• Arranging proper signing and witnessing, since an instrument signed in Alberta must be witnessed by a person who also makes an affidavit in the prescribed form.
• Making sure a mortgage is in the prescribed form, states the interest accurately and describes the land well enough to identify it, because errors can leave the lender's security defective.
• Registering promptly, because priority between instruments on the same land is decided by the serial number assigned on registration, not the signing date.

Why experience can matter, and where the law stops

If something goes wrong, the safety net is limited. You can sue the Registrar for damages if you lose an interest through an omission, mistake or error in a certificate of title, but the Act is not a substitute for checking title. A claim needs 3 months' written notice and must generally be brought within 6 years.

Protection for a buyer or mortgagee who relies on a registered owner who got there through fraud or error requires that they made all reasonable efforts to confirm the owner is the registered owner. Some losses, such as those from a person signing under legal disability, have no government compensation, and payments are capped by a formula, so full compensation is not guaranteed.

None of this says a lawyer must be labelled a real estate lawyer. It does show the work is detailed. A lawyer who closes purchases regularly will know these steps well. A lawyer who does not may still do the job well if they are careful, or may refer you on.

Conflicts: when your usual lawyer may not be able to act

A lawyer you already use is not automatically free to act. A lawyer cannot act against a former client without that client's consent, so a family or business lawyer who has acted for the seller or the lender could be barred from acting for you.

Many buyers also ask whether one lawyer can act for them and the lender. Before acting for more than one client in the same matter, a lawyer must get consent after explaining the advantages and disadvantages, be satisfied the arrangement serves each client, and warn that information is not confidential between the clients and that the lawyer may have to withdraw if a conflict cannot be resolved.

A lawyer may act for both borrower and lender in appropriate mortgage or loan transactions if both consent, and must disclose all material information to both. Where a conflict is likely to be high, joint retainers should not be accepted.

What to do next

Before you commit, have a short conversation with the lawyer you have in mind. These questions will tell you most of what you need:

• Are you an active member of the Law Society of Alberta?
• How often do you close home purchases and register transfers and mortgages?
• Have you ever acted for the seller, the lender or the real estate brokerage in this deal?
• Will you act for my lender too, and what would that mean for confidentiality?
• Who will search title, arrange signing and witnessing, and register the documents?
• What does my lender require of the person closing?

If the answers leave you unsure, it is reasonable to choose another lawyer or ask your usual lawyer for a referral. Do this early, before deadlines in your purchase contract get close, and confirm any specific questions with a lawyer.

Frequently asked questions