Do I Need a Lawyer to Sell My House in British Columbia?

Selling a house means a contract, a transfer of title and a final accounting. Many sellers wonder whether they must hire a lawyer for that work or whether someone else can do it.

This article explains who can prepare the paperwork in British Columbia, what that person generally does, and how this differs from the work of a real estate licensee.

This article covers the law of British Columbia.

Who can prepare the transfer?

A notary public who is enrolled and in good standing may draw instruments relating to property that are intended, permitted or required to be registered. That means a notary, as well as a lawyer, can prepare a transfer.

There are limits. A notary who is not in good standing must not act, and a commissioned notary may have narrower powers limited to a geographic area. Acting as a notary without authorization is an offence with a fine of up to $2,000.

Whether the law forces you to use either professional on your own sale is a question to confirm with a lawyer or notary. In practice, most sellers use one of them for the paperwork.

What the professional does on a sale

A person transferring land in fee simple must deliver to the buyer a transfer that is registrable under the Land Title Act. This is the seller's core completion obligation.

A contract about land is generally not enforceable unless it is in writing signed by the party to be charged. There are other routes, such as acts showing a contract was made, and accepting a deposit counts as one of those acts. A short lease of 3 years or less is excluded from the writing requirement. For a house sale, you should treat the written contract as essential.

• Preparing the transfer so it can be registered.
• Dealing with any objection the buyer raises about title. Either party may apply summarily to the Supreme Court about a requisition or objection to title, except where the question affects the contract's existence or validity.
• Working out what must be paid off from your sale proceeds, such as a mortgage. For some mortgages that are not payable until more than five years after they were made, the borrower may pay off the amount owing plus three months' interest after five years, with no further interest chargeable. Mortgages given by corporations and certain prescribed entities are excluded from that rule.

Lawyer or notary versus real estate licensee

A real estate licensee and a lawyer or notary do different jobs. The licensee markets the home and works under a listing agreement. The lawyer or notary handles the legal transfer.

If you list with a brokerage, you generally need a written service agreement signed by you and an authorized signatory of the brokerage, unless you waive it. It must state the property address, the effective and expiry dates, the services, and the remuneration and when it is payable. Any amendment must also be in writing and signed, and you must receive a copy immediately on signing.

Licensing rules apply to people providing real estate services to or on behalf of another for remuneration, so they are aimed at people acting for others rather than an owner dealing with their own property. If you plan to sell privately, ask a lawyer about how the rest of the process works.

Costs that are not yours

Property transfer tax is the buyer's obligation, not a seller cost. The buyer pays it and files the return when applying to register a taxable transaction. A qualifying first time home buyer is exempt, which affects the buyer's costs rather than your proceeds.

What to do next

• Decide whether a lawyer or a notary in good standing will prepare your transfer.
• Gather your title documents, mortgage details and any listing agreement.
• Ask what the professional will review, and what they expect from you before completion.
• Have the sale contract reviewed before you sign it.
• Ask an accountant or lawyer about reporting the sale on your tax return.

Frequently asked questions