Lawyer or Notary for Buying a Home in BC: Who Can Handle Your Purchase?

When you buy a home in British Columbia, someone has to prepare the transfer and any mortgage documents, register them, and make sure the tax is dealt with. Many buyers wonder whether that has to be a lawyer, whether a notary public will do, or whether they can handle it themselves.

The short answer is that the law gives you more than one route, each with limits. This article explains who can do what, where the limits are, and what to ask before you choose.

This article covers the law of British Columbia.

What a notary public can do on a home purchase

Under the Notaries Act, a notary public who is enrolled and in good standing may draw instruments relating to property that are meant to be registered, recorded or filed in a registry or other public office. In practice, that means a notary can prepare transfers and mortgages for registration.

The Legal Profession Act generally reserves the practice of law to practising lawyers, and its definition of the practice of law includes drawing an instrument relating to real or personal estate that is meant to be registered in a public registry. That definition excludes the lawful practice of a notary public. This is why a notary can lawfully do conveyancing work that would otherwise be restricted.

Limits on what notaries can do

A notary's powers are tied to section 18 of the Notaries Act and to duties authorized by other Acts. Notaries may draw only certain wills. A member who is not in good standing must not act as a notary.

Acting without authorization is an offence under the Notaries Act, with a fine of up to $2,000. For you as a buyer, the practical point is to confirm that the person you hire is enrolled and in good standing before you sign anything.

• Ask whether the person is a practising lawyer or an enrolled notary public.
• Ask them to confirm they are in good standing.
• Ask what they will prepare, register and file for you.
• If your purchase has unusual features, ask whether it falls within what they can handle.

Can you do it yourself?

The Legal Profession Act lists exceptions to the rule that only a practising lawyer may practise law, and one of them covers an individual party acting without counsel solely on their own behalf. So the law does allow a buyer to act for themselves. Even so, the registered documents are normally prepared and filed by a lawyer or notary.

Doing it yourself means taking on the responsibility for getting the documents and the tax return right. If you are borrowing to buy, your lender may also have its own requirements, so check with them early.

Filing, electronic submission and the property transfer tax

Under the Land Title Act, an application can be submitted electronically by the applicant, the applicant's solicitor or agent, or a person they authorize. The director may also direct that certain documents be submitted only electronically, and if such a direction applies the document cannot be submitted another way unless the registrar decides otherwise. Because these rules can change, check the Land Title and Survey Authority (LTSA) for the current e-filing requirements.

On the tax side, the buyer, as the person receiving title, must pay property transfer tax and file a return when applying to register a taxable transaction at a land title office. The return is usually filed by the buyer's legal professional, a lawyer or notary, with the transfer. Because the tax is a closing cost, it is normally paid through the conveyancer on completion.

This matters because the registrar may refuse an application if there are reasonable grounds to believe the tax is unpaid or the return is incomplete or unfiled.

What to do next

• Decide whether you want a lawyer or a notary public, or whether you plan to act for yourself.
• Confirm their standing before you hire them.
• Ask who will file the property transfer tax return and how the tax will be paid on completion.
• Ask who will submit the registration documents and how.
• Check the LTSA for current e-filing rules.
• Raise any unusual issues, such as a new build, a foreign buyer or a first-time buyer exemption, with your legal professional early.

If you are unsure whether your purchase is straightforward, a lawyer can help you confirm who is the right person to handle it.

Frequently asked questions