Lawyer or Notary for Your BC Home Purchase: Who Can Do It?

Buying a home involves more than agreeing on a price. Title has to move into your name at the Land Title Office, a mortgage may have to be registered, and property transfer tax has to be dealt with. This work is called the conveyance, and many buyers wonder who is allowed to do it.

In British Columbia the answer is usually a lawyer or a notary public. This article explains where each one fits, what the law says about doing it yourself, and how the tax return and electronic filing work. Your own situation may add details, so a lawyer can confirm what applies to you.

This article covers the law of British Columbia.

What the conveyance involves

The conveyance is the legal paperwork that moves ownership from the seller to you. It includes preparing the transfer, any mortgage documents, the tax return and the registration at the Land Title Office. It also covers the money side of closing, because the property transfer tax is a closing cost that is normally paid through the conveyancer on completion.

Because these documents are meant to be registered in a public office, the law pays close attention to who may prepare them.

Who can prepare the documents

Only a practising lawyer may practise law, subject to listed exceptions. The definition of the practice of law includes drawing, revising or settling an instrument relating to real or personal estate that is meant to be registered in a public registry. It excludes the lawful practice of a notary public.

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. That means notaries can prepare transfers and mortgages for registration.

The limits on notaries

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, with a fine of up to $2,000.

• Ask whether the person is an enrolled notary in good standing or a practising lawyer.
• If your purchase has unusual features, such as a complicated ownership structure or a dispute, ask whether a notary or a lawyer is the better fit.
• Wills and estate planning are a separate matter, and a notary's authority over wills is limited.

Can you do it yourself?

A party acting without counsel solely on their own behalf is one of the listed exceptions in the Legal Profession Act, so the law does allow it. In practice, the registered documents are normally prepared and filed by a lawyer or notary.

One reason is the property transfer tax. The buyer, as the person receiving title, must pay the tax and file a return when applying to register. The registrar may refuse an application if there are reasonable grounds to believe the tax is unpaid or the return is incomplete or not filed. A mistake can therefore delay your registration.

Electronic filing adds another layer. An application may 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. If that applies, the document cannot be submitted another way unless the registrar decides otherwise. Check the current Land Title and Survey Authority directions on who may e-file before you assume you can file something yourself.

Property transfer tax and your conveyancer

Buyers file a property transfer tax return, usually done by their legal professional, with the transfer at the Land Title Office. The general rates are 1% on the portion up to $200,000, 2% on the portion above $200,000 up to $2,000,000, and 3% above $2,000,000. A further 2% applies to the residential value above $3,000,000.

There are exceptions, such as the first-time home buyers' program and the newly built home exemption. Whether you qualify depends on your own facts, and your legal professional applies an exemption on the return.

What to do next

• Decide early whether you want a lawyer or a notary, and contact them before you remove conditions on your offer.
• Confirm that a notary is enrolled and in good standing, or that a lawyer is practising.
• Tell them if you may qualify for a PTT exemption, so it is claimed on the return at registration.
• Ask who will file the documents electronically and how you will authorize them.
• Set aside funds for the property transfer tax, which is a closing cost normally paid through the conveyancer on completion. Ask your legal professional what other closing costs to expect.
• If anything about your purchase is unusual, get advice from a lawyer before you sign.

Frequently asked questions