Do You Need a Lawyer or Notary to Sell a House in BC?

Many sellers ask whether the law forces them to hire a lawyer to sell a home. The more useful question is who is allowed to prepare the documents, and what that person actually does for you on completion day.

This article explains who can draw the transfer in British Columbia, what the seller's side of conveyancing involves, and what to sort out before you sign a contract.

This article covers the law of British Columbia.

Who can prepare the transfer

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

A notary public who is enrolled and in good standing may draw property instruments that are intended, permitted or required to be registered, so a notary, as well as a lawyer, can prepare a transfer. Acting as a notary without authorization is an offence with a fine of up to $2,000.

• A notary not in good standing must not act.
• A commissioned notary appointed under section 15 of the Notaries Act may have narrower powers limited to a geographic area.
• Practising lawyers are exempt from the licensing rules for real estate services when acting in the course of practice.

So a notary, as well as a lawyer, can prepare the transfer. Whether your lender, the buyer's side or your own situation makes one preferable is worth confirming before you commit.

Is the real estate licensee your conveyancer?

No. A real estate licensee handles the listing, marketing and offers. A person must not provide real estate services to or on behalf of another for remuneration unless licensed or exempt, and an unlicensed helper cannot sue for a commission. That licensing rule is aimed at people acting for others, not at an owner dealing with their own property.

Licensing is a separate matter from the legal paperwork of transferring title, which is the conveyancer's role.

What the conveyancer does on the seller's side

The exact adjustments and timing depend on your contract and your property, so ask your conveyancer for a statement of adjustments before completion.

Situations where legal help matters more

• You have a tenant: a sale does not itself end a tenancy. Before possession, the buyer submits a written request and you, as current landlord, give the tenant a three month notice on form RTB-32P. The buyer or a close family member must intend in good faith to occupy, you must pay one month's rent compensation on or before the effective date, the notice must be generated through the Residential Tenancy Branch web portal or it is unenforceable, it cannot be a condition of the sale, and the tenant has 21 days to dispute.
• You are selling as executor or trustee: executors, administrators and trustees under a will are among those exempt from licensing, but estate sales raise their own questions.
• The contract is unclear: a contract respecting land generally needs a signed writing or acts showing it was made, and paying a deposit counts as such an act.
• You may owe tax on the sale: principal residence reporting and exceptions can be technical.

Listing paperwork and disclosures around the sale

Several documents and disclosures come before the conveyancer's work begins. They involve your real estate brokerage rather than your lawyer or notary, but it helps to know what to expect.

• A brokerage acting for you must have a written service agreement (listing agreement) unless you waive it, and it must be entered into before the brokerage represents you in offering the property.
• The agreement must be signed by you and an authorized signatory of the brokerage, and must state the property address, effective date, expiry date, a description of services, and the remuneration and when it is payable.
• Amendments must be in writing and signed by you and the brokerage, and you must be given a copy of any written agreement immediately on execution.
• When an offer is presented, your licensee must give you a disclosure in the approved form of what you pay the listing brokerage, any payment to the buyer's brokerage, and what the listing brokerage keeps, with money amounts in dollars.
• Remuneration based on the difference between the listed price and the actual sale price is barred.
• A licensee acting for you must disclose known material latent defects to the other parties before any agreement is entered into, unless the other party has already received written disclosure of that defect from you.

The buyer, not the seller, is liable for property transfer tax, and a qualifying first time home buyer is exempt from it. How all of this applies to your sale depends on your situation, so it is worth confirming with a lawyer.

What to do next

• Decide whether a lawyer or a notary will act for you, and tell your listing licensee.
• Keep your mortgage statement and lender contact details handy.
• Collect strata documents if you own a condo or townhouse.
• Ask for the contract of purchase and sale to be reviewed before you sign it.
• Speak with an accountant about reporting the sale on your tax return.

Frequently asked questions