Real Estate Lawyer or Any Lawyer for Your Alberta Home Purchase?

You have an offer in mind or an accepted contract, and you already have a lawyer you trust for your family or your business. It is natural to ask whether that person can simply handle the house purchase too.

The short answer is that it depends on the lawyer, the transaction and any conflicts. This article explains what the law says about who can do the work, what Alberta conveyancing involves, and how to judge whether your lawyer is a good fit.

This article covers the law of Alberta.

Do you have to hire a lawyer at all?

No Alberta government page reviewed says a buyer is legally required to hire a lawyer. The Land Titles page says documents can be registered at a Land Titles office and only suggests getting legal advice and help when dealing with property.

Your lender or your purchase contract may still expect a lawyer to be involved. Those are practical requirements rather than statutory ones, so check your own mortgage commitment and contract to see what applies to you.

If you do want legal advice, the rule on who can give it is strict. With certain exceptions, only an active member of the Law Society of Alberta can practise as a barrister or solicitor, and only lawyers can give legal advice. Title review, drafting and legal advice on a purchase are therefore reserved to lawyers, not to realtors or notaries.

Can any lawyer act on your purchase?

Any active member of the Law Society of Alberta is allowed to practise as a lawyer. The exceptions to the lawyer-only rule cover articling students, Court of Justice agents and university law students, and conveyancing is not listed as an exemption.

Being allowed to act is not the same as being comfortable with the work. A family lawyer who handles wills or separation agreements, or a business lawyer who handles contracts, may rarely register a transfer and mortgage. That does not rule them out, but it is fair to ask how often they do this work and who in their office will handle your file.

What Alberta conveyancing experience actually matters

A purchase is more than reading a contract. These are the parts where familiarity with Alberta practice shows up:

• Registration: the purchase is completed by registering an Application for Transfer of Land (form LTS14766) at Land Titles, and the mortgage is registered on the mortgage form.
• Timing: priority between instruments on the same land is decided by the serial number assigned on registration, not by the date of signing.
• Title checks: a title search shows the owner, mortgages, caveats, easements, builders' liens and other registered interests.
• Witnessing: an instrument signed in Alberta must be witnessed by a person who signs as witness and swears an affidavit in the prescribed form. If it is signed outside Alberta, different witnessing rules apply.
• Mortgage accuracy: the mortgage must accurately state the interest mortgaged and describe the land sufficiently, and errors can leave the lender's security defective.
• Fees: Land Titles fees and the registration levy are required at the time of submission, which is why a lawyer's trust account usually handles them.

None of these is mysterious, but each has a way of going wrong if it is done rarely or in a hurry.

Conflicts that can rule your lawyer out

The Law Society's Code of Conduct bars a lawyer from acting against a former client without that client's consent. A family or business lawyer who has acted for the seller or the lender could therefore be barred from acting for you.

Joint arrangements are a separate issue. Before acting for more than one client in the same matter, a lawyer must get the clients' consent after explaining the advantages and disadvantages, and must warn that information is not confidential between them. A lawyer may act for both borrower and lender in appropriate mortgage transactions if both consent and all material information is disclosed to both. Where a conflict is likely to be high, joint retainers should not be accepted.

What to do next

Before you commit to your family or business lawyer, put a few plain questions to them. Their answers will tell you most of what you need to know.

• Ask how often they handle residential purchases and mortgages in Alberta.
• Ask who will actually do the Land Titles work on your file.
• Tell them the names of the seller and your lender so they can check for conflicts.
• Ask whether they will act for you alone or also for the lender, and what that means for confidentiality.
• Check your mortgage commitment and purchase contract for any lawyer requirement.
• If you are unsure, speak with a lawyer about your specific purchase before any deadline in your contract.

Frequently asked questions