Do I Need a Real Estate Lawyer or Can Any Alberta Lawyer Help?

If you already have a family or general practice lawyer, it is natural to ask whether that person can handle your home purchase. Whether they can depends on the lawyer and on whether they are comfortable doing the specific work a purchase involves.

This article explains who is allowed to do the legal work, what a purchase actually demands, and the questions to ask before you hire anyone.

This article covers the law of Alberta.

What the law requires and what it does not

Alberta's Land Titles page explains that documents can be registered at a Land Titles office, and it only suggests getting legal advice and help when dealing with property. Alberta's Land Titles guidance does not frame a lawyer as a legal requirement for a buyer. If your lender or another party asks you to use a lawyer, that is a practical requirement rather than a statutory one.

If you want legal advice, though, it must come from a lawyer. With certain exceptions, only an active member of the Law Society of Alberta can practise as a barrister or solicitor. Title review, drafting and legal advice on a purchase is reserved to Alberta lawyers, not to realtors or notaries. The exceptions cover articling students, Court of Justice agents and university law students, and conveyancing is not listed as an exemption.

Nothing in this means a lawyer must be labelled a real estate lawyer. It does mean the lawyer must be a Law Society of Alberta member who can competently do the work.

What a home purchase actually involves

The experience that matters is practical. A purchase generally involves these steps, and a lawyer should be able to explain how they handle each one.

• Title search: it shows the current owner, mortgages, caveats, easements, builders' liens and other registered interests.
• Reading the title: a certificate of title is conclusive proof in all courts that the named person owns the land for the estate stated, but that does not apply to cases such as fraud in which the owner participated or land included by wrong description of boundaries.
• Registration: the purchase is completed by registering an Application for Transfer of Land (form LTS14766), and the mortgage is registered on the mortgage form.
• Mortgage documents: a mortgagor must execute a mortgage in the prescribed form or to the like effect, and it must accurately state the interest mortgaged and describe the land sufficiently, as errors can leave the lender's security defective. Lenders commonly use a standard form mortgage filed with the Registrar, and a mortgage that refers to that form's identifying number has the same effect as if it set out the full standard terms.
• Signing and witnessing: an instrument signed in Alberta must be witnessed by a person who makes an affidavit in the prescribed form.
• Paying fees: the Registrar will not act until the prescribed fees are received, so fees and levy are paid at submission.

Why timing and details matter

Alberta uses the Torrens system under the Land Titles Act, and registering documents is what creates and ends legal rights in the land. Once registered, an instrument becomes operative according to its tenor and intent, so registration is what transfers or charges the interest. Priority between competing instruments is decided by the serial number assigned on registration, not the date of signing.

Some details are easy to miss. If a document is signed outside Alberta, a different witnessing rule applies, with one witness appearing before a listed official such as a judge, commissioner or notary. A person cannot witness an instrument if they are a party to it or a spouse consenting under the Dower Act. There is also a Land Titles Registration Levy for submissions received on or after October 20, 2024, which for transfers and mortgages is $5 per $5,000 of property value.

A lawyer who does this work regularly will know these points. A lawyer who does not may still handle your purchase, but it is fair to ask how they will manage them.

Conflicts and one lawyer for both sides

Before acting for more than one client in the same matter, a lawyer must get the clients' consent after explaining the advantages and disadvantages of a joint retainer. The lawyer must also warn that information is not confidential between the clients and that the lawyer may have to withdraw if a conflict cannot be resolved. A lawyer may act for both borrower and lender in appropriate mortgage or loan transactions if both consent, and must disclose all material information to both. Where a conflict is likely to be high, joint retainers should not be accepted.

Your family lawyer's history may also matter. A lawyer cannot act against a former client without that client's consent, so a family or business lawyer who has acted for the seller or the lender could be barred from acting for you. Tell any lawyer you approach who the seller and lender are, so they can check.

What to do next

Before you choose, have a short conversation with the lawyer. These questions help you judge whether they are a fit.

• Do you regularly handle residential purchases, including title review and Land Titles registration?
• How do you review the title search and what do you do if something unexpected appears?
• Do you handle the mortgage documents, and will you act for my lender as well as me?
• Will you check for any conflict with the seller or lender before accepting my file?
• How will the Land Titles fees and levy be paid at registration?
• What happens if a closing date or condition changes?

If the lawyer is not comfortable with a purchase, a good one will tell you and may refer you elsewhere. Contact a lawyer before your condition dates run out, not after.

Frequently asked questions