Western Conveyancing Protocol
Features
I. Introduction
The Western Law Societies Conveyancing Protocol involves all four western provinces. The most significant developments are that a standard form of opinion will be offered to financial institutions operating in all four western provinces, and transactions can be closed on time. This will be advantageous for conveyancing practitioners and for financial institutions. Each province was able to develop its own protocol and procedure in relation to the initiative. In Saskatchewan, we have the benefit of the Saskatchewan Practice Checklist, published by the Law Society of Saskatchewan and Saskatchewan Legal Education Society Inc. These practice standards form the basis of the Protocol Checklist, and the efforts of the authors and commentators are hereby acknowledged. As a result of the Real Estate section of the Saskatchewan Practice Checklists, the Protocol and related documents required for this initiative are very concise.
II. Key Features
Subject to documented compliance with the Protocol Checklist, lawyers enhance the services offered by the Protocol:
- by closing the "registration gap," which is the period from the date of submission to the date of registration (also called the "Insured Period")
- by eliminating the financial institutions need for a Zoning certificate and a Real Property Report;
- by providing financial institutions a standard short form of report; and
- by reducing potential defences arising from mortgage execution through continuing the provision of legal services.
III. Application
The Protocol applies to existing, single-family residential properties, including existing condominiums units. The Protocol applies to mortgages granted in favour of participating financial institutions, and will apply to mortgages for any purpose including financing the purchase price of land. The Protocol will also apply to "cash" transactions where the purchaser's solicitor certifies compliance. The Protocol does not apply in the following circumstances:
1. New construction - The Protocol does not apply to new construction because of concerns surrounding issues such as:
- absence of consistent construction contract terms;
- impact of The Builders' Lien Act; and
- seasonal and/or deficiency holdbacks.
2. Commercial financing and refinancing - The Protocol does not apply to commercial financing and refinancing because of concerns surrounding issues such as:
- variety of commercial purchase and refinance contracts and products;
- interplay with asset purchases, security interests and potential priority issues; and
- liability and underwriting concerns.
3. Farm land mortgages and refinancing, including acreages - The Protocol does not apply to farm land mortgages and refinancing because of concerns surrounding issues such as:
- at this time, the Protocol is designed for residential property, not for transactions of a commercial nature;
- the Protocol and Protocol Checklist are not designed to include potential concerns under The Saskatchewan Farm Security Act; and
- liability and underwriting concerns.
Any concerns as to the application of the Protocol can be addressed to Stephen McLellan, Saskatchewan Lawyers Insurance Association Inc. The use of the Protocol, and compliance with the Protocol Checklist, will result in the lawyer being insured for transaction without the application of a deductible.
IV. Purchaser's Interests
It must be stressed that the Protocol does not protect the lawyer from a deductible claim in relation to a purchaser's claim for damages arising out of a survey or zoning defect. The lawyer will be insured for loss incurred by a purchaser arising from error or omissions in relation to the registration of the transfer of land during the Insured Period. Therefore, it is recommended that each lawyer consider and implement a form of purchaser's acknowledgement of instructions. Please see Attachments for a sample format.
V. Protocol Closing Procedures
A significant benefit of the Protocol is that conveyancing practice will be more standard across the province. Through standard use of the Protocol Checklist by practitioners it is also anticipated that fewer practice claims may actually arise. It is the purchaser's solicitor that will be completing the Protocol Checklist and certifying compliance with the Protocol Checklist and issuing the solicitor's opinion for the transaction. However, as part of the Protocol Checklist, the purchaser's solicitor must carefully review trust conditions and undertakings. Agreement on the trust conditions and undertakings with the vendor's lawyer is essential. Use of an approved standard trust condition format will reduce possible conflict between solicitors. It will also mean that if proper use is made of the approved trust condition letter, there will be deemed compliance with the Protocol. It is possible that acceptance of trust conditions, other than the approved standard, may result in the solicitor not being able to rely on the coverage extended to the lawyer under the Protocol. Please see Attachments for the approved trust condition letter.
The Protocol Checklist establishes a critical closing procedure in relation to Writ Registry searches. In many firms Writ Registry searches will be done at the time of receipt of instructions. While it may be good practice to determine whether any potential problems will arise as early in the transaction as possible, for the purposes of the Protocol Checklist it is extremely important that a Writ Registry search be done on the working date prior to closing. The Protocol is designed to protect the solicitor against interests arising during the Insured Period only, not the entire period of time since the initial searches were conducted.
Once the Writ Registry searches have been performed, the Protocol Checklist must be reviewed in its entirety by the responsible lawyer and the certification must be completed prior to issuing the solicitor's opinion and closing the transaction. The post-closing obligations of the parties remain in place, pursuant to the trust conditions and undertakings. The approved trust conditions address the responsibility to correct documents, in the event that documents are rejected by the Land Registry. If the Land Registry proceeds with on-line submission, and eventually on-line registration, minor changes to the approved trust letter, the Protocol, and the Protocol Checklist may be required. Current documents will be available at the Law Society of Saskatchewan website.
Once the Writ Registry searches have been completed and the Protocol Checklist has been reviewed and certified, the short-form opinion can be released and the transaction can be completed by paying funds to the vendor's solicitor. As the Protocol protects both the Purchaser and the Mortgagee against intervening interests during the Insured Period, the Vendor's funds are immediately releasable by the Vendor's solicitor, subject to complying with trust conditions and undertakings.
VI. Fees
No additional fee or charge is applicable to the use of Protocol at this time. This enhanced service may warrant some consideration for legal fees to be charged consistent with the suggested tariff of fees.
VII. Attachments
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