Western Conveyancing Protocol
Protocol for Saskatchewan
I. Purpose of Protocol
This Protocol prescribes the conditions precedent to the issuance of a Solicitor's Opinion under the Western Law Societies Conveyancing Protocol by a Saskatchewan solicitor in a transaction involving existing single family residential property having four or fewer units, including existing condominium units ("Existing Residential Property"). The Solicitor's Opinion under the Western Law Societies Conveyancing Protocol will not apply to new construction, multi family dwellings of greater than four units, commercial property transactions, or agricultural transactions. The Protocol is not a statement of substantive law, and is to be read in the context of describing procedural conditions necessary for the issuance of a Solicitor's Opinion under the Western Law Societies Conveyancing Protocol in Saskatchewan.
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II. The Solicitor's Opinion under the Western Law Societies Conveyancing Protocol
The Solicitor's Opinion under the Western Law Societies Conveyancing Protocol is an initiative of the Western provinces belonging to the Federation of Law Societies. It is also referred to as the "Western Torrens Project". The Solicitor's Opinion under the Western Law Societies Conveyancing Protocol is designed to allow participating lawyers the opportunity to expedite the closing of Existing Residential Property transactions. A properly issued Solicitor's Opinion under the Western Law Societies Conveyancing Protocol will:
1. Insure a lawyer for any loss incurred by a financial institution arising from intervening interests registered between the day before closing and the date of registration of the transfer and/or mortgage (the "Insured Period");
2. Insure a lawyer for any loss incurred by a financial institution arising from errors or omissions relating to:
- unknown zoning problems;
- unknown encroachments concerning the boundary of the property;
- the location of structures or improvements on the residential property;
- adjoining properties, which may have a material adverse affect on marketability; and
- the Mortgagee's interest in the residential property and of which the lawyer is unaware following compliance with the Protocol.
(Such survey/encroachment issues are hereinafter referred to in this Protocol and the Protocol Checklist as a "Survey Defect"). The lawyer must not assume responsibility for any loss resulting from a known Survey Defect.
3. Insure the lawyer for loss incurred by a purchaser arising from intervening interests registered during the Insured Period in relation to the registration of the transfer of land; and
4. Eliminate the lawyer's insurance deductible for any loss suffered after compliance with the Western Law Societies Conveyancing Protocol.
The insurance coverage will be subject to the condition that the lawyer has documented compliance with the Protocol Checklist for Saskatchewan, prior to the issuance of the Solicitor's Opinion under the Western Law Societies Conveyancing Protocol.
This Protocol sets out minimum standards for issuance of the Solicitor's Opinion under the Western Law Societies Conveyancing Protocol. The nature of any particular transaction and specific instructions received from a client will govern the lawyer's duty in every case. Lawyers are advised to obtain an acknowledgement of instructions from purchasers in every case.
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III. Protocol - Minimum Standards Prior to Issuance of the Solicitor's Opinion under the Western Law Societies Conveyancing Protocol
The Protocol is for use only with Existing Residential Property transactions and is available only to the solicitor acting for the purchaser of or owner refinancing Existing Residential Property. The Saskatchewan Practice Checklist should be referred to in all residential conveyances. The minimum searches which will be required to be undertaken prior to the issuance of the Solicitor's Opinion under the Western Law Societies Conveyancing Protocol, are taken from the heading iii "Searches", of the Residential Purchase and Sale Checklist, Real Estate section of the Saskatchewan Practice Checklists. These minimum searches and compliance with the following are required:
- Complete the applicable searches and requirements referred to in heading iii "Searches", items 1-10 inclusive. In addition you must:
- make arrangements to pay municipal taxes to comply with Mortgagee instructions;
- order a writ registry search on all purchasers (exactly as they will be designated on title) and updated title search. The writ registry searches on the purchasers and the updated title search must be obtained on the day prior to closing date;
- identify that each registered interest either does not adversely affect the Mortgagee's security and is accepted, or arrange to obtain discharges or withdrawals of unacceptable registered interests;
- If your client is purchasing a condominium, you must also obtain the searches specified under the heading iii "Searches", item 11. If the property is an existing condominium, the specific minimum standard with respect to an estoppel certificate is to obtain a certificate in Form "Z" pursuant to The Condominium Property Act, 1993. The minimum standard for insurance is to obtain confirmation that a policy is in place with loss payable to the condominium corporation, or the condominium owner, if applicable. Note: Additional review of budgets, bylaws, parking, reserve funds and other aspects of the transaction with the purchaser are recommended.
- Section C13 must be satisfied. The minimum standard will require compliance with The Homesteads Act, 1989, for purchasers' documents.
- The minimum standards will require the lawyer to consider heading iii "Searches", items 20-21 inclusive of the Saskatchewan Practice Checklists. Any available surveyor's certificate/real property report and building information abstract/siting certificate/zoning memorandums/compliance certificate should be obtained. Information should be reviewed with the purchaser to determine if there is a possible Survey Defect. If so, the Mortgagee should be contacted to obtain instructions to obtain a current Real Property Report and/or building information, abstract/siting certificate/zoning memorandums/compliance certificate, or confirmation that the Mortgagee accepts the potential Survey Defect. Also, lawyers are strongly encouraged to obtain a purchaser acknowledgement of instructions with respect to surveys/real property reports, obtaining condominium plans, building information abstracts/siting certificates/zoning memorandums/ compliance certificates.
Note: The minimum standard for issuing a Solicitor's Opinion under the Western Law Societies Conveyancing Protocol will apply to the purchasers' lawyers only, but vendors' lawyers are reminded of the importance of heading iii "Searches", items 15-19 and heading xi "Trust Conditions and Undertakings".
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IV. Notification of Vendor's Solicitor
The purchaser's solicitor must notify the vendor's solicitor that the Existing Residential Property transaction is to be closed using the Western Law Societies Conveyancing Protocol. This will allow the vendor to release funds on the closing date.
V. Purchaser's Documents
The purchaser's documents should be prepared in accordance with heading v "Prepare Purchaser's Documents" of the Residential Purchase and Sale Checklist, Real Estate section of the Saskatchewan Practice Checklists. Minimum standards will include compliance with heading v "Prepare Purchaser's Documents", items 3, 5, 6, 7, 8, 9.
In order to issue the Solicitor's Opinion under the Western Law Societies Conveyancing Protocol, the mortgage documents must be prepared in accordance with the Mortgagee's instructions. The Solicitor's Opinion under the Western Law Societies Conveyancing Protocol will remove the requirement for the provision of some searches and reports, but documents must still be completed in accordance with the Mortgagee's instructions. The Protocol Checklist identifies the recommended procedure for submission of documents to Information Services Corporation (ISC), and the recommended procedure for confirmation of registration.
VI. Vendor's Documents
The vendor's documents, including the transfer authorization, must be reasonably reviewed to determine if there are errors that must be corrected prior to submission to ISC. Such reasonable review will include:
- Checking the accuracy of the title numbers in the transfer;
- Checking the accuracy of the transferee designation;
- Checking for proper execution; and
- Checking if there has been compliance with The Homesteads Act, 1989.
Verify that insurance is in effect in accordance with the Mortgagee's instructions by way of binder letter from an insurance agent. The Mortgagee must be listed as the applicable loss payee to satisfy the Mortgagee's instructions, and the policy must contain a standard mortgage clause approved by the Insurance Bureau of Canada. Carefully check to see if co-insurance is prohibited.
Prior to issuing the Solicitor's Opinion under the Western Law Societies Conveyancing Protocol, the responsible lawyer must complete and sign the certification portion of the prescribed Protocol Checklist.
IX. Trust Conditions
Prior to issuing the Solicitor's Opinion under the Western Law Societies Conveyancing Protocol, the lawyer must carefully review the trust conditions and undertakings provided with the transfer authorization. The trust conditions must be such that they can be complied with, and the undertakings must be appropriate to conclude the transaction contracted for. The individual trust conditions and undertakings will depend on the particular transaction, but the trust conditions approved for use with the Western Law Societies Conveyancing Protocol, must satisfy the minimum format for trust conditions.
X. Issue of Approved Solicitor's Option
Following execution of certification, forward the approved solicitor's opinion to the Mortgagee.
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