Notary or Lawyer? Who Handles Your Home Purchase in BC

In most BC home purchases, a lawyer or a notary public handles the legal side, from the title search to registering you as the owner, and sellers usually hire one too. Here is what each can and can't do, when a lawyer is the better choice, and what happens behind the scenes before you get your keys.

The short version

Two professions, two regulators

• Lawyers. The Law Society of British Columbia regulates lawyers under the Legal Profession Act. A lawyer can do any kind of legal work, including advising you in a dispute and representing you in court.
• Notaries public. BC notaries are regulated by the Society of Notaries Public of British Columbia under the Notaries Act. To qualify, they need a law degree or Simon Fraser University's Master of Arts in Applied Legal Studies, and they must pass the Society's statutory exams.

A 2024 law, the Legal Professions Act, would put lawyers, notaries and a new group of regulated paralegals under one regulator. Apart from a few sections, such as those setting up a transitional board, it is not in force, so each profession still has its own.

What a notary can and can't do

Section 18 of the Notaries Act sets out what a notary may do. For buyers and sellers, the main items are:

• Property documents. Documents relating to property that are registered or filed in a public registry, such as the land title office, and contracts.
• Planning documents. Wills of certain kinds, powers of attorney, representation agreements and advance directives.
• Sworn documents. Affidavits, statutory declarations and oaths.

The Society of Notaries Public says notaries work only on non-contentious matters, where the parties agree, and don't represent clients in court or take part in an adversarial process. At a first meeting, a notary will tell you if you may need a lawyer instead.

When a lawyer is the better choice

• A dispute, or the risk of one. If the other side may not complete, the deposit is in dispute, or a problem could end in a lawsuit, you want someone who can advise you and go to court if needed.
• A title problem. A title can show charges such as judgments, builders lien claims, easements and covenants. If one blocks your plans and may have to be fought, a lawyer can take it further.
• An estate or a separation. Buying from an estate or selling as an executor can raise questions about the will and the grant of probate, and in a separation, dividing the home is a family law question. I cover both in Selling a Home as an Executor and Separation and the Family Home.
• A company or trust buying. Besides the transparency declaration every buyer files, a corporation, trustee or partner generally must file a transparency report naming the individuals behind it, which the Land Title and Survey Authority (LTSA) requires a legal professional to submit. Structure and tax questions are worth taking to a lawyer and an accountant.
• An unusual deal. Some deals go beyond a standard transfer, such as a mortgage back from the buyer to the seller, an agreement for sale, a building with more than three homes, a home with major work under way when the contract was signed, or a sale that includes a business. The Law Society's conduct rules say these are never simple conveyances, so one lawyer generally can't act for both sides.

What happens in a purchase

Once your subjects are removed, send your lawyer or notary the contract. From there, they generally:

• Search the title. They check who owns the home and what is registered against it, and make sure the seller's mortgage will be discharged. For a strata home, they get the Form B information certificate, a certificate of payment and the strata's certificate of insurance.
• Prepare the documents. The transfer (Form A), which goes to the seller's lawyer or notary for signing, the property transfer tax return and your transparency declaration. They will ask how you want to hold title, which I explain in Joint Tenancy or Tenants in Common?
• Handle your mortgage. They take instructions from your lender, make sure its required documents are in place and explain the mortgage terms to you.
• Work out the numbers. A statement of adjustments shows exactly how much you need on completion, including adjustments such as property taxes.
• Collect and hold your money. You sign your documents and provide your down payment and closing costs on, or a few days before, the completion date. They hold the money in trust, and both professions have a way to compensate clients if a member steals it.
• Check your identity. Lawyers must verify your identity and record where your money comes from, and notaries have federal anti-money-laundering duties, so bring ID and be ready to show where your down payment comes from.
• Register and pay. On the completion date, they file the transfer and your mortgage electronically with the LTSA and pay the property transfer tax, which is due on the date the transfer is registered. Once registration is confirmed and they hold all the money, they pay the seller's side.

What sellers need them for

BCFSA says the buyer and the seller usually each engage a lawyer or notary. On the seller's side, yours will:

• Clear the title. They get a payout statement from your lender, pay off the mortgage from the sale proceeds and arrange the discharge. Most lenders file the release electronically, so you generally don't need to do anything after the payout.
• Have you sign the transfer. The buyer's side prepares it, and a lawyer, notary or other authorized person must witness your signature.
• Direct the money. You sign a direction to pay that tells them where the proceeds go, which can include the real estate commission. Compare it with your statement of adjustments, so nothing is paid twice.
• Pay you. After completion, they deliver the balance to you.

I go through the seller's side step by step in Selling Your Home in BC.

Fees and timing

• How they charge. The Law Society says lawyers often charge a fixed fee for buying a house. Notaries charge a fee for service and should tell you promptly, with the reason, if their estimate changes.
• What gets added. Disbursements, the costs paid on your behalf, such as search and registration fees, plus taxes. PST of 7% applies to legal services, whether a lawyer or a notary provides them, and GST generally applies to their fees as well. Under the Province's PST rules, disbursements that only pass on an out-of-pocket cost are generally not subject to PST.
• When to call. Choose one before you write an offer, so you know they can meet your dates, and send the contract as soon as the deal is firm.

Ask for a written estimate that shows the fee, the disbursements and the taxes.

How to choose one

• Check their standing. The Law Society's Lawyer Directory shows whether a lawyer is licensed to practise, along with any practice restrictions and discipline history. For a notary, check the Roll of Notaries on the Society of Notaries Public's website.
• Ask the right questions. How often do they handle your kind of purchase, such as a strata unit, a presale or an acreage? Who will look after your file? Can they go through the documents in Spanish or another language you prefer, and are they available around your completion date?
• Protect your money. People's Law School notes that using a lawyer or notary, and requiring the seller to use one, can help protect you from real estate fraud. Before you send funds, confirm the payment instructions by calling the office on a number you already have.
• Know about referral fees. If your REALTOR® expects a payment for recommending a lawyer or notary, BC's real estate rules require them to disclose it to you in writing.

Questions buyers and sellers often ask me

Do I need a lawyer or notary to buy a home in BC?

In practice, yes. The LTSA says fee simple transfers require a legal professional, and your lawyer or notary also registers your mortgage for your lender.

Can a notary handle my whole purchase, including the mortgage?

Yes. Notaries can prepare and register property documents, and the Society of Notaries Public lists home purchases and sales, property transfers and mortgage refinancing among their services. Not every notary offers every service, so ask.

When should I choose a lawyer instead of a notary?

When there is a dispute or a real chance of one, because notaries work only on non-contentious matters and don't go to court. A lawyer is also often the better fit for a title problem, an estate or separation, a company or trust buying, or an unusual contract.

When should I contact my lawyer or notary?

Choose one before you write an offer, and send them the contract as soon as your subjects are removed. Plan to sign your documents and provide your funds on, or a few days before, the completion date.

How much does a lawyer or notary charge?

It varies, so ask for a written estimate. Lawyers often charge a fixed fee for a house purchase, notaries charge a fee for service, and disbursements and taxes, including 7% PST, are added on top.

Getting ready to buy or sell? Read From Offer to Keys, Closing Costs in BC and What It Costs to Sell a Home in BC.

This article is general information, not legal advice. Details come from the Notaries Act, the LTSA, BCFSA and the two professions' regulators, and were current at the time of writing. For BCFSA's guide, see completing your purchase.