The preface to the 1994 version of the Practice Standards for Real Property Transactions in Nova Scotia noted:
“The Committee understands that some of the standards will be modified or replaced and new standards developed as practice evolves. This document, will, and should undergo revision, addition and deletion. This is intended to be a living document.”
New Roles and Responsibilities
The Land Registration Act (“LRA”) created a new relationship among the legal profession, the Nova Scotia Barristers’ Society (“the Society”). as the profession’s governing body, and the Government. Each player has its own role.
Lawyers are responsible for assisting their clients to migrate their properties to the land registration system. During the process of migration, the lawyer completes a final search of the historic title, gives an opinion on the quality of that title and certifies the nature of such title in the land parcel to both the client and the land registry system. These revised standards are intended to assist in clarifying the nature of the lawyer’s work and support the vital role of the lawyer as professional advisor.
The Society is contractually bound to stand behind lawyers who are qualified to certify titles to the land registry system. The Society is supporting real estate lawyers in their enhanced role under the LRA with the following:
- The provision of insurance and the assumption of liability for negligent errors or omissions;
- The development and maintenance of current professional standards;
- The creation of an audit program to ensure compliance with lawyers’ obligations under the LRA;
- The Legal Profession Act and applicable regulations; and
Format of Standards
Each Standard is laid out in a similar format. The text of the Standard is drafted by the Committee and forwarded to Council for approval. Each year the Committee reviews the Standards that require revision based on new case law and legislative or regulatory change. Each Standard contains footnotes which are references to the case law and legislation supporting the Standard. The Committee amends these references from time to time as applicable, and the approval of the Council of the Society is not required.
The Committee also provides “practice notes,” developed with a view to being more proactive within a changing area of law.
The Committee develops practice assistance guides, tools and checklists to support the day to day practice of the real estate practitioner. Although the checklists are the result of a careful consideration of each area of the law covered, these are guides only and are not intended to create or replace a standard. Each practitioner must use his or her own professional judgment when using such guides or checklists.
An attempt has been made to be comprehensive, but the checklists are not exhaustive, nor are they intended to impose mandatory guidelines for practice in any of the areas covered. In many cases, it will not be necessary to carry out all of the activities outlined in the checklists; in other cases, alternative procedures may be more appropriate. The checklists are intended primarily to assist in the organization of a matter and to suggest things that a lawyer should consider. A lawyer may find it useful to customize some of the checklists for use in his or her practice.
The Standards provide guidance in the exercise of discretion by the use of the words: “must,” “should” and “may” in the text. These words are used to direct a lawyer’s conduct and are to be interpreted as follows:
- (a) “must” means that the lawyer is required to follow the Standard. There is a legal (common law, statutory, or regulatory) requirement relating to the Standard. When a Standard uses “must” to require a lawyer to “determine”, “consider” or “ensure” or carry out similar actions, the lawyer is called upon to exercise professional judgement in carrying out those actions;
- (b) “should” means that the lawyer is required to follow the Standard; however, if the lawyer determines, in the exercise of professional judgment, that compliance is not appropriate under the circumstances, that decision rests with the lawyer; and
- (c) “may” means that it is an acceptable standard for the lawyer to follow, subject to the lawyer determining that compliance is an appropriate exercise of professional judgment.
New to these written standards, but not new to practice, is the requirement for written evidence that an issue was identified, that advice was given to a client and what the client’s instructions are.
The advice is to be given prior to receiving instructions and some form of written notation of the process is to be produced. The documentation may be achieved by various means – memos, email messages, written notes in the file, or correspondence to the client. The documentation is to be in the lawyer’s file. The case authorities that support Standard 1.5 show the value of such documentation. The presence of a written record will ensure the availability of the best evidence of the lawyer’s advice and the client’s instructions.
Citations of statutory references in the Standards do not include a reference to amendments to the statute, except for amendments made by the LRA. Therefore, the statutes cited in the Standards are to be read as amended – that is to say, to include any amendments which may have been made. For example, a reference in the Standards to a citation of the Vital Statistics Act includes all amendments to the Act, even though the amendments are not cited.
Lawyers are urged to obtain the latest updated consolidation of cited statutes and ensure that all amendments to a statute are included in the statutory review undertaken by the lawyer. It is particularly important for lawyers to check for the latest consolidations and amendments because a number of omnibus statutes, sometimes with names dissimilar to the names of amended statutes, have been enacted in recent years which amend a number of statutes referenced in the Standards.
The LRA introduced rules and relationships among the Government, the legal profession, and the Society, requiring the revision of standards for the real estate professional. Like their predecessors, they must be viewed as a work-in-progress to be amended and altered as necessary. They must be the subject of discussion among the profession as they are interpreted and applied.
Standards must also be seen as flexible and meant to apply to widely divergent situations. Through use and application they will mature, as will the practice that they support. They will enable and guide the exercise of professional judgment which is the foundation of the practice of real estate law.
Note: Introduction amended March 21, 2018
1. The background to the LRA and all details of the Registry 2000 Project have been reported on frequently to the profession since 1996. Relevant materials are available on the Registry 2000 website: http://www.gov.ns.ca/snsmr/property/registry/default.asp
2. Two types of new standards make this clear. Standard 1.1 – Legislative Review states a clear obligation for a lawyer to be familiar with legislation which will affect title and ownership. The new legislative regime created by the LRA made it obvious that this requirement be clearly stated. See also Standards 1.4 and 1.5. The LRA itself in Sections 73-75 has necessitated the development of standards to address Standard 3.2 – Possessory Title and prescriptive rights (Standard 3.3) which are new and are drafted in light of the specific statutory regime created to address these types of interests.