If you are acting for a purchaser and/or lender on a property purchase/finance transaction and you accept another lawyer’s undertaking to complete a step after closing, follow up on that undertaking. You obviously need to accept appropriate undertakings from other lawyers as part of your property conveyancing practice. That isn’t the problem. The problem is the lack of follow up after the transaction has closed. If another lawyer’s undertaking to you goes unfulfilled, the risk is YOUR risk. If a claim arises because a mortgage for a prior owner hasn’t been released and is causing a problem for your clients, it is a potential claim against YOU. It is your certificate of title to your client that is compromised.
When you accept an undertaking and close the transaction, don’t put the file in the closed file box. Keep it open until you have received confirmation that the Release of Mortgage has been recorded, that the Judgment has been removed, that the CRA certificate of compliance has been issued, etc. Whatever the outstanding issue might be, make sure you are satisfied it has been appropriately addressed before you shelve your file.
For the lawyer giving the undertaking, you have assumed an ethical obligation under the NSBS Code of Professional Conduct. Make every effort to fulfil your undertaking in a timely manner. A failure to do so could give rise to a Complaint to the Nova Scotia Barristers’ Society.
Whether providing or accepting the undertaking – follow up, follow up, follow up!
- Real Estate Professional Standard 4.6: Undertakings
- Nova Scotia Barristers’ Society, Code of Professional Conduct [rule 5.1-6: Undertakings; rule
7.2-11: Undertakings and Trust Conditions]
- Additional articles on Undertakings
- LIANS’ section on Undertakings
LIANSwers v83, September 2023