Notarial Procedures 2 Flashcards
Notaries Act
- Someone who acts as a Notary without authority can be fined upto $2000
Section 48(2)
Confirms that Notaries Public are - Persons to be considered to act as a Notary Public: draws, prepares, issues…”
Section 17(1)(a) - Authorizes a Notary to administer oaths and take solemn declaration sec 18.
Land Tax Deferment Act
A charge is filed against the property when taxes are deferred. In the case of jointly held property should one joint owner die and the property is transmitted to the survivor the tax deferment charge remains on title as long as the requirements under section 5 are met and a surviving spouse meets such a requirement.
Section 18 of the Notaries Act Authorizes Notaries to do what?
A member enrolled and in good standing may do the following:
(a) draw instruments relating to property which are intended, permitted or required to be filed in a registry includes contracts, etc.
(b) draw and supervise the execution of wills
- wills where the estate is distributed immediately upon death
- if beneficiaries predecease the will maker, their is a gift over to alternative beneficiaries immediately on death (thus no life estates)
- asset of deceased to vest in the beneficiary or class no later than when the youngest attains majority
(c) attest all instruments brought before the member for attestation;
(d) draw affidavits, affirmations or statutory declarations that may or are required to be administered, sworn, affirmed or made by the law of British Columbia, another province of Canada, Canada or another country;
(e) administer oaths;
- including drawing instruments for the purposes of the Representation Agreement Act;
- draw instruments relating to health care for the purposes of making advance directives, as defined in the Health Care (Consent) and Care Facility (Admission) Act;
- draw instruments for the purposes of the Power of Attorney Act;
(f) perform the duties authorized by an Act.
Section 18 of the Notaries Act outlines what a Notary CAN do, but reading in between the lines what is it that a Notary cannot do under section 18?
Both Section 18 of the Act, and Law Society vs. Macdonald
- A Notary Cannot draft a will that creates a life estate as s. 18 sets out that if the beneficiaries predecease the will maker, their is a gift over to alternative beneficiaries immediately on death (thus no life estates)
- That a Notary can not draft a trust in a will as the estate must vest immediately upon death
- A Notary can only make a trust for minors until the last in class reaches age of majority
- cannot draft inter vivos trusts, only can draft upon death
Notary Obligations to a Client for Builders Lien?
- for a notary, preparing a contract of purchase and sale for the client, you need to ensure that you do a hold back for strata and for new residential and if you do not you are acting negligently and are liable.
Hold back for Strata is 7% of the purchase for strata and will be released 55 days from the date of completion.
New construction is 10% and also released 55 days from completion.
only need a holdback account if it is over 100,000
How long do you have to file a lien for work completed but not paid?
45 days to file a lien
Once a builders lien has been filed?
- the builder files a lien, the owner then must give notice that they are aware of the builders lien
- this notice gives the builder who filed the lien to start a court proceeding “piss or get off the pot”..
- if the builder is not given the 21 days notice then the builder has a full year to proceed with an action.
Under the Assessment Act, the Assessment Authority must supply to each municipality and taxing treaty first nation an estimate of the total assessed value of each property class in the municipality by what date?
October 31st each year.
What statute makes provisions for the issuance and enforcement of a garnishing order?
Court Order Enforcement Act
The Land (Spouse) Protection Act provides protection for who and in what circumstances?
A spouse who is not on title to a matrimonial property.
Marital breakdown
Under the Escheat Act, if a corporation is dissolved and land owned by the
corporation escheats to the government, how long must the Attorney General
hold the land before disposing of it?
The Attorney General must hold the land for 2 years before disposing of the property.
What Statute describes the purpose of a Certificate of Completion?
Builders Lien Act - Sec 7
It is said that a statutory declaration is a “creature of statute”. What statute
creates that “creature”?
Evidence Act s. 41
The Business Corporations Act gives a company the capacity and the rights,
powers and privileges of what?
Under section 30 of the Business Corporation Act.
–> Of an individual of Full capacity.
This statute protects an individual against an insolvent person agreeing to a
judgment against that person for the sole purpose of defeating a claim against
that person by the individual.
Fraudulent Preference Act
Under the Land Tax Deferment Act a charge is filed against the property when
taxes are deferred. In the case of jointly held property, should one of the joint
owners die and the property is transmitted to the survivor, what must be done
to deal with the tax deferment charge?
You need to be Joint Tenants:
Conditions under section 5 must be met. So in this case since they are a surviving SPOUSE it would not terminate the deferral.
- Residential
- In BC for 1 year (12 Months)
This statute defines what comprises a family asset
Family Assets are now referred to as Family Property
It is defined under FLA
The Land Title Act limits the time that a power of attorney is effective for land
title purposes if it is not enduring. What is that time period?
3 years.
This statute makes provision for a person witnessing a will to receive a gift
from the deceased’s estate.
WESA s. 43
This statute defines a person who “draws, prepares, issues or revises a
document that is intended, permitted or required to be registered, recorded or
filed in a registry or other public office”.
Notaries Act. S. 17
This statute provides for the registration of a security interest in a land title
office.
Personal Property Security Act
This Regulation describes the activities designated as farm use.
Agricultural Land Reserve Use, Subdivision and Procedure Regulation
This governance describes the requirements and activities of a managing
broker.
Real Estate Council for the Real Estate Services Act.
With exceptions, this statute clearly states that an executor must not distribute
the deceased’s estate until 6 months have passed from the date of the issue of
a grant of probate.
180 days
Executors cannot distribute assets of a Will
How does the Law and Equity Act provide for protection if a seller defaults in
payments under an agreement for sale?
Under S. 25 of the Law and Equity Act, Court can relieve any person from consequences of default.
This statute defines “electronic signatures” and describes where they are to be
used.
Electronic signatures are defined under s. 168 of the Land Title Act and under 168.3 is where they are to be used.
This statute requires that the party to an agreement is to be consulted by a
lawyer before the agreement becomes effective.
Prior to 2011 Representation Agreement act stated that only lawyers could draft rep. agreements.
This statute applies to a developer who markets, in British Columbia, a
development unit.
REDMA ( Real Estate Development Marketing Act)
The Local Government Act provides “…the legal framework and foundation for
the establishment and continuation of local governments….”. Name 2 types of
“local government”.
Regional government
Municipal Government
This statute applies to any structure” … that is designed … to provide
residential accommodation and to be moved from one place to another by
being towed or carried.”
Manufactured Home Act
The Land Transfer Form Act explains its effect on 3 instruments. What are
these instruments?
Effect of Deed
Effect of Mortgage
Effect of Lease
This statute makes it unnecessary for any document dealing with a transfer or
a charge on property to be executed under seal.
S. 16 of the Property Law Act
You are acting for a buyer who has purchased property at fair market value
privately from a seller. After the fact, it is discovered that the seller transferred
his property in order to delay creditors of their remedies. The buyer is now
worried that he may lose the property. What statute applies and what advice
will you give your client?
Fradulent Conveyance Act s. 2
The advice: He can still keep his property under s. 2 of this act as long as he was acting in good faith, had good consideration and there was he/she had no knowledge of fraud occuring.
In determining whether a mortgage transaction is unconscionable under the
Business Practice and Consumer Protection Act, a court must consider all of the
surrounding circumstances which the lender knew or ought to have known at
the time a mortgage was entered into. What were these circumstances?
(there are 7 circumstances, name at least 5)
1) Undue pressure
2) Took advantage of guarantor’s ability to protect his or her interest. (incapacity)
3) No reasonable ability to pay full payment
4) Total gross price exceeded similar obtainable objects
5) Inequitable terms/conditions
6) A prescribed circumstance
Describe what is meant by an enduring power of attorney. Assuming the donor
now does not have capacity, how can the enduring power of attorney be
terminated?
Assuming they are still alive and don’t have any clauses which revoke POA upon incapacity, the only ways it can be terminated are.
1) If a committees is appointed in accordance to section 19 of the Patients Property Act
2) Or the court terminates it under section 36(5).
A condition precedent may be waived under certain circumstances. What
statute applies and what is required for a party to the contract to be able to
waive the condition precedent?
Under section 54 of the Law and Equity Act:
A condition precedent can only be waived if:
a) Contract benefits only that party to the contract.
b) Contract capable of being performed w/out fulfillment of condition precedent.
c) Where time stipulated then waived before the time or if no time stipulated then waived within a reasonable time.
