Authors: Saravan Veylan, Tessa Rowland
Note: This blog has been updated as of April 7, 2020 to reflect new information provided in revised practice bulletin 01-20 from LTSA. Updates have been made to points 6 and 7.
In response to the social distancing measures brought about by COVID-19, the British Columbia Land Title and Survey Authority (LTSA) issued Practice Bulletin 01-20 Process for Remote Witnessing of Affidavits for use in Land Title Applications (the “practice bulletin”) on March 31, 2020.
The directive permits remote-witnessing of affidavits in support of registerable land title instruments via video conferencing, following weeks of feedback from practitioners and the public. The practice bulletin provides a solution for practitioners and their clients who were previously obligated to sign and witness land title instruments in person. The accommodations outlined in the practice bulletin have been approved by the Law Society of British Columbia and apply only to B.C. lawyers or notaries representing a client in the transaction.
Section 42 of the Land Title Act, RSBC 1996, c. 250 (LTA) requires the execution of land title instruments to be witnessed by an officer who appears before the individual signing. While the immediate remedy may appear to be permitting the remote witnessing of land title instruments, First Canadian Title Insurance Company v. The Law Society of BC, 2004 BCSC 197 held that the words “appeared before” necessitates physical presence. To circumvent this prohibition, the LTSA turned to section 49 of the LTA, which allows an affidavit of execution to be attached to land title instruments in certain circumstances where witnessing in person is not possible. As affidavits are traditionally sworn in person, the practice bulletin confirms that affidavits in these circumstances may be sworn remotely so long as practitioners follow the Law Society’s video conferencing best practices.
Compliance with the practice bulletin requires practitioners to adhere to the following:
- Affidavits remotely sworn must include a statement attesting that the deponent was not physically present before the lawyer as it is medically unsafe to meet in person due to COVID-19, but was linked with the lawyer using video technology, and that the lawyer followed the process described in the practice bulletin and complied with the Law Society’s video conferencing best practices when providing legal advice or services.
- While video conferencing, the deponent must show the lawyer the front and back of their current government-issued photo identification, the lawyer must satisfy themselves that the individual on video is the same as the identification, and the lawyer must take a screenshot of the front and back of the identification.
- Both parties must have a complete copy of the affidavit before each of them while connected via video technology and review each page to confirm that the pages are identical by initialing the bottom right corner of each page.
- To complete the affidavit, the lawyer will administer the oath, the deponent will affirm the truth of the facts, the lawyer must watch the deponent sign their name to the affidavit, and the deponent will email the signed affidavit to the lawyer.
- Once the lawyer is in receipt of the signed affidavit and has satisfied themselves that the emailed copy is the same copy before them, the lawyer may then affix his or her name to the jurat on their personal copy.
- The two counterparts will then be attached together to a declaration from the lawyer stating that they were satisfied that the process was necessary because it was impossible or unsafe, for COVID-19 medical reasons, for the deponent and the lawyer to be physically present together.
- The land title package, including the declaration with affidavit attached, may then be submitted to the land title office.
So long as the deponent is the required age and has knowledge of the individual or corporation named in the land title instrument, there is little prohibition on who may sign the affidavit of execution. Lawyers may find it useful and timely to first verify their client through video conferencing with a colleague also on the video conference and ask that the client sign their name on camera. Once the client has been verified and the colleague has viewed the signature, the colleague will be able to state that they are acquainted with the client and their signature.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.