PRACTICE WATCH, by Barbara Buchanan, Practice Advisor
Lawyers will be required to e-file LTO documents starting January 2012 – Are you ready?
The Land Title and Survey Authority of BC launched its Electronic Filing System (EFS) in 2004. LTSA Director of Land Titles, Craig D. Johnston, has informed the Law Society that he will announce, on March 11, 2011, that lawyers, notaries and land surveyors will be required to electronically file certain documents with the Land Title Office in a phased implementation plan. Filing paper documents will not be permitted, with limited exceptions.
To file documents electronically, a lawyer must sign them digitally, using a secure digital signing certificate (see “Registering with Juricert” on page 11). Once a document has been signed digitally by the lawyer, the lawyer can register it in the LTO or have it submitted electronically by another party (e.g. the lawyer’s conveyancer or registry agent). As is now the case, a lawyer’s conveyancer may prepare the documents but can’t sign them. The lawyer will review the documents before submission to the LTO and will digitally sign them. Think of a lawyer’s digital signature as a very secure kind of pen that only the lawyer can use.
Though the LTSA’s timeline could change, lawyers will be required to file the following documents electronically as early as January 1, 2012:
- Form A Freehold Transfer of Fee Simple
- Form B Mortgage
- Form C General Instrument as a Release and as a Charge without an accompanying plan
- Claim of Lien Form, Builders Lien Act
The Director is also expected to announce limited exceptions to the electronic filing requirements and LTSA future plans. Subsequent phases will include subdivision plans, strata plans, Form C charges with an accompanying plan and Form 17 applications. Eventually, electronic filing will be required for most LTO applications and registrations.
The LTSA has recently added new features to the existing EFS and will pilot an “electronic meets” service. Participants will have an option to log in to “meet” and see each others’ documents, be alerted if any documents are removed or changed and use other features.
Before taking this step, the LTSA consulted with various stakeholders, including a survey of lawyers and notaries completed in December 2010. Director Johnston, a lawyer himself, appreciates that some real estate practitioners are apprehensive about e-filing. He notes, however, that “those who file electronically like it.”
Benefits of e-filing
There are benefits to e-filing over manual filing: speed, convenience and security. Electronic filers won’t receive a phone call from a frantic courier who travelled in a storm or heavy traffic only to arrive a minute after the LTO counter closed. Rush couriers to the LTO and the risk of documents being lost or misplaced along the way could be a thing of the past. There are obvious “green” benefits as well.
E-filing allows you to submit documents whenever BC Online is available (currently 6 am to 10:50 pm Monday to Saturday and 1 pm to 10:50 pm on Sunday), but you should review your client’s contract and any undertakings to ensure compliance with specific time limitations. Note whether there is a “time of the essence” clause.
You may also receive some new clients, as the LTSA website helps users find lawyers and notaries, by location, who use electronic filing (ltsa.ca/efs-locator).
There is a service charge to e-file, but other costs normally incurred, such as courier charges, are reduced or eliminated.
E-filing and retention of documents – What to do?
Some lawyers have asked what to do with the paper version of real estate documents that they have e-filed. Section 168.6(1) of the Land Title Act provides that an electronic instrument that has been received by the registrar under s. 153 is conclusively deemed to be the original of the instrument. For example, an electronically filed Form A is the original, not the paper Form A with the actual signatures.
Lawyers concerned about retaining paper versions of documents (in the event the registrar requires their production for inspection after application but before registration pursuant to s. 168.51 of the Land Title Act), are encouraged to read the LTSA’s Practice Bulletin 0306 (ltsa.ca/documents/ltd/bulletin_0306.pdf). Lawyers should be in a position to comply with inspection requests from the registrar before final registration of the electronic instrument.
In most cases, you can return the paper originals to the client by enclosing them with the final reporting letter. You will also want to keep a copy in the client’s file (electronic file or paper file) for the normal file retention period (see Practice Watch in the November-December 2006 Benchers’ Bulletin).
Getting ready – Juricert, EFS training, office needs and processes
If you’re not e-filing and intend to file LTO documents in 2012, it’s time to get ready. You’ll need to obtain a Juricert digital signing certificate and to learn how to electronic file. You likely already have the basics to get started: a computer, printer, scanner, email, Internet connection, Adobe Acrobat and a BC Online account. Juricert advises that you will need either Google Chrome or Internet Explorer to download your Juricert digital signing certificate. The LTSA website has information about its minimum recommended EFS requirements (ltsa.ca/data/img/publication/EFS-System-Requirements.pdf).
The LTSA contracts with the Law Society to act as a certification authority under the Land Title Act. The Law Society operates the Juricert service which authenticates applicants and issues digital signing certificates for use with the LTSA’s electronic filing system. There is no charge for lawyers to register with Juricert or to obtain a signing certificate.
Law Society Member Services Representative Sherry Sarnowsky has helped many lawyers register with Juricert and obtain a signing certificate. “People think it’s going to be a complicated process but it’s not; it’s simple,” she says. Here’s a brief overview:
- Register with Juricert. Go to the Juricert website (juricert.com) and complete an online registration form. Review the form, print it out, sign it (witnessed by a lawyer or notary) and fax it to Juricert for authentication. Juricert will check your information against Law Society records to confirm your identity and membership status (which normally takes two business days). Carefully take note of your Juricert identification number which you will receive during the registration process as you will need it for the next step. Your identification number is not your digital signing certificate.
- Apply for a digital signing certificate. Once you are notified by email that your authentication is complete, return to the Juricert website to add EFS and obtain the digital signing certificate for use with Adobe Acrobat. Juricert will email instructions on when and how to download your digital signing certificate. You will need to use Internet Explorer or Chrome to download; Mozilla Firefox won’t work. The certificate will allow you to digitally sign documents for electronic submission to the LTO via BC Online.
You are responsible for maintaining the security of your digital signing certificate and keeping your digital signing certificate password secure and confidential. Don’t provide it to anyone else or let anyone else have access.
If you need assistance to register or download your certificate, contact Juricert support at 604-605-5307 or email@example.com. BC Online can assist you with the installation of your digital signing certificate for use with Adobe Acrobat and use of the EFS system. Contact the BC OnLine Help Desk at 250-953-8200 or toll free at 1-800-663-6102. The LTSA can also assist you to learn how to apply your digital signature to EFS forms using your signing certificate.
Note that non-payment of Law Society member fees will cause your Juricert registration to be suspended and you will not be able to electronically file LTO documents.
An offence for your assistant to affix your digital signature
Be aware that you must not allow anyone, including any staff member, to affix your digital signature to electronic filing applications, and that you must not use anyone else’s.
Your digital signature is a representation that you are a “subscriber” as defined in the Land Title Act, that you have applied your digital signature in accordance with s. 168.3, and that a true copy or a copy of that true copy is in your possession.
Section 168.1 of the Land Title Act defines “subscriber” as follows:
“subscriber” means an individual who is authorized by a certificate to sign one or more of the following:
(a) electronic applications;
(b) electronic instruments;
(c) electronic plan applications;
(d) electronic plans;
(e) electronic returns under the Property Transfer Tax Act;
An electronic instrument is signed for the purposes of s. 168.3 when a subscriber incorporates his or her electronic signature into the instrument in accordance with the requirements established by the director.
Also be aware of the offences set out in s. 168.9 of the Act:
A person commits an offence if the person
(a) incorporates his or her electronic signature into an electronic application, electronic instrument, electronic plan application or electronic plan without first complying with the provisions of this Part, or
(b) incorporates the electronic signature of another person into an electronic application, electronic instrument, electronic plan application or electronic plan.
Free EFS training and CPD credit
The LTSA currently offers a free two-hour EFS training course at locations in Metro Vancouver and via webinar anywhere in the province. Lawyers can apply to the Law Society for two hours of continuing professional development credit for taking the course (course no. LTSAEFS01).
To take the course, contact the BC OnLine Help Desk at 1-800-663-6102 or 250-953-8200 or firstname.lastname@example.org.
In addition to the EFS training course, the LTSA provides online tutorials, an EFS User Guide, practice bulletins and other information: see their website at ltsa.ca. The Continuing Legal Education Society’s courses, Land Title Practice Manual, Land Title Forms Guidebook and BC Real Estate Practice Manual, are additional resources.
Read the LTSA’s announcement for important details and any changes to the information provided here (www.ltsa.ca).
Contact Practice Advisor Barbara Buchanan at 604-697-5816 or email@example.com for confidential advice or more information regarding any items in Practice Watch.
Dishonest conveyancers target lawyers in mortgage frauds
Dishonest conveyancers are targeting lawyers, often sole practitioners. First they become integral and trusted employees and then they abscond with mortgage funds, leaving you personally exposed, before moving on to their next victim. The Law Society of Upper Canada reported this problem in the Fall/Winter 2010 Ontario Lawyers Gazette, and a variation of the scam has recently surfaced in BC. These conveyancers are sophisticated and may work for you for a number of months before you realize that anything is wrong.
To protect yourself and your clients, you must supervise your staff and personally review documents. You should also separate office functions so that the conveyancer is not responsible for accounting, bookkeeping and banking.
For more information on how to protect yourself from fraud, including employee fraud, go to the Fraud Alert section of the Law Society’s website (lawsociety.bc.ca) and read the Gazette article, “Beware: Dishonest conveyancers target lawyers,” at rc.lsuc.on.ca/pdf/olg/2010/olg_fw10-mortgagefraud.pdf. Consult your insurance broker, as well, to help you determine how to best protect yourself.