Western Law Societies Conveyancing Protocol  (British Columbia)

February 2, 2001
Questions / Comments?  Please contact Doug Graves 
Copyright © 2001 The Law Society of British Columbia

Sample wording for use when acting for both lender and borrower

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Borrower’s statement(s) regarding survey-related problems and the advice that the borrower’s lawyer has given.

This would be used in the situation where the borrower is a either a new purchaser of the property or is already in possession and is taking out new financing.

The following text can be used in a separate document signed by the borrower or incorporated into another document prepared as part of the conveyance and signed by the borrower such as (a) the interim reporting letter, (b) the purchaser’s statement of adjustments or (c) in the order to pay.

This text is unnecessary if the borrower provides a satisfactory "Statutory Declaration Regarding Existing Survey Certificate" or if a new survey is obtained by the borrower.

Note: Paragraphs in italics precede optional paragraphs that
apply only in certain situations

[On a purchase, if the borrower refuses to authorize the lawyer to obtain and review easements, rights of way, and other similar charges on title]

I acknowledge that although my lawyer has recommended that he/she obtain and review copies of easements, rights of way, and other similar charges registered against my property, I have chosen not to have my lawyer do this. I understand that without a review by my lawyer of these documents I have no assurances as to possible legal and survey related problems such as those listed below that may exist in regard to my property.

[On a purchase, if the borrower chooses not to obtain a new survey using the following paragraph]

I acknowledge that although my lawyer has recommended that I obtain an up-to-date building location survey, I have chosen not to do so.

[On both purchase and refinance transactions]

I understand that without an up-to-date building location survey I have no specific assurances as to survey related problems such as the following:

(a) the location of the buildings in relation to the lot boundaries,
(b) the impact of any constraints on building location such as such as easements and right of ways,
(c) the dimensions of the property or the buildings, or
(d) the existence of any encroachments onto my property or encroachments by improvements on my property onto my neighbour’s properties.

I am unaware of any survey-related problems in regard to the property.

[If no previous surveys are in the possession of the borrower]

I do not have copies of any building location surveys that may have been previously prepared in regard to my property

[If previous surveys are in the possession of the borrower]

I have given you copies of any building location surveys in my possession that were previously prepared in regard to my property

I understand that, in the event there is in fact a survey-related problem only my lender benefits from the issuance of a Western Law Societies Conveyancing Protocol Solicitor’s Opinion by my lawyer.

Note: This is version 2.0 of this document and it is effective February 15, 2001. It is expected that this will be revised from time to time, and lawyers are advised to watch for notices regarding revisions in the Benchers’ Bulletin and on the Law Society website (www.lawsociety.bc.ca). Copies of this and other documents relating to the Protocol will be available for download from the website. Please direct comments and questions to Doug Graves at the Law Society 604-697-5818. Insurance coverage questions should be directed to Surindar Nijjar at the Lawyers Insurance Fund 604-605-5314.

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Sample wording for use when acting for the lender only

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Borrower’s statement(s) regarding survey-related problems

This would be used in the situation where the lawyer is not acting for the borrower

The following text can be used as a separate document signed by the borrower, or as part of another document signed by the borrower as part of the transaction.

This text is unnecessary if the borrower, through their solicitor, provides a satisfactory "Statutory Declaration Regarding Existing Survey Certificate" or if a new survey is obtained and reviewed by the lawyer.

Note: Paragraphs in italics precede optional paragraphs that
apply only in certain situations

I am unaware of any survey-related problems in regard to the property. Survey related problems include problems with

(a) the location of the buildings in relation to the lot boundaries,
(b) the impact of any constraints on building location such as such as easements and right of ways,
(c) the dimensions of the property or the buildings, or
(d) the existence of any encroachments onto my property or encroachments by improvements on my property onto my neighbour’s properties.

[If previous surveys are not in the possession of the borrower]

I do not have copies of any building location surveys that may have been previously prepared in regard to my property

[If previous surveys are in the possession of the borrower but no "Statutory Declaration Regarding Existing Survey Certificate" is obtained]

I have provided a copy of the most recent building location survey that I have in regard to my property.

I understand that, in the event there is in fact a survey-related problem only my lender benefits from the issuance of a Western Law Societies Conveyancing Protocol Solicitor’s Opinion by the lender’s lawyer.

Note: This is version 2.0 of this document and it is effective February 15, 2001. It is expected that this will be revised from time to time, and lawyers are advised to watch for notices regarding revisions in the Benchers’ Bulletin and on the Law Society website (www.lawsociety.bc.ca). Copies of this and other documents relating to the Protocol will be available for download from the website. Please direct comments and questions to Doug Graves at the Law Society 604-697-5818. Insurance coverage questions should be directed to Surindar Nijjar at the Lawyers Insurance Fund 604-605-5314.

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Sample File Checklist

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In The Western Law Societies Conveyancing Protocol (British Columbia) – Version 3 (the "Protocol"), various requirements for issuing a protocol opinion are set out. Please note that this file checklist is offered to assist lawyers using the Protocol, but does not replace the Protocol or its requirements in any way. Please read the Protocol carefully before using this checklist. As noted in the Protocol, although some additional practice standards are set for lawyers issuing protocol opinions, nothing in the Protocol otherwise diminishes or changes in any way the usual practices of prudent law firms or the standard of care for lawyers acting on mortgage transactions.

File Number: _____________________________
Borrower: _____________________________
Lender:  _____________________________
Lawyer: _____________________________

Note: "BLS" – Building Location Survey

"Survey Related Problems" – see sample wording from borrower’s statement(s)

When acting for lender and borrower

  1. Obtain and review easements, rights of way, etc. [  ] or
    Borrower refuses to authorize obtaining these documents [  ] and/or
    Borrower refuses to authorize review of these documents [  ] and
    Borrower advised of the risk of the above refusals [  ] and
    Refusal(s) and advice given confirmed in writing [  ] and
    .
  2. Borrower asked to provide copies of existing BLS [  ] and
    None available [  ] or
    Available and reviewed [  ]
    .
  3. (On purchase) Vendor’s Solicitor asked for copies of available BLS [  ] and
    usual affidavit of no change requested [  ] and reviewed [  ] or
    Declaration of Vendor that he/she is unaware of survey related problems [  ]
    .
  4. (On refinance) Borrower asked for signed declaration of no change since last BLS (BLS attached) [  ] or
    Borrower asked for signed declaration that he/she is unaware of any survey related
    problems [  ]
    .
  5. Advised Borrower that an up-to-date BLS be obtained [  ] and
    Explained consequences of not getting a BLS [  ] and
    Advice given confirmed in writing [  ] and
    Advised that protocol opinion does not benefit the Borrower [  ]
    .
  6. No survey related problems revealed [  ] and
    Protocol opinion prepared [  ]
    .
  7. Building Location defects discovered [  ] and
    clients advised [  ] and
    instructions obtained [  ] and
    qualified protocol opinion given o or transaction collapsed [  ]
    .
  8. Copy of protocol opinion or qualified opinion kept on file [  ]

When acting for lender only

  1. Asked the borrower’s solicitor if a BLS is available [  ]
    None available [  ]
    Yes – examined [  ]
    .
  2. If BLS available – obtained and reviewed signed declaration of borrower of no change since last BLS [  ]
    .
  3. If no BLS available, obtained signed declaration of borrower that he/she is unaware of any survey related problems [  ]
    .
  4. No survey related problems revealed [  ] and
    Protocol opinion prepared [  ]
    .
  5. Building location defects revealed [  ] and
    client advised [  ] and
    instructions obtained [  ] and
    qualified protocol opinion given o or transaction collapsed [  ]
    .
  6. Copy of protocol opinion or qualified protocol opinion kept on file [  ]

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This example is from the CLE of B.C. "British Columbia Mortgages Practice Manual" – Form FP 35. See §5.27 in the Manual for a general discussion of Survey Certificates. Note that the existing survey certificate must be attached as a schedule to this statutory declaration.

Statutory Declaration Regarding Existing Survey Certificate

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CANADA ) IN THE MATTER OF
  ) [address], British Columbia,
PROVINCE OF ) legally described as
BRITISH COLUMBIA ) [legal description]
  )  
TO WIT: ) (the "Property")

I, [name], of [address] in the Province of British Columbia, DO SOLEMNLY DECLARE THAT:

  1. I am the registered owner of the Property and as such have personal knowledge of the matters declared in this Statutory Declaration.
    .
  2. I have resided on the Property since approximately [month, day, year].
    .
  3. Attached as Schedule "A" to this Statutory Declaration is a copy of a Survey Certificate prepared by [name], British Columbia Land Surveyor, [month, day, year] (the "Survey Certificate").
    .
  4. There have been no additions, deletions, or alterations to the exterior of the buildings shown on the Survey Certificate since the date of the Survey Certificate and no additional buildings have been constructed on the Property since the date of the Survey Certificate.
DECLARED BEFORE ME at )  
[location], British Columbia, )  
on [month,day,year] )  
  )  
_________________________ ) __________________________
A Commissioner for taking ) [name]
Affidavits for British Columbia )  

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Sample letter from law firm to Lender confirming Lender agrees to accept a protocol opinion

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The financial institution could return and sign this document, or provide their own letter. We expect that it will not be necessary for each firm to do this individually. A list of participating financial institutions will be posted in Practice & Ethics under the Services for Lawyers section of the Law Society of B.C. website (www.lawsociety.bc.ca)

[Law Firm Letterhead]

[To Qualifying Financial Institution]

[Date]

Re: Western Law Societies Conveyancing Protocol Solicitor’s Opinion

Further to our discussions this will confirm that you are prepared to accept our Solicitor’s Opinion given pursuant to the attached Western Law Societies Conveyancing Protocol (the "Protocol") in lieu of a standard building location survey.

Please sign and return the enclosed copy of this letter to us as an acknowledgement that you have read the attached Protocol and that your are instructing us to proceed on qualifying loan transactions in accordance with the requirements for issuing a protocol opinion.

Yours, etc.

    [Qualifying Financial Institution]
     
  per ___________________________
    [signature)
     
    ___________________________
    (print name)

encl. Western Law Societies Conveyancing Protocol (B.C.) ver. 2.0