The Committee understands that some of the standards will be modified or replaced and new standards developed as practice evolves. This document, will, and should undergo revision, addition and deletion.

With the advent of the Registry 2000 Project and the passage of the Land Registration Act (LRA)that prediction has come true. Registry 2000, a joint initiative of the Government of Nova Scotia and Nova Scotia Barristers’ Society, has modernized the land tenure system in Nova Scotia. After wide consultation with affected stakeholders, the Government passed the LRA – the most significant development in real property practice in Nova Scotia in over a century. Although changes to the substantive law are minimal, the practice of that law, how land records are maintained, how property is conveyed, and the work of lawyers in conveyancing has changed dramatically.

The prescribed role of lawyers in the conveyancing process will evolve in fundamental ways. In addition to the traditional work done to certify title to a client, lawyers will also provide an opinion on title to the land registration system, providing the basis for the Government’s title guarantee of the fee simple to the person shown as the owner. Because of these changes, real property standards now require revision.¹

New Roles and Responsibilities

The LRA causes there to be a new relationship among the legal profession, the Nova Scotia Barristers’ Society, as the profession’s governing body, and the Government. Each player has new roles.

Lawyers will be responsible for assisting their clients to migrate their properties to the new land registration system. They will complete a last search of the historic title, give an opinion on the quality of that title, and certify the nature of the client’s title in the land parcel to both the client and the land registry system. These revised standards are intended to assist in clarifying the nature of the lawyer’s work and support the vital role of the lawyer as professional advisor.

The Society is contractually bound to stand behind lawyers who are qualified to certify titles to the land registry system. Through the provision of insurance, assumption of liability for negligent errors or omissions, the development and maintenance of current professional standards, the creation of an audit program to ensure compliance with lawyers’ obligations under the LRA, the applicable regulations and the Professional Standards together with a compliance regime, the Society is supporting real estate lawyers in their enhanced role under the LRA.

The Government, with the assistance of lawyers and the Society, will now guarantee the fee simple ownership in land parcels in Nova Scotia. After a parcel is registered in the land registry system, the nature of the owner’s interest will no longer be subject to dispute. If someone has been improperly deprived of an interest in a property, then the Province will ensure that monetary compensation is paid for that loss.

Interpretation

With some exceptions, it has not been the intention of the Professional Standards Committee to prescribe new standards for real estate practice. ²

However, the Committee did revise the existing Standards to meet the requirements of the LRA. A Standard which does not refer to the LRA, in the text of the provision of the Standard, applies both before and after the implementation of the LRA. Where the Standard includes a footnote to reference the LRA, the reference identifies the relevant provision of the LRA and the reference is to be read according to its wording. A Standard which expressly refers to the LRA in the text of the provision of the Standard is a new Standard pertaining to the LRA and is to be read accordingly.

The Committee adopted a drafting style using plain language in the active voice to ensure that the Standards clearly apply to the steps taken by the lawyer in handling a real property transaction. The intent is to make the Standards a quick and easy guide for lawyers.

The Standards have been reorganized from the first edition. By grouping them in parts, the Standards applying to various aspects of a transaction now stand together. This structure will also facilitate the addition of new Standards that will likely be necessary as the profession gains experience under the LRA.

As with the initial version, professional judgment and common sense remain as touchstones for the use of these Standards. As was stated in the Preface to the first edition “these standards cannot be expected to be an answer to every conceivable situation which a lawyer might find in conducting a real estate practice...professional judgment must always be exercised in problem solving and these practice standards are not intended as a substitute for the exercise of professional judgment.” However, they have been developed to be a real guide to the expectations for real estate practice.

The Standards do provide guidance in the exercise of discretion by the use of “must,” “should” and “may” in the text. These words are used to direct a lawyer’s conduct and are to be interpreted as follows:

(a) “must” means that the lawyer is required to follow the Standard. There is a legal (common law, statutory, or regulatory) requirement relating to the Standard. When a Standard uses “must” to require a lawyer to “determine”, “consider” or “ensure” or carry out similar actions, the lawyer is called upon to exercise professional judgement in carrying out those actions;

(b) “should” means that the lawyer is required to follow the Standard; however, if the lawyer determines, in the exercise of professional judgment, that compliance is not appropriate under the circumstances, that decision rests with the lawyer; and

(c) “may” means that it is an acceptable standard for the lawyer to follow, subject to the lawyer determining that compliance is an appropriate exercise of professional judgment.

<<previous  next>>