The COVID-19 pandemic and its impact on notarial practice

Are you moving house soon and unsure about whether you’ll be able to complete the purchase or sale of your home? Are you in the second construction phase of your latest real estate project and wondering whether you’ll be able to sign the mortgage at the notary’s office? With Premier Legault’s recent press briefing, communications from the Chambre des notaires (the “Chambre“) and articles in various newspapers appearing over the past few days, it can seem difficult to make sense of it all.

On March 24, notaries and lawyers in private practice were added to the government’s list of “essential services”. The impact of the current situation on the practice of their profession by notaries, while difficult to measure, remains very real.

The closure of notaries’ offices

Although notaries are now included in the list of essential services, and it is therefore possible for them to keep their offices open, the opposite is not prohibited. In fact, a notary wishing to close his or her office for the next few weeks is entitled to do so, since health emergency measures continue to apply to notaries, who may decide to close their offices to protect themselves, their families, their staff and their clients. It is then up to them to decide whether or not to continue with their cases, regardless of their number or urgency.

The decision to close a practice nevertheless implies taking appropriate steps to transfer any current files to a fellow notary for completion. It is important to contact your notary to confirm whether he or she will continue to manage your file, and if not, to which notary he or she might recommend.

Measures imposed by the Chamber

A state of health emergency means that measures must be taken. Notaries whose offices remain open are urged to comply with the new measures laid down by the Chambre in a recent communiqué sent to its members. This means that a notary may refuse to meet with a client whose appointment is not deemed urgent, or may ask sellers and buyers to arrive at different times to sign their deeds of sale, in order to respect social distancing.

To this end, it is possible for a buyer to sign his mortgage and the deed of sale at the same time, to eliminate as much contact as possible. However, the seller can only sign once the buyer’s mortgage has been published and the funds are irrevocably in the notary’s trust account.

It’s also more than likely that customers will be asked a series of questions to help assess the urgency of booking an appointment, including questions about recent travels and the customer’s state of health, all to ensure that everyone is protected.

Digital solutions to social distancing?

Faced with the current exceptional situation and the need for some to use the services of a notary, the Minister of Health and Social Services has authorized notaries to remotely close a notarial deed thanks to technological support, as of March 27, 2020 [1]. This change enables notaries who so wish to sign notarial deeds without having to meet the parties physically.

 

This new way of proceeding came into force on April1, 2020, and provides in particular that the notary and the parties to the deed must all see each other and the deed to be signed. This decree has enabled the Chambre to implement new measures and instructions relating to the remote signing of any deed received by a notary. They stipulate, among other things, that the signature must be made by videoconference to enable the notary to verify the identity of the parties and to see the parties affix their electronic signature to the deed. This signature is made by means of a link sent to the parties by e-mail and a code sent by text message.

It should be noted, however, that like the opening and closing of notaries’ offices, this alternative is left entirely to the discretion of notaries, and its use may depend on the urgency of the situation of the parties concerned. For example, a person wishing to draw up a will may be in poor health.

Two other questions seem to come to mind when making a real estate transaction with a notary: can we withdraw from an offer to purchase by invoking the COVID-19 pandemic? Does the current situation constitute a force majeure allowing the sale of a property or the signing of a financing agreement to be cancelled? I invite you to consult the article by my colleague Catherine Demers entitled “COVID-19 pandemic: can it be assimilated to a case of force majeure?“, as well as the instructions issued by the OACIQ on this subject [2].

 

By Marie-Chantale Dubé


[1] Order 2020-010, Public Health Act, chapter S-2.2.

[2] https://www.oaciq.com/fr/articles/covid-19-et-vos-transactions-immobilieres-ce-que-vous-devez-savoir

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