TERMS OF ENGAGEMENT
You have asked that we act as legal counsel to you (jointly, if applicable, the “Client”) in connection with the purchase of a single residential real estate title (the “Retainer”).
If we agree to act for you on the Retainer, it will be subject to and on the terms set out in these Terms of Engagement. The Retainer may be supplemented or limited by further written terms specific to the property at issue that we deliver to you on or before the completion date. Subject to the foregoing, you and us may only agree to changes in these terms by confirming such agreement in writing.
Our engagement is limited in scope to the Retainer.
Our involvement in your purchase includes the following services:
a) To search title;
b) To obtain and review municipal tax information specific to the property;
c) To prepare or obtain transfer and mortgage documents (if applicable) as well as supporting documents required by the registry or others;
d) To attend to or arrange for execution of transfer and mortgage documents (if applicable);
e) To negotiate appropriate closing undertakings with solicitor/notary for seller;
f) To receive and account for trust funds;
g) To provide your lender with its requested security documents;
h) To attend to registration of relevant documents at the appropriate Land Title Office;
i) To make inquiries as to the residency status of the Seller pursuant to the Income Tax Acts as required;
j) To disburse trust funds; and
k) To report and provide you with a final State of Title Certificate, if applicable.
The above describes the services provided in a standard conveyance transaction. We will not be undertaking other tasks or acting in respect of any other matter(s) unless they are set out in subsequent written agreement(s) between us, and we confirm that we are not engaged generally.
We also confirm that you are not relying on us for non-legal advice such as business, investment, accounting or tax advice, or to assess the character or creditworthiness of persons you may deal with in the course of the Retainer (or generally).
We will make arrangements for the discharge of encumbrances as specified in your contract of purchase and sale. Any other encumbrances will remain on title and unless you request in writing, we will not obtain or review such encumbrances. You must inform us if you intend to make any additions or changes to the property as in such circumstances, legal review of such encumbrances for compatibility with such intentions may be necessary (and title insurance does not cover such scenarios).
All certificates of title and transfers of land in British Columbia are subject to statutory exceptions including Section 23(2) of the Land Title Act.
Our services do NOT include the following which we recommend that, before your purchase is completed, you should satisfy yourself as to these matters. We may be able to assist with some at your request at extra cost.
a) That no work has been done to the property which may give rise to a Builders' Lien or trust claim, or if there have been repairs or alterations, that appropriate steps have been taken to ensure that no claim is outstanding;
b) That the property is appropriately zoned for any particular use you may wish to make of it and that the Property is not the subject of anticipated expropriation or municipal or other work orders (this information may be obtained from the Municipality);
c) That the water supply is potable and adequate and that the condition and capacity of any septic tank on the Property is acceptable;
d) That there is legal access to the property;
e) That you have arranged for the hook-up of any utility services which you require such as hydro, telephone and cablevision;
f) That satisfactory arrangements have been made for delivery of actual possession of the property, particularly if there are presently any tenants in occupation. You should arrange with your realtor for the delivery of keys on the possession date;
g) That satisfactory insurance has been arranged to be in place no later than 12:01 a.m. on the Completion Date showing loss payable to your mortgage lender if applicable;
h) That you have made any required or necessary investigations and/or searches concerning the Heritage Conservation Act to determine if there have been any heritage and/or archaeological sites (i.e. First nations middens, burial grounds, etc.) identified on the Property;
i) That you have made all necessary or required inquiries as to the inhabitability or condition of any of the buildings located on the Property;
j) That you have obtained a survey certificate to ascertain the Property’s dimensions and to confirm that the buildings and/or fences, landscaping, etc. are entirely within its boundaries and not encroaching on easements or rights of way and that all buildings are in compliance with Municipal bylaws; and
k) That any required fire permit (for wood-burning stove) has been issued and received by you from the Seller;
Normally you will be able to deal with each of the foregoing items without our assistance and we will not become involved in those matters unless expressly instructed in which case there will likely be additional fees and/or disbursements charged.
We are authorized to act for you in respect of the Retainer on the instructions of any person who has apparent authority, unless you advise us otherwise. If you are a company (and subject to Section 12) any of your directors and officers are deemed to have authority to instruct us unless you advise otherwise.
In order to serve you effectively, we require complete and prompt instructions and responses to our queries at all times. In particular, we require accurate personal information such as correct legal name and other biographical information and you must arrange for account/reference numbers of your mortgage(s) to be given to us promptly. We cannot guarantee timely closing if we have received inaccurate information.
Due to the increasing incidence of fraud and other off-title matters that cannot usually be effectively searched in the timeframe of most residential transactions and as a significant portion of lenders require it as a condition of funding, we will order a policy of title insurance to protect you unless you specifically instruct us otherwise and we agree that it is feasible to complete the Retainer without title insurance (otherwise we may terminate our engagement). Our primary title insurance provider is First Canadian Title and the (one-time) cost of title insurance is fixed for purchase prices up to $1 Million and increases proportionately with purchase price thereafter, which cost will be included on the closing statement of adjustments.
4. Electronic Communications and PEP
Unless you indicate otherwise, you authorize and consent to us communicating with you using electronic communications (including but not limited to e-mail), which you understand are not secure. We confirm that your authority and consent for us to communicate with you using electronic communications includes sending privileged and/or confidential documents unencrypted.
We make no warranty with respect to the security of electronic communications and you agree to indemnify and hold us harmless for any loss you suffer as a result of such communications being intercepted.
If you are concerned about the security of electronic communications, please let us know and alternative arrangements can be made for the use of more secure communication channels. Note however, that such channels may entail additional expenses and require longer turnaround times and we recommend you plan accordingly.
You agree to inform us, in advance if you are a “Politically Exposed Person”, meaning that you are or have been entrusted domestically with prominent public functions, for example Heads of State or of government, senior politicians, senior government, judicial or military officials, senior executives of state owned corporations, important political party officials. Your engagement of us absent such notice shall be your representation that you are not a “Politically Exposed Person” and such warranty being false shall be reason for us to terminate our engagement immediately.
We work as a team and the appropriate lawyer will be assigned to your matter. Lawyers may also be assisted by articling students, legal assistants, law students, clerks and legal assistants
We have disclosed to you that one or more of our lawyers may be providing legal services through professional law corporations.
Our fees will be in accordance with our standard charges for residential transactions, a copy of which has been provided to you.
7. Interest and Timely Payment
Payment is due on all of our accounts when rendered. If any account is not paid within 30 days, interest will be charged on the outstanding balance at a rate of 10.00% per annum from the date of the account, until paid.
Our clients sometimes enter into arrangements whereby a third party is expected to pay or reimburse all or some of the fees or costs on a matter. We confirm that because you are our client, we may only look to you for payment of our fees and costs and that delay or non-payment by third party in respect of reimbursing you does not release you from your financial obligations to us.
8. Client Identification and Verification
Lawyers are required to follow client identification and verification procedures when retained by a client to provide legal services. Accordingly, before we begin work on your behalf, we will require information from you concerning your identity. In addition, for some transactional work, we will require information to verify your identity (to confirm who you are) before the transaction occurs.
Please note that we will not accept any funds in cash for this matter unless we agree otherwise in our sole discretion, and that no cash more than $7,000.00 will be accepted for this matter in any event. As protecting your legal interest may require paying funds within certain time limits, we recommend that you discuss with us any necessary arrangements in advance to provide payment to us by way of certified cheque, money order, bank draft, or electronic transfer.
Our professional obligations as well as our policy is to keep our clients’ confidences. You acknowledge that this applies to all of our clients, and acknowledge that, subject to our professional obligations, just as we will not disclose confidential information in respect of the Retainer to another client, even if such information is relevant, we will not disclose to you confidential information of other clients, even if relevant to the Retainer.
11. Corporate Representation
If you are a corporation or a company, we represent you and not your directors, shareholders, subsidiaries, affiliates or any other interested persons in their personal capacities.
You authorize us to contact you and convey any information on this matter to each of you by contacting any or all of your directors or by mailing the information to your registered office mailing address or by couriering the information to your registered office delivery address. You further consent to be consented by the email at addresses you have used to contact us as per Section 4 above.
We may at our sole discretion require unanimous instructions or ratification of previous instructions by all directors at any time, and we would cease to act until such instruction or ratification as the case may be is received.
However, you agree that if we receive contradictory or inconsistent instructions from different directors or groups of directors or authorized persons at any time, we will not act until we receive written (including by email) unanimous instructions from all directors and/or authorized persons.
You agree to indemnify and hold us harmless from any damages you, your directors and/or your shareholders suffer, directly or indirectly, in whole or part from our requirements in regards to instructions and any decision to cease to act attendant to failure to obtain instructions satisfactory to us pursuant to this Retainer.
You agree to inform us immediately and within 24 hours in any case if your directors or persons authorized to instruct us change at any time during our representation of you.
12. Conflict of Interest
In agreeing to act on the Retainer, we are not aware at this point of any legal conflict of interest in representing you. However, conflict checks are not perfect and we are relying on you to let us know of any other parties who become involved in the Retainer, including those whose interests may be adverse to yours.
During the course of the Retainer, we will not act for another client in a matter which creates a ‘conflicting interest’ with the Retainer. A ‘conflicting interest’ means that representation by us of the other client would create a substantial risk that the Retainer would be materially and adversely affected. If we learn that we are engaged on a matter which creates a ‘conflicting interest’, we may ask for your agreement to us continuing to act on terms satisfactory to all concerned, failing which we will withdraw from one or both conflicting matters (which may include the Retainer).
After the Retainer is concluded (or terminated) and you are no longer a client, we are entitled to represent other clients whose interests may be directly adverse to yours, provided that:
the other matter is not the same as or directly related to the Retainer; and
we protect your relevant confidential information. You acknowledge that the timely establishment of ethical firewalls (sometimes called ‘chinese walls’) will be sufficient protection of the confidentiality of such information.
13. Joint Retainer
If this engagement is addressed to more than one party, we confirm that we have agreed to act for all parties jointly in respect of the Retainer. Joint representation means that we will be engaged by more than one party in respect of the same matter at the same time.
We are allowed to act jointly for clients only when their interests are not in conflict. We believe your interests are currently not in conflict. However, we are relying on you to let us know of any disputes or other facts or circumstances that cause your interests to be in conflict. It is also possible that your interests could diverge or even conflict in the future.
Our professional obligations require that, before we represent you jointly, we must raise certain issues with you and obtain your consent as to the course to be followed in the future if a conflict arises. The following will apply to our joint representation of you:
We owe each of you a duty of undivided loyalty. This means that we must act in each of your best interests at all times and must not favour the interests of one of you over the interests of another, or allow anything to interfere with our loyalty to each of you or our judgement on your behalf. If we are unable to fulfill this duty of undivided loyalty to each of you, we will have to withdraw;
No information we receive from one of you or from any other source with respect to this matter can be treated as confidential from the other(s). This means that, as long as the joint retainer continues, we must disclose relevant information to all of you. However, should we receive information from any source that makes it clear we are in a conflict by acting for you jointly, or if a contentious issue arises between you, we must cease acting jointly for you in the Retainer matter unless the conflict/contentious issue is resolved. In the event the conflict/contentious issue is not resolved, however, we would not be permitted to disclose the confidential information to you;
If we currently act for one of you in a matter separate from this one, and we receive confidential information from that separate matter that is relevant to this matter, we will have to withdraw from this matter unless we receive the consent of the client in the separate matter to disclose that information;
If a conflict/contentious issue arises between you, you have the option to settle the conflict/contentious issue by direct negotiation with one another, or if you both agree that you wish us to assist you in attempting to resolve an issue we may decide to do so, as long as the issue in our view falls short of an actual conflict between you. If a conflict/contentious issue is resolved by direct negotiation between you, or if an issue short of an actual conflict issue is resolved with or without our assistance, we may then continue to represent all of you;
If a conflict/contentious issue arises between you that is not resolved, then we will take one of the following courses of action, which choice you acknowledge is at our sole discretion:
We will cease to represent all of you; or
If we have acted for one (or more) of you or your affiliates in other matters, we may continue acting for such persons (provided if more than one, the conflict/contentious issue is not between them) or one or more among them at our discretion, and will refer the others to another lawyer or lawyer(s).
Although joint representation of a number of clients by a single lawyer or law firm has some advantages, there are aspects of joint representation that could lead to the potential problems we have outlined above. By engaging us pursuant to these Terms of Engagement, you consent to the potential course of action we have outlined before we commence acting for you jointly. We recommend that you each obtain independent legal advice before you give us this consent.
14. Anti-Money Laundering
Effective January 1, 2020, the Law Society of British Columbia adopted enhanced ‘know your client’ requirements. These include requesting information about source of funds in financial transactions and in some cases requiring proof of same. You agree to cooperate with our requests for information about your source of funds and, if we consider it necessary at our sole discretion, proof of same to our sole satisfaction. If you are a corporate entity, you will disclose to us all individuals who, alone or together with related persons, exercise de facto or de jure control or hold more than 25% of ultimate beneficial shareholdings. We may require the same source of funds information and documentation in respect of those individuals if your source of funds are shareholder contributions and/or loans.
We may request this information (or updates thereto) at any time and from time to time during the course of our engagement and in between engagements if we act for you on more than one matter or a series of matters.
You agree that:
Failure to cooperate with our requests; or
Our suspicion that any funds involved in a transaction were not legitimately obtained or the result of illegal or terrorist activities, where you are not able to disprove such suspicions to our satisfaction
shall, notwithstanding anything else in this engagement, constitute grounds for our immediate withdrawal from representation and you will not be entitled to any refund or waiver of fees incurred prior to our withdrawal. While we keep information obtained from you pursuant to this section confidential as with all client information, you agree (without limiting the applicable laws in respect of when privilege and confidentiality can be breached by lawyers) that we may disclose this information a) if required to by law; and b) if relevant to defend ourselves against any claims you may bring against us.
15. Personal Information
During the period that we provide services to you, we will collect personal information from you that relates to you or individuals associated with your organization(s). You agree and confirm your authority to consent and positive consent to our collection, use and disclosure of this information as may be reasonably necessary in the course of our delivery of services to you.
By continuing to provide instructions to us, you confirm your authority to consent and positive consent to our collection, use, and disclosure of personal information we obtain from third parties, including other professional service providers, in the course of the delivery of services to you. If you do not have such authority, please advise us in writing.
All members of Law Society of British Columbia are insured against errors and omissions and that insurance protects you as our client. We also carry excess insurance. As part of this agreement, you acknowledge that any claim for compensation arising as a result of an error or omission in providing services to you, will be limited to the amount of the insurance available. A copy of our insurance policy will be made available to you upon request.
You have the right to terminate our services to you upon written notice to us. You agree that we may withdraw our services upon written notice as well, subject only to ensuring that adequate notice is given to ensure that your legal rights are not prejudiced. Notwithstanding the foregoing, we may withdraw without advance notice for good reasons which include, but are not limited to:
(a) if you fail to cooperate with us in any reasonable request;
(b) if our continuing to act would be unethical or impractical;
(c) if our retainer or any top-up thereof has been requested but has not been paid; or
(d) if you fail to pay our accounts when rendered.
If you terminate our services or we withdraw, you would only have to pay our fees and expenses up until the time we stopped acting for you as well as any costs or expenses paid or incurred on your behalf thereafter which are reasonably necessary.
If we are attorneys of record in any proceeding, you agree to execute and return to us a Notice of Change of Solicitor or Notice of Intention to Act in Person, as may be applicable, promptly upon receipt from us.
18. File Matters
You agree that our files remain our property and that it will not be delivered to you. This includes, without limitation, administrative records, time and expense reports, personnel and staffing materials, accounting records, and internal work product (i.e. drafts, notes, internal memoranda, and legal and factual research, including investigative reports and impressions prepared by us for our internal use). This means that we may store or archive files with reputable storage providers at our discretion. We may also destroy or otherwise dispose of our files within a reasonable time after the conclusion of the Retainer, subject to our professional obligations.
If there are any materials you wish to retrieve from your file upon the conclusion (or termination) of the Retainer, please advise us in advance. We will charge our then-prevailing administrative fees to retrieve any materials from our archives once a Retainer is concluded or terminated.
Except as a direct result of our negligence, you agree that if we are sued or otherwise become involved in any legal or administrative proceedings (whether as a party, witness(es) or any other capacity) as a result of our representation of you in respect to the Retainer, you agree to indemnify us for any legal fees and expenses we incur as a result.
For greater clarity, to the extent that we are required to respond to any legal or administrative proceedings, except as a direct result of our negligence, we may at our discretion retain another firm of lawyer(s) to represent us. You agree to pay for the fees and costs of those lawyers, as well as the fees and costs for our own time and efforts. If our lawyer(s) are acting as witnesses, our fees will be reduced by any witness fees required to be paid to witnesses by law.
These Terms of Engagement shall be governed by and construed in accordance with the laws in force in the Province of British Columbia and the federal laws of Canada applicable therein and shall be treated in all respects as a contract in the Province of British Columbia.
We attorn, and by using our services you or instructing us in respect of the Retainer, you attorn to the exclusive jurisdiction of the courts of the Province of British Columbia situate in Vancouver, British Columbia.
If you decide that you do not want us to proceed on your behalf in this matter, please inform us promptly.