Notarial Procedures 2 Flashcards
Notaries Act
- Someone who acts as a Notary without authority can be fined upto $2000
Section 48(2)
Confirms that Notaries Public are - Persons to be considered to act as a Notary Public: draws, prepares, issues…”
Section 17(1)(a) - Authorizes a Notary to administer oaths and take solemn declaration sec 18.
Land Tax Deferment Act
A charge is filed against the property when taxes are deferred. In the case of jointly held property should one joint owner die and the property is transmitted to the survivor the tax deferment charge remains on title as long as the requirements under section 5 are met and a surviving spouse meets such a requirement.
Section 18 of the Notaries Act Authorizes Notaries to do what?
A member enrolled and in good standing may do the following:
(a) draw instruments relating to property which are intended, permitted or required to be filed in a registry includes contracts, etc.
(b) draw and supervise the execution of wills
- wills where the estate is distributed immediately upon death
- if beneficiaries predecease the will maker, their is a gift over to alternative beneficiaries immediately on death (thus no life estates)
- asset of deceased to vest in the beneficiary or class no later than when the youngest attains majority
(c) attest all instruments brought before the member for attestation;
(d) draw affidavits, affirmations or statutory declarations that may or are required to be administered, sworn, affirmed or made by the law of British Columbia, another province of Canada, Canada or another country;
(e) administer oaths;
- including drawing instruments for the purposes of the Representation Agreement Act;
- draw instruments relating to health care for the purposes of making advance directives, as defined in the Health Care (Consent) and Care Facility (Admission) Act;
- draw instruments for the purposes of the Power of Attorney Act;
(f) perform the duties authorized by an Act.
Section 18 of the Notaries Act outlines what a Notary CAN do, but reading in between the lines what is it that a Notary cannot do under section 18?
Both Section 18 of the Act, and Law Society vs. Macdonald
- A Notary Cannot draft a will that creates a life estate as s. 18 sets out that if the beneficiaries predecease the will maker, their is a gift over to alternative beneficiaries immediately on death (thus no life estates)
- That a Notary can not draft a trust in a will as the estate must vest immediately upon death
- A Notary can only make a trust for minors until the last in class reaches age of majority
- cannot draft inter vivos trusts, only can draft upon death
Notary Obligations to a Client for Builders Lien?
- for a notary, preparing a contract of purchase and sale for the client, you need to ensure that you do a hold back for strata and for new residential and if you do not you are acting negligently and are liable.
Hold back for Strata is 7% of the purchase for strata and will be released 55 days from the date of completion.
New construction is 10% and also released 55 days from completion.
only need a holdback account if it is over 100,000
How long do you have to file a lien for work completed but not paid?
45 days to file a lien
Once a builders lien has been filed?
- the builder files a lien, the owner then must give notice that they are aware of the builders lien
- this notice gives the builder who filed the lien to start a court proceeding “piss or get off the pot”..
- if the builder is not given the 21 days notice then the builder has a full year to proceed with an action.
Under the Assessment Act, the Assessment Authority must supply to each municipality and taxing treaty first nation an estimate of the total assessed value of each property class in the municipality by what date?
October 31st each year.
What statute makes provisions for the issuance and enforcement of a garnishing order?
Court Order Enforcement Act
The Land (Spouse) Protection Act provides protection for who and in what circumstances?
A spouse who is not on title to a matrimonial property.
Marital breakdown
Under the Escheat Act, if a corporation is dissolved and land owned by the
corporation escheats to the government, how long must the Attorney General
hold the land before disposing of it?
The Attorney General must hold the land for 2 years before disposing of the property.
What Statute describes the purpose of a Certificate of Completion?
Builders Lien Act - Sec 7
It is said that a statutory declaration is a “creature of statute”. What statute
creates that “creature”?
Evidence Act s. 41
The Business Corporations Act gives a company the capacity and the rights,
powers and privileges of what?
Under section 30 of the Business Corporation Act.
–> Of an individual of Full capacity.
This statute protects an individual against an insolvent person agreeing to a
judgment against that person for the sole purpose of defeating a claim against
that person by the individual.
Fraudulent Preference Act
Under the Land Tax Deferment Act a charge is filed against the property when
taxes are deferred. In the case of jointly held property, should one of the joint
owners die and the property is transmitted to the survivor, what must be done
to deal with the tax deferment charge?
You need to be Joint Tenants:
Conditions under section 5 must be met. So in this case since they are a surviving SPOUSE it would not terminate the deferral.
- Residential
- In BC for 1 year (12 Months)
This statute defines what comprises a family asset
Family Assets are now referred to as Family Property
It is defined under FLA
The Land Title Act limits the time that a power of attorney is effective for land
title purposes if it is not enduring. What is that time period?
3 years.
This statute makes provision for a person witnessing a will to receive a gift
from the deceased’s estate.
WESA s. 43
This statute defines a person who “draws, prepares, issues or revises a
document that is intended, permitted or required to be registered, recorded or
filed in a registry or other public office”.
Notaries Act. S. 17
This statute provides for the registration of a security interest in a land title
office.
Personal Property Security Act
This Regulation describes the activities designated as farm use.
Agricultural Land Reserve Use, Subdivision and Procedure Regulation
This governance describes the requirements and activities of a managing
broker.
Real Estate Council for the Real Estate Services Act.
With exceptions, this statute clearly states that an executor must not distribute
the deceased’s estate until 6 months have passed from the date of the issue of
a grant of probate.
180 days
Executors cannot distribute assets of a Will