Notice Update – posted May 14, 2020
Video Witnessing of Land Titles Documents
The Law Society has been working with the Land Titles Office to find ways for lawyers to meet their professional obligations while ensuring that they, their staff and their clients remain safe. The witnessing requirements of The Real Property Act have posed a particular challenge.
In consultation with the Law Society, the Registrar-General of the LTO has now issued a Directive which will allow for the video witnessing of transfers and other instruments as a temporary accommodation in response to COVID-19 and until May 15, 2020 or as extended.
The Registrar-General’s Directive outlines the required procedures. Read them carefully.
The RPA puts the onus on the witnessing lawyer to show that the identity of the person who signs the instrument has been proven to the lawyer’s satisfaction. Video witnessing entails increased risk of fraud and identity theft, among other risks. As a result:
- Best witnessing practice remains for the lawyer to be in the physical presence of the client when the document is executed, keeping in mind the physical distancing mandated by public health authorities.
- Where risk of infection or other circumstances prevent the face-to-face meeting of lawyer and client, the next best alternative is to witness the document execution through a glass barrier, whether a glass door or partition wall, the door or window to the client’s home, or the closed windows of a car.
- Where neither of those options is possible, video witnessing in accordance with the Registrar-General’s Directive is an available alternative. The Law Society acknowledges that, in these circumstances, it is not necessary that the lawyer be in the physical presence of the signing party when witnessing the signature, provided that the identity of the signing party can be confirmed and that due care is taken. In every case, the lawyer should complete and keep on file a Declaration of a Manitoba Lawyer who has Witnessed Documents by Electronic Means.
Note that the Registrar-General’s Directive does not apply to oaths, affirmations or statutory declarations governed by The Manitoba Evidence Act or forms under The Homesteads Act.
However, the May 13, 2020 Order under The Emergency Measures Act on Suspension of In-person Commissioning or Witnessing of Documents temporarily suspends the requirements for in-person commissioning and witnessing of certain critical documents. It sets out steps which will permit the taking of a statutory declaration or witnessing consents or releases under The Homesteads Act by video conferencing or through glass or plexiglass. The order is in effect May 13, 2020 to October 1, 2020.”
Video witnessing is an authentication and signature process for document execution using audio-visual technology instead of face to face meetings. An example of video witnessing is a lawyer who meets with a client via Skype® or FaceTime® or a similar app and directs the client to sign the relevant legal document while the lawyer watches closely through video. The client then returns the original executed document to the lawyer who, upon receipt and once it is safe to do so, signs the document as a witness to the client’s signature.
Use the Law Society’s Video Conferencing Checklist to help manage your client meeting and reduce risk.
Most title insurers have responded to COVID-19 by offering title insurance coverage for lawyers and clients in the event of an allegation of fraud where execution of documents or client identification and verification have been conducted using virtual means. Some also offer a verification of ID facility which can be used to supplement, though not to substitute for, the verification of ID requirements of the Federation of Law Societies.
There are risks inherent in video witnessing. Assess and manage those risks by considering the following:
- Fraud and Identity Theft – Be alert for red flags of fraud or identity theft. Fraudsters will try to use the current circumstances and resulting confusion as an opportunity to commit fraud or other illegal acts. Be careful! For more information, check out these resources:
- Avoid a Claim blog post, Remote communication and fraud risks in real estate
- Federation of Law Societies’ Risk Advisories for the Legal Profession resource, pages 2 – 4
- Duress and Undue Influence – Ask who is in the room and write down their names and relationship to the signatory. If they are absolutely required to be there to operate the technology, call the signatory on the telephone after the session so you can have a private conversation. If there is a risk that the client may be subject to undue influence or duress, consider if you are able to assist the client at this time without meeting in person.
- Capacity – Confirm your client’s understanding about the documents they are executing and provide adequate opportunity for them to ask questions during the video conference.
In each case of video witnessing of documents, the lawyer’s risk assessment and management steps should be recorded and kept on file by completing the prescribed Declaration of a Manitoba Lawyer who has Witnessed Documents by Electronic Means.