49 If Instrument Not Witnessed

FORMS

Lack of Officer Certification

The Land Title Web Filing Form Practice Guide for the Affidavit of Execution provides that in situations where an affidavit of execution is acceptable in lieu of officer certification, the applicant must select “I have an Affidavit of Execution” in the “Witnessing Officer” signature block. When the form is generated, “See Affidavit of Execution” automatically appears in the officer signature field. The affidavit of execution replaces the officer signature. These requirements are set out in the Land Title Web Filing Form Practice Guide for the Affidavit of Execution available at https://help.ltsa.ca/myltsa-enterprise/land-title-web-filing-form-practice-guides. See also https://help.ltsa.ca/myltsa-enterprise/affidavit-execution.

EXAMPLE: Lack of Certification

Affidavit of Execution Not Part of Form E

Submissions

On the Declaration form, enter a description of the attached document and attach an image of the affidavit.

The E-filing Directions identify if and under what circumstances supporting documentation may be a true copy of the supporting document. An affidavit in accordance with s. 49 of the Act is an example of a designated true copy of supporting document. The E-filing Directions are available at https://ltsa.ca/wp-content/uploads/2020/10/E-filing-Directions.pdf.

Preferred Forms of Affidavit

The following preferred forms of affidavit are intended to provide guidelines only. Changes to the wording may be acceptable.

EXAMPLE 1: For a Transfer Form Executed by an Individual

1. I am 16 years of age or older and am acquainted with the person named in the instrument as the transferor.
2. I am acquainted with the signature of the transferor and believe that the signature subscribed to the instrument is the signature of the transferor.
3. The signature of the transferor was not certified by an officer under Part 5 of the Land Title Act, R.S.B.C. 1996, c. 250 because [set out reason, for example, the instrument was executed by the transferor outside British Columbia].

EXAMPLE 2: For a Transfer Form Executed by a Corporation

1. I am 19 years of age or older and am a person named in the instrument as an authorized signatory of the transferor and I was authorized by the transferor to execute the instrument.
2. Any other person who executed the instrument for the transferor was authorized to do so by the transferor.
3. The transferor existed at the time the instrument was executed and is legally entitled to hold and dispose of land in British Columbia.
4. My signature was not certified by an officer under Part 5 of the Land Title Act, R.S.B.C. 1996, c. 250 because [set out reason, for example, the instrument was executed outside British Columbia].

EXAMPLE 3: For a Transfer Form Executed by an Individual Attorney on Behalf of an Individual Transferor

1. I am the attorney of the transferor under a subsisting power of attorney and am 19 years of age or older.
2. I am the person named in the instrument as the attorney of the transferor and, at the time I executed the instrument, I had no knowledge of
   • [in a case where the power is not enduring]
   • (a) the death, bankruptcy or mental infirmity of the transferor;
   • [in a case where the power is enduring]
   • (a) the death or bankruptcy of the transferor or of a termination of my authority under the power of attorney by the operation of s. 29 of the Power of Attorney Act; or
   • (b) a revocation of the power of attorney by the transferor.
3. My signature was not certified by an officer under Part 5 of the Land Title Act, R.S.B.C. 1996, c. 250 because [set out reason, for example, the instrument was executed outside British Columbia].

EXAMPLE 4: For a Transfer Form Executed by an Individual Who Is an Attorney of a Corporate Transferor

1. I am the attorney of the transferor under a subsisting power of attorney and am 19 years of age or older.
2. I am the person named in the instrument as the attorney of the transferor and at the time the instrument was executed the transferor existed and I had no knowledge of the dissolution or bankruptcy of the transferor or of a revocation of the power of attorney by the transferor.
3. The transferor is legally entitled to hold and dispose of land in British Columbia.
4. My signature was not certified by an officer under Part 5 of the Land Title Act, R.S.B.C. 1996, c. 250 because [set out reason, for example, the instrument was executed outside British Columbia].

EXAMPLE 5: For a Transfer Form Executed by a Corporate Attorney of an Individual Transferor

1. [Name of corporate attorney] is the attorney of the transferor under a subsisting power of attorney.
2. I am an authorized signatory of the person named in the instrument as the attorney of the transferor and, at the time the instrument was executed, neither I nor the attorney had knowledge of
   • [in the case where the power is not enduring]
   • (a) the death, bankruptcy or mental infirmity of the transferor;
   • [in a case where the power is enduring]
   • (a) the death or bankruptcy of the transferor or of a termination of my authority under the power of attorney by the operation of s. 29 of the Power of Attorney Act; or
   • (b) a revocation of the power of attorney by the transferor.
3. I was authorized by the attorney to execute the instrument and the attorney existed at the time I executed the instrument.
4. My signature was not certified by an officer under Part 5 of the Land Title Act, R.S.B.C. 1996, c. 250 because [set out reason, for example, the instrument was executed outside British Columbia].

EXAMPLE 6: For a Transfer Form Executed by a Corporate Attorney of a Corporate Transferor

1. [Name of corporate attorney] is the attorney for the transferor under a subsisting power of attorney.
2. I am an authorized signatory of the attorney of the transferor and, at the time I executed the instrument, neither I nor the attorney had any knowledge of the dissolution or bankruptcy of the transferor or of a revocation of the power of attorney by the transferor.
3. I was authorized by the attorney to execute the instrument and both the attorney and the transferor existed at the time I executed the instrument.
4. The transferor is legally entitled to hold and dispose of land in British Columbia.
5. My signature was not certified by an officer under Part 5 of the Land Title Act, R.S.B.C. 1996, c. 250 because [set out reason, for example, the instrument was executed outside British Columbia].

PRACTICE

Overview

The title certification rules require strict compliance. Where an officer has not witnessed a transferor’s signature, the following land title office practice applies.

1. An affidavit of execution must explain the lack of officer certification.
2. If the transferor executed the instrument in British Columbia, the registrar exercises discretion to determine whether the reasons stated in the affidavit of execution justify its use.
3. If the transferor executed the instrument outside British Columbia, the registrar accepts affidavits without further justification. (See the preferred forms of affidavit under “Regulations, Fees, and Forms” for this section of the Act. See also the preferred forms of affidavit in the Land Title Web Filing Form Practice Guide for the Affidavit of Execution available at https://help.ltsa.ca/myltsa-enterprise/land-title-web-filing-form-practice-guides.

Determination of Whether Use of Affidavit Acceptable

Exercise of Discretion

The registrar may accept an affidavit of execution when “of the opinion that the circumstances require”. The rule is that all instruments must have an officer certification, unless the registrar exercises discretion under s. 49 of the Act.

Policy Objectives for Requiring Officer Certification

The policy objectives of Part 5 are to reduce the volume of paper associated with conveyancing documents and to prove due execution of these instruments. The elimination of affidavits of execution helps reduce the paper volume, and officer certification deals with the proof of execution issue. Applicants are to use affidavits of execution only in exceptional circumstances where the registrar considers use of an affidavit to be reasonable.

Affidavit of Execution Must Give Reason for Registrar to Waive Officer Certification

The registrar must be satisfied in each case that the circumstances require an affidavit of execution in lieu of an officer certification. The affidavit of execution must give the registrar a reason to waive the officer certification requirement. Reasons such as remoteness or physical disability would strengthen a case, but such factors need not always be present. The registrar does not consider simple statements in an affidavit to the effect that the transferee is a utility company, or is a publicly funded enterprise, to be sufficient reasons. The registrar is prepared to recognize the exigencies around the timely completion of real estate transactions. However, affidavits must state facts and not simply opinions or generalities.

Factors Registrar Considers in Deciding to Accept Affidavit of Execution

By way of summary, the following is a list of some of the factors a registrar considers in deciding whether to accept an affidavit of execution in lieu of officer certification:

1. execution outside the province of the instrument for which registration is sought;
2. disability of the transferor where the affidavit sets out the nature of the disability and the reason why the transferor was not able or prepared to attend at an officer’s place of business to sign the transfer;
3. remoteness of the transferor’s place of residence where the affidavit sets out the place of residence and the reason why the transferor was not able or prepared to attend at an officer’s place of business to sign the transfer; or
4. occupation of the transferor where the affidavit sets out reasons why the transferor is not able or prepared to attend at an officer’s place of business to sign the transfer.

This list is not exhaustive; it does not include all of the situations where the registrar may accept an affidavit of execution.

Execution out of the province is the only reason that the registrar routinely accepts an affidavit of execution. The land title branch recognizes that a lawyer or notary in another jurisdiction may not be prepared to give the Part 5 certification associated with an officer’s signature.

Example from Exploration, Transmission, and Utility Enterprises

The oil and gas industry cites the example of the farmer during harvest time who is either not prepared or not able to take time off work to appear before an officer to execute a transfer document. In such a case, the affidavit should set out the reason why the farmer was neither prepared nor able to attend before an officer at that particular time. The registrar bases the decision to relax the officer certification requirement on the reasons stated in the affidavit. As such, the reason the farmer gives should be more than a statement that they were not able or prepared to attend before an officer, but should explain why the farmer was not prepared to do so.

Pro Forma Affidavits with Pre-Printed Standard Reasons Not Likely Persuasive

The registrar considers the circumstances of each case in deciding whether to relax the officer certification requirement. Accordingly, pro forma affidavits using pre-printed standard reasons are not likely to be persuasive.

Use of Notary’s Seal on Instruments Executed outside of British Columbia

If an out-of-jurisdiction notary is taking an affidavit for use in British Columbia, the notary must attach a notarial seal to the attestation portion of the affidavit. However, if the notary is acting as an officer, they do not have to use a notarial seal.

Affidavit of Execution by Transferor Who Uses “Chinese Chop” for Signature

If the transferor has chosen to use a “Chinese chop” on the instrument of transfer and execution is proven by affidavit, the affidavit must reflect that the “chop” is the mark of the transferor.