Part 13 – Real Estate Practice

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13.1  Interpretation

13.1.1 In this Part:

  • “Department” means Service Nova Scotia and Municipal Relations;
  • “Interest” has the same meaning as in the Land Registration Act;
  • “LRA” means the Land Registration Act;
  • “LRA Agreement” means the agreement entered into on this 28th day of June 2007, as amended from time to time, between Her Majesty the Queen in right of the Province of Nova Scotia (as represented by the Minister of Service Nova Scotia and Internal Services) and the Nova Scotia Barristers’ Society to formalize the relationship, duties and responsibilities between the Society and the Minister in the administration and implementation of the LRA;
  • “LRA Auditor” means those persons appointed by Council pursuant to this Part to audit lawyer’s work in the land registration system;
  • “LRAR” means the Land Registration Administration Regulations made by the Minister of Service Nova Scotia and Municipal Relations pursuant to Section 94 of the LRA;
  • “land registration system” means the land registration system established by the LRA and regulations thereunder;
  • “opinion of title” for purposes of Part 13 opinion of title includes an opinion pursuant to Section 37 of the LRA;
  • “Professional Standards” means the Professional Standards Real Property Transactions in Nova Scotia as approved by Council;
  • “Registrar General” means the Registrar General appointed by the Minister pursuant to Section 8 of the LRA.

13.2 Eligible Lawyers

13.2.1  An “eligible lawyer” for the purpose of these Regulations and the land registration system, is a member who:

  • meets the definition of “qualified lawyer” in the LRA;
  • complies with any educational requirements of the Society relating to the land registration system;
  • pays any surcharge or levy imposed by Regulation;
  • is in compliance with the Authorized Lawyer User Agreement to work in the land registration system;
  • is in compliance with the requirements of this Part.

13.2.2  An eligible lawyer’s work that forms the basis for an opinion of title or certificate of legal effect that affects, creates or changes an interest in a parcel register in the land registration system shall be subject to audit in accordance with this Part for compliance with LRA, the LRAR and the Professional Standards.

13.2.3  Where a lawyer did, but no longer, satisfies the definition for “eligible lawyer” the Executive Director must, in accordance with the requirements of the LRA Agreement, notify the Department that the member is not an eligible lawyer.

13.3 LRA Auditors

13.3.1  Council shall appoint one or more LRA Auditors and, for the purposes of subregulations 13.3.6 and 13.3.7, other “qualified persons” within the meaning of that section.

Audits

13.3.2  The Society shall carry out an audit program whereby LRA Auditors assess lawyers’ work in the land registration system for compliance with the LRA, the LRAR and the Professional Standards.

13.3.3  An audit may include a review of the electronically stored information in the land registration system and a review of the foundation documents supporting a lawyer’s opinion of title or certificate of legal effect.

13.3.4  A lawyer whose work is the subject of the audit or the law firm that has kept the foundation documents in accordance with Part 8 shall:

  • cooperate with an LRA Auditor in the course of an audit;
  • respond to inquiries of the LRA Auditor within the time frame stipulated by the auditor;
  • produce for the LRA Auditor foundation documents, or other information that the LRA Auditor requires for the purpose of the audit;
  • if the lawyer is no longer with the law firm and the lawyer so requests, provide a copy forthwith to the lawyer; and
  • if called upon to do so by the LRA Auditor, explain and provide evidence which would support the opinion of title or certificate of legal effect that is the subject of the audit.

13.3.5  The LRA Auditors shall:

  1. conduct audits of lawyers’ work in the land registration system in accordance with the terms of the LRA Agreement;
  2. upon completion of an audit, provide a written report advising whether the lawyer’s work audited complies with the LRA, the LRAR and the Professional Standards to
    1. the Executive Director,
    2. the Registrar General, and
    3. the lawyer, if the auditor has requested the cooperation of the lawyer;
  3. maintain confidentiality with respect to the work audited;
  4. report to the Executive Director any failure to cooperate on the part of a lawyer or law firm during the course of an audit.

13.3.6  If the report of the LRA Auditor indicated that the lawyer’s work is not in compliance with the LRA, the LRAR or the Professional Standards, the Executive Director:

  • may direct the LRA Auditor or another qualified person to conduct an audit of the files of the lawyer in the office of the lawyer, or in another location where the files are maintained, with or without notice to the lawyer or law firm, and subregulation 13.3.4 applies to such audit;
  • must provide a copy of any report to the member of the law firm designated pursuant to subregulation 4.7.1;
  • may by written notice require the lawyer or law firm to take corrective action to comply with the LRA, the LRAR or the Professional Standards and set a time fixed for doing so, and failing which, if no written notice of objection is received as provided for in subregulation 13.3.7, the Executive Director may report that fact to the Complaints Investigation Committee which may provide further direction as necessary; or
  • may initiate any action considered appropriate under Part III of the Act or Part 9 of the Regulations, in which case the auditor’s report may be used as the basis for a complaint and may be used as evidence.

13.3.7  If the Executive Director has given a notice under subregulation 13.3.6 and the lawyer or law firm disagrees with the auditor’s opinion as to the corrective action required, the lawyer or law firm may file with the Executive Director a written objection within the time frame set out in the notice for the corrective action required, which must be accompanied by a copy of the foundation documents relating to the lawyer’s work and the basis for the objection, and the Executive Director:

  • shall forward the objection and supporting material to another LRA Auditor or another qualified person for review; and
  • if the second reviewer supports the original LRA Auditor’s review, provide a copy of that review to the objecting lawyer or law firm and give written notice to the lawyer or law firm to comply with the corrective action recommended, within the time frame provided in the notice; and
  • if the lawyer or law firm fails to comply with the order in 13.3.7(b), may retain a lawyer to undertake corrective work and the costs shall be borne by the lawyer or law firm whose work was the subject of the review;
  • if the second reviewer fails to support the original LRA Auditor’s review, must provide a copy of that review to the lawyer or law firm, and to the person designated under subregulation 4.7.1, and rescind the written notice to complete the corrective action.

13.3.8  The Executive Director may commence an investigation pursuant to subregulation 9.2.1 if a lawyer or law firm fails to comply with the Executive Director’s written requirement for corrective action under subregulations 13.3.6 or 13.3.7.