The Mortgage Instructions Toolkit provides practical guidance for lawyers responding to lender requests in residential real estate transactions. This page addresses borrower identification requirements.  

The situation

Lender instructions may require a lawyer to complete and sign a form confirming compliance with the lender’s identification requirements.

The form may require the lawyer to attest that:

• the lawyer is in good standing and entitled to practice law without restrictions;
• the lawyer has personally met with each individual who signed the mortgage documents;
• the borrower and the client with whom the lawyer met are one and same person as noted in the commitment letter and CMHC Special Conditions (if applicable); and
• the lawyer has received two valid and current original forms of ID acceptable to the lender.

The lender instruction may also require the lawyer to verify that identification was checked following the requirements of the Proceeds of Crime (Money Laundering) and Terrorist Financing Regulations.

Situations arise when the borrowing party or parties cannot be present for closing. In the past, a power of attorney was sufficient to cover these situations. Now, lenders require more documentation, and each lender has different instructions with respect to signing mortgage-related documents (including Affidavits of Status and Client Identification Forms), and requirements regarding your personal verification of client identity documents and the execution of documents out of province.

The provincial and territorial law societies, the Barreau du Québec, and the Chambre des notaires du Québec each have their own client identification and verification rules of practice.

Sample lender instructions

Each mortgagor must be physically present when you ascertain his or her identity. If you are not able to ascertain the identity of each mortgagor as required, you must immediately advise us and no funds are to be distributed until we provide you with new instructions.

For individuals, we require that you examine Acceptable Identification as defined in Appendix A from each mortgagor and that you complete Appendix B to record the full name, identification type, identification number, and place of issue of the identification for each mortgagor.

Practice Guidance

• Check the lender instructions for all identification requirements.
• Review the rules of practice for the jurisdiction in which the transaction is taking place.
• Review the Proceeds of Crime (Money Laundering) and Terrorist Financing Regulations, if applicable.
• Verify the lender requirements for executing out of province documents, if applicable.
• Make sure that you have time to get everything in place before closing day.
• Speak to the borrower as soon as possible, about their availability to sign the transaction documents in person. Make sure your client knows what identification and any other documents you will need to see at the time of signing.
• Check all identification documents yourself. Compare the photographs to the person in front of you. Identification documents must be original, valid, legible, unexpired, not substantially damaged, and written in a language that you can read/understand. They must meet the lender’s instruction requirements.
• Have the client sign an affidavit when the name in the commitment letter is not identical to the name on the identification documents, for example, the commitment letter does not include the client’s middle name. The client must confirm that both documents are referring to the same person.
• Remember that title insurance does not cover identification requirements. However, title insurance does cover fraud. So if you have done what you were supposed to do and an identification that seemed legitimate was forged, you are less likely to incur liability.  

POWERS OF ATTORNEY

• Where a Power of Attorney is required, check to make sure it is in effect and complies with provincial/territorial requirements, and with the title insurer’s requirements if applicable.
• You will have to check requirements in both the jurisdiction where the documents are being signed and the jurisdiction where the Power of Attorney was signed when they are not the same.
• Watch for any precondition requirements that must occur for the Power of Attorney to be in effect and make sure they are met.
•  When the Power of Attorney appoints a spouse or common law partner, check the applicable homestead legislation to verify that the transaction is allowed.
• Make sure the Power of Attorney has been registered or will be registered prior to the registration of the mortgage and disbursement of loan proceeds. Provide a copy of the power of attorney to the other lawyer ASAP to avoid surprises and delay.

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