The Mortgage Instructions Toolkit offers practical guidance for lawyers responding to lender requests in residential real estate transactions. This page addresses the requirement for independent legal advice.

The situation

Circumstances or mortgage lender instructions may oblige you to advise a client of the need for independent legal advice (ILA).  

Circumstances requiring ILA include:

• A home purchase where the buyer is a spouse and the other spouse is not going to be registered on title.
• A deed of conveyance removing one spouse from title for nominal consideration.
• Re-financing instructions that take one spouse off title.
• Co-habitation agreements signed before or after a couple moves in together or where one spouse is on title and the other is moving in.

Advising a client of the need for ILA is not discretionary. You should not proceed to closing without a certificate of ILA proving that the client received independent legal advice.

Sample lender instructions

You will be responsible for ensuring that each mortgagor who does not receive a direct benefit from the proceeds of the mortgage loan (or where there are any other circumstances that warrant it appropriate or necessary) has received independent legal advice (from a solicitor not acting for the Bank) in such as manner as to ensure that the Bank’s security and position are not compromised.

Practice guidance

• Review meaning of “independent legal advice:”
  • Independent – lawyer has no conflict of interest with any signatories to the transaction.
  • Legal – certificate of ILA has legal effect and advice is provided by a lawyer.
  • Advice –informs the client of the impact of the transaction on the client personally and ensures that this is what the client wants and was expecting and is in the client’s best interests. This may require follow-up action on the part of the lawyer giving ILA.

When a situation requires your client to receive independent legal advice

• Leave enough time for ILA. It is usually a 30 minute to three hour process depending on the documents that need to be reviewed and the required conversations. Do not be pressured to act before this step has been completed.
• Require a certificate of ILA and include it in your report to the lender. In the rare situation where you receive only oral information that your client received ILA, then document your file by having the client sign a statement acknowledging that the client has received ILA from “x” lawyer.

When you are the lawyer providing independent legal advice

• Establish a practice standard – checklist or standard operating procedure – which you follow every time you are completing a certificate of independent legal advice. Following the same procedure every time you provide ILA protects you should your advice be challenged.

Your procedure could include:

• Take enough time to meet with client. A conversation may provide relevant information that will impact your advice.
• Meet with the client alone. When an interpreter is needed, it should not be a family member.
• Check identification.
• Ask the client to explain to you what you have said. This gives you a better sense of what the client heard and understands, and what you may need to explain again in a different way.
• Write up the interview, your review of the documents, and your advice to the client and save it in the file.
• Invoice the client. Payment should be from the client whom you met, not from the party benefiting from the transaction document. This helps to establish the independent selection and management of your retainer. When a third party pays your ILA invoice, additional disclosure is required and should be kept on file.

Note for all lawyers:

• ILA is not a “rubber stamp” exercise. There can be serious consequences to the lender, client, and the lawyer for failing to follow the proper process.
• Title insurance does not cover ILA matters. This is an errors and omissions situation with your professional insurer.

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