The Mortgage Instructions Toolkit provides practical guidance for lawyers responding to lender requests in residential real estate transactions. This page addresses the retention of mortgage documents.

The situation

In the past, once a real estate purchase was completed, the lawyer sent the signed documents to the client lender with copies to the client borrower, and closed the file. Now, a lender may require the lawyer to retain a range of original documents after closing, and to commit to providing them promptly. Given the costs of storage and retrieval, this can be a significant burden.

Sample lender instructions

You agree to retain and to make available, at any time and without delay, all other applicable documents as set out in section X of the Final Report on Title.

Practice Guidance

• Think about how best to manage the storage and retrieval responsibility that the lender has placed on you. For example, what can be scanned and stored in an electronic format in a secured, backed-up facility and in a format that you physically control, in-house or located outside your office? What system can you use to make retrieval as efficient and cost effective as possible? How are colleagues handling this?
• Note that some jurisdictions have legislation covering electronic documents, giving them the same effect as hard copy signed documents. For example, Ontario’s Electronic Commerce Act, 2000.

Disclaimer and Feedback