This past May, the CBA National Real Property Section executive along with a number of provincial section chairs met with members of the Chambre des Notaires du Québec. The purpose was to learn more about notaries in Quebec and build relationships to work together.
The Chambre is the professional corporation for the approximately 4000 notaries in Quebec. The most similar common law comparison would be a provincial law society.
Notaries in Quebec have a long and rich history. As one notary commented, for many years in Quebec the three most respected people in a community were the priest, the doctor and the notary. A bachelor degree from a recognized law school and a master’s degree of law with specialization in notarial law are required for the registration with the corporation of notaries. The notaries’ most common fields of practice are, in order of importance: real estate law, law of succession, family law and commercial law. The Quebec civil code gives a notary the power to do a number of things. Notaries are indispensable for anything that requires a notarial act – an official document written by a notary. Some documents must be notarial: a marriage contract, a gift of immovable property or declaration of co-ownership. However, perhaps most relevant to the real property transactions in Quebec, is that a hypothec of immovable property (a mortgage), on pain of absolute nullity, shall be granted by notarial act en minute and must be signed before a notary.
Quebec notaries are not lawyers, and in Quebec a lawyer cannot be a notary. Lawyers and Quebec notaries both advise clients on legal matters and draw up legal documents, such as contracts and wills. However, notaries do not plead in court. The practical reason for this is that notaries, unlike lawyers, do not represent a particular party in a transaction. Notaries are by law impartial, acting for all of the parties in the transaction. Not surprisingly, in a room full of lawyers this revelation prompted some questions about how conflicts are dealt with. The notaries admitted it can be challenging at times, but they take their impartiality very seriously and being a good mediator is an important part of being a good notary.
Notaries practise in many different arrangements: some work for the government, some in law firms and others in notary firms. More than half of Quebec notaries are sole practitioners who face many of the same challenges that real estate lawyers are facing outside Quebec, including legal fee pressures. Echoing a common concern of real estate lawyers across the country, one notary stated that their fees have stayed stagnant but their costs have gone up.
Notaries are permitted to practise in a corporation as long as the corporation is controlled by notaries. Notaries are also permitted to have multi-disciplinary practices with non-notaries like lawyers and accountants. However, non-notary ownership or control of a notary practice is not permitted in Quebec, and the Chambre does take enforcement action against entities and websites conducting unauthorized practice.
Quebec has an electronic land registration system, but the notary, not the registry, certifies title. The notaries have also started using an electronic funds transfer to pay out mortgages, but the adoption of that system is still ongoing. Notaries, like lawyers, are a conservative group, but again like lawyers are looking to technology to help their practice and their clients.
It was apparent in the meeting that although Quebec is unique in many ways, some challenges faced by a notary in Rimouski are shared by a lawyer in Sudbury and equally shared by a lawyer in Airdire. The National Real Estate Section took the opportunity to invite the Chambre to contribute to two initiatives currently underway by the CBA: Lobbying efforts with respect to the federal government’s relocation contract renewal; and the mortgage instruction toolkit. Of course contributions on these initiatives is not limited to notaries and we very much welcome all members to contact a member of the national executive if you would like to get involved.
Brett Horton is the Secretary of the Real Property Law Section.