The COVID-19 pandemic and its impact on the notarial practice

You are moving soon and are unsure whether the sale or the purchase of your property will be concluded? You are in the second phase of construction of your most recent real estate project and you are uncertain that you will be able to sign the hypothec before a notary? Between Prime Minister Legault’s recent press conference, communications from the Chambre des notaires du Québec (the “CNQ”) and articles from various newspapers that have been published in the last few days, it may seem difficult to clearly answer these questions.

On March 24th, notaries and lawyers in private practice were included to the list of “essential services” established by the Government. The impacts of the current pandemic for notaries and the exercise of their profession, although difficult to measure, remain very real.

The closure of notary offices  

Although notaries are now considered as an “essential service”, allowing them to keep their offices open, closure is however not prohibited. In fact, a notary wishing to close his office for the next few weeks is fully entitled to do so, as all measures relating to the health emergency continue to apply to notaries. They can decide to close their offices in order to ensure the safety of their families, employees and clients, as well as their own. It is then up to them to choose whether to keep working on their files or not, regardless of the number or the urgency of said files.

The decision to close an office nevertheless implies taking adequate measures to transfer any pending file to a colleague who will be responsible for completing it. It is important to contact your notary to confirm whether he will continue to manage your file, and if not, to which notary he could recommend you.

Measures imposed by the CNQ  

Who says health emergency necessarily says actions need to be taken. Notaries whose offices remain open are strongly encouraged to comply with the new measures set out by the CNQ in a recent statement sent to its members. Thus, notaries are suggested to limit client access to their offices, which means that notaries can refuse to meet a client whose appointment is not considered urgent. They can also request a separate meeting for each of the vendor and the seller for the signature of the deed of sale, to respect social distancing.

A buyer can sign the hypothec and the deed of sale at the same time to avoid as much contact as possible. However, the seller will only be able to sign after the buyer’s hypothec has been registered and the funds are in the notary’s trust account.

Clients are also more than likely to be asked a series of questions to assess the emergency of an appointment, including questions relating to recent trips and their health, to ensure everyone’s protection.

Digital solutions to social distancing?  

Faced with the current extraordinary situation and the necessity for some people to request the services of a notary, the Minister for Health and Social Services has authorized notaries to close a notarial act remotely using a technology-based medium on March 27th, 2020 [1]. This allows notaries who wish, to sign notarial acts without having any physical contact with the parties.

This new procedure came into effect on April 1st and provides that the notary and all parties shall see each other and see the deed to be signed. This decree enabled the CNQ to implement new measures and instructions relating to the remote signing of any document by a notary. Among other things, they stipulate that meetings must be held by videoconference to allow the notary to verify the identity of the parties and to see the parties affix their electronic signature on the deed. This signature is done using a link sent to the parties by email as well as a code sent by text message.

However, it should be noted that, like the opening or closing of notaries’ office, this alternative remains a choice left at the discretion of notaries and its use could also depend on the level of urgency of the situation of the parties concerned. One can think of a person wishing to write his will and whose health is precarious.

Two other questions currently seem to arise when making a real estate transaction with a notary: Can you withdraw an offer to purchase by invoking the COVID-19 pandemic? Does the current situation constitute a case of force majeure making it possible to cancel a sale or a financing? I invite you to read the article written by my colleague Catherine Demers entitled “COVID-19 pandemic: a case of force majeure?”, as well as the statement issued by the OACIQ [2] on the subject.

By Marie-Chantale Dubé

[1] Decree 2020-010, Public Health Act, chapter S-2.2