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ARTICLE · 17 JULY 2020

Which Lawyer Signs A Private Mortgage?

Siskinds LLP
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From time to time I'm asked whether, on a private mortgage in Ontario, the mortgage (which the Land Titles Act refers to as a "Charge") should be signed and registered by the lender's lawyer or...

CanadaFinance and Banking
Matthew Wilson, C.S.
Matthew Wilson, C.S.
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From time to time I'm asked whether, on a private mortgage in Ontario, the mortgage (which the Land Titles Act refers to as a "Charge") should be signed and registered by the lender's lawyer or by the borrower's lawyer. I have always taken the position that the borrower's lawyer should be the one signing and registering.

Many lender's lawyers prefer to sign and register so that they can keep control over the registration process. Even though I primarily act for lenders, and I see the benefits that could come from me signing and registering, I do not believe that I'm allowed to do so.

The Law Society of Ontario's Rules of Professional Conduct clearly states:

3.4-12 - Subject to rule 3.4-14, a lawyer or two or more lawyers practising in partnership or association must not act for or otherwise represent both lender and borrower in a mortgage or loan transaction. (Emphasis Added)

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