Social distancing.

Working from home.

Self-isolating for people with symptoms or travelers who have just returned to Canada.

In Ontario, a purchase of real property transaction is usually considered "closed" once the transfer (deed) of land is submitted for registration. If you are working on a transaction that is closing within the 14-day period of the provincial shut down, Teraview should be open for electronic registration.

There are a few (very few) real properties in Ontario where land registration documents cannot be registered electronically but must be registered in paper by someone physically going to the appropriate land registry office. Land registry offices are permitted to be open; however, they may be operating with a skeleton staff resulting in longer wait times or reduced services, or if no staff is available or the building the office is located in is closed, it seems possible that a particular office may be closed at times.

The government may still order land registration services closed in the future.

Some agreements of purchase and sale for real property in Ontario provide that if the closing date in the agreement falls on a day that the land registry office is closed, the closing date is automatically extended to the next day that the land registry office is open. Therefore, if the Ontario land registration system is ordered closed, lawyers may check whether a signed agreement specifically provides for an extension. Lawyers may consider including such a clause in agreements that haven't been signed yet.

Closing is only one step in a real estate purchase and sale transaction. Before closing, lawyers will usually search title to the real property being purchased for their clients. It may also be necessary to register other instruments before closing, such as a plan of subdivision. As long as Teraview and land registry offices are open, lawyers may electronically search title to real property. There may be a delay, in searching and registering, for anything that requires a review and response from land registry office staff, if only a skeleton staff is working at the relevant land registry office. Lawyers may consider if title insurance will "insure over" a title issue that cannot be fixed in time. If the land registration system is later ordered closed, lawyers will not have access to current title records and may be unable to certify the quality of title to real property to clients during the closure.

Even if the land registration system is open, other problems resulting from the COVID-19 pandemic may jeopardize a party's ability to close. Another possible impediment for a purchaser to closing a real estate transaction may be the purchaser's ability to complete its due diligence. Typically, purchasers negotiate into a purchase agreement for a period of time to conduct their own due diligence on the real property to determine if it is suitable for the purchaser's intended use, together with the right to terminate the transaction without being in default if the purchaser is unsatisfied with the results of its due diligence. In addition to searching title to the real property during this time, a purchaser's due diligence may also include environmental due diligence and ensuring there are no other issues that may affect the purchaser's use or development of the real property. These are often referred to as “off-title” matters. Some off-title searches may be difficult to complete with the mandatory closure, because a response is required from a municipal authority or other entity that is closed or operating with a skeleton staff because of the pandemic or the government's order.

If the purchaser is looking to third-party financing for the acquisition, this may take longer during the COVID-19 pandemic as well. Although banks remain open as an essential service so far, many may be working with a skeleton staff which could cause longer processing times.

If the parties to an agreement have satisfied all other requirements to close except land registrations because land registration services are closed, the parties may try to negotiate to:

Neither party may be required by their contract or by common law to agree to any of the above options. However, they may agree to proceed under one of these or another option if both parties are still motivated to close the transaction.

Typically, lawyers meet face to face with clients purchasing real property. However, this is not advised by public health authorities during the COVID-19 pandemic. The Law Society of Ontario (LSO) has provided guidance to Ontario lawyers in its Corporate Statement re: COVID-19. During the COVID-19 pandemic until further notice, the LSO will permit lawyers to verify their client's identity and commission statutory declarations by video conferencing rather than meeting in person, but the lawyer must mitigate the associated risks.

Practice Note, Land Registration: Overview.

Practice Note, Title Insurance Policy (Owner): Overview.

Practice Note, Title Insurance Policy (Lender): Overview.

Standard Document, Extension of Deadlines (Agreement of Purchase and Sale).

Standard Document, Escrow Agreement (Acquisitions).

Standard Document, Commercial Real Estate Loans: Escrow Closing Agreement.

Practice Note, Due Diligence: Acquisitions (Purchaser).

Practice Note, Due Diligence: Commercial Real Estate Loan Transactions.

Practice Note, Time of the Essence in Real Estate Purchase Agreements.

Practice Note, Purchase and Sale of Commercial Real Estate: Closing.

Practice Note, Commercial Real Estate Loans: Closings.

Standard Document, Amendment to Agreement of Purchase and Sale (Real Property).