The responsibility to “ensure” or “certify”

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The Mortgage Instructions Toolkit offers practical guidance for lawyers responding to lender requests in residential real estate transactions. This page addresses the responsibility the word “ensure” in lender’s instructions places on a lawyer.

The situation

Mortgage lender instructions may use the word “ensure” or “certify” when describing the tasks that you undertake for the lender and the assurances the lender wants you to provide about the transaction.

Generally, the request to “ensure” or “certify” is beyond the scope of your professional responsibilities.  

You can report on the registration of mortgage. You can give other information of which you have no personal knowledge when you make it clear that you received the information from others and have no actual knowledge of the validity of the information. You can confirm or certify that you have reviewed specifically identified documents or other records on “x” date. You can provide a certified copy of a public document. You can notify the lender of a discrepancy that you have identified.

You cannot “ensure” or “certify” that property insurance is in effect. You cannot “ensure” or “certify” that the water supply is fit for human consumption or that there are no issues with a septic system. You cannot “ensure” or “certify” that there aren’t encroachments and other encumbrances.

The limits on a lawyer’s ability to “ensure” or “certify” may relate to:

  • Timing – the insurance certificate you verified today with a broker may be rescinded later, before closing.
  • Expertise – a lawyer is not trained to advise, for example, on insurance matters such as the “full replacement cost value of a building,” or on legal access to a property
  • Scope – are the limits to your professional judgment on a matter clearly identified?
  • Source of information – how can you “ensure” or “certify” something is true when you are relying on information or documents that someone else provided to you?

Sample lender instructions

You must ensure that either a fire and extended risks, or all risk insurance policy is in effect for the buildings and improvements on the Mortgaged Property in an amount not less than the amount of the Mortgage or full replacement cost value of the building and improvements, whichever is less, with loss payable to the Bank subject to the standard mortgage endorsement approved by the Insurance Bureau of Canada.

Practice guidance

  • Review the mortgage instructions to identify what the lender is requiring from you that is outside your professional capacity.
  • Notify the lender, in writing, that you cannot accept the terms of the lending instructions and “ensure” or “certify” the elements as written. Clarify your undertaking.
  • Choose your words carefully in your report to the lender. Do not “ensure” or “certify” and thereby inadvertently provide a guarantee, representation, or warranty of something that you cannot guarantee, represent, or warrant. Do not give an opinion on something beyond your area of expertise. Set out facts with dates and list the information on which you are basing an opinion, when you give one.

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