Imagine the following scenario: Party X has entered into an Agreement of Purchase and Sale to sell her property to Party Y; all of the conditions of the sale have been fulfilled or waived; title searches have been completed; the closing date is next Monday; Party X comes into her real estate solicitor’s office on Thursday and signs all of the required closing documentation including an Authorization, Acknowledgement and Direction to her solicitor authorizing the solicitor to register an electronic Transfer/Deed in the Land Registry conveying ownership of the property to Party Y once the purchase funds have been received; Monday arrives and, sadly, Party X passed away over the weekend. Party X wanted to complete the sale to Party Y and, indeed, was obligated to complete the sale to Party Y. She already authorized her solicitor to register the Transfer/Deed to make that happen. Can Party X’s solicitor not register the deed in accordance with the client’s wishes and obligations?
The answer is “no”. If the real estate solicitor went ahead and attempted to register the Transfer/Deed on the basis of the Authorization, Acknowledgement and Direction signed by Party X before her death, the solicitor would be attempting to register what is commonly (and maybe a bit flippantly) referred to as a “Zombie Deed”. For several years now, the Land Registry in Ontario has expressly prohibited the registration of such deeds on the basis that the authorization to register terminates when the vendor dies. The late Director of Titles for Ontario, Jeffrey Lem, issued a bulletin in May, 2020 titled “Zombie Deeds are Dead!” with the following introduction:
As most of you know, the Director of Titles has always been opposed to the so-called “Zombie Deeds” – transfers registered by owners who have already died. Well, there is finally a case dead on point (pun intended) confirming that Zombie Deeds are improper in all circumstances.
Mr. Lem went on to discuss the decision of Madam Justice MacLeod-Beliveau of the Superior Court of Justice in Thompson v. Elliott released in March, 2020. Justice MacLeod-Beliveau had confirmed that it is never appropriate for a solicitor to register a Zombie Deed:
I find the lawyer erred by registering the "zombie" deed/transfer severing the joint tenancy in the property after Ms. Elliott's death based on his erroneous understanding that her instructions survived her death. A court application for a declaration of an interest in land is the proper legal procedure to follow by the lawyer to correct the error made by the lawyer after her death.
The proper course of action to be taken by a lawyer in these circumstances upon the discovery of such an inadvertent error, is for the lawyer to bring an application in the Superior Court of Ontario requesting a certificate of pending litigation and a declaration of an interest in land and for a vesting order under s. 100 of the Courts of Justice Act, R.S.O. 1990, c. C.43 to be made, setting out all the material facts in support of the application for an interest in land to be determined by the court.
Despite the clear statements from Justice MacLeod-Beliveau and the Land Registry about how solicitors should handle Zombie Deed scenarios, problems still arise. In April this year, Justice Myers of the Superior Court made an interim decision in a case that calls into question the direction to seek a vesting order as the alternative to attempting to register a Zombie Deed. A woman on her deathbed transferred title to herself and her nephew as joint tenants. The woman’s solicitor visited her in the afternoon and had her sign the transfer documentation. She passed away before the documents were submitted for registration the following morning. Following the direction of Justice MacLeod-Beliveau in Thompson v. Elliott, the aunt’s estate applied to the Court for a vesting order to permit the registration in the Land Registry of the conveyance of title from the Estate to the nephew.
Justice Myers identified a unfortunate problem with the vesting order request: “Here, the nephew holds title to the property at law. There is nothing for me to vest in him. … I do not understand a request for a court to vest title in the person who already holds it.” By law, the nephew had become joint tenant with his aunt when the documents were signed and he took title by operation of the law of survivorship when his aunt passed away. The vesting order was sought as a way to deal with the requirements for registration of the conveyance of ownership and the prohibition of the registration of Zombie Deeds. If a vesting order is not available, what is the solution?
Justice Myers ended up adjourning the application before him to allow counsel to provide further legal authorities and also perhaps to serve the Director of Titles with the application. Real estate solicitors across Ontario will no doubt await with bated breath the solution to this difficult situation.
Read the decision at: 2025 ONSC 2661 (CanLII)
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