Canadian Bar Association –

Mid Winter Meeting of NB

Branch

LAND TITLES PET PEEVES – Rants and Raves of the

Registrar

February 5, 2010 - Moncton

LAWYERS’ INSURANCE ASSOCIATION OF NOVA

SCOTIA (LIANS) CONFERENCE

Halifax, Nova Scotia – October 20,

2016.

Serge Gauvin, Registrar General of Land Titles, Chief Registrar of

Deeds – New Brunswick

Land Titles in New Brunswick • Pilot Project in Albert County 1984-2000 • Extended province-wide in 2000-2001 with

information sessions to lawyers and staff prior to final implementation

• No extensive consultation that I am aware of, negotiations with Law Society

Compromise with LSNB • Reduction of search standards from 60 years to 40

years • Lawyer/subscribers liable 10 years following

Application for First Registration on parcels. • For claim purposes • Adjudicators to rule on marketability of title. If

marketable, Province incurs immediate liability for matter adjudicated on.

First year of implementation

• Training for all subscribers in December, 2001

• Tips and tricks and expectations from Land Registry

• Directive and procedures issued for lawyers and registry office staff

Possessory interests under Land Titles • 17(1)(a) of LTA – After registration, no right, title or

interest adverse to or in derogation of of the title or his right to possession shall be acquired by the possession of another.

• 17(1)(b) of LTA – no right to the access or any easement shall be acquired in or respect of the land by any person by prescription.

• And any such rights acquired prior to conversion shall not be enforceable as against a registered owner if the existence is not shown in the title register.

Case law – McKinney v. Tobias – CQB, 2004 • No document registered to

show right acquired prior to conversion, therefore, no right enforceable after conversion to Land Titles

Collaboration between lawyers and RG’s Office

• Rectifications to remove documents that have

ceased to affect title. • Form 49 consent of owner to reflect omitted

encumbrance on title, such as a PID that benefits from a right of way

• Exemptions to amend a description to add the benefit of a right of way easement

Practice Standards

• Collaboration between land registry and Law Society needs improvement

• More input from RG’s office in regards to section 27 for right of ways depicted on plans

Section 57 of standards

• Errors in the PID Databank descriptions and errors in conversion (AFR) have to be corrected in a timely fashion.

Form 2 – affidavit of owner for conversion • Clause 6 – no person having any claim or interest in

the land adverse to or inconsistent with my title, except as specified on the AFR.

• FCT vs. Law Society – Court of Appeal of New Brunswick, 2009 – no requirement to have Notary Public witness the signature of owner on Form 2 prior to conversion – prescribed form can be done in front of commissioner of oaths.

Right of way easements • None by prescription as a benefit to a description

when PID Databank Application submitted for Parcel Idenfier (PID) to be approved in contemplation of conversion through the AFR process.

• 4 access values, public, private, no access, and undetermined.

• When no documented access by land (conventional), access value of undetermined picked. Does not mean there is no recognized access.

• Can convert with no access

Access by practice standards • Section 27 of practice standards • Access depicted by plan – Merrill v.

Grexton, QCB 1999 – owners acquire access depicted on the plan unless limited use described in grant of easement document.

Exemptions for access by plan • Only by permission of RG’s office. • If servient tenement is under Land Titles,

benefitting PID has to be encumbrancer on that tenement before we grant the exemption for benefitting parcel

• Owner of servient tenement has to consent via Form 49 to add benefitting PID as encumbrancer before we grant exemption for benefitting PID.

PID Databank Application • Documented access as a benefit statement,

as per regulation 2000-40 of LTA • Some lawyers will not reflect benefit if the

benefiting lot not reflected as an encumbrance on the Land Titles servient tenement

• As a general rule, we do not guarantee benefit statements, which we consider to be part of extent of title.

Application to recognize access after conversion • 17(2) of LTA – prior use and enjoyment of

access, not reflected as encumbrance on conversion

• Courts do not like to dispossess owners who enjoyed access, and impose costs accordingly – 17(3) of LTA

• Court will order RG to rectify to reflect access as an encumbrance on title.

Easements after conversion • Form 14 to create a right of way where there

is no transfer of the parcel. • Form 13 – Transfer can create « interest to

burden » if owner of servient tenement sells, or « interest to benefit » if sale of dominant tenement. Accordingly, right of way can also be created by transfer without having to register Form 14 separately.

Creation of access after conversion • The right of way has to be precisely

identified on the ground, by description, sketch, attached plan, or reference to plan already registered.

Lawyer questions • Lawyers call the RG’s office directly to vet easement

documents, and to ask questions about various documents for registration purposes.

• We do not encourage lawyers to call staff and we unofficially monitor lawyer calls to staff to make sure that they do not ask for legal advice.

• We are contemplating the same course as Nova Scotia to retrain lawyers, as there are knowledge deficiencies that persist even after 15 years of land titles.