Canadian Bar Association Mid Winter. Branch SCOTIA (LIANS) CONFERENCE. Halifax, Nova Scotia October 20, Deeds New Brunswick

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1 Canadian Bar Association LAWYERS INSURANCE ASSOCIATION OF NOVA Mid Winter SCOTIA (LIANS) Meeting of NB CONFERENCE Branch Halifax, Nova Scotia October 20, LAND TITLES PET PEEVES andregistrar Raves of the Serge Rants Gauvin, General of Registrar Land Titles, Chief Registrar of Deeds New Brunswick February 5, Moncton

2 Land Titles in New Brunswick Pilot Project in Albert County Extended province-wide in with information sessions to lawyers and staff prior to final implementation No extensive consultation that I am aware of, negotiations with Law Society

3 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.

4 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

5 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.

6 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

7 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

8 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

9 Section 57 of standards Errors in the PID Databank descriptions and errors in conversion (AFR) have to be corrected in a timely fashion.

10 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.

11 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

12 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.

13 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.

14 PID Databank Application Documented access as a benefit statement, as per regulation 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.

15 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.

16 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.

17 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.

18 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.