BULLETIN NO DATE: December 14, TO: All Land Registrars

Transcription

1 @ Onario BULLETIN NO Minisry of Consumer and Commercial Relaions Regisraion Division I DATE: Decemer 14, 1998 TO: All Land Regisrars Wris of Execuion Real Propery Regisralon Branch The purpose of his ullein is o clarify: (I) he rules for deermining heher a name eing searched maches a name in he ris daaase; (11) hen an execuion search is required a he ime of regisraion of a documen under he Land Tiles Ac; (111) hen land regisry offices may clear ris; and, (IV) hen a ri does no apply. Much of he informaion conained in his ullein is a resaemen of previous ulleins. I ill e noed here here is a change in pracice. (I) WHEN A NAME MATCHES An execuion search need only e performed agains he exac of he regisered oner. The Land Tiles Ac provides ha if a ri is filed under a differen name oher han ha under hich he oner is regisered, he ri has no effec. The folloing is a summary of hen a name ill e considered a mach in an auomaed search. 1. mividu- Where he surname and one forename are idenical, he names ill e considered o mach even if: a) one name conains iniials and he oher does no, e.g. John Smih and John A. Smih mach. ) oh names conain iniials or addiional forenames ha do no mach, e.g. John A. Smih and John B. Smih mach, and John A. Smih and John Harold Smih mach; or C) names or iniials occur in a differen order in each name, e.g. John A. Smih and Andre John Smih mach. and John Andre Smih and Harold John Smih mach. In he folloing cases, individual forenames ill e considered & o mach: a) here forenames may e inerchangeale, e.g. John Smih and Jack Smih do no mach; ) here one forename may e an areviaion of anoher forename, e.g. Belle Smih and Isoel Smih do no mach;

2 c) here oh forenames may e areviaions of he same name, e.g. Bill Smih and Willy Smih do no mach; d) here one name may e an Anglicized version of he oher, e.g. John Smih and Johan Smih do no mach; e) here here are minor variaions in spelling of given names, e.g. Ann Smih and Anne Smih do no mach; f) here a variaion may e due o a ypographical error, e.g. John Smih and Jhon Smih do no mach. I ill e assumed, for search purposes ha single leers represen iniials and no forenames, unless only single leers are given, e.g. in I. Roers, he "I" should e considered he forename. 2. Corporae and Parnership Names, Only execuions agains he exac name of he corporaion or parnership as se ou in he ransfer ill e searched. Names ill e considered o mach only if he name in he parcel regiser and he name in he ri are idenical, excep ha, here he corporae idenifier in one name ("Corporaion", "Incorporaed", "Limied" or he non-english version in any of hese, e.g. "Limiee") is areviaed in he oher name ("Corp.", "Inc.", "Ld.". "Lee.") he names ill e considered o mach. Hoever, here "Limied" or "Ld." occurs in a corporae name eing searched, he name ih anoher corporae idenifier, i.e. "Corporaion" or "Corp." no e searched, (e.g. John B. Smih Limied and John B. Smih Corp. do no mach) unless "Corporaion" forms par of he corporae name, e.g. "X Corporaion Limied. Names ha include a numer ill e considered o mach only if he numer is idenically se ou in oh names, e.g Yonge Sree Ld. and One Thousand Yonge Sree Ld. do no mach. (11) WHEN AN EXECUTION SEARCH IS REQUIRED: The pracice of searching has changed since cliens no perform heir on searches remoely or use erminals in he land regisry offices. Land Regisry Office saff mus ensure ha he cerificae is checked for he saus of execuions a he ime of regisraion. The cerificae is valid for he enire day for hich i is daed. F Transfers: All ransfers of any ineres in freehold land require an execuion search agains he regisered oner(s). This includes inerspousal, inerfamily, self o self, municipally oned land and change of enure. This also includes ineress oher han fee simple. E.g., ransfers of easemens, life esaes, ec. Poer of sale: Land Regisry Office saff mus e saisfied ha a he ime noice as sen, all execuion crediors ho ere on file susequen o he dae of regisraion of he charge, have een served ih noice of he sale proceedings. (Execuions filed prior o he charge, even if he credior is served, ill ml e deleed).

3 Ne An execuion cerificae presened and daed he same day noice as sen is sufficien evidence o mee he execuion searching requiremen, as execuions filed afer his dae do no ind. Therefore, i is no necessary o do a ri search on he dae he ransfer under poer of sale is regisered if a cerificae is presened as saed aove. Foreclosures: Land Regisry Office saff mus e saisfied ha susequen execuion crediors (i.e., susequen o he charge a he ime of issuance of he saemen of claim for foreclosure) have een specifically foreclosed in he foreclosure order. Ne An execuion cerificae presened and daed he same day as he issuance of he saemen of claim is sufficien evidence, as execuions filed afer his dae do no ind. Therefore, i is no necessary o do a ri search on he dae he order of foreclosure is regisered if a cerificae is provided as saed aove. Therefore, in eiher a ransfer under poer of sale or a foreclosure proceeding, if he execuion credior's claim is exinguished y he proceeding, an enry of he ri ill e made on he parcel regiser. Bankrupcies: In he case of a ransfer from he Trusee in ankrupcy, ile ill no. e made sujec o any execuion on file agains he ankrup and an execuion search is no required agains he ankrup or agains he Trusee in Bankrupcy. Therefore, neiher a Transfer y he Trusee in Bankrupcy nor an Applicaion y he Trusee o he enered as oner requires an execuion search agains he ankrup's name. Discharged Bankrup Once a ankrup is discharged and ransfers any propery acquired afer he discharge, he ile ill e sujec o any execuions on file agains he former ankrup. Wih regard o execuions filed efore he discharge, he ile ill e made sujec o he ris unless he Land Regisrar can e saisfied ha he discharge as no condiional ih respec o he ankrup's aferacquired propery and ha he judgemen on hich he execuion as ased is no for a claim o hich he ankrup's asses remain liale afer his discharge. Wris in he folloing circumsances ill coninue o apply: any de or liailiy arising ou of fraud, emezzlemen, misappropriaion or defalcaion hile acing in a fiduciary capaciy; any fine or penaly imposed y he cour or any de arising ou of a recognizance or ail ond; any de or liailiy for alimony; any de or liailiy under a suppor or mainenance or affiliaion order or under an agreemen for mainenance and suppor of a spouse or child living apar from he ankrup;

4 any de or liailiy for oaining propery y false preences or fraudulen misrepresenaion; liailiy for dividend ha a credior ould have een eniled o receive on any provale claim no disclosed o he rusee, unless he credior had noice or knoledge of he ankrupcy and failed o ake reasonale acion o prove hislher claim. The Land Regisrar may accep he saemen of he ankrup's solicior ih respec o he saus of he discharge and of he de as sufficien evidence ha he ri does no apply. The solicior mus sae ha helshe has acual knoledge of he facs. A saemen ased on hislher knoledge and elief is no accepale. Parnerships: Since an execuion agains a parner in hislher personal capaciy does no ind he parnership land, only he parnership name shon on ile need e searched. If a parnership is no named on ile, u only a general saemen such as "as parnership propery" is included, a sauory declaraion saing he name of he parnership mus e made o enale a search o e made agains ha name. A search mus e made agains oh he limied and general parners. Transfers y Esae Trusee, ec. or Transmission Applicaion: Where propery is eing ransferred y an Esae Trusee, or here he devisee applies o e regisered as oner, only he deceased's name should e searched. The search rules in he auomaed sysem are such ha only he deceased's name needs o e enered and he sysem ill search for any capaciy of ha name. (E.g., Roer Jones, Esae Trusee of Alexander Jones: search only Alexander Jones. Beneficial Ineres: If a eneficiary is consening o or releasing heir ineres in propery, an execuion search agains he eneficiary mus e conduced unless he releasing eneficiary disclaims all ineres in he propery. Oher insances here searches are required: In addiion o he siuaions se ou aove, execuion searches are required for: v survivorship applicaions (agains a deceased join enan) survivorship applicaions (agains a deceased rusee, unless shon as a enan-incommon) In survivorship siuaions, an execuion is only enforceale if he sheriff has adverised he lands for sale o enforce a ri of execuion. The sheriff may only enforce he ri here he deah of he join enanlrusee occurred afer expiraion of six monhs from he filing of he ri. applicaions o delee des (agains a prior deceased oner) applicaions o change name of regisered oner any proceeding ha eliminaes, i.e. "cus ou" he regisered oner (e.g., vesing order, foreclosure, poer of sale)

5 Ne applicaions o release andlor aandon an easemen. NOTE: If he pracice in a Land Regisry Office prior o his ullein, has een no o search he former name hen an applicaion o change name is regisered, hen oh he former name and he ne name mus e searched hen a ransfer of land is regisered. This search is only necessary ih respec o applicaions hich predae his ullein. (111) CLEARANCE PROCEDURES Ne An affidavi y he regisered oner saing ha helshe is no he same person as a judgemen deor named in a ri of execuion is accepale o sho ile free and clear of he ri provided he amoun of he judgemen de is less han $50,000. Prior o he issuance of his ullein, his amoun as $10,000. Where he value of he ri of execuion is $50,000 or more, rien acknoledgemen y he judgemen credior or hisher solicior ha he deor is no one and he same is accepale o clear he ri of execuion. Ne fn addiion, regardless of he amoun of he ri, he solicior for he regisered oner may make an unequivocal saemen ha heir clien is no one and he same as he person in he ri. There is no requiremen o give any deails of he ri in his case. (IV) WHEN A WRIT DOES NOT APPLY When a search for ris reveals a cerificae of lien under eiher he Legal Aid Ac or he Bail Ac, he lien only aaches o he lands specifically idenified in he lien and herefore does no apply o oher land. I is no necessary o search for ris of execuion agains a spouse ho is only joining in a documen o consen under he provisions of he Family La Ac. This ullein is effecive immediaely. This ullein replaces ulleins 75078,75085,75088, 81031, 82027, 84028, 86002, and 89009, as ell as Iem 2 of ullein and ullein excep paragraphs 1 and 2. Direcor of Land Regisraion Direcor of Tiles