CONTENTS. ix (RTL) (Rel. 6, 2009)

Transcription

1 CONTENTS Preface... Publisher s Note... Table of Cases... Table of Statutes... v vii TC-1 TS-1 Chapter 1 Introduction Para. 1. Estates in Land Under the Feudal System and Warranty of Title Method of Transfer Under the Feudal System The Changing Face of Conveyancing (1) Statute of Uses... 3 (2) Later statutes Defects of Old Systems (1) System of private conveyancing... 5 (2) Security of title... 6 (3) Constructive notice... 7 (4) The shadowy equities born of fraud and fear... 8 (5) Simplification of transfer... 9 (6) Simplification of titles (7) Registration of deeds The Torrens System (1) History (2) Objects of the system (3) British Columbia (a) History (b) Differences between the British Columbia Act and other analogous legislation (4) Ontario and English Acts Chapter 2 Administration of the System 1. Crown Corporation Establishment of Offices Legislative Authority Governmental Control Officials (1) Administrative heads of land titles offices (2) Registrar-General: Manitoba (3) Registrar of Titles [formerly Master of Titles]: Saskatchewan (4) Registrar of Titles [formerly Inspector of Land Titles Offices]: Alberta (4A) Inspector of Land Titles Offices or Director of Land Titles: British Columbia, Northwest Territories, Nunavut and the Yukon (5) Director of Land Registration: Ontario (6) Director of Titles: Ontario (7) Commissioner of Titles: Western Australia (8) Practice directives distinguished from statutory rules (9) The registrar (10) The registrar s original jurisdiction and the courts ix (RTL) (Rel. 6, 2009)

2 REGISTRATION OF TITLE TO LAND 6. Conflict of Interest Protection of Officials Acting in Good Faith Chapter 3 Bookkeeping Aspects of the System 1. Recording Documents on Entry into the System (1) The day book (2) British Columbia (3) Ontario Miscellaneous Books and Indices (1) The name or nominal index (2) The numerical, parcel or section index (3) The general register The Register: Its Components and Derivatives (1) The register proper (2) Destruction of the register (3) Inspection of the register (4) Certificates of title and folios of the register (a) Definition and purpose (b) The owner (c) Address of the owner (d) Estate or interest in land (e) The land (f) Created or issued subject to encumbrances, etc (g) The probative aspect of indefeasibility (h) Distinguished from judicial declaration of title (i) Distinguished from mineral certificate Dealings with Certificate of Title Other Than by Registration (1) Consolidation and separation (2) Change of name (3) Amalgamation of corporations Duplicate Certificates of Title (1) The orthodox view (2) Supersedence by copy of the register (3) Ontario (4) Provisional, fresh or clean duplicate certificate Chapter 4 Bringing Land Under the Act 1. The Voluntary Applicant (1) Meaning of voluntarily bringing land under the Act (2) The interests in land contemplated (3) Consents of interested parties required (4) Applications on behalf of persons under legal disability (5) Easement, profit à prendre and rentcharge (6) Application based on documentary title (7) Application based on adverse possession The Voluntary Application (1) Effect on Registry Act registrations (2) Form of voluntary application (a) In general (b) Legal description of the land (c) Statement as to possession x

3 CONTENTS (d) Full disclosure of encumbrances and competing interests (3) Title deeds to accompany application (4) Withdrawal of application (5) Caveat against application to bring land under the Act (a) Proprietary interest gives locus standi (b) Effect of caveat (c) Form of caveat (d) Caveator may be required to show cause (6) Standard of title to be established by applicant (7) Issue of certificate of title or creation of folio of register (a) The applicant s nominee (b) The applicant (8) Ontario Land Titles Act Summary (a) The applicant (b) The application (c) Notice to interested parties (d) Statement of objection (e) Registration and withdrawal of caution (f) Withdrawal of application (g) Standard of title to be established by applicant (h) Completion of registration (i) The assurance fund (9) Land Registration Act, 1925 Summary (10) Legislative fiat to convert unregistered land to Torrens title Chapter 5 Functions of the Registrar 1. Prefatory Administrative Function (1) To administer the Act according to law (2) Judicial or administrative jurisdiction (3) Office hours Examination of Instruments Presented for Registration (1) First versus subsequent registration (2) Exercise of power to accept or reject (3) Registrar must not usurp function of court (4) Corporations (a) Exoneration of assurance fund (b) Execution of corporate instruments (c) Capacity to hold and dispose of land (d) Dissolution (e) Fiduciary relationship of directors (5) Infants (6) Order of court (7) Registrar has no power to settle question of priority (8) Limitation of registrar s inquiry Ancillary Powers of Registrar (1) To enforce Act (2) To administer oaths or take affidavits (3) To require the production or deposit of instruments xi (RTL) (Rel. 4, 2011)

4 REGISTRATION OF TITLE TO LAND (4) To correct errors (a) In general (b) Manifest cases of fraud (c) How correction to be made (5) To state a case or refer a matter to the court (6) To lodge a caveat (a) Generally (b) No lapse of registrar s caveat (7) To comply with court orders Appeal from Registrar (1) To Registrar-General or to Master of Titles (2) To the court (3) When decision made in exercise of discretionary power (4) Costs (5) Mandamus Form and Content of Instrument (1) Cautious flexibility permitted (2) Name of person claiming interest (3) Address of person claiming interest (4) Language Chapter 6 Land Descriptions and Registered and Deposited Plans of Survey 1. Land Descriptions and Registered or Deposited Plans of Survey (1) Prefatory (2) The principle (3) Land description not conclusive as to boundaries or extent (4) Registrar has a wide discretion (5) Metes and bounds descriptions Plans of Subdivision (1) Common law right to subdivide curtailed (2) Objectives of plan of subdivision (3) Registrar s examination of plan (4) Block outline survey (5) Signature of subdivider and others (6) Mines and minerals in or under land subdivided (7) Extinguishment of highway not dedicated by deposited plan (8) Dedication and vesting of title to highway and public reserve (9) Highway or roadway plan (10) Is search of title complete without perusal of plan? (11) Effect of failure to comply with subdivision requirements (12) Sale or transfer by unregistered plan (13) Amendment, simpliciter, of plan (14) Consolidation of adjoining surveyed parcels (15) Re-establishment of boundaries of registered parcels (16) Cancellation of plans (17) Correction of plans Governmental Approval of Subdivision of Land (1) Prefatory (2) Ontario (3) Leases xii

5 CONTENTS (4) Lease of building or part of it (5) Easements (6) Subdivision of farm land (7) When approval of subdivision not required (8) Effect of registration based on unapproved subdivision (9) Where approving authority created after plan lodged with registrar Miscellaneous Plans (1) Prefatory (2) Composite plans (3) Reference plans Land Title Survey Fund Horizontal Division of Land Airspace Ownership (1) The orthodox view (2) Airspace title legislation The Condominium Acts (1) Prefatory (2) New statutory estate in fee simple (3) Certificate of title format (4) The condominium plan (a) Function (b) Statutory requirements (c) Amendment of plan (d) Bare land strata plan (e) Leasehold strata plan (f) Phased strata plan (5) The condominium corporation (a) A creature of statute (b) Sale or lease according to proposed plan (c) Acquisition of property (d) Disposition of property (e) Builders or mechanics liens (f) Homestead and analogous rights (ff) New home warranties plan (g) Litigation by or against corporation (gg) Insurance right to sue on behalf of unit owner (ggg) Repairs and maintenance (h) By-laws of corporation (hh) Rules (hhh) Board of directors (hhhh) Voting rights (i) Lien or charge for owner s unpaid common expenses (ii) Special assessments (iii) Records (iiii) Common property (i) Generally (ii) Common property and easements (j) Amalgamation of corporations (k) Pet restrictions xiii (RTL) (Rel. 5, 2013)

6 REGISTRATION OF TITLE TO LAND (l) Age-restriction by-laws (m) Parking (n) Limitation of actions (o) Rental restrictions (p) Oppression remedy (6) Termination (a) Prefatory (b) Where building damaged (c) [Deleted] (d) By declaration of the court (e) Election by owners to terminate (f) Where owners elect for termination, simpliciter (g) [Deleted] (h) Where owners elect to terminate by way of sale (i) Transfer and other instruments (ii) Effect of registration of transfer and other documents (i) Termination on substantial damage to units (j) Effect of registration of notice of termination (k) Dissolution of corporation Chapter 7 Water and Highway Boundaries as Affecting Title 1. Prefatory (1) The riparian owner (2) Riparian rights Accretion and Erosion (1) Accretion (2) Foreshore (3) Artificial causation (4) Transfer of accreted land (5) Accreted land takes on legal characteristics of adjoining land (6) Avulsion (7) Islands (8) Apportionment of accreted land (9) Title to accreted land (10) Transfer of riparian right to non-riparian owner (11) Title to eroded land The Ad Medium Filum Aquae rule (1) Applicability to Torrens system of the ad medium filum aquae rule (2) Common law (a) Basis of the rule (b) The rule of construction (c) The navigable character of water (d) Establishing the middle line (e) Crown grants (f) Transfers other than Crown grants (g) Exclusion of the rule; rebuttal of the presumption (3) Rule affected by statute (a) Alberta xiv

7 CONTENTS (b) British Columbia (c) Manitoba (d) Saskatchewan (e) Ontario (4) The ad medium filum viae rule (a) Applicability to the Torrens system (b) Common law (c) Basis of the rule (d) Exclusion of the rule; rebuttal of the presumption (5) Statutory title to highways (a) Original road allowances (b) Condominium and other legislation Chapter 8 The Statutory Transfer 1. Prefatory (1) Definition (2) British Columbia (3) Duplicate instruments (4) Registrar and applicant must be ad idem (5) Purpose (6) Tenancy by entireties (7) Words of limitation (8) Compared with quit claim deed (9) Distinguished from conveyance (10) Distinguished from deed (11) Lex situs (12) Date (13) Consideration (14) Signature (15) Death of transferor or transferee (16) The right to registration (17) Interests in land transferable and registrable (a) Presumption in favour of tenancy in common (b) Presumption in favour of joint tenancy (c) Fractional interests: broken legal subdivisions, sections, etc (d) Mineral interests (e) Shelley s case inapplicability (18) Condition subsequent and the determinable fee simple (19) Transfer to uses Joint Tenants (1) Prefatory (2) Corporation aggregate as joint tenant (3) Corporation sole cannot be joint tenant (4) Crown cannot be a joint tenant (5) Severance of joint tenancy (a) Prefatory (b) Effect of lease by one joint tenant (c) Effect of judgment and writ of execution (d) Effect of mortgage by one joint tenant xv (RTL) (Rel. 4, 2016)

8 REGISTRATION OF TITLE TO LAND (e) Summary (i) No severance (ii) Severance Subject to an Unregistered Interest Exceptions and Reservations Restrictive Covenant, Reservation or Grant of Easement Parties (1) Foreign government (2) Identity (3) Aliens (4) Crown federal to Crown provincial, and vice versa (5) By Crown of unalienated and alienated land (6) By A. to A. and B. and by A. and B. to A (7) By A. to A (8) By personal representative or trustee to himself (9) Physical disability or illiteracy of transferor (10) Partnership (11) Corporation (a) Name (b) Execution of instruments (c) Receiver purporting to execute transfer By Way of Gift Miscellaneous Statutes Affecting Transfers (1) Prefatory (2) Alberta (3) British Columbia [Deleted] (4) Saskatchewan [Deleted] Merger of Contract in Transfer Implied Covenants (1) Further assurance (2) Transfer subject to mortgage (a) Prefatory (b) Covenant by transferee with transferor (c) Covenant by transferee with transferor and mortgagee (d) Covenants negatived or modified (e) Covenant assignable (f) Transferee taking assignment of mortgage (3) Ontario Memorandum of Encumbrances Verification of Execution of Instrument (1) Sealing not required (2) The affidavit and the witness (3) Registrability versus validity of instrument (4) Official before whom affidavit sworn (5) Certification formula (6) Powers of attorney (7) Corporations (8) Waiver of statutory requirements Production on Transfer of Duplicate Certificate of Title xvi

9 CONTENTS Chapter 9 Dower 1. Common Law Statutory Substitute for Common Law Dower (1) Purpose (Continued on page xvii) xvi.1 (RTL) (Rel. 2, 2011)

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12 CONTENTS 14. Option to Purchase (1) Prefatory (2) Statutory provision (3) Perpetuity rule Right of First Refusal Option to Renew A. Relief from Forfeiture Lessee s Implied Covenants Lessee s Covenants (Short Forms) Lessor s Implied Powers A. Restrictive Covenants Extension, Modification or Variation of Lease Covenant Against Assigning or Subletting Lease of Mortgaged Land Lease by Vendor Lease by Crown Federal Bankruptcy of Tenant Surrender by Instrument Inter Vivos Surrender by Operation of Law A. Termination of Lease Effluxion of Time or the Happening of an Event Registrar s Power to Determine Lease Merger A. Quiet Enjoyment Transfer of Lease (a) In general (b) Sub-lease Transmission on Death Assignment of Rents Chapter 13 Mortgages 1. Prefatory Accession and Fixtures Equitable Mortgages (1) Prefatory (2) Definition of equitable mortgage (3) To execute, when required, a legal mortgage (4) Specified property to stand as security (5) Deposit of duplicate certificate of title (a) The doctrine (b) Caveatable interest (6) Applicability of rule in Jellett v. Wilkie (7) Remedy of equitable mortgagee (8) Transfer absolute in form Statutory Mortgage (1) Compared with common law mortgage (2) The statutory provisions (3) Ontario (4) Clog on right to redeem (5) British Columbia Form of Statutory Mortgage xix (RTL) (Rel. 9, 2014)

13 REGISTRATION OF TITLE TO LAND (1) Prefatory (2) Guarantor s liability (3) Insertion of special covenants (4) Implied covenant for further assurances (5) Mortgagor s usual covenants (6) Due on sale clause (7) Manner of registration (8) Common law form: when registrable (9) Mortgage to secure purchase price of chattels Remedies of Mortgagee Part 1 (1) Prefatory (2) Possession (3) Contractual power of sale (a) Prefatory (i) British Columbia A. Prior to Land Title Amendment Act, B. After Land Title Amendment Act, (ii) Ontario (b) Injunctive relief against exercise of power (c) Exercise of power of sale after discontinuance foreclosure action (d) Sale proceedings prevent separate redemption action (e) After order nisi power suspended (f) Notice (i) Prefatory (ii) Persons to be served (iii) Method and length of notice (iv) Duty to act in good faith (g) Conduct of sale (i) Prefatory (ii) Defective sales (h) When exercise of power complete (i) Proceeds of sale (j) Protection of bona fide purchaser (k) When exercise of power prohibited (l) Compared with sale after final foreclosure order (4) Foreclosure and judicial sale in British Columbia (a) Foreclosure (i) Prefatory (ii) Defences (iii) Summary judgment (iv) Redemption period (v) Order nisi (vi) Setting aside order nisi (vii) Extending redemption period (viii) Personal judgment (ix) Redemption A. General B. Statutory right to assignment of mortgage (x) Subordination agreement xx

14 CONTENTS (b) (x) Subordination agreement (xi) Stay of execution pending appeal (xii) Order absolute (xiii) Effect of order absolute (xiv) Appointment of receiver Judicial sale (i) Prefatory (ii) British Columbia A. Factors to be considered on application B. Order for sale C. Approval of sale D. Mortgagee as purchaser at court-ordered sale E. Effect of approval of sale F. Conduct of sale G. Collapse of sale (4A) Foreclosure and judicial sale in Ontario (4B) Foreclosure and judicial sale in Nova Scotia (5) Sale and foreclosure in Alberta, Saskatchewan and the Territories (a) Prefatory (b) Proceedings to be taken in court (c) (d) (e) (f) Restrictions on mortgagee s remedies (i) Prefatory (ii) Alberta A. Crown and Corporate Mortgages B. Guarantors (iii) Saskatchewan A. The Limitation of Civil Rights Act B. The Land Contracts (Action) Act C. The Saskatchewan Farm Security Act D. The Home Owners Protection Act E. The Farm Debt Mediation Act (iv) [Deleted] Sale and Foreclosure (i) Alberta (ii) Saskatchewan Stay of proceedings (i) Alberta (ii) Saskatchewan Extending time for redemption (i) Alberta (ii) Saskatchewan (6) Effect of final foreclosure order (a) Prefatory (b) Alberta (c) Saskatchewan (7) Evidence that final order subsisting (8) Assignment of leases and rents Reopening Final Order of Foreclosure xxi (RTL) (Rel. 11, 2013)

15 REGISTRATION OF TITLE TO LAND (1) Jurisdiction (2) Terms on which judicial discretion exercised Remedies of Mortgagee Part 2 (Manitoba) (1) Generally (1.1) Power of sale in Manitoba (a) Prefatory (b) Jurisdiction (c) Farm Debt Mediation Act (d) Statutory sale proceedings (e) Effect of lis pendens (f) Filing of notice with district registrar (g) The notice (h) Persons to be given notice (i) Service of notice (j) Covenant other than for payment (k) Application for order authorizing sale (l) Mortgagor s rights before sale (m) Manner of sale (n) Reserved bid (o) Mortgagor s rights after sale (p) The transfer (q) The rule in Otter v. Lord Vaux (r) Application of proceeds of sale (2) Extra-judicial foreclosure in Manitoba (a) Prefatory (c) Family Farm Protection Act (c) The application (d) Notice to redeem (e) Issue of foreclosure order (f) Effect of foreclosure order (g) Exoneration of registrar (h) Costs A. Sealed Contract Rule The Mortgagee s Right to Take Possession Appointment of Receiver Wrongful Impairment of Security Attornment Clauses (1) Prefatory (2) Alberta (3) Manitoba (4) Saskatchewan (5) British Columbia (6) Ontario Merger A. Redemption Acceleration Tacking (1) Common law tabula in naufragio (2) Common law tacking of further advances xxii

16 CONTENTS (3) Statutory recognition of doctrine (a) Prefatory (b) Alberta (c) British Columbia (d) Manitoba (e) Ontario (f) Law of Property Act, 1925, s (4) Mortgagee not bound to make further advances Consolidation Marshalling and Apportionment Transfer by Mortgagor of Mortgaged Land (1) Prefatory (2) Alberta and Manitoba (3) British Columbia (4) Ontario (5) Saskatchewan Transfer by Mortgagee of Mortgage (1) Prefatory (2) Transferee takes subject to equities and the state of the account (3) Sub-mortgage or sub-charge Discharge of Mortgage (1) When mortgage statute barred (2) Unconscionable transactions legislation (3) Payment of mortgage moneys (a) Failure to comply with statutory maximum lending limits (b) Amount owing (4) Form of discharge (5) Effect of discharge when registered (5A) Subrogation (6) Discharge subsequently declared void (7) Discharge of mortgage by court order (8) Where discharge by mortgagee unobtainable (9) Cancellation of mortgage created by vendor (10) Discharge versus transfer of mortgage (11) Discharge where there is statutory presumption that money advanced on joint account (12) Mortgage discharge executed in blank (13) Discharge of annuity on death of annuitant (14) Inadvertent discharge of mortgage Interest (1) Prefatory (2) Section 2 of Interest Act (3) Section 3 of Interest Act (4) Sections 4 and 5 of Interest Act (5) Sections 6 and 7 of Interest Act (6) Section 8 of Interest Act (7) Section 9 of Interest Act (8) Section 10 of Interest Act xxiii (RTL) (Rel. 4, 2011)

17 REGISTRATION OF TITLE TO LAND (9) Sections 11 to 14 of Interest Act (10) Mortgagor s entitlement to discharge (11) Waiver or contracting out (12) Criminal interest rate Postponement of Chargee s Registered Priority A. Priorities Variation of Terms of Mortgage Novation Chapter 14 Caveats 1. Purpose and Classification (1) Purpose (2) Classification Caveats Against Bringing Land Under the Act (1) Prefatory (2) Unpatented land (3) Time limit for lodgment (4) Lapse (5) Second caveat (6) Caveator must claim interest in land (7) Effect of withdrawal of application Registrar s Caveat (1) Purpose (2) Procedure not exclusive (3) Jurisdiction to be exercised cautiously (4) Lapse, withdrawal and discharge Order of Court Prohibiting Dealing Caveats Against Dealings (1) Purpose (2) Title to land affected must be under Act (3) Persons other than the registrar who may lodge a caveat (4) Registered owner may lodge caveat (5) Form and content of caveat (a) Name of caveator (b) Addition of caveator (c) Description of land (d) Address at which notices may be served (e) Signature of caveator (f) History of claims (6) Claim must amount to an interest in land (a) Prefatory (b) Registrar to notify person affected (c) Registrar s acceptance or rejection of caveat (d) The single claim (e) Multiple claims (7) List of caveatable interests (a) Easements (b) Specially enforceable agreement to grant a lease (c) Agreement to execute a mortgage (cc) Agreement for the sale of land (d) Mortgage xxiv

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20 CONTENTS (5) Hardship Lis Pendens Registered Without Reasonable Cause Chapter 16 Transmission 1. Prefatory Transmission on Death (1) Prefatory (2) Registration in name of personal representative (Continued on page xxvii) xxvi.1 (RTL) (Rel. 4, 2011)

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23 CONTENTS (1) Prefatory (2) Deferred and immediate indefeasibility (a) Jargon or doctrine (b) Deferred indefeasibility and forgery (c) The volunteer (d) Immediate indefeasibility and forgery (3) Forgeries (4) Void discharge of mortgage (5) Dealing with registered owner or applicant for registration (6) Void instrument versus unregistered equitable interest Ejectment Action for the Recovery of Land Contracts and Trusts Binding Registered Owner Corrections by Registrar (1) Prefatory (2) Without prejudicing rights acquired bona fide for value (3) Power is discretionary (4) Where entry fraudulently obtained (5) Limitation statutes as affecting power (6) Effect of correction by registrar (7) Manner of making correction Correction by Order of Court Chapter 18 Statutory Exceptions to Indefeasibility of Title 1. Prefatory Crown Exceptions and Reservations (1) Prefatory (2) Acts not uniform (3) Absence in Act of statutory exception (4) Expanding operation of Act (a) Crown land (b) Matters affecting use and enjoyment (5) Registration (6) Registrar s power to correct errors in the register (7) The Soldier Settlement Act (8) Sand and gravel (9) Mutual mistake Prior Certificate of Title or Grant Misdescription of Parcels or of Boundaries Any Public Highway (1) Prefatory (2) Title (a) Ad medium filum viae rule (b) Alberta (c) British Columbia (d) Manitoba and Saskatchewan (e) Ontario (f) Prince Edward Island (g) Statutory title Public Right of Way, Watercourse, Right of Water, or Other Public Easement xxix (RTL) (2012 Rel. 1)

24 REGISTRATION OF TITLE TO LAND (1) Public right of way or other public easement (2) Public... watercourse, right of water or other public easement (a) In general (b) Ontario Short-term Lease or Agreement for Lease (1) Prefatory (2) The statutory provisions (a) Ontario (b) Victoria, Western Australia and Tasmania (c) England Land Registration Act, (3) Option to renew (4) Option to purchase (5) Registrability of short-term lease (6) Deemed registration (7) Transfer of reversion (8) Residential Tenancies Acts Expropriation (1) Prefatory (2) Expropriation Act, R.S.C. 1952, c. 106 (a) Prefatory (b) Vesting of title (3) Expropriation Act, R.S.C. 1985, c. E-21 (a) Prefatory (b) Vesting of title (4) Provincial legislation (a) Prefatory (b) Notice of intention to expropriate (b.1) Abandonment of intended expropriation (c) Confirmation and vesting of title (d) Mines and minerals (e) Proof of signatures of expropriating and confirming authorities (5) Certificate of title to expropriated land (a) Statutory provisions (b) British Columbia (6) Unregistered land (7) Former owner s right of first refusal after expropriation Easements (1) Prefatory (2) Statutory provisions (a) Alberta and Saskatchewan (b) British Columbia (c) Manitoba, Victoria and Western Australia (d) Ontario (d.1) Quebec (e) Australia and New Zealand (3) Definition (4) Essential characteristics (4A) Other methods of granting an easement, including the implied grant xxx

25 CONTENTS (5) Owner may grant easement to himself (6) Applicability of perpetuity rule (7) Prescription and Abandonment (a) Prescription (b) Abandonment (8) Statutory easements (a) Prefatory (b) The statutory provisions (8A) Enforcement (9) Party wall agreements (9A) Fences (10) Profit à prendre (11) Statutory jurisdiction of court to cancel or modify (12) Subdivision of dominant tenement (13) Tax sale titles (14) Registration Unpaid Taxes Adverse Possession and Limitation (1) Prefatory (2) Alberta (a) The statutory provisions (b) Bona fide purchaser for value (3) British Columbia (4) Manitoba (5) Saskatchewan (6) Ontario (6A) Newfoundland and Labrador (6B) Nova Scotia (6C) New Brunswick (6D) Prince Edward Island (7) England (8) The assurance fund A. Timber Lands Improvements on Another s Land under Mistake of Title (1) Prefatory (2) The statutory provisions (3) Who may apply for statutory relief (4) Lasting improvements (5) Belief: referable to mistake of title or mistake of identity? (6) Remedies (7) Acquiring registered title to the retained land (8) Special enactments dealing with encroachments (a) Manitoba (b) British Columbia (9) Non-statutory equitable relief Special Exceptions Peculiar to a Particular Act (1) Prefatory (2) Alberta (3) British Columbia (4) Manitoba xxxi (RTL) (Rel. 5, 2013)

26 REGISTRATION OF TITLE TO LAND (5) Saskatchewan (6) Ontario (7) England Landlocked Land Chapter 19 Fraud 1. Fraud - The Major Exception to Indefeasibility of Title (1) Prefatory (2) Some cases in which fraud proved (3) Some cases in which fraud not proved (4) Gibbs v. Messer (5) Assets Co. v. Mere Roihi (6) Volunteer (a) Where competing claim registered (b) Where competing claim unregistered (7) Principal and agent (8) Duress and undue influence Notice and Fraud The Bona Fide Purchaser for Value No Imputation of Fraud Because of Knowledge, Simpliciter, of Unregistered Interest (1) Dealing with registered owner (2) When does notice cease to bind bona fide purchaser for value? The Unregistered Lease Cases (1) Prefatory (2) Alberta (3) British Columbia Chapter 20 Builders Construction and Mechanics Lien Legislation 1. Prefatory Nature of Lien (1) A statutory creation (2) Co-owners (3) Avoidance or circumvention of Act (4) Minimum amount of lien, advance payments and registrability The Statutory Requirements (1) Prefatory (2) Registration of the claim (a) Property affected (b) Highways (c) Leasehold interest (d) Crown federal land (e) Crown provincial land (f) Where registered (g) The certificate of lis pendens Registrar s Duties Priorities (1) Prior registration of claim of lien (2) Prior registration of conveyance or mortgage (a) Saskatchewan (b) Alberta, British Columbia and Manitoba xxxii

27 CONTENTS (c) Construction Lien Act, R.S.O. 1990, c. C.30 (i) The general principle (ii) The building mortgage (iii) Non-building mortgage, inter alia, registered (iv) after first lien arising Non-building mortgage, inter alia, registered prior to first lien arising A. General priority B. Subsequent advances C. The statutory home buyer (3) Judgments and executions (a) Sheltering (4) Bankruptcy Condominium Legislation Assignment and Transmission of Claim of Lien Postponement Expiry of Unregistered Claim of Lien Expiry of Registered Claim of Lien Extra-judicial Notice to Claimant to Commence Action (1) Given by the owner (2) Notice, on request, given by the registrar Discontinuance of Action Dismissal of Action Discharge of Lien Withdrawal of Claim of Lien Wrongful Registration of Claim of Lien Removal by Court of Claim of Lien on Payment or on Security Being Given Sale By or With Approval of the Court Foreclosure Bankruptcy Chapter 21 Judgments and Writs of Execution 1. Prefatory Certificate of Judgment (1) British Columbia: prior to 31st October (2) British Columbia: after 30th October 1979 (a) Prefatory (b) Registration (c) Effect of registration (d) Assignment (e) Death of judgment creditor (f) Death of judgment debtor (g) Postponement of registered judgment or writ of execution (h) Expiry of judgments (i) Release (j) Identity of judgment debtor Writ of Execution (1) Definition xxxiii (RTL) (Rel. 5, 2013)

28 REGISTRATION OF TITLE TO LAND (2) No execution against land if debt less than statutory minimum (3) Receipt by registrar of writ (4) When debtor s land bound by writ (5) Entry of writ in records of land titles office (6) Assignment (7) Bail Act and Legal Aid Services Act, 1998 (Ontario) (8) Expiry of writs of execution (9) Priority of writ of execution issued on a judgment in the action (10) Satisfaction or discharge of writ Land Ambit of Exigibility (1) Alberta (2) Unregistered land (3) Saskatchewan (4) Manitoba (5) Ontario (6) Nova Scotia The Similar or Identical Name Problem (1) British Columbia (2) Alberta and Saskatchewan (3) Manitoba (4) Ontario Sale of Land by Sheriff (1) Prefatory (2) Alberta and Saskatchewan (3) British Columbia (4) Manitoba (5) Ontario Sale by Sheriff of Registered Mortgage No Severance of Joint Tenancy by Registration of Writ of Execution or Judgment Priority of Unregistered Mortgage over Registered Writ or Certificate of Judgment The So-called Matrimonial Judgment Dower Priority of Floating Charge over Registered Judgment Judgment or Writ of Execution against Beneficiary Partnership Property Writ of Extent Chapter 22 Compensation 1. The Assurance Fund (1) General (2) British Columbia Compare with Title Insurance Sources of the Fund The Statutory Conditions Mistake of Registrar Deprivation of Land or Interest in It Deprivation Consequent on Fraud (1) The voidable transaction xxxiv

29 CONTENTS (2) The forgery Deprivation Consequent on Bringing Land under the Act Deprivation Consequent on Registration of Another Person as Owner Deprivation by Error, Omission or Misdescription Paragraph deleted. 12. Reliance on Automated Index (Ontario) Protection of Bona Fide Purchaser for Value Omission, Mistake or Misfeasance of Registrar (1) Error of judgment (2) Official searches of register The Statutory Defendants Claimant Required to Give Notice of Intended Action No Premature Entry of Final Judgment When Costs Payable by Claimant Admission or Compromise of Claim Without Action When Registrar Entitled to Assignment of Claimants Judgment Limitation of Actions Mines and Minerals Circumstances Excluding Liability (1) Prefatory (2) Breach of trust (3) Double grants (4) Misdescription (5) Shortage of acreage (6) Equitable mortgage by deposit of duplicate certificate (7) Provisional or substitute certificate of title (8) Expropriation (9) Improper exercise of power of sale (10) Insufficient identification of execution debtor (11) Disclaimer of lease by trustee in bankruptcy (12) Determination of lease (13) Defect in foreclosure proceedings (14) Knowledge of registrar s act allegedly causing damage (15) Contributory negligence (16) Statutory exceptions to indefeasibility of title The Infant Trustee Measure of Damages Right of Action under the Dower Act (Alberta) (1) Prefatory (2) The remedy (3) Effect of payment by married person of judgment (4) Where judgment against married person not paid Covenant to Indemnify Assurance Fund New Home Warranties Plan Page Appendix 1 Manitoba Forms Appendix 2 British Columbia Forms for Manual Filing... BC-1 Appendix 3 Alberta Forms... ALTA-1 xxxv (RTL) (Rel. 2, 2016)

30 REGISTRATION OF TITLE TO LAND Appendix 4 Ontario Forms... ONT-1 Appendix 5 Nova Scotia Forms... NS-1 Land Registry Offices... LRO-1 Proof of Facts... PROOF-1 Words & Phrases... WP-1 Index... I-1 xxxvi

31 CONTENTS OF VOLUME 2 Para. Chapter 10 Restrictive Covenants 1. The Doctrine of Restrictive Covenants (1) Prefatory (2) Classification (3) Interest in land (4) Creation (a) Common law (b) Building scheme (c) Statute (5) Construction (6) Expiry (7) Registration (a) Restrictive covenants other than those created by building scheme (b) Building scheme (c) British Columbia (2) Discharge or Modification Inter Partes Discharge or Modification by Court (1) Alberta (2) Manitoba (3) Saskatchewan (4) British Columbia (a) The legislation (b) a person interested in land (c) the application is not premature (d) change in character of neighbourhood (e) obsolete (f) reasonable use of the land will be impeded without practical benefit to others (g) The floodgate objection (h) Compensation (5) Ontario 4. Statutory Covenants Not Requiring Dominant Tenement Discriminatory Covenants Chapter 11 Powers of Attorney 1. Prefatory Deposit of Power of Attorney with Registrar Registrations of Power of Attorney Capacity After-acquired Land Revocation Personal Representative or Trustee Appointment By Irrevocable Power of Attorney iii (RTL) (Rel. 9, 2014)

32 REGISTRATION OF TITLE TO LAND 9. Execution and Attestation Construction Chapter 12 Leases 1. Prefatory Leases Defined Term Perpetuity as Affecting Lease and Renewal of Lease Execution of Statutory Form Lease Production of Duplicate Certificate of Title The Statutory Form The Short-term Lease and Agreement for Lease Duty of Lessor to Deliver Registrable Instrument Land Description Manner of Registration Unregistered Lease Not Requiring Registration Parties Option to Purchase (1) Prefatory (2) Statutory provision (3) Perpetuity rule Right of First Refusal Option to Renew A. Relief from Forfeiture Lessee s Implied Covenants Lessee s Covenants (Short Forms) Lessor s Implied Powers A. Restrictive Covenants Extension, Modification or Variation of Lease Covenant Against Assigning or Subletting Lease of Mortgaged Land Lease by Vendor Lease by Crown Federal Bankruptcy of Tenant Surrender by Instrument Inter Vivos Surrender by Operation of Law A. Termination of Lease Effluxion of Time or the Happening of an Event Registrar s Power to Determine Lease Merger A. Quiet Enjoyment Transfer of Lease (a) In general (b) Sub-lease Transmission on Death Assignment of Rents iv

33 CONTENTS Chapter 13 Mortgages 1. Prefatory Accession and Fixtures Equitable Mortgages (1) Prefatory (2) Definition of equitable mortgage (3) To execute, when required, a legal mortgage (4) Specified property to stand as security (5) Deposit of duplicate certificate of title (a) The doctrine (b) Caveatable interest (6) Applicability of rule in Jellett v. Wilkie (7) Remedy of equitable mortgagee (8) Transfer absolute in form Statutory Mortgage (1) Compared with common law mortgage (2) The statutory provisions (3) Ontario (4) Clog on right to redeem (5) British Columbia [Paras. 414 to 423 deleted.] 5. Form of Statutory Mortgage (1) Prefatory (2) Guarantor s liability (3) Insertion of special covenants (4) Implied covenant for further assurances (5) Mortgagor s usual covenants (6) Due on sale clause (7) Manner of registration (8) Common law form: when registrable (9) Mortgage to secure purchase price of chattels Remedies of Mortgagee Part 1 (1) Prefatory (2) Possession (3) Contractual power of sale (a) Prefatory (i) British Columbia A. Prior to Land Title Amendment Act, B. After Land Title Amendment Act, (ii) Ontario (b) Injunctive relief against exercise of power (c) Exercise of power of sale after discontinuance foreclosure action (d) Sale proceedings prevent separate redemption action (e) After order nisi power suspended (f) Notice (i) Prefatory (ii) Persons to be served (iii) Method and length of notice v (RTL) (Rel. 11, 2013)

34 REGISTRATION OF TITLE TO LAND (iv) Duty to act in good faith (g) Conduct of sale (i) Prefatory (ii) Defective sales (h) When exercise of power complete (i) Proceeds of sale and accounting (j) Protection of bona fide purchaser (k) When exercise of power prohibited (l) Compared with sale after final foreclosure order (4) Foreclosure and judicial sale in British Columbia (a) (b) Foreclosure (i) Prefatory (ii) Defences (iii) Summary judgment (iv) Redemption period (v) Order nisi (vi) Setting aside order nisi (vii) Extending redemption period (viii) Personal judgment (ix) Redemption A. General B. Statutory right to assignment of mortgage (x) Subordination agreement (xi) Stay of execution pending appeal (xii) Order absolute (xiii) Effect of order absolute (xiv) Appointment of receiver Judicial sale (i) Prefatory (ii) British Columbia A. Factors to be considered on application B. Order for sale C. Approval of sale D. Mortgagee as purchaser at court-ordered sale E. Effect of approval of sale F. Conduct of sale G. Collapse of sale (4A) Foreclosure and judicial sale in Ontario (4B) Foreclosure and judicial sale in Nova Scotia (5) Sale and foreclosure in Alberta, Saskatchewan and the Territories (a) Prefatory (b) Proceedings to be taken in court (c) Restrictions on mortgagee s remedies (i) Prefatory (ii) Alberta A. Crown and Corporate Mortgages B. Guarantors (iii) Saskatchewan A. The Limitation of Civil Rights Act vi

35 CONTENTS B. The Land Contracts (Action) Act C. The Saskatchewan Farm Security Act D. The Home Owners Protection Act (Continued on page vii) vi.1 (RTL) (Rel. 11, 2013)

36 CONTENTS E. The Farm Debt Mediation Act (iv) [Deleted] (d) Sale and foreclosure (i) Alberta (ii) Saskatchewan (e) Stay of proceedings (i) Alberta (ii) Saskatchewan (f) Extending time for redemption (i) Alberta (ii) Saskatchewan (6) Effect of final foreclosure order (a) Prefatory (b) Alberta (c) Saskatchewan (7) Evidence that final order subsisting (8) Assignment of leases and rents Reopening Final Order of Foreclosure (1) Jurisdiction (2) Terms on which judicial discretion exercised Remedies of Mortgagee Part 2 (Manitoba) (1) Generally (1.1) Power of sale in Manitoba (a) Prefatory (b) Jurisdiction (c) Farm Debt Mediation Act (d) Statutory sale proceedings (e) Effect of lis pendens (f) Filing of notice with district registrar (g) The notice (h) Persons to be given notice (i) Service of notice (j) Covenant other than for payment (k) Application for order authorizing sale (l) Mortgagor s rights before sale (m) Manner of sale (n) Reserved bid (o) Mortgagor s rights after sale (p) The transfer (q) The rule in Otter v. Lord Vaux (r) Application of proceeds of sale (2) Extra-judicial foreclosure in Manitoba (a) Prefatory (b) Family Farm Protection Act (c) The application (d) Notice to redeem (e) Issue of foreclosure order (f) Effect of foreclosure order (g) Exoneration of registrar (h) Costs vii (RTL) (Rel. 10, 2010)

37 REGISTRATION OF TITLE TO LAND 8A. Sealed Contract Rule The Mortgagee s Right to Take Possession Appointment of Receiver Wrongful Impairment of Security Attornment Clauses (1) Prefatory (2) Alberta (3) Manitoba (4) Saskatchewan (5) British Columbia (6) Ontario Merger A. Redemption Acceleration Tacking... (1) Common law tabula in naufragio (2) Common law tacking of further advances (3) Statutory recognition of doctrine (a) Prefatory (b) Alberta (c) British Columbia (d) Manitoba (e) Ontario (f) Law of Property Act, 1925, s (4) Mortgagee not bound to make further advances Consolidation Marshalling and Apportionment Transfer by Mortgagor of Mortgaged Land (1) Prefatory (2) Alberta and Manitoba (3) British Columbia (4) Ontario (5) Saskatchewan Transfer by Mortgagee of Mortgage (1) Prefatory (2) Transferee takes subject to equities and the state of the account (3) Sub-mortgage or sub-charge Discharge of Mortgage (1) When mortgage statute barred (2) Unconscionable transactions legislation (3) Payment of mortgage moneys (a) Failure to comply with statutory maximum lending limits (b) Amount owing (4) Form of discharge (5) Effect of discharge when registered (5A) Subrogation (6) Discharge subsequently declared void (7) Discharge of mortgage by court order (8) Where discharge by mortgagee unobtainable viii

38 CONTENTS (9) Cancellation of mortgage created by vendor (10) Discharge versus transfer of mortgage (11) Discharge where there is statutory presumption that money advanced on joint account (12) Mortgage discharge executed in blank (13) Discharge of annuity on death of annuitant (14) Inadvertent discharge of mortgage Interest Act (1) Prefatory (2) Section 2 of Interest Act (3) Section 3 of Interest Act (4) Sections 4 and 5 of Interest Act (5) Sections 6 and 7 of Interest Act (6) Section 8 of Interest Act (7) Section 9 of Interest Act (8) Section 10 of Interest Act (9) Sections 11 to 14 of Interest Act (10) Mortgagor s entitlement to discharge (11) Waiver or contracting out (12) Criminal interest rate Postponement of Chargee s Registered Priority A. Priorities Variation of Terms of Mortgage A. Insurance Novation Chapter 14 Caveats 1. Purpose and Classification (1) Purpose (2) Classification Caveats Against Bringing Land Under the Act (1) Prefatory (2) Unpatented land (3) Time limit for lodgment (4) Lapse (5) Second caveat (6) Caveator must claim interest in land (7) Effect of withdrawal of application Registrar s Caveat (1) Purpose (2) Procedure not exclusive (3) Jurisdiction to be exercised cautiously (4) Lapse, withdrawal and discharge Order of Court Prohibiting Dealing Caveats Against Dealings (1) Purpose (2) Title to land affected must be under Act (3) Persons other than the registrar who may lodge a caveat (4) Registered owner may lodge caveat (5) Form and content of caveat ix (RTL) (Rel. 10, 2010)