PDCAs Policy and Procedures for Lawyers and Surveyors March 2006 MGA Compliance Statement: Exception for parcels created in land registration as result of an approved plan of survey/subdivision Clause 5 (7) (f) of the Land Registration Administration Regulations requires that every legal description (except condominium units) submitted to a registrar must contain one of the six MGA compliance statements to verify that the parcel complies with or is exempt from the subdivision provisions of Part IX of the Municipal Government Act. By policy and effective immediately, no MGA compliance statement is required on parcel descriptions that are created by the Property Online (LIN-NS) system. Note: An amending PDCA is still required to add benefits and/or burdens to the certified parcel description that the lawyer has determined are applicable to the parcel. This includes benefits and /or burdens that have been inherited on subdivision or consolidation. While the system automatically generates short form descriptions and inherits all benefits and burdens into the parcel register, the lawyer is responsible for adding the appropriate benefit and burden interests to the certified parcel description. Short Form Descriptions Mapping staff has been given new guidelines for short form description usage. Short form descriptions can only be used when a plan of survey/subdivision for which short form approval is requested is part of the subject land for which the survey was done and contains full survey information on at least one boundary line. Short form descriptions are not acceptable when the plan of survey /subdivision that is being relied upon approves a different lot. The boundaries must be clearly defined on the plan, that is: the configuration clearly indicated in solid line. Dashed lines are only acceptable when both the direction and the distance are specified. The description must be referenced to a registered plan of survey or subdivision, or a plan or map under the certificate of the Registrar of Crown Lands. Sketches, compiled plans, etc. can not be used for a short form description. Mappers are receiving PDCAs with short form descriptions that do not include the Registration District of where the plan is registered. We request that in the future, submitters use of the short form template that is available from our LROs or on our web site. Interpretation of Section 268A MGA After consultation with the Municipal Services Division of Service Nova Scotia and Municipal Relations, we are able to announce the following with respect to lands that are intersected by public roads, railways or abandoned railways.
Page -2- It is acceptable under MGA Section 268A for an owner to create/register a single statutory declaration that consolidates multiple parcels into more than one consolidated parcel, without attributing the old descriptions to a specific new description. This is a recognition of the fact that a landowner may not be able to say, with certainty, which of the old, underlying, descriptions is associated with a particular new consolidated description, e.g. the consolidated parcel that lies north of the road or the consolidated parcel that lies south of the road. This can only be used where the existing parcels are contiguous and the ownership is intervened by only a public road, railway or abandoned railway. Statutory Declarations under Municipal Government Act Section 268A Statutory declarations recorded under Section 268A of the Municipal Government Act regarding de facto consolidation are not always identifiable as such by the Land Registration Office staff. This results in these instruments not being coded and searchable as De facto Consolidations in the Grantor/Grantee index or parcel register. The confusion results from lawyers not citing Section 268A of the Municipal Government Act under In the Matter of.... It is not the responsibility of staff to review the contents of the declaration to establish whether the declaration is relating to a de facto consolidation or not. As well, a number of statutory declarations under Section 268A are also being used by lawyers to substantiate ownership via possession. The system does not have the ability to apply two instrument codes to one document. If a lawyer is preparing a dual purpose statutory declaration (consolidation and ownership) the document will have to be registered once as a 268A declaration and once as a possessory declaration. This is because a de facto consolidation declaration is a non-enabling instrument and cannot be used for enabling an interest holder s ownership. In other words, it cannot be used on an AFR or Form 24 as an enabling instrument. Sketches Registration Policy For the past several months, Service Nova Scotia has, by policy, been accepting items such as sketches for filing under the Registry Act, or for registration or recording under the Land Registration Act, whether they accompany a registered or recorded document or not. The Department of Justice has advised that this policy is not in compliance with the Registry Act or Land Registration Act. Accordingly, effective immediately, Land Registration Offices will only be accepting the following for recording or registration without an accompanying document: (a) Plans of survey/subdivision dated prior to March 27, 1979, which must be presented in their entirety, without obvious alterations except by the person who prepared them, and signed by a person who was qualified to sign plans [if it was required to be signed] ; or (b) Plans of survey/subdivision dated on or after March 27, 1979, which must be presented in their entirety, without obvious alterations except by the person who prepared them, and include a signed certification by a Nova Scotia Land Surveyor. All other non-compliant plans, sketches, copies of portions of plans, plans with obvious alterations on them, etc., will only be accepted as an attachment to a registrable or recordable instrument such as a deed or statutory declaration.
Page -3- If the document attachment is larger than 11" x 17", it will be separated from the document, held separately from the document and identified as a document attachment. There is a registration fee for the master document, but not for the attachment. NOTE: Document attachments will be treated as such even if the attachment is registrable in its own right, and will not be searchable in the plan index. AFRs Benefit/Burden Instrument Types A new instrument type is being added to the instrument type list. This instrument type is Addition/Removal of a Benefit/Burden by Deed. This instrument type is being added to deal with adding or removing the flip side of a benefit or burden by deed to a land registration parcel. Note: This issue does not extend to easements added by grant of easement, prescription or adverse possession. If a deed includes addition of a benefit or burden over a land registration parcel, an additional Form 24 with an attached certified copy of the deed is required in order to add the benefit or burden to the servient or dominant tenement parcel, as applicable. The deed actually acts as an easement on the servient or dominant tenement PID, however, staff are required to index it as a deed. This forces the entry of a deed transfer tax affidavit mailing address, sale price and date. Staff enter a sale price of zero so as not to trigger deed transfer tax payable on the easement interest being added. This also creates confusion when viewing the parcel register since the enabling instrument associated with this interest holder does not reflect the grantor/grantee names that would be expected. Burdens Created by Former Owner of Parcel Effective immediately, LRO staff will no longer be rejecting burdens that have been granted by a former owner of a parcel. The recording of the burden document often takes place after the parcel has transferred to a new owner, especially with new subdivisions. Staff had previously been instructed to reject an easement where the grantor of the burden was not a current registered owner. To add the burden, LRO staff will now rely on the lawyer s Certificate of Legal Effect in the Form 24. Overriding Interests and the Application for Registration Any interests, including overriding interests that are found during a Marketable Titles Act search are required to be included on the AFR. Lawyers must not rely on the fact that the interest overrides as justification for not exposing the existence of the interest on the AFR. This is in accordance with clause 37(4)(b) of the LRA, which requires that the lawyer s opinion set out the ownership of the fee simple and all other interests in the parcel. Failure to include overriding interests that are contained in registered instruments within the Marketable Titles Act search period is considered an error in the registration, and subject to the rectification provisions of the Land Registration Administration Regulations.
Page -4- If a lawyer is satisfied that a benefit or burden exists, but no registered document was found during a Marketable Title Act search, the interest can be added to the AFR by selecting Yes under Unregistered Instrument. This disables the mandatory fields relating to the recording particulars (book/page, document number and year) for this interest. This is the recommended method to add an unregistered interest so that the interest appears in the appropriate category on the AFR instead of the Textual Qualification field. The unregistered benefit or burden must also be added to the certified parcel description. A textual qualification is only required if the lawyer feels a need to add additional information than what has been provided in the certified parcel description relating to the benefit or burden. Estates Effective March 1, 2006, staff will be rejecting AFRs dealing with estate interests that do not conform to the protocols outlined in the August 2005 e-mail. No estate interests are to appear on the AFR unless the estate took title in the enabling instrument [a deed conveyed to the Estate of...] Life Interest, Life Lease and their Treatment It is important to ensure that title searchers, lawyers and AFR and document submitters are making the distinction between a life estate and a life lease. Calls to our Help Line from legal staff point to the existence of confusion between these instruments. A life interest (also referred to as a life estate) is one of the four interest types under the registered interest section. A life lease is a recorded interest. Neither type of interest should be shown in the parcel description. In the past, often the only reference to a life estate or life lease was contained in the parcel description. It is not appropriate to carry these interests forward in the parcel description; they must appear as registered or recorded interests (as applicable) in the parcel register. Miscellaneous Items Mortgages & Re-advance of Principal Lawyers are reminded that some mortgages are worded so as to permit a re-advance of funds on pay down of the original mortgage principal. This re-advance of funds constitutes a conversion trigger under Clause 2(2)(e) of the Land Registration Administration Regulations. This is to be contrasted with Clause 2(2)(e)(iv) which relates to pre-existing line of credit mortgages. These advances are not conversion triggers. Cover letters Documents are indexed by LRO staff in the order that they are presented. A cover letter which instructs an order of document recording that differs from the order presented is not reacted to by staff. Please ensure that care is taken in ordering documents as you wish them to appear upon recording.
Page -5- Access Inheritance on Re-configuration & Subdivision LRO staff generate short form descriptions on subdivision of land registration parcels. As part of this process, the parcel access of the land registration parcel being subdivided is inherited to all the infant parcels generated. In many cases, the parcel access which appears on the infant parcels is incorrect. To ensure that we are not inheriting and displaying incorrect parcel access on Property Online, we will be displaying a blank parcel access field on all parcels created on subdivision or by reconfiguration. Under Section 2 of Form 24, there is a field for Parcel Access to be Added. The lawyer must use this field on revision of the parcel to ensure that the correct parcel access type is displayed. We are also adding this same functionality to Form 45. This will allow lawyers to identify the parcel access when removing interests incorrectly placed in the parcel register on subdivision. Certificates of Lis Pendens under the Builders Lien Act Subsection 4(2) of the Justice Administration Amendment (2005) Act was proclaimed in force on August 26, 2005. That subsection amended Section 26 of the Builders Lien Act, as follows: (2) Section 26 is further amended by adding immediately after subsection (1) the following subsection: (1A) Where the certificate referred to in subsection (1) relates to land that is a parcel registered pursuant to the Land Registration Act, the form of the certificate to be registered is the certificate of lis pendens prescribed under that Act. Lawyers are reminded that they must use Form 19 when recording a Certificate of Lis Pendens against parcels registered under the LRA [and not Form E as prescribed under the Builders Lien Act for nonregistered parcels]. Assignments in Bankruptcy We are finding that many assignments of bankruptcy are being recorded in the traditional registry system even though the parcels affected are land registration parcels. The document has no effect on the land registration parcels until it is recorded against the appropriate PIDs on a Form 25 or 26 in the land registration system. Questions have been raised regarding whether an assignment of bankruptcy relating to a land registration parcel can be recorded on a Form 26 (as a recorded interest) if the trustee is not taking title to the real property. The answer is yes. Vesting of real property on bankruptcy is not automatic. Under section 71 of the Bankruptcy and Insolvency Act, (BIA) such vesting is subject to this Act. The Trustee has the right to have its title registered, but this is permissive, not mandatory. Under the prior Registry Act regime, the Trustee would chose to either register the assignment or not. If the Trustee registered the assignment, the effect of the BIA was that title was transferred. Section 74(2) BIA
Page -6- If the Trustee chooses not to register the assignment, Section 75 of the BIA provides that the bankrupt could continue to deal with and sell the property. In a land titles regime, the Trustee has the ability to register a "caution" under Section 74(3) BIA. This does not transfer title but simply evidences that the Trustee asserted some claim to the property, short of a title interest. Searching Under Property Query in Property Online When using the Property Query search in Property Online, searches based on name or document number (or book/page) must not be relied upon to identify all PIDs coded to a particular document. Interests added by rectification, inherited on subdivision or consolidation or that do not appear in the Details View of Property Online will not be returned in your search results. In these cases, your search for PIDs affected by the document will be incomplete. It is always necessary to review the original document to determine all the parcels that are affected by it. Names are indexed on land registration parcels based on the instructions of the submitter while traditional documents are indexed based on our indexing rules. As a result, a name search of Royal Bank of Canada will return all documents indexed in the traditional registry but LR parcels that show the interest as RBC, The Royal Bank of Canada, and R.B.C. will not be returned in the search results.