Province of Alberta METIS SETTLEMENTS ACT METIS SETTLEMENTS LAND REGISTRY REGULATION Alberta Regulation 361/1991 With amendments up to and including Alberta Regulation 45/2014 Office Consolidation Published by Alberta Queen s Printer Alberta Queen s Printer 7 th Floor, Park Plaza 10611-98 Avenue Edmonton, AB T5K 2P7 Phone: 780-427-4952 Fax: 780-452-0668 E-mail: qp@gov.ab.ca Shop on-line at www.qp.alberta.ca
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(Consolidated up to 45/2014) ALBERTA REGULATION 361/91 Metis Settlements Act METIS SETTLEMENTS LAND REGISTRY REGULATION Table of Contents 1 Definitions 2 Fraud Part 1 Purposes and Application 3 Purposes 4 General application 5 Application to Crown Part 2 Metis Settlements Land Registry 6 Establishment of Registry 7 Fee simple registers 8 Metis title registers 9 Automatic recording of some pre-existing interests 10 Interest registers 11 Content of registers Part 3 Recording 12 Recordable interests 13 Recording and registration 14 Requirements for recording 15 Time of recording 16 Priority enforcement rules 17 Future obligations 18 Cancelling a recording 19 Assignment of recorded interests 20 Cancelling a recording on notice 21 Improper recording
METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 Part 4 Registration 22 Definitions 23 Registrable interests 24 Registration 25 Refusal to register 26 Effect of registration 27 Effect of cancellation 28 Void registrations 29 Requirements for registration 30 Revision of registrations 31 Settlement s right to record 32 Entitlement to revision of registrations 33 Reliance on unauthorized registration 34 Reliance on invalid transaction 35 Conflicting registrations Part 5 Interests Overriding Register 36 Interests overriding register Part 6 Compensation 37 Grounds for compensation 38 Amount of compensation 39 Limitation of time 40 When compensation not payable 41 Compensation agreement 42 Compensation order 43 Assurance fund 44 Payments Part 7 Powers of the Appeal Tribunal and Courts 45 Application by aggrieved person 46 Application by Registrar 47 Proof of signature 48 Application to cancel recording 49 Destroyed or lost documents 50 Method of application 51 General jurisdiction of Appeal Tribunal 52 Court of Queen s Bench 2
METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 Part 8 Administration Division 1 Registry and Registrar 53 Hours of operation 54 Registrar 55 Seal of office 56 Administration of oaths 57 Delegation 58 Request for reasons 59 Alteration of documents Division 2 Registrar s Rules 60 Registrar s rules Division 3 Deposit File, Registers and Procedures 61 Deposit file 62 Record of accepted documents 63 Form of registers 64 Processing of documents 65 Fees 66 Sending notices 67 Entries on registers 68 Searches and copies 69 Certified copies 70 Duplicate records 71 Substitute document 72 Cancellation of recordings 73 Revision of registrations Division 4 Requirements for Documents Other Than Plans 74 Letters patent 75 Names and addresses 76 Registration of judgment, order or certificate 77 Instruments in favour of corporations 78 Signing of documents by corporation 79 Dower Act 3
METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 Division 5 Highways 80 Road title 81 Highways managed by Crown Division 6 Plans 82 Filing of plans 83 Registrar requires plan 84 Plan showing existing boundaries 85 New register 86 Plan of survey requirements 87 Descriptive plan requirements 88 Powers of Registrar 89 Change of legal description 90 Correction of plans by Registrar 91 Changes to plans by Appeal Tribunal or court Division 7 Interests Passing on Death 92 Death of settlement members 93 Death of non-settlement members Part 9 Adoption of Provisions of the Land Titles Act 94 Definitions 95 Purpose 96 Implied covenants 97 Implied covenants respecting security interests 98 Negation or modification of implied covenants 99 Grant of easement or restrictive covenant 100 Utility interest 101 Party wall agreement 102 Encroachment agreement 103 Cancellation of certain interests 104 Leases 105 Recording of writ 106 Sale by sheriff 107 Registration of transfer of land sold by sheriff 108 Application for confirmation of sale 4
Section 1 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 Part 10 Transitional and Coming into Force 109 Uncertain parcel boundaries 110 Pre-existing interests 111 Coming into force Definitions 1 In this Regulation, (a) Act means the Metis Settlements Act; (b) Appeal Tribunal means the Metis Settlements Appeal Tribunal established by the Act; (c) cancellation means the administrative process by which, under this Regulation, the prospective effect of recording and registration are eliminated by entries in a register; (d) claimant means (i) the person who records but does not register an interest, or (ii) the registered assignee of the right to cancel the recording of an interest that has been recorded but not registered; (e) Director of Surveys means the Director of Surveys designated pursuant to the Surveys Act; (f) document includes a plan, map and any information that can be converted by a machine or device into a form that people can read, such as information (i) on microfilm, (ii) in electronic, mechanical and magnetic storage, or (iii) in electronic data transmission signals; (g) effective pre-existing interest means (i) a pre-existing interest held by a person other than a member of a settlement association under the former Act that is recorded on or before June 30, 1993, and (ii) a pre-existing interest held by a member of a settlement association under the former Act that is recorded before the interest is extinguished under the 5
Section 1 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 Land Interests Conversion Regulation (Alta. Reg. 362/91); (h) interest means the fee simple estate in patented land and a right or interest in the fee simple referred to in section 99 of the Act; (i) law includes General Council Policies and settlement by-laws; (j) letters patent means the letters patent granting patented land to the General Council that were ratified and confirmed by the Metis Settlements Land Protection Act; (k) lien means an interest created by operation of law that secures the payment or other performance of an obligation; (l) person, claimant and owner include any agent who is empowered to act for the person, claimant or owner; (m) postponement means (i) the process of subordinating the enforcement of one interest to another, or (ii) the document effecting the subordination; (n) pre-existing interest means an interest in patented land that was held on November 1, 1990 by anyone other than the Crown in right of Alberta; (o) recording means the administrative process by which, under this Regulation, entries in a register secure priority of enforcement for an interest; (p) register means a register established under this Regulation (i) for the fee simple in a parcel of land, or (ii) for a registered interest, and includes any document incorporated into a register by reference; (q) Registrar means the Registrar of the Metis Settlements Land Registry; (r) Registrar s rules means the rules made under section 60; 6
Section 1 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 (s) registration means the administrative process by which, under this Regulation, entries in a register affect, confer, confirm or terminate interests; (t) Registry means the Metis Settlements Land Registry; (u) road title means the interest in patented land described as road title by General Council Policy; (v) security interest means a consensual interest that secures the payment or other performance of an obligation; (w) servitude means an interest affecting the use or enjoyment of land created by covenant, condition, easement or implication, and includes a utility interest, but does not include a lien or a security interest; (x) successor means a person who acquires an interest, or an interest derived from that interest, directly or through intermediate transactions from a prior owner; (y) termination means (i) the process of releasing or discharging an interest, or (ii) the document effecting the release or discharge; (z) transaction means an event or a dealing affecting an interest, whether by means of a contract, transfer, postponement or termination or by any other means; (aa) transfer means (i) the process of creating or assigning an interest, other than by operation of law, (ii) the document effecting the creation or assignment of an interest, or (iii) the process of creating or passing an interest by operation of law, including the passing of an interest to a personal representative and the passing of an interest by the operation of a General Council Policy; (bb) utility interest means an interest in land for the purpose of (i) carrying, laying, constructing, maintaining or using conduits, cables, wires, poles or transmission lines, 7
Section 2 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 (ii) laying, constructing, maintaining and operating pipelines for the transmission or transportation of any substance, (iii) drainage or irrigation or the control of flooding or erosion, (iv) disposing of sewage, (v) constructing or maintaining a public work, (vi) constructing, maintaining and operating a railway, or (vii) constructing, maintaining and operating a temporary roadway; (cc) value means any consideration sufficient to support a contract, and includes (i) a commitment to give credit or to extend the time for payment under credit previously given, (ii) the acceptance of a security interest for, or in total or partial satisfaction of, an existing claim, or (iii) consideration previously given for an existing contract. AR 361/91 s1 Fraud 2(1) In this Regulation the meaning of fraud is subject to this section. (2) The equitable doctrine variously known as notice and constructive notice is abolished for the purpose of determining if conduct is fraudulent under this Regulation. (3) A person who enters into a transaction with an owner who holds an interest subject to another interest that is neither recorded nor registered (a) is not affected by actual knowledge of the other interest, (b) may assume without inquiry that the transaction and (i) is authorized by the owner of the other interest, and (ii) will not prejudice that interest, 8
Section 3 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 (c) has no duty to assure the proper application of any assets paid or delivered to the owner, unless the person had at the time of entering into the transaction the knowledge described in subsection (4). (4) The person referred to in subsection (3) obtains the interest acquired under the transaction through fraud if the person had actual knowledge that the transaction (a) was not authorized by the owner of the other interest, and (b) will prejudice that interest. AR 361/91 s2 Part 1 Purposes and Application Purposes 3 The purposes of this Regulation are (a) to provide certainty for ownership of interests in land and to simplify proof of ownership, (b) to facilitate the economic and efficient execution of transactions affecting interests in land, and (c) to provide compensation for persons who sustain loss through entries in registers that are not authorized by this Regulation. AR 361/91 s3 General application 4 This Regulation applies to all patented land and interests in patented land. AR 361/91 s4 Application to Crown 5(1) The Crown in right of Alberta is bound by this Regulation. (2) This Regulation applies to any interest of the Crown in any other right that has been recorded under this Regulation. AR 361/91 s5 9
Section 6 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 Part 2 Metis Settlements Land Registry Establishment of Registry 6(1) The Metis Settlements Land Registry is established. (2) The Registrar may establish fee simple registers for the fee simple in patented land, Metis title registers for Metis title in patented land and interest registers for other registered interests in patented land. (3) The Registrar may establish a consolidated register for 2 or more registered interests. AR 361/91 s6 Fee simple registers 7(1) The Registrar must first establish fee simple registers for the fee simple in respect of all patented land. (2) The fee simple registers established under this section must be issued in the name of the General Council. (3) The parcels in the fee simple registers established under this section may include any geographic area, whether on, over or under the surface of land, that the Registrar considers convenient. AR 361/91 s7 Metis title registers 8(1) After establishing the fee simple registers under section 7, the Registrar must establish Metis title registers for Metis title in respect of all patented land except for (a) the beds and shores of all permanent and naturally occurring bodies of water and of all naturally occurring rivers, streams, watercourses and lakes, and (b) land set aside or used for highways, roads and road allowances, including land that would be required to be set aside for road allowances if the settlements were to be surveyed under Part 2 of the Surveys Act. (2) If the Minister s list provided to the Registrar under the Land Interests Conversion Regulation (Alta. Reg. 362/91) indicates a parcel was held under a certificate of occupancy under the former Act, the Registrar must establish a Metis title register under subsection (1) for the parcel in the name of the member who, according to the list, held the certificate of occupancy or, if the member has died, in the name of the settlement in whose area the parcel is located in trust for the heirs of the member. 10
Section 9 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 (3) The Metis title registers established under subsection (1) for patented land that is not affected by the Minister s list provided to the Registrar under the Land Interests Conversion Regulation (Alta. Reg. 362/91) must be issued in the name of the settlement in whose area the parcel is located. (4) The parcels for the Metis title registers referred to in subsection (3) may, subject to subsection (1), include any geographic area, whether on, over or under the surface of land, that the Registrar considers convenient. AR 361/91 s8 Automatic recording of some pre-existing interests 9(1) After complying with sections 7 and 8, the Registrar must record every pre-existing interest held by a member of a settlement association under the former Act if those interests are shown on the land records of the Minister that have been provided to the Registrar. (2) This section does not apply to certificates of occupancy and pre-existing interests that are held by persons who have ceased to be settlement members under the Transitional Membership Regulation (Alta. Reg. 337/90) and whose rights of appeal are over. (3) A pre-existing interest recorded under this section must be recorded in the name of the holder of the interest according to the Minister s land records that have been provided to the Registrar or, if the holder has died, in the name of the settlement in whose area the interest is located in trust for the heirs of the holder. AR 361/91 s9 Interest registers 10 After complying with sections 7 to 9, the Registrar may establish an interest register for any registered interest. AR 361/91 s10 Content of registers 11(1) A register must contain (a) the identifier for the register; (b) the identifier for the previous register from which the register is established; (c) a description of the type of interest for which the register is established; (d) the legal description of the parcel for the register; 11
Section 11 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 (e) the identifier for the registered transfer of the interest for which the register is established, the name of the registered owner of the interest and the date that the transfer was recorded; (f) the identifier for any registered document that affects, confirms or terminates the interest for which the register is established, a description of the document and the date that the document was recorded; (g) the identifier for any registered document that affects, confirms or terminates a registered interest for which no separate register is established that is derived from the interest for which the register is established and the date that the document was recorded; (h) if a register is established for any interest derived from the interest for which the register is established, the identifier for the register of the derived interest; (i) the identifier for any recorded transfer that creates a servitude the benefit of which is annexed to the interest for which the register is established, the date that the transfer was recorded and the identifier for the register of the interest that is subject to the servitude; (j) the identifier for any document that has been recorded, but not registered, that purports to affect (i) the interest for which the register is established, or (ii) a registered interest for which no separate register is established that is derived from the interest for which the register is established, and the date that the document was recorded. (2) The fee simple registers and Metis title registers established under sections 7 and 8 must indicate that they were established under those sections in place of the information required under subsection (1)(e). (3) The entry of the identifier for a document in a register incorporates that document into the register by reference. (4) An entry in a register forms part of the register whether or not the entry was made in accordance with this Regulation or the Registrar s rules. AR 361/91 s11 12
Section 12 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 Part 3 Recording Recordable interests 12(1) An interest in land is qualified for recording. (2) The Registrar must assign an identifier to each document accepted for recording and that identifier must be entered in the appropriate register. (3) An entry in a register of something that is not qualified for recording is not a recording and the entry is void. AR 361/91 s12 Recording and registration 13(1) An interest may be submitted for recording only, or for recording and registration. (2) An interest that is to be recorded only may be recorded by submitting a recording document or by submitting the document on which the interest is based. (3) An interest may be registered only if the document on which the interest is based is submitted for registration. (4) An interest submitted for recording and registration must be recorded before it is registered. AR 361/91 s13 Requirements for recording 14(1) A person wishing to have an interest recorded must submit to the Registrar (a) a recording document that summarizes the transaction on which the interest is based, or (b) the document or a copy of the document on which the interest is based. (2) An interest may be recorded even though the transaction on which it is based does not comply with formalities. (3) An interest may be recorded by any person, whether or not the person is an owner of all or any share of the interest, including a person who is a successor from a prior owner of the interest to be recorded. (4) The Registrar must record a recording document referred to in subsection (1) or the document on which the interest is based if 13
Section 15 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 (a) the interest is qualified for recording, and (b) the recording document or document on which the interest is based complies with the Registrar s rules. AR 361/91 s14 Time of recording 15(1) The Registrar must record documents, as far as is practicable, (a) promptly when they are received, and (b) in the order in which they are received. (2) An interest is recorded when the identifier assigned to the document submitted for recording is entered in the appropriate register. AR 361/91 s15 Priority enforcement rules 16(1) Subject to subsection (2), (a) an interest is effective from the time of the transaction on which it is based according to law, and (b) interests are to be enforced with priority relative to each other according to law. (2) The recording of an interest modifies subsection (1) as follows: Rule 1 An earlier interest is to be enforced with priority over a later conflicting interest if the earlier interest is recorded and that recording is uncancelled when (a) the later interest is obtained, or (b) the later interest is recorded. Rule 2 A later interest that is recorded is to be enforced with priority over an earlier conflicting interest if the later interest is (a) obtained for value, (b) obtained without the fraud of the owner of the later interest, (c) obtained when (i) the earlier interest is not recorded, or 14
Section 16 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 and (ii) the recording of the earlier interest is cancelled, (d) recorded when (i) the earlier interest is not recorded, or (ii) the recording of the earlier interest is cancelled. (3) For the purpose of this section, a registered interest is considered as having been obtained for value. (4) The rules in subsection (2) do not apply to the overriding interests described in section 36. (5) Rule 1 in subsection (2) is subject to the limitation that the recording of an earlier interest by means of a recording document that summarizes the transaction on which the interest is based is effective only as to those rights expressly described in the recording document, and only to the extent of the description of each right. (6) With respect to Rule 2 in subsection (2), (a) a later interest becomes a fully effective interest when, with respect to an earlier conflicting interest, the later interest can be enforced with priority over the earlier conflicting interest, (b) if a later interest cannot be enforced with priority over an earlier conflicting interest because the requirements of Rule 2 are not satisfied, an interest of a successor to the owner of the later interest becomes fully effective when the requirements of Rule 2 are first satisfied, and (c) once a later interest becomes a fully effective interest, it remains so when acquired by a successor. (7) This subsection establishes additional priority enforcement rules for effective pre-existing interests: Rule 3 An effective pre-existing interest is to be enforced with priority relative to another effective pre-existing interest according to law and Rules 1 and 2 do not apply as between those interests. Rule 4 An effective pre-existing interest is to be enforced with priority over any other interest recorded before the effective pre-existing interest. 15
Section 17 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 (8) A Metis title, provisional Metis title, allotment or other interest granted under the Land Interests Conversion Regulation (Alta. Reg. 362/91) that is recorded is to be enforced with priority as if the interest was created when the certificate of occupancy or document on which it was based was granted under the former Act. (9) A successor to the owner of a recorded interest is entitled to have the successor s interest enforced with the same priority, without further recording, as the recorded interest. (10) The rules in subsection (2) apply to conflicting interests of successors to the owner of a recorded interest. AR 361/91 s16 Future obligations 17(1) The priority of a recorded security interest extends to all subsequent obligations secured by the security interest, including obligations for principal sums subsequently advanced, and increased interest, as determined by the document. (2) If the secured person refuses to make further advances, or if the obligor has and exercises a right not to receive further advances, the secured person must, at the request of the obligor, provide a termination of the security interest except insofar as it is security for (a) obligations already incurred, and (b) further advances made by the secured person under the terms of the document in order to maintain the person s security for obligations already incurred. (3) The rights given under the Personal Property Security Act are not affected by this section. AR 361/91 s17 Cancelling a recording 18(1) This section applies to an interest that has been recorded but not registered. (2) Subject to subsection (4), the recording of an interest must be cancelled if (a) the interest is not qualified for recording, (b) the claimant is not entitled to the interest, (c) the claimant requests the cancellation, or 16
Section 19 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 (d) the requirements of section 20 with respect to a notice to substantiate an interest have been met. (3) The cancellation of a recording of a servitude for the benefit of a dominant tenement identified on the recording document for the servitude or the recorded document on which the servitude is based must be requested by the registered owner of the dominant tenement. (4) The Registrar must not cancel the recording of an interest for any of the reasons under subsection (2) unless the requirements of this Regulation and the Registrar s rules have been met. (5) Cancelling the recording of an interest that has not been registered does not terminate the interest. (6) Cancelling the recording of an interest does not affect the right to enforce that interest s priority that accrued before the cancellation. AR 361/91 s18 Assignment of recorded interests 19(1) This section applies to an interest that has been recorded but not registered. (2) The right to have the recording of an interest cancelled, or the enforcement of a recorded interest postponed, may be assigned by the claimant of the recorded interest by a document complying with this Regulation and the Registrar s rules, and the assigned right must be treated as a registrable interest. (3) Until an assignment under subsection (2) is registered, the claimant under the recording retains the right to have the recording cancelled or the enforcement of a recorded interest postponed. (4) This section does not apply to a servitude for the benefit of a dominant tenement if the dominant tenement is identified on the recording document for the servitude or the recorded document on which the servitude is based. AR 361/91 s19 Cancelling a recording on notice 20(1) The Registrar must cancel the recording of an interest that has not been registered if (a) the claimant has, in accordance with subsection (2), been served with a notice to apply to the Appeal Tribunal for a decision that substantiates the interest, 17
Section 21 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 (b) the person who caused the notice to be served has a recorded interest in the land against which the recording to be cancelled is recorded, (c) 60 days or any shorter period under subsection (4) has passed since the notice was served, and (d) no certificate of legal action from the Appeal Tribunal or a court confirming that there is a matter before it to substantiate the interest has been recorded. (2) The notice to apply to the Appeal Tribunal must be posted in the office of the settlement whose area includes the land affected by the recorded interest and must be served on the claimant (a) personally, (b) through registered mail at the address for service of notices provided in respect of the recording, or (c) in a manner approved by the Appeal Tribunal. (3) The notice to apply to the Appeal Tribunal and the document used to serve the notice must be in a form prescribed under the Registrar s rules. (4) The Appeal Tribunal may on an ex parte application shorten the period of 60 days to a period it specifies by order, and a copy of the order must be served with the notice. (5) A person who has a recording cancelled under this section through serving the notice by registered mail is liable for any loss sustained by the claimant whose recording was cancelled unless service by registered mail was reasonable under the circumstances or was approved by the Appeal Tribunal. (6) This section does not apply to (a) a Registrar s recording of a special interest under section 32(2), and (b) a recorded interest that is a restrictive covenant annexed to land. AR 361/91 s20 Improper recording 21(1) The claimant of an interest that is recorded but not registered is liable to any person who sustains loss because of the recording if (a) the interest was not qualified for recording, or 18
Section 22 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 (b) the interest ceased to exist and the claimant did not request cancellation of the recording in spite of a written demand by a person adversely affected. (2) Subsection (1) does not apply if (a) the Appeal Tribunal finds that the initial recording or its continuance was reasonable under the circumstances, or (b) the recording was a Registrar s recording of a special interest under section 32(2). AR 361/91 s21 Definitions 22 In this Part, Part 4 Registration (a) unauthorized registration means a registration made without the authority of a valid transaction but does not include a void registration; (b) valid transaction means a transaction that is valid under the law; (c) void registration means a registration that is void under section 28. AR 361/91 s22 Registrable interests 23(1) The following interests are qualified for registration: (a) the fee simple; (b) Metis title, provisional Metis title, allotment and road title as established by General Council Policy; (c) if authorized to be registered by General Council Policy, a life estate, a leasehold, a servitude, a profit a prendre, a security interest, an interest under a postponement agreement and an interest of a purchaser under an agreement to purchase an interest in land; (d) any other interest authorized to be registered by General Council Policy. 19
Section 24 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 (2) If another enactment requires or authorizes the registration of an interest and the interest is not qualified for registration under subsection (1), the interest may be recorded, but not registered. AR 361/91 s23 Registration 24(1) An interest is registered when the Registrar indicates on the register in which the interest is recorded that the interest is registered. (2) If an interest has been recorded by a recording document and the document on which the interest is based is later accepted for registration, the Registrar must make a new recording for the interest and indicate that the interest under the new recording is registered. (3) If an interest is recorded and the interest cannot be registered because the document on which the interest is based does not meet the requirements under the Registrar s rules, the interest may be registered after the requirements of the Registrar s rules are met. (4) If a judgment, order or certificate has been recorded and it cannot be registered because of section 76, the judgment, order or certificate may be registered after the requirements of section 76 are met. (5) If a document that transfers Metis title, provisional Metis title or an allotment is recorded and the interest cannot be registered because the time period established by a General Council Policy for filing an objection to the transfer has not passed or if an appeal of an objection is made to the Appeal Tribunal, the interest may be registered after the time for filing an objection has passed or the Appeal Tribunal decides that the objection was not valid. AR 361/91 s24 Refusal to register 25 The Registrar may refuse to register an interest or revise a registration based on a transaction binding the registered owner if the Registrar believes that, because of a disputed question of fact or law, the registration or revision may not be in accordance with law. AR 361/91 s25 Effect of registration 26(1) As long as the registration of an interest is uncancelled, even if it is an unauthorized registration, the registered owner is the owner of the registered interest if (a) the interest is qualified for registration, 20
Section 27 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 (b) the registered owner has legal capacity to own the interest, and (c) in the case of Metis title, provisional Metis title or allotment, the owner at the time of registration is the settlement in whose area the land is located or a member of the settlement. (2) The ownership under subsection (1) is limited to (a) the interest as defined in the register, (b) the parcel described in the register or for which the register is established, and (c) the extent that the interest is recognized under law. (3) For the purposes of subsection (2)(c), a security interest is recognized under law only to the extent of the actual obligation of the obligor under law. (4) A registered interest is to be enforced under the priority enforcement rules in section 16 based on the time of its recording. (5) A registered interest is, at the time of its recording, subject to (a) a transaction that binds the registered owner, (b) a conflicting interest under the priority enforcement rules in section 16, and (c) the overriding interests described in section 36. (6) The registration of a postponement has the effect of subordinating the enforcement of the postponed interest to the enforcement of the interest to which it is postponed in the same way and to the same extent as if the postponed interest had been recorded after the interest to which it is to be postponed. AR 361/91 s26 Effect of cancellation 27 Cancelling the registration of an interest divests the interest and cancels its recording. AR 361/91 s27 Void registrations 28(1) For the purposes of this Part, a registration is void if it is made when (a) the interest is not qualified for registration, 21
Section 29 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 (b) the person registered as owner does not have the legal capacity to own the interest, or (c) in the case of Metis title, provisional Metis title or allotment, the person registered as owner is not the settlement in whose area the land is located or a member of the settlement. (2) If a registration is void under subsection (1)(b) or (c), the settlement in whose area the land is located is the legal owner of the interest under the purported registration, in trust for whomever the law determines the interest should be held. (3) The recording of an interest is not affected if the registration of the interest is void under subsection (1)(a). AR 361/91 s28 Requirements for registration 29(1) The Registrar must register an interest if (a) the interest is qualified for registration, (b) the person to be registered as owner has legal capacity to own the interest, (c) the ownership of the interest is based on a valid transaction, (d) the requirements of this Regulation, the Registrar s rules and the Metis Settlements Subdivision Regulation (Alta. Reg. 363/91) have been met, (e) in the case of Metis title, provisional Metis title or allotment, the person to be registered as owner is the settlement in whose area the land is located or a member of that settlement, (f) in the case of a transfer of Metis title, provisional Metis title or allotment by a member of a settlement, the Registrar is satisfied that and (i) the settlement in whose area the land is located has not objected to the transfer of the interest within the time allowed for objections by General Council Policy, or (ii) if an objection was made within the time allowed, the Appeal Tribunal decides that the objection was not valid, 22
Section 30 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 (g) in the case of Metis title to be registered in the name of a settlement member, the member, by that registration, will not exceed the limits for holding Metis title established by General Council Policy. (2) If a document on which an interest is based (a) creates more than one registrable interest, and (b) identifies each interest in the manner prescribed by the Registrar s rules, the Registrar must register each interest as a separate interest. AR 361/91 s29 Revision of registrations 30(1) Subject to section 29 and subsection (2), a registration must be revised (a) if there is a transaction binding the registered owner; (b) if the registered interest is created for a specified period and the period has passed; (c) to enforce a conflicting interest under the priority enforcement rules in section 16; (d) to enforce an overriding interest described in section 36; (e) if the registration was obtained through the fraud of the registered owner; (f) to correct an unauthorized registration, subject to sections 33 and 34; (g) to correct a void registration, subject to section 33; (h) to enforce the rules relating to reliance on unauthorized registrations under section 33 and invalid transactions under section 34; (i) to enforce a conflicting derived interest entitled to priority of enforcement under section 35; (j) to comply with section 95 of the Act respecting the termination of membership in a settlement; (k) to comply with a General Council Policy or a by-law of a settlement authorized by a General Council Policy. 23
Section 31 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 (2) The Registrar must not revise a registration for a reason under subsection (1) unless the requirements of this Regulation and the Registrar s rules with respect to that reason have been met. AR 361/91 s30 Settlement s right to record 31 When a registration is revisable under section 30(1)(j) or (k), the settlement in whose area the interest is located has an interest that (a) is qualified for recording, and (b) is subject to the priority enforcement rules in section 16. AR 361/91 s31 Entitlement to revision of registrations 32(1) When a registration is revisable under section 30(1)(e), (f) or (g), the person whose registered interest was prejudiced by the revisable registration has a special interest that (a) entitles the person to obtain the benefits of the registered interest to which that person is entitled, (b) is qualified for recording, and (c) is subject to the priority enforcement rules in section 16. (2) If the Registrar is aware that a special interest may exist under subsection (1), but because of a disputed question of fact or law the Registrar refuses, under section 25, to revise a registration, the Registrar must record the possible special interest. AR 361/91 s32 Reliance on unauthorized registration 33(1) In this section, (a) improper owner means the person shown as owner of a registered interest as the result of (i) an unauthorized registration, or (ii) a void registration; (b) special owner means the owner of a special interest under section 32. (2) Subsections (3) and (4) must be interpreted as if the improper owner has the capacity to hold an interest and assign that interest. 24
Section 34 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 (3) This section applies when, as a result of the priority enforcement rules, an interest acquired from an improper owner has priority over the interest of a special owner. (4) When a person acquires an interest from an improper owner, (a) registrations must be revised as required to enforce the interest, even though that may prejudice a special owner, and (b) registrations may not be revised to the prejudice of the person who acquires the interest from an improper owner on the grounds that the registration of the improper owner was subject to revision because it was an unauthorized registration or a void registration. (5) A special owner who sustains loss under this section is entitled to compensation under Part 6. AR 361/91 s33 Reliance on invalid transaction 34(1) This section applies when a subsisting or former registered owner is prejudiced by an unauthorized registration that was requested by the registered owner under the unauthorized registration (a) in the belief that the unauthorized registration was authorized by a valid transaction, and (b) without knowledge of the facts that rendered the transaction invalid. (2) When this section applies, the registered owner under the unauthorized registration or the prejudiced person may apply to the Appeal Tribunal for (a) a declaration of the rights of the parties, and (b) orders for revision of registrations and for compensation, and must name the Registrar as a party to the proceeding. (3) In an action under subsection (2), the Appeal Tribunal must (a) order the unauthorized registration to be revised to nullify the effects of the unauthorized registration, and (b) order the registered owner under the unauthorized registration to be compensated according to Part 6 for the loss sustained because of the revisions, 25
Section 35 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 but if the Appeal Tribunal believes it is just and equitable to do so, the Appeal Tribunal may confirm the unauthorized registration and order that the prejudiced person be compensated according to Part 6 for the loss sustained because of the confirmation of the unauthorized registration. (4) In deciding whether it is just and equitable to confirm the unauthorized registration and direct that the prejudiced person be compensated, the Appeal Tribunal must consider the following: (a) the nature of the ownership and the use of the property by the parties; (b) the circumstances of the invalid transaction; (c) the special characteristics of the property and their appeal to the parties; (d) the willingness of one or both of the parties to receive compensation; (e) the ease with which the amount of compensation for a loss may be determined; (f) any other circumstances that, in its opinion, are relevant. (5) If the Registrar is satisfied that this section applies, the Registrar may enter into an agreement with the registered owner under the unauthorized registration or the prejudiced person providing for payment of compensation, interest and reasonable expenses of bringing the application, and the agreement is an agreement under section 41(2). (6) Section 44 applies to an order for compensation made under subsection (3) and an agreement made under subsection (5). AR 361/91 s34 Conflicting registrations 35(1) In this section, (a) derived interests means recorded interests that are derived from a root registered interest; (b) root registered interests means the interests registered in different registers that resulted in an initial conflict between those interests. (2) This section applies to determine the priority of enforcement of derived interests from one root registered interest relative to derived interests from another root registered interest. 26
Section 36 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 (3) This section does not apply to determine the priority of enforcement of conflicting (a) root registered interests, (b) interests under registrations to which section 30, except section 30(1)(h), or section 33 or 34 applies, or (c) derived interests from one root registered interest. (4) When this section applies, all of the derived interests from one root registered interest must be enforced with priority over the conflicting derived interests from another root registered interest according to the first of the following sequence of rules that is applicable: Rule 1 If a conflicting interest confers a right to possession and there is actual possession under a derived interest or a root registered interest, the derived interest on which possession is based or that is derived from the root registered interest upon which possession is based must be enforced with priority. Rule 2 If there is an interest obtained for value derived from one root registered interest and no such interest derived from another root registered interest, the derived interest based upon the interest obtained for value must be enforced with priority. Rule 3 The derived interests from the root registered interest that was not subject to revision of registration under section 30 when the initial conflict between interests registered in different registers occurred must be enforced with priority. (5) Any owner who sustains loss because the derived interests from another root registered interest are enforced with priority under this section is entitled to compensation under Part 6. AR 361/91 s35 Part 5 Interests Overriding Register Interests overriding register 36(1) The following interests must be enforced with priority relative to all other interests according to law: (a) an interest of the Crown in right of Alberta reserved in, excepted from or set out as a condition to the fee simple granted to the General Council under letters patent; 27
Section 37 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 (b) a lien in favour of a settlement against an interest of a taxpayer for the amount of unpaid taxes, fees, assessments, rates or other charges; (c) a leasehold for a term of 3 years or less if (i) there is actual possession of the land under the lease, and (ii) that possession could be discovered through reasonable investigation; (d) an interest created under an enactment that expressly refers to this Regulation and expressly provides that the interest is enforceable with priority other than as provided in this Regulation; (e) in the case of a pre-existing interest held by a person other than a member of a settlement association under the former Act that is recorded on or before June 30, 1993, the pre-existing interest until it is recorded; (f) in the case of a pre-existing interest held by a member of a settlement association under the former Act that is recorded before the interest is extinguished under the Land Interests Conversion Regulation (Alta. Reg. 362/91), the pre-existing interest until it is recorded. (2) Subsection (1) applies despite the priority enforcement rules in section 16 or the effects of registration under section 26. AR 361/91 s36 Part 6 Compensation Grounds for compensation 37(1) This section sets out grounds for compensation that are in addition to those specified in Part 4. (2) Except as provided in section 40, a person who sustains loss through (a) a registration of an interest, a revision of a registration, a recording or a cancellation of a recording, that is not authorized by this Regulation, or (b) an omission to register an interest, to revise a registration, or to make or cancel a recording, as required by this Regulation, 28
Section 38 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 is entitled to be compensated for the loss sustained. (3) The owner of a recorded later interest is entitled to be compensated if the owner mistakenly causes cancellation of the recording of an earlier interest, and then sustains a loss because the earlier interest has priority under the priority enforcement rules. (4) For the purposes of subsection (3), a person mistakenly causes cancellation of a recording if (a) the Registrar cancels the recording based on a document submitted by that person, (b) the document was not authorized by the claimant under the recording of the earlier interest, and (c) the person obtained the document (i) under a transaction entered into for value, (ii) in the belief that the document was authorized by the claimant under the recording of the earlier interest and was intended to terminate the earlier interest or to allow a later interest to be enforced with priority over the earlier interest, and (iii) without knowledge of the facts that rendered the document invalid. AR 361/91 s37 Amount of compensation 38(1) The amount of compensation is, (a) if a person is deprived of an interest, the value of the interest, or (b) if the priority of an interest of a person is subordinated, the reduction in value of the interest. (2) For the purposes of subsection (1), the value is determined as of the earlier of (a) the date that the Registrar receives a claim for compensation under section 41, and (b) the date that the Appeal Tribunal receives an application for compensation under section 42. AR 361/91 s38 29
Section 39 METIS SETTLEMENTS LAND REGISTRY REGULATION AR 361/91 Limitation of time 39 A person is not entitled to compensation unless within 2 years of when the person knew, or should have known, of the loss the person (a) reached an agreement with the Registrar providing for the payment of compensation, or (b) applied to the Appeal Tribunal for compensation. AR 361/91 s39 When compensation not payable 40 A person who has a special interest under section 32 is not entitled to compensation if the loss was sustained because the person, although aware of a special interest that could be recorded under section 32(1), failed to record the interest promptly. AR 361/91 s40 Compensation agreement 41(1) A person who claims to be entitled to compensation may submit a claim to the Registrar. (2) The Registrar may, if satisfied that the person is entitled to compensation, enter into an agreement with the person providing for payment to the person of (a) compensation, (b) interest on that amount of compensation from the date that the Registrar receives the claim at the rate for pecuniary damages established under Part 1 of the Judgment Interest Act, and (c) reasonable expenses of bringing the claim. (3) When an agreement is entered into under subsection (2), (a) the Registrar must certify to the holder of the assurance fund that the person is entitled to the compensation set out in the agreement, (b) the person ceases to be entitled to compensation under this Part, and (c) the person is entitled to receive the compensation, interest and expenses provided for in the agreement. AR 361/91 s41 30