The AFR must only reference documents that are effective to enable the interest being added and the regulations require an enabling instrument that has been registered or recorded under the Registry Act or Land Registration Act. A document “filed” in the plan index would not meet this requirement.
Content of parcel register
23 (1) A parcel register must contain all of the following:
(e) the submission particulars or full text of every document by which the title to the parcel is affected, as registered or recorded under the Act or the Registry Act {emphasis added);
With respect to Registered Interests, there may be a number of reasons as to why an enabling instrument is not able to be provided. Typical examples would be as follows;
Expropriation – where ownership has been obtained by expropriation and the document was filed in the Registry as a plan and not a document.
Quieting of/Certificate of Title – if the document that granted the ownership is a triggering document that would need to be registered under the Registry of Deeds system and can’t be due to the trigger.
Ownership based on a Statutory Provision – such as;
Land Titles Clarification Act – ownership has been obtained through statute and is depicted on a plan but no other enabling instrument exists.
Federal, provincial or municipal lands - many parcels owned by any level of government do not have a deed or other conveyancing document that enabled the ownership. Ownership may be by virtue of one of a number of different Acts that may be applicable or other regulatory authority.
NOTE: A discontinuance of highway or road closure document, which is typically an ‘Order in Council’, can be used to enable a registered interest if the owner is a level of government (municipal, provincial, or federal). Refer to the AFR Checklist.
Where an enabling instrument cannot be obtained, the Registrar General may issue a Form 32 pursuant to S 42 of the Land Registration Act as follows;
Where the Registrar General
(a) is satisfied that any parcel should be brought under the operation of this Act;
(b) is satisfied that title to the parcel should be registered without a formal application and without complying with some or all of the requirements of this Act; and
(c) has obtained such supporting information as the Registrar General considers necessary, the Registrar General may make an order directing a registrar to register the title to the parcel. 2001, c. 6, s. 42.
Therefore, if any of the above noted situations are applicable where there isn’t an enabling instrument to use on the AFR, the lawyer must send a request to the RG via email at: RGLandTitles@novascotia.ca which requests that a Form 32 be issued. The request must include the basis upon which the lawyer is relying to certify ownership and the name of the registered owner as it will appear in the AFR.
NOTE: In addition to Registered interests, there may also be Benefits, Burdens and Recorded interests that can be affected and the lawyer would have to advise the RG accordingly when making the request, advising of the interest holder(s) name and type that will be added to the AFR.
If the request is related to a certificate of title pursuant to the Quieting Titles Act, the lawyer must provide a copy of the certificate and plan to the RG as part of the request. We advise lawyers not to submit original documents.
As appropriate, the RG will execute a Form 32 which will be recorded so that it can be used on the AFR to enable the registered interest holder. The RG will also provide further direction as required, such as the requirement to add a Textual Qualification to explain the basis of the ownership. The registrar will provide the recording particulars to the requesting lawyer to permit him/her to proceed with the draft AFR.
See: Guideline Form 32