Policy and Procedures for Lawyers and Surveyors September 2006
2. Manner of Tenure: System “Bug” is Fixed
3. Certificates of Legal Effect
7. Use of Paper Indices Grantor Grantee Index
9. Caveats
11. PDCAs Submitted After a de facto Consolidation under Section 268A of the Municipal Government Act
13. Releases and Use of the Term “Attorney”
14. Web Site Resources Update rescinded September 2007
15. New Code 443: Removal of Interest by Operation of Law
16. SRIs—Their Use
Applications For Registration (AFRs)
Registration of Possessory Title: Notices under Section 17 of the Land Registration Administration Regulations
Lawyers are reminded that they must serve the Department of Natural Resources with a Form 9, Notice of Parcel Registration, when they are converting title to an un-granted parcel of Crown Land on the basis of possession and extinguishment of the Crown interest.
When the Crown interest has been extinguished, the evidence of the adverse possession must be registered under the Registry Act and incorporated in the Application for Registration, as with any title registration that is based on adverse possession.
Manner of Tenure: System “Bug” is Fixed
Until recently, Property Online had been requiring a manner of tenure type “not specified”
even when it should have been “not applicable.” For example, where the same owner has two enabling instruments or an “otherwise known as” name, “not specified” would need to be used. This system bug has now been fixed. “Not specified” should be used only when the manner of tenure is not Joint Tenants, Tenants in Common, Not Applicable, or a Mixture.
Documents
Certificates of Legal Effect must be signed by the lawyer whose name and registrant user number appear on the Form. The lawyer who is certifying the effect of the document must sign the Form. Another lawyer, a legal assistant or staff member, cannot execute the certificate on behalf of the submitter/certifier.
Any Registrar of Land Titles can certify a copy of a scanned document that has been registered or recorded in any registration district [see LRA subsection 14(2)]. If a scanned image of the document exists in the system, for instance, the Registrar for Yarmouth County can certify a copy of a document recorded in Victoria County.
As stated previously, LROs do not react to cover letters or follow their instructions. In the Registry Act world, the documents are registered in the order presented. In the land titles world, instructions come from the cover forms only, not form letters attached. Staff will make a courtesy call to the submitter if they suspect a disordering of documents (e.g. a mortgage followed by a deed into the mortgagor).
As a practical matter, Property Online and the Land Registry have no method of storage and retrieval of cover letters which are attached to or placed with documents submitted. If staff were to follow extraneous instructions, there would be no record of why the registrations or recordings proceeded in the way that they did. Cover letter instructions may require staff to interpret intent or effect. This is unacceptable.
When the LRO receives a cover letter with documents, the letter is either returned to the submitter with a note to say it was disregarded, or it is simply discarded.
Using a PID in a document means that the PID stands in for the “official” or certified legal description for the parcel that was in place when the document was registered or recorded. Users can easily determine what the description was at the time of registration or recording by checking the historic parcel descriptions in Property Online.
On the Query User Options screen, click Search Parcel Description Database by PID (including historic descriptions) Then fill in the PID. If the description has changed since the parcel was converted to Land Titles, the screen will display the date and time of the change(s):
Query Results
|
ID |
Effective Date/Time |
Status |
|
12345678 |
2005-11-17 14:35:58 |
Current |
|
12345678 |
2005-08-31 09:39:50 |
Historical |
Electronic GGI
Use of Paper Indices Grantor Grantee Index
The Grantor Grantee Index has been converted (in whole or in part) to electronic format in all registration districts. The date range for the electronic GGI varies among the Counties. For example, Halifax’s electronic index currently goes back to 1951, Kings’ to 1917, and Annapolis’ to 1760. Work on the transfer to electronic format is ongoing.
When the GGI data has been converted to electronic format, the paper indices are superceded by the electronic.
Errors uncovered in the GGI are corrected in the electronic GGI but may not be noted or corrected in the newly printed consolidated paper indices.
Lawyers and searchers are not always able to rely on the paper GGI when the date range that is being searched falls within the date range for the electronic index. Due to stakeholder requests, not all LROs have removed the paper indices from use. Despite warnings, some lawyers and searchers continue to prefer to work with the paper GGI.
All LROs will be instructed to remove the paper indices for those years covered by the electronic GGI in their registration district.
E-submission
Because of the different execution requirements for documents executed under corporate seal [see LRA Section 79], lawyers should “graphite” or darken the corporate seal when submitting a document electronically. If this is not done, LRO staff will not be able to detect the presence of the corporate seal and will be looking for a certificate of execution as required by the Act.
Unless a document evidences or creates an “interest” in a parcel as defined in clause 3(1) (g) of the LRA, it cannot be recorded [see LRA Section 47]. A recording not authorized by Section 47 is void [subsection 47(8)]. Caveats or cautions are not permitted under the LRA as stated in the original discussion paper released in January 2000. This is consistent with property law in Nova Scotia (where the registration of a caveat warning of some potential interest that has not been defined by a court order is of no effect). Staff members are instructed to seek approval to record all statutory declarations that purport to add a recorded interest to title.
Lawyers are advised to use the system generated Deed Transfer Tax form for signing whenever possible. Simply print the affidavit of value and have the clients sign it for scanning/attachment to the electronic submission. This avoids errors and reconciliation problems for trust accounts and for municipalities. Completing an affidavit which is not generated by the system does not allow checks for errors on the DTT rate for instance, and we have had instances where the form submitted disagrees with the financial data submitted.
Note: Please do not scan any paper cover forms with your document when E- submitting documents. The online E-form takes the place of the paper cover form.
PDCA
PDCAs Submitted After a de facto Consolidation under Section 268A of the Municipal Government Act
Sometimes a de facto consolidation includes a legal description for the consolidated parcel that removes important details from the original parcel descriptions. This might include information on details such as bearings and distances.
Mappers have been instructed to set the “correcting description required” flag for PDCAs that remove this type of important information from a description.
Rectifications
This question comes up from time to time because of omissions or as the result of a Routine Audit by the Nova Scotia Barristers’ Society. Once title is registered under the LRA, the Registry Act no longer has any application to the parcel (see Section 44 of the Land Registration Act).
A search of the Grantor Grantee Index ceases when a Section 43 Notice of Registration in Form 31 is encountered. Therefore any documents registered in the “old world” will not be discovered on a standard title search. Whether the documents are to feed the estoppel by grant, bolster a possessory title upon audit, or otherwise, the process is the same.
Add the interest using a Form 17, Request by Owner for Rectification and Certificate of Legal Effect. On the same form, remove the interest that was just added. In this way, the document gets placed in the Archive Register, where it will be viewable for future reference.
Note: any unregistered documents that were included in AFR bundles or sent in as bundle additions will remain in the bundles.
Releases
Releases and Use of the Term “Attorney”
If a release of mortgage is signed by an attorney for the mortgagee, under a Power of Attorney, that document must be recorded in the parcel register or Power of Attorney roll, or incorporated in the release itself [LRA subsection 72(4)].
Note: Land Registry staff has been advised to not reject a release of mortgage simply because the word “attorney” appears in the document. Only if the wording indicates that a Power of Attorney document exists will staff be ensuring compliance with subsection 72(4). This issue only applies to documents submitted in hard copy; electronic submissions require the disclosure of whether or not a Power of Attorney is being relied upon.
Resources
Web Site Resources Update
Consolidation scenarios are now posted on the user resources for lawyers and legal assistants, surveyors and title searchers. The resources pages are undergoing a comprehensive update, so watch for more enhancements in the near future.
Revisions
New Code 443: Removal of Interest by Operation of Law
A new code is available for use with a Form 24, for use when interests are to be removed from a parcel’s title without a removal document (e.g. when the interest is rendered null and void by a statute). This is a non-chargeable instrument because it is a Certificate of Legal Effect, exempted by the Land Registration General Regulations.
Lawyers are required to provide an explanation for the removal of the interest. The current Form 24 does not provide a field for the explanation. Until the form is revised, use the Reference to Related Instrument field to provide the instrument reference and the required explanation.
Some lenders have formed the mistaken impression that only a Statement of Registered and Recorded Interests (certified or not) is acceptable proof that a mortgage has been recorded. This is not the case.
This message may have been lost in the translation in discussions over the meaning of a notice that a document was “accepted for registration” (i.e. entered at the front counter at the LRO). That notice DOES NOT mean that the document has been registered or recorded, it has been accepted for processing but may be rejected at the “back counter”.
An SRI (or a review of the parcel register/copy of a parcel register printout!) will show a lender that a mortgage has been recorded.