Policy and Procedures for Lawyers and Surveyors Issue 3, December 2006
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Reminder: Deed Transfer Tax Payment When E-submitted Deed is Rejected
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Affidavits Of Execution That Appear Within The MPA Affidavit
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Instruments and Plans of Subdivision that Require PDCA Submission
Deed Transfer Tax
Reminder: Deed Transfer Tax Payment When E-submitted Deed is Rejected
With paper submissions, once a deed is accepted at the front counter and a receipt has been issued, the deed transfer tax has been paid by the submitter (assuming the Land Registration Office is collecting the tax on behalf of the Municipality). If a rejection occurs at the back counter, the tax has been paid and gets passed on to the Municipality although the deed re-submission is pending. On re-submission of the paper deed, a copy of the affidavit of value must accompany the deed. This allows staff to fill out the mandatory fields required on a transfer, including sale price, sale date and mailing ad- dress for the grantee. Staff enters “0 value” as the sale price to ensure that the tax is not taken twice. For electronically submitted deeds, however, no money is taken if the document is rejected. That includes deed transfer tax as well as registration fees.
In the September 2006 edition of the RG’s Communiqué, users were advised to use the electronic version of the affidavit of value. This was to help reduce duplication of data entry, ensure consistency in the information on the Form E24 and the Deed Transfer Tax Affidavit, and to ensure that the deed transfer tax calculation for e-payment purposes mirrored the calculation of deed transfer tax owing on the signed and sworn affidavit
There have been cases where the two do not match and the result is the amount taken out of the trust account during the electronic debit process is different than the amount on the deed transfer tax affidavit form which has been signed by the client, scanned and submitted. This will require, at a minimum, a reconciliation of the trust account or a correction of the details in the property transaction file. It is best to have clients sign the pre-populated and printed off deed transfer tax affidavit form wherever possible.
Documents
Affidavits of Execution That Appear Within the Matrimonial Property Act Affidavit of StatusIf you are using the matrimonial status affidavit to also serve as the affidavit of execution for the document, please be aware that LRO staff will not necessarily be able to infer that the statutory requirement for an affidavit of execution has been satisfied, without explicit wording to that effect.
This can lead to needless rejections. It is recommended that in order to avoid the problem, affidavit paragraphs about execution requirements be given a heading. For example,
Affidavit of Execution:
I acknowledge that I executed the foregoing instrument under seal on the date of this affidavit.
This acknowledgment is made pursuant to
s. 31 of the Registry Act, R.S.N.S. 19898, c. 392 or
s. 79 of the Land Registration Act as the case may be, for the purpose of registering the instrument.
Subsections 4(10) and 4A(6) of the Land Registration Administration Regulations require that all documents must be legible when scanned and comply with standards respecting document quality and completeness.
For documents presented in paper, colours of ink cannot be used. Please ensure that the signatures on your scanned image are readable and avoid colors that do not scan well such as green and red. For electronically submitted documents, legibility also requires that all pages face upward. Staff does not alter or print the attached image. In either case, the document will be rejected.
We have been warning submitters for many years that colors used on plans will not be recognizable when scanned and therefore colors should not ever be used to depict an area on a plan. Cross-hatching is a much safer method than using colour.
Fees for Documents Within Documents
A single release of mortgage can operate to release related interests (such as an Assignment of Leases and Rents, amendments, postponements, or renewals). One fee applies in those instances.
Where one release cancels multiple mortgages, a fee is payable for each mortgage released, regardless of the mortgagee.
Effective January 1, 2007, all LROs will enforce the fees regulation that requires a separate fee for each mortgage released, even when they are cited on the same release.
Pursuant to Section 14 of the Notaries and Commissioners Act, the person must print his or her name (or use a stamp) under his or her signature.
14 A person before whom an oath, affidavit, declaration or affirmation is administered, taken or received shall cause his name to be typewritten or printed below or adjacent to his signature.
Effective January 1, 2007, for any document presented that has been executed after January 1, 2007, compliance with Section 14 of the Notaries and Commissioners Act is required. Noncompliant documents will be rejected.
Re-submitting Rejected Paper Documents
All re-submissions of rejected paper documents must be in paper in order to qualify for an exemption from a registration or recording fee.
Do not replace a rejected paper document with an e-submission unless you are prepared to pay the fee twice. The “machine” can’t tell that the document was rejected previously in paper format and will therefore charge the fee.
The Land Registry will not refund fees when this occurs.
Choosing “exempt” on the e-form is not appropriate because the exemption relates to the party and not to the document.
There has been some confusion over the indexing of Form 31 (Section 43 Notice). The name of the grantor comes directly from the lawyer’s AFR. The system indexes the Notice automatically as per the name on the AFR, and not necessarily as per the name in the GGI.
Miscellaneous
The Property Online (POL) Help Line receives as many as 90 calls daily from every category of stakeholder. It also receives e-mails and provides functional and technical support to external and internal users of POL. The ongoing volume of calls has become a challenge especially considering the content of some of the calls.
We have analysed the calls we receive more closely over the past year and we have found that the Help Line continues to be the first place to call, before consulting with lawyers and legal assistants within the law firm, checking out the Land Registration Act and Regulations, the resource materials available on the web site, the Registrar General’s Communiqué, or e-mails to authorized users.
Details that need to be provided by the caller are as important to an accurate and helpful response as the questions asked.
All things considered, the Help Line does an amazing job answering questions on time and on target, but to encourage accuracy of responses, consistency and timeliness, the Land Registry has decided to direct as many Help Line calls as possible to e-mail and to ensure pertinent information is included.
This will ensure:
§ the question or scenario is clearly documented and well understood;
the question is answered with consistency and accuracy and a record exists for the user of the question asked and the answer given;
§ the answer is complete and doesn’t require further follow up; and
§ timely response to complex questions.
Effective January 1, 2007, most callers will be advised to submit inquiries by e-mail so that they can be properly documented, answered and logged.
Remember these basic principals when using the Policy and Procedures Help Line:
Check the available resources before you send an e-mail to the Help Line. Try to ensure that the “front end” work has been completed by the lawyer/firm before seeking assistance. Keep in mind the limitations on what Help line staff are permitted to answer. When asking a question, give all relevant facts; do not assume that Help Line staff understands what you are trying to do. Be aware that the answer will be spoken in process language, not substance language. Help Line staff can tell you “how” in most cases but not “whether” you should!
Parcel Access and Railways
The Department of Transportation and Public Works advises that when the railway right of way divides one property owner’s parcel, the National Transportation Agency Orders/Decisions (now Canada Transportation Agency) in most cases requires the railway to construct and maintain a crossing, commonly known as “farm crossings,” for the private enjoyment of the property owner at the railway’s expense (Section 102, Canada Transportation Act).
When the property owner is not the same on both sides of the track, the property owner must enter into a private crossing agreement with the railway to retain/gain access. In this case, the property owner pays for the construction and annual maintenance of the crossing, and provides adequate insurance coverage.
PDCA
Instruments and Plans of Subdivision that Require PDCA Submission
When approved instruments of subdivision arrive at the LRO, the document must be held until the appropriate PDCAs are submitted. The same holds true for approved consolidations that are not accompanied by the required deeds or plans of subdivision that do not contain enough information to create a short form description. In all these cases (and despite follow-up calls), the documents can sit at the LRO indefinitely. This clogs the queue and creates a risk of document loss.
Effective January 1, 2007, the LRO will reject any document that cannot be processed by staff, if the required PDCAs or outstanding items are not submitted within 30 days.
Use of “grantor” and “grantee” in PDCA
Some lawyers continue to use these words in a legal description destined for the parcel register. As stated at the 2006 RELANS conference, this language is erroneous (or at least not helpful) in the land titles system. Consider using PID references or refer to the parcel itself (Lot X) and not the out-of-context reference to grantors and grantees.
Releases
Cancellation of Security Interest by Statute
Lawyers are reminded of the provisions of Section 60 of the Land Registration Act.
This Section can be very useful when seeking a release of mortgage when one has not been provided by the lender. The process for obtaining a cancellation of an unreleased security interest is outlined in Section 24 of the Land Registration Administration Regulations.