Issue 6 - March 2008

 

Policy and Procedures for Lawyers and Surveyors Issue 6,  March 2008  

 

 

  1. Acceptance Criteria for Court Documents

  2. Affidavit of execution incorporated in the Matrimonial Property Act Affidavit of Status

  3. AFR rejection criteria - trusts and partnerships

  4. Burden - adding to a parcel’s title after conveyance out of grantor

  5. Certificates of Lis Pendens under the LRA

  6. Death of a life interest holder

  7. LRA as an alternative to the Land Titles Clarification Act (LTCA)

  8. Parcel register - the meaning of the “updated” line item

  9. PID number use as a description under the Registry Act

  10. Quieting Titles Act Form 32 Procedure

  11. Registration or recording - acceptance of copies of documents

 

 

Acceptance Criteria for Court Documents

Effective immediately, no court document will be accepted for registration or recording at the LRO if it contains only a Law Stamp Copy (LSC) rubber stamp. Court Administration procedures around the province have been standardized.

 

Original court documents require an embossed court seal. Certified copies require a court stamp and certification statement from the Prothonotary.

 

It is important to note that if a court document is E-submitted, its seal must be visible when scanned. For embossed seals, this may involve darkening the seal with graphite or by switching the scanner to a darker setting.

 

The LRO must reject any court document where the seal is not visible on the scanned image.

 

 

Affidavit of execution incorporated in the Matrimonial Property Act Affidavit of Status

When the Affidavit of Execution is incorporated into the Affidavit of Status the following wording is often used:

 

“This acknowledgment is made pursuant to subsection 31(a) of the Registry Act or clause 79(1)(a) of the Land Registration Act for the purpose of registering this instrument.”

 

This type of multi-purpose statement is acceptable, but the solicitor must take care to cite the appropriate statute if only one is being referred to. For example, saying “This acknowledgment is made pursuant to subsection 31(a) of the Registry Act for the purpose of registering this instrument” will be rejected if the document is presented for registration or recording pursuant to the LRA.

 

Note:  Citing either statute is not necessary if the affiant’s statement contains evidence of compliance with the relevant statutory requirements, such as “I, John Smith, one of the parties in the foregoing indenture, make oath and swear that I executed the said instrument...” or like wording.

 

 

AFR rejection criteria - trusts and partnerships

The registered interest in a parcel must be a legal person and therefore cannot be a partnership name or “carrying on business as” name. Similarly, a trust is not an appropriate registered interest holder.

 

For trusts:  the AFR must show the trustees as the registered interest holders, with the qualifier “trustee.” See Section 28 of the LRA.

 

For partnerships:  the AFR must show the name of the individual partners as the registered interest holders.

 

Partnerships cannot hold title to land as a distinct entity in the sense that a body corporate can. In other words, a partnership does not hold title, even if named as grantee  the individual partners hold title. “Title vests in a partnership” is therefore another way of saying “title vests in the partners.”

 

The problem in the Torrens system becomes the acceptability of a transfer instrument that lists a partnership name without proof of the composition of the partnership at the point in time that the deed was executed.

 

At common law:

“Partnership is not recognized by English Jurisprudence as a persona in

the legal sense, separate and distinct from the individuals comprising it...” (Di Castri, Law of Vendor & Purchaser, 3rd edition, pages 3-15).

 

In a land titles system:

“An instrument in favour of a partnership is consistently rejected by the registrar. ‘Smith & Co,’ for example, is merely a collective name for its members. The society or firm, as such, can have no rights and obligations. Insofar as it purports to acquire them, they are those of the members who enter into the transaction in question...” [Di Castri, Registration of Title to Land, pages 8-51].

 

 

Burden - adding to a parcel’s title after conveyance out of grantor

In March 2006, the Land Registry circulated the following announcement to lawyers:

 

            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.

 

The lawyer must be prepared to certify that it is appropriate to place the burden. The fact that the LRO does not reject automatically doesn’t mean that “burden by ambush” is appropriate! Auto rejection was done away with, but that doesn’t mean it is always appropriate to add a burden after the person who entered into the burden has transferred the PID.

 

Before they take on the responsibility for certifying the appropriateness of the addition of the burden, lawyers might wish to ask themselves questions like:

 

 

Certificates of Lis Pendens under the LRA

LRA subsection 58(1) authorizes the recording of a certificate of lis pendens in prescribed form (Form 19) with respect to the parcel described in the certificate.

 

Clause 58 (2)(d) authorizes the removal of the certificate of lis pendens from the register after the expiration of five years from the recording of the certificate of lis pendens. What this means is that the five year “clock” does not start ticking until after a lis pendens appears in a parcel register, whether as a result of a title registration (AFR) or the subsequent recording of a Form 19.

 

Some lawyers have asked if they can ignore a lis pendens that is over five years old when completing an AFR; the answer is “no.”

 

Death of a life interest holder

Form 21 can be used to update ownership of a registered parcel based on the death of a joint tenant. Proof of death attached to a completed Form 21 will allow the name of the deceased joint tenant to be removed. It is important to indicate any necessary changes in the manner of tenure resulting from the death of a joint tenant. Staff members are not permitted to change the manner of tenure unless instructed to do so.

 

Form 21 does not permit the removal of a life interest holder. A Form 24 is used for this purpose with a Certificate of Legal Effect signed by an authorized lawyer certifying to the appropriateness of the removal. The proof of death is attached to the Form 24 and the authorized lawyer uses “Operation of Law” under the registered interest section to remove the interest. This is a non-chargeable document. The removal of a life interest should have no effect on the existing manner of tenure but the submitter must review the current registered owners to identify any necessary changes, such as remainder interests now becoming fee simple, etc. These determinations can only be made by an authorized lawyer, hence the requirement for a Form 24 rather than a Form 21, which can be submitted by an interest holder or his/her agent and contains no Certificate of Legal Effect.

 

LRA as an alternative to the Land Titles Clarification Act (LTCA)

The Land Programs office has been in discussions with the Department of Natural  Resources (DNR) about registering title under the LRA, as an alternative to using the LTCA process.

 

The LRA is the preferred title registration mechanism, because certificates issued under the LTCA are not registerable under the Registry Act [LRA clause 46(1)(d)]. Title registration under the LRA must be completed in order to put the certificate on record at the LRO. The very things that are needed to secure a certificate under the LTCA are the items needed for registering title by possession under the LRA.

 

Under the LTCA, a parcel owner must provide DNR with a declaration or declarations that evidence at least 20 years’ possession in order to obtain a Certificate of Title.

 

The advice from DNR and Land Programs is therefore to register the land under the LRA. The same declarations that DNR requires can be used as enabling instruments for the registered interest under the LRA.

 

Bottom line:  The LRA makes proceeding under the LTCA redundant.

 

Parcel register - the meaning of the “updated” line item

Parcel registers display an “updated” date in the header. Example:

 

“Updated Nov 23, 2005 07:10:58PM”

 

The updated date and time can be easily misunderstood by someone viewing the register. It has nothing to do with the start date for a sub-search. The sub-search start date (including the judgment roll search) must reflect the date of the migration or last transfer of the parcel, whichever is most recent. Having said that, of course, in the case of the purchaser, the judgment search must be the full 20 years, as always.

 

The “updated” date reflects the date that LRO staff last touched the parcel in the database. It may represent anything from a parcel graphics change to updated assessment data and should be disregarded when completing a sub-search.

 

PID number use as a description under the Registry Act

Conveyancing Act

10(1) A conveyance that identifies the parties and property, and specifies the property right to be conveyed, and which is validly executed, is effective to convey that property right.

 

Unless a parcel has been registered under the LRA, its PID is an unofficial label only and cannot be used to identify a parcel for the purposes of the Conveyancing Act. The Land Registration Administration Regulations, clause 5(7)(c) permits the use of a PID number as a parcel description. The Registry Act has no such provision. The difference is that once registered under the LRA, a parcel’s PID represents the parcel as described in the parcel register.

 

 

Quieting Titles Act Form 32 Procedure

LRA clause 46(1)(d) prevents certificates of title under the Quieting Titles Act from being registered under the Registry Act. This means that in order to register a client’s certificate of title, registration under the LRA must be effected. A “Catch-22” results because without registering the certificate under the Registry Act there may be no enabling instrument for the registered interest on an AFR. That is where Section 42 of the LRA comes into play.

 

Section 42 allows the Registrar General to issue an order to register title. This order is provided on a Form 32 and is registered under the Registry Act so as to provide an enabling instrument for an Application for Registration.

 

In order to have the Registrar General issue a Form 32, the lawyer must provide the RG’s office with a written request for a Form 32, together with the following information:

 

  1. Copy of the Court Order and Certificate of Title obtained under the Quieting Titles Act;

  2. Copy of any plan of survey relied upon in the quieting application;

  3. A list of PIDs to be registered (it is helpful if the Court Order and Certificate of Title include the PID list).

 

The Registrar General will then register the Form 32 and advise the solicitor of the registration particulars. Please notify the RG if the Order, Certificate or plan of survey must be returned to the solicitor.

 

After title is registered, the solicitor must register/record the Certificate of Title with a Form 24 to enable the interests covered by the certificate. This would include not just the ownership but benefits, burdens and recorded interests enabled by the certificate. This will replace the Form 32 as the enabling instrument in all relevant categories.

 

Registration or recording - acceptance of copies of documents

The LRO will accept originals, court or registrar certified copies of documents for recording or registration under the Land Registration or Registry Acts. The LRO will accept copies of any other documents only if attached to a statutory declaration or if they fall into the categories described below.

 

Under the circumstances described in subsections 5(3), 5(4), and 14(1) of the Land Registration Administration Regulations, copies of documents that have been certified to be true copies of the original by a person authorized under the Act to sign a certificate of execution are accepted for registration and recording. In all of these cases, the certified copy can only be accepted when accompanied by the original.