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Legal Guide

Transferring ownership or title to land from one person to another can be accomplished by a number of different methods, for example, registration of a transfer of land or deed of sale at a Land Registry Office, or by operation of law. A transfer or deed, in accordance with an agreement of purchase and sale entered into between a vendor and a purchaser, is by far the most common method of conveying ownership in land. Such agreements must be in writing to be enforceable, and should clearly set out the rights and responsibilities of those involved.

Registered interests in land

Two different systems of registration for conveyances, mortgages and other rights and interests affecting land exist in the common law provinces: the Registry Act system and the Land Titles system. The Registry Act was established in Upper Canada (now the Province of Ontario) in 1795, prior to Canada’s confederation. Under that system, title to a specific piece of realty must be examined in the registry office where the property is located. To establish sufficient chain of title requires a review of instruments affecting title for
at least 40 years.

The Land Titles system is much simpler than the Registry Act system. It is predicated upon the issuance of a certified statement of title that reveals the registered owner(s) of the land and all encumbrances to which title is subject (subject to certain statutory exemptions).

British Columbia, Alberta and Saskatchewan adhere exclusively to the Land Titles system, while Nova Scotia, Prince Edward Island and Newfoundland continue to adhere to the Registry Act system. Ontario, Manitoba and New Brunswick maintain both systems in varying degrees, depending on the location of the land in question. In both systems, mortgages and other land charges are registered to establish the lender’s priority to the real property security. Lenders will typically require a legal opinion as to the borrower’s title to the land, and the position of the lender’s mortgage against others claiming a registered interest in the land. If advances are to be made periodically under the mortgage security, the lender will generally require an update as to the status of title by way of a subsearch or updated title search, before making the advance. If the lender advances knowing of a prior registration against title or knowing of a subsequently registered builder’s lien, the lender’s priority against the prior registrant or lien claimant with respect to that advance may be lost.

In Quebec, the system of registration is governed by the Civil Code of Québec and is similar to the Registry Act system. All documents have, in principal, been computerized and are now available online. In Quebec, purchasers and lenders rely upon title searches in the land registry office going back sometimes over more than 100 years. Hypothecs (mortgages) must be registered as in common law provinces.

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