Real Estate
1.3 Opinion of Title and Certificate of Legal Effect
Non LRA parcels (not being migrated)
For a parcel or an interest in a parcel not registered under the Land Registration Act a lawyer may give an opinion that the title is marketable1if, after examining the abstract of title, the lawyer is satisfied that title to the parcel is marketable in accordance with legislation, common law and equity.
When a lawyer provides an opinion of title, the lawyer must explain any qualifications to the opinion to the client and confirm the explanation of the qualifications with the client prior to closing.2 The lawyer must confirm the client’s instructions prior to closing.3
LRA Parcels
APPLICATION FOR REGISTRATION
For a parcel or an interest in a parcel being registered under the Land Registration Act a lawyer may give an opinion that the title is marketable4 if, after examining the abstract of title, the lawyer is satisfied that title to the parcel is marketable in accordance with legislation, common law and equity.5
When a lawyer qualifies6 an opinion of title to the registrar in a migration of a parcel under the Land Registration Act, the lawyer must, after examining the abstract of title on which the opinion is based and considering the qualifications, document the qualifications in the opinion.7
When a lawyer completes an application for final registration of a title under the Land Registration Act, the Regulations require that the lawyer must ensure that all the documents required under the Act to be filed at the appropriate land registration office8 or retained by the lawyer as part of the registration9 are complete10, executed11, and in all respects in final form12 and that the lawyer shall compile and maintain all foundation documents which a reasonably competent lawyer would rely upon to support the opinion of title.13
Parcel Registered Under Land Registration Act
When a lawyer provides an opinion or a certificate of legal effect for a parcel or an interest in a parcel registered under the Land Registration Act, a lawyer must examine the parcel register and conduct all necessary searches in order to determine the registered ownership and interests pertaining to the parcel.
When a lawyer provides an opinion of title, the lawyer must explain all interests in the parcel, qualifications and limitations on the opinion to the client and confirm the explanation of the qualifications with the client prior to closing.14 The lawyer must confirm the client’s instructions prior to closing.15
Revisions and Recordings of parcels under the Land Registration Act
Before a lawyer applies to revise a parcel register or record an interest in a parcel register under the Land Registration Act and provides a certificate of legal effect submitted for registration or recording under the Act, the lawyer must first examine the parcel register and any document to accompany the certificate of legal effect, and be satisfied that the registration or recording which purports to change the parcel register is effective under the Act.
Additional Resources:
A lawyer must accompany an application to register a parcel pursuant to the Land Registration Act with an opinion of title certified by a qualified lawyer, disclosing to the Registrar General the interests being registered in the parcel and, subject to section 40, all encumbrances, liens, estates, qualifications and other interests affecting the parcel and the direct or indirect right of access to the parcel, if any. See Land Registration Act, S.N.S., s. 37(9)(a).
- Sheriff’s Deeds: See Standard 3.8 – Judicial Sales; Standard 3.7 Tax Deeds
- C. Walker, QC, “Abstracts and the Land Registration System” in Land Registration Act Education Program, LRA Education Materials
- C. Walker, QC, “Certifying Title and Qualifying Title under the Land Registration Act” in Land Registration Act Education Program, LRA Education Materials
- Ian MacLean, “Searching Land Registered Parcels”, CBA Professional Development Conference, January 8, 2010.
- Ian MacLean, "Title searching land registered parcels" (May 2011)
- Section 13.3 of the Legal Profession Act Regulations provides for audit of foundation documents by LRA Auditors.
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1 Marketable Titles Act, S.N.S. 1995-96, c. 9, s. 4
2 See Standard 1.5 - Documentation
3 See Footnote #2
4 Land Registration Act, S.N.S., s. 37(9)(b), Marketable Titles Act, S.N.S. 1995-96, c. 9, s. 4
5 Nova Scotia (Attorney General) v. Brill, 2010 NSCA 69. Title to a parcel may be registered pursuant to the Land Registration Act even though title cannot be certified as marketable. Land Registration Act, S.N.S., s. 37(9)(b) and Land Registration Administration Regulations, s. 11 and definition of textual qualification in s. 2(1).
6 Land Registration Act, S.N.S., s. 37(9)(a) and Land Registration Administration Regulations, s. 11 and definition of textual qualification in s. 2(1)
7 See Footnote #2
8 Land Registration Act, s. 37(4)(ba), (f), and (g) and s. 37(5) and Land Registration Administration Regulations, s. 10(2)(b) and 10(3)(a
9 Land Registration Administration Regulations, s.10(6)
10 Land Registration Act, s. 37(5) and Land Registration Administration Regulations, s. 10(6)
11 Land Registration Administration Regulations, s. 4(8)
12 Land Registration Administration Regulations, s. 10(2)(b)
13 Legal Profession Act Regulations, s. 1.1.1 (ma) and 8.2.3.1
14 See Footnote #2
15 See Footnote #2