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Module One: Abstract and Title Searching

Learning Objective(s)

This section will discuss the principles of title searching and abstracting necessary to understand the legal issues involved with a title search. It will discuss how to identify legal interests disclosed by the title search and what issues are important to consider. It is important to understand what legal interests are to be displayed in the electronic system and to understand how those interests will be interpreted.

Instructions

Introduction

This portion of the materials will attempt to answer the 5 W’s of Title Searching:

  • WHO is responsible for completing an Abstract of Title?
  • WHAT is an Abstract of Title?
  • WHERE does one ‘search’ an Abstract of Title?
  • WHEN is it necessary to obtain an Abstract of Title?
  • WHY is it necessary to provide an Abstract of Title?

The reference materials linked above list a number of resources that detail HOW to title search and how to construct an Abstract of Title. There is also a complete Abstract of Title for a parcel of land that has already been Land Registered included in your materials. Please carefully review the sample Abstract both prior to and during your reading of this section of the materials.

The historic search of title is the cornerstone of transferring a parcel into the land registration system. This should be the last historic search of title ever performed on this parcel. Generally it will not be necessary for another lawyer to search behind this conversion to ensure the accuracy of the parcel register. There may however, be cases where the lawyer deems it necessary to look behind the Parcel Register – most notably in certain situations when dealing with potential rights of way or easements and more information is required.

One fundamental shift in the practice of real property since the land registration system was introduced is that the purchaser’s lawyer no longer completes the historic search of title; the owner’s lawyer now generally performs this task. There are occasional exceptions as a matter of contract, usually in the case of insolvencies or foreclosures. Lawyers have required time not only to adjust their practice, but their internal office systems.

The lawyer’s obligation in this area goes beyond compliance with the Land Registration Act (“LRA”) and compliance with the requirements imposed by SNSMR. Real property lawyers should familiarize themselves with the Legal Profession Act regulations, ss.8.2.2 and 8.2.3, as to the obligations imposed with respect to abstracts of title. See also Legal Profession Act regulations Part 13, dealing with the retention of documents used to establish an opinion on title and the obligation to answer queries respecting this.

Real Estate Professional Standard 3.1: Abstracting sets out the essential elements which are to be included in an 'Abstract of Title'. Before preparing an opinion of title, a lawyer must prepare or cause to be prepared an abstract of title derived from a search of the records in the appropriate land registration office. A lawyer must base the lawyer’s opinion of title on the abstract of title. An abstract of title must:

  1. Be in writing;
  2. Commence with a root of title as prescribed by legislation and common law;
  3. Be complete; and
  4. Be capable of being read and understood by a person who has not searched the title him/herself.