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1.3 Opinion of Title and Certificate of Legal Effect

Standard

Non LR parcels not being migrated

A lawyer may give an opinion that a parcel or an interest in a parcel which has not been registered under the Land Registration Act is marketable1 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.

A lawyer who provides an opinion on title must explain any qualifications to the opinion to the client and confirm that explanation and any instructions relating thereto2.

Application for Registration on migration

A lawyer may give an opinion that a parcel or an interest in a parcel which has not been registered under the Land Registration Act is marketable3 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.

A lawyer who completes a final Application for Registration of a title under the Land Registration Act must first ensure that all obligations under the Act and its associated Regulations have been met.4

LR Parcels

A lawyer who provides an opinion on title respecting a parcel registered under the Land Registration Act must examine the parcel register, review the documents included in the parcel register, and conduct all necessary searches in order to determine the registered ownership and interests pertaining to the parcel.

A lawyer who provides an opinion on title respecting a parcel registered under the Land Registration Act must also be aware that there are Overriding Interests which may affect the parcel5.

A lawyer who provides an opinion on title must explain any qualifications to the opinion to the client and confirm that explanation and any instructions relating thereto 6.

A lawyer who provides a Certificate of Legal Effect7 to the Registrar General with respect to a parcel must examine:

a. the Parcel Register,
b. the enabling documents in the Parcel Register;
c. the Judgment Roll and
d. any document to accompany the Certificate of Legal Effect to ensure that the registration or recording will be effective to change the Parcel Register as required.

Practice Notes

The following is a general guide to conducting a review of title to an LR parcel

  1. Confirm that the apparent “Parcel Access” is specified, appears accurate and, if other than public, is substantiated by other information in the parcel register.
  2. Review the Instrument(s) filed under “Registered Interests” to ensure that the registered owners are correctly described in the parcel register and the legal description in the Deed(s) reflects the lands described in the Parcel Description. If lands have been consolidated while under current ownership, the lawyer should review the approved Survey Plan, if any, to ensure that all component lots were conveyed to the Registered Owner(s) and are included in the current Parcel Description.
  3. (A) Review all “Benefits” and “Burdens” to determine how they apply to the property and to confirm that they have not expired.
    (B) for lands other than condominium units, check that all benefits and burdens are accurately reflected in the Parcel Description.
    (C) Where appropriate check that the matching burden or benefit is recorded against title for the affected neighbouring lands.
  4. Consider the impact of any Textual Qualifications and whether they still apply.
  5. Review the “Recorded Interests” to ensure that the interest holder is accurately reflected in the Parcel Register and the provisions of the recorded document(s) do not prevent or compromise the current transaction contemplated.
  6. Review notes put on the Parcel Register by Registry staff.
  7. Review the current Parcel Register, Property Online mapping, and any relevant survey information on record for obvious discrepancies.

Footnotes

1 Marketable Titles Act, S.N.S. 1995-96, c. 9, s. 4
2 Standard 1.5: Documentation of Advice and Instruction
3 Marketable Titles Act, S.N.S. 1995-96, c. 9, s. 4; Land Registration Act, S.N.S., 2001, c. 6, s. 37(9)(b)
4 Land Registration Act, S.N.S. 2001, c.6,
5 Land Registration Act, S.N.S., 2001, c.6, s.3(1)(k) and s.73
6 Standard 1.5 – Documentation of Advice and Instruction
7 The following Forms contain a Certificate of Legal Effect: i.e., require to the lawyer to certify that in the lawyer’s professional opinion “it is appropriate to make the changes to the parcel register(s)” as set out in the Form:
Form 6A – Request for correction of a previous Certificate of Legal Effect
Form 15 – Notice to the Registrar to cancel the recording of a security interest
Form 15A – Notice to the Registrar to cancel a recorded interest or judgment
Form 21 – Correction of Misspelling of Name
Form 24 – A change to the Registered Interests, Benefits or Burdens
Form 26 – Adding a Recorded Interest or a Power of Attorney
Form 27 – Cancelling a Recorded Interest
Form 45 – Updating the Parcel Register re access, Benefits and Burdens following subdivision
Form 49 – Correcting a Form 26 or a Form 27 which contains an error

Additional Resources

Revised by Council on March 26, 2021