This Div is a JS Trigger

1.3 Opinion of Title and Certificate of Legal Effect

Standard

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.

A lawyer who provides an opinion of title 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

A lawyer who qualifies6 an opinion of title to the registrar in a migration of a parcel under the Land Registration Act, must, after examining the abstract of title on which the opinion is based and considering the qualifications, document the qualifications in the opinion.7

A lawyer completes an application for final registration of a title under the Land Registration Act, 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 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 

A lawyer who provides an opinion or a certificate of legal effect for a parcel or an interest in a parcel registered under the Land Registration Act, must examine 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 of title, 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

A lawyer who applies to revise a parcel register or to effect a recording in circumstances where it is necessary to establish priority of a registered or recorded interest must examine:

a. the parcel register;
b. the enabling documents in the parcel register;16
c. the judgment roll;17
d. Non-LR Documents in Process;
e. Plan Index;
f. Plans in Process;
g. By PID for LR-Documents in Process;
h. Power of Attorney Roll (if the document enabling the revision or recording is signed pursuant to a Power of Attorney which is not recorded in the parcel register); and
i. 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.

Footnotes

1 Marketable Titles Act, S.N.S. 1995-96, c. 9, s. 4
2 Standard 1.5 - Documentation of Advice and Instruction
3 See Footnote #2
4 Land Registration Act, S.N.S., 2001, c. 6, 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., 2001, c. 6, 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.N.S., 2001, c. 6, ss. 37(4)(ba), (f), (g) and 37(5) and Land Registration Administration Regulations, ss. 10(2)(b) and 10(3)(a)
9 Land Registration Administration Regulations, s.10(6)
10 Land Registration Act, S.N.S., 2001, c. 6, 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 Regulations made pursuant to the Legal Profession Act, S.N.S. 2004, c. 28, ss. 1.1.1 (ma) and 8.2.3.1
14 See Footnote #2
15 See Footnote #2
16 Land Registration Act, S.N.S., 2001, c. 6, s.13(3).
17 Land Registration Administration Regulations, s. 23(1)(h); Standard 3.5 - Judgments; Standard 4.3 - Name Standards.

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. 2001, c. 6, s. 37(9)(a).

Practice Notes

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

1. Confirm that the “Parcel Access” appears accurate and, if other than public, substantiated by other information in the parcel register.

2. Review the Instrument(s) filed under “Registered Interest” to ensure that the registered owners are correctly described in the parcel register and the legal description in the Deed(s) reflects all or, where lots have been consolidated, a portion of 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 legal 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 legal description.

(C) Where appropriate check that the mirror image burden or benefit is recorded against title for the affected neighbouring lands and that there are no problems with priorities.

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 legal description and any relevant survey information on record for obvious discrepancies.

Revised by Council on June 24, 2020