The Nova Scotia Court of
Appeal has determined that
time is of the essence in a recent
decision that examines two
pieces of legislation on land
title—and provides a more
definitive roadmap for lawyers
navigating the legal landscape.
“The implication for the real
estate bar in Nova Scotia is that
there is now a clearer set of
rules for the certification of
title to parcels of land for our
clients,” said Catherine Walker,
of Walker Law in Halifax.
“What is yet to be decided,
however, is how those interests
in land, once determined, and
registered under the Land
Registration Act will withstand
the light of any challenge in the
future,” she added.
The case began with the
province alleging there was no
initial Crown grant to an island
that was subject to the respondent’s chain of paper title. The
respondent sued for a certificate of title under the Quieting
of Titles Act, and applied for
summary judgment. The Chambers judge ruled on the applicability of the Marketable Titles
Act and common law rules on
chains of title, and dismissed
the application for summary
judgment. The Court of Appeal
then reviewed the principles
under the provincial legislation
and the common law on the
legal effect of a chain of paper
title.
A step back in time was
required to understand the current legal terrain. The
Marketable Titles Act was passed by
the Nova Scotia legislature in
1996 with the hope that, finally,
the certainty of a 40-year title
search standard had been
established. “However,” Walker
noted, “because Crown interests were unaffected by this
legislation, the certainty
achieved was limited in scope
This decision
reinforces the
reasonableness of
having a standard,
and the reasonable
application of that
standard for all,
including the Crown.
as it did not apply to any inter-
ests that might be claimed by
the Crown.”
Six years later, the Land
Registration Act created a new
land titles system that specific-
ally bound the Crown by its
provisions. That legislation also
allowed for squatters’ rights
against the Crown if they could
be documented for a 40-year
time period.
In Nova Scotia (Attorney
General) v. Brill, the respond-
ent, Alan Brill, could not regis-
ter his title because the Crown
had added its name to the
assessment rolls for the prop-
erty in question. “Mr. Brill
asserted that he had over 100
years title, which should more
than meet the 60-year common
law standard that pre-existed
the Marketable Titles Act,” said
Walker. “The Crown claimed
that there was no record of the
Crown having granted the land
in the first instance and so their
interest had not been extin-
guished.”
The two parties were not
alone in their interest in this
issue. Indeed, the Court of
Appeal gave notice to the Nova
Scotia Barristers’ Society
(NSBS), which subsequently
intervened in the matter. “The
intervenor argued that there
was a real need for clarity of
rules that applied to title exam-
ination in order for real estate
practitioners to know the basis
for title opinions — for all inter-
ests, including those asserted
by the provincial Crown,”
Walker said.
Lawyers across the country
will find the decision informa-
tive, she added. “[T]he princi-
ples discussed in this decision
have found relevance in other
jurisdictions, which have con-
sidered priority of interests,
including provincial Crown
interests. This decision reinfor-
ces the reasonableness of hav-
ing a standard, and the reason-
able application of that
standard for all, including the
Crown.”
For real estate lawyers in
Nova Scotia, the decision clari-
fied several issues. In particu-
lar, Justice Fichaud emphasized
two key principles: First, that
the extent of the title and evi-
dence of occupation is import-
ant. Second, that lawyers have a
responsibility in certifying title
and certifying the legal effect of
documents under the Land
Registration Act.
“Lawyers have a significant
role in ascertaining the state of
title and all the interests that
affect a parcel, and with each
instrument registered that
affects title to a parcel of land,”
Walker said.
Reasons: Nova Scotia (Attorney General)
v. Brill, [2010] N.S.J. No. 473.
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‘Pressing need for an electronic straight-through payment system’
Fraud
Continued From Page 9
an interest in the integrity of
the system.
In Ontario, Malcolm Heins,
CEO of the Law Society of Upper
Canada, has made a submission
on behalf of the legal profession
and the public to the federal
government’s Task Force for the
Payments System Review, in
which he outlines in detail the
current problems with the safety
and cost of the transfer of funds
in real estate transactions, and
the huge impact the current
flawed system has on its users.
In his submission he states there
is a pressing need for an elec-
tronic straight-through payment
system which is accessible, reli-
able, affordable and final.
Sally Burks practises law
with the Ottawa firm Perley-Robertson, Hill & McDougall,
LLP. She is chair of the CCLA
Real Estate Committee, co-chair
of the Working Group on Lawyers and Real Estate and vice-chair of the CDLPA Real Estate
Issues Committee.
