From the time when representatives of the English monarchy claimed ownership of land, all private land ownership was acquired from either the provincial or federal representatives of the monarchy. After the initial settlement by Europeans, most parts of Canada were owned by Provincial governments, except for those areas which were owned or acquired by the Federal Government as a result of railway grants, the reservation of National Harbours and the creation of Indian reserve lands where title vested in the Federal Government. If a person wished to acquire ownership in land, he purchased the land from the Province and there would be a "Crown Grant", transferring title from the Provincial Crown to the individual. The private owner, having acquired title, was able to pass title on by conveyance to other individuals.
Chain of Title
The difficulty with the title system previously existing in most parts of Canada, and still existing in many areas of North America, is the fact that the title registry was simply a register of documents and title had to be deduced by reviewing each document relevant to the title to the land. One could not acquire a better title from one’s vendor than the vendor had to sell. Consequently, if there was a forged deed several owners back in the chain of title, the chain was broken and when the fraud was discovered, the current recorded owner would be deprived of title and would be replaced by the party properly entitled in law as the result of the rectification of the fraud.
In 1858, Sir Robert Torrens created a system of registration of title to land in Australia which became known as the Torrens system. The fundamental principle of the Torrens system is that the registration of a conveyance raises an "indefeasible title" which is good against the world, notwithstanding the flaws in the chain of title proceeding it, subject only to specific statutory exceptions set out in the statute which creates this system. It must be noted that the Torrens system is a creation of statute only. In British Columbia, the Torrens system is created and implemented under the Land Title Act and the rights of owners may, and in many instances do, differ from the right of owners of land under the common law.
The objects of the Torrens system are:
One. Creation by the Provincial Government through legislation (i.e. the Land Title Act, British Columbia) of an indefeasible title in the registered owner;
Two. Simplification in the transfer of land; and
Three. Certainty in the proof of title of ownership to land by reference to a Certificate of Indefeasible Title (as in British Columbia) which conclusively establishes ownership of the land through the operation of the provisions of the relevant land registration statute.
Efficient Searching and Registration
The principal benefit of the land registration system in areas where the Torrens system has been adopted is that certainty is established with respect to ownership of land as one simply has to search title in the land registration system to determine not only the ownership of land but also the charges which exist as encumbrances against the land. With the computerization of some of the land title systems in Canada in recent years, it is very easy for lawyers, real estate agents and others who deal in title to land to obtain searches of property very quickly and efficiently to determine ownership and state of title. In terms of completion of transfers of land, it is a matter of submitting executed documents (in a form prescribed) for registration in the various land title offices, depending on the location of the property in issue. Assuming the documents have been prepared and executed as required by the appropriate statute, the registration of the documents should be completed within a period of days (timing depends on the jurisdiction applicable where the property is located) and after the registration process is complete and the indefeasible title has been registered, it is possible for lawyers to provide title opinions regarding ownership of land and opinions relating to registered encumbrances charging land. The Torrens system, or a modified version of it, is becoming the dominant form of land registry system in Canada, much to the benefit of purchasers and vendors.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Please join members of the Blakes Commercial Real Estate group as they discuss five key provisions of a commercial real estate purchase agreement that are often the subject of much negotiation but are sometimes misunderstood.
Emotional culture is influenced in great part by the mindset and actions of leadership, although employees also play more of a role than they may realize in creating the culture that exists in the group.
The session will be led by Dr. Robert Brooks, an award-winning author and psychologist. In his presentation, Dr. Brooks will describe the mindset and realistic practices of leaders and staff that help to nurture and sustain a culture characterized by positive emotions, satisfying, respectful relationships, a sense of meaning and ownership for one’s work, and enhanced job performance. Examples will be offered to illustrate strategies for developing a positive emotional culture in an organization.
Join leading lawyers from the Blakes Pensions, Benefits & Executive Compensation group as they discuss recent updates and legal developments in pension and employee benefits law as well as strategies to identify and minimize common risks.
The Ontario Court of Appeal confirmed that courts will generally support and uphold decisions of condominium directors because they are better positioned than judges to make decisions pertaining to their buildings.
According to the city bylaws in Calgary, the grading of lots for new buildings must be done properly so that the water never flows toward the new building or any other nearby properties, but away from those buildings.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).