INDEX[Current to October 2015]

All references are to paragraph numbers.

ABORIGINAL TITLEallodial title, compared with, 1, 59caveat procedure, inapplicability, 562nature, 59, 93, 97, 655, 662

ABUSE OF PROCESS. See also LIS PENDENS.damages, statutory, distinction, 670

ACCELERATION. See also MORTGAGESgenerally, 519

ACCRETIONaccess, riparian owner’s right to, 196n“accession,” as synonym for, 196alluvion, 196napportionment of accreted land

methods, 203survey generally necessary, 203

artificial means, brought about by, 198avulsion, doctrine of

accretion principle, does not apply, 201Land Titles Acts, not repealed by, 201rationale, 201rule of property, entrenched, 201

certificate of lis pendens and, 204certificate of title, 204characteristics of, takes on those of upland, 200, 204coincidence of deed and water boundaries, where, 196consent of adjoining riparian owner, 204consolidation of accreted land, 204consolidation with upland, 204contiguity, essential, 202conveyance or transfer of accreted land

accretions, normally includes, 199, 204land description in conveyance or transfer not determinative, 199

deemed registration, 204dereliction, 196ndoctrine stated, 196foreshore

generally, 197lake, applicability to a, 197ownership, normally in Crown, 197Torrens register, refers to upland and adjoining foreshore, 197

generally, 196imperceptible, definition, 196nislands, 202

I-1 (RTL) (Rel. 10, 2015)

ministerial intervention and, 204navigability, basic pointers to, 196nnon-application of doctrine, 196, 201perceptible and sudden change, result, 196plan of survey, 204public as well as private property, applies to, 196registrar’s duties, 204riparian, 204subdivision plan and, 204survey of accreted land, 204rationales, 196result determinative, not the manner of its production, 198riparian rights

accretion, 194alteration or destruction of, 195American authorities, applicability, 195n, 205definition, 195high water mark, ambulatory, 195jure naturae, may exist, 195severance from the estate to which they attach, 205transfer to non-riparian owner, 205

title to accreted landcharacteristics, takes on those of upland, 204common law title v. registered title, 204consolidation with title to upland, 204deemed registration, 204governmental jurisdiction, as affecting, 204judicial declaration, founded on, 204nature of, 204procedure regulating (Manitoba), 204registrar, no jurisdiction to determine, 204

true accretion, 204Torrens system, applies to, 196“upland” used as synonymous with “riparian property”, 213

ACTION ON THE COVENANT. See COVENANT, ACTION ON THE.

ACTUAL OCCUPATION. See also LEASES; STATUTORY EXCEPTIONS TO IN-DEFEASIBILITY OF TITLE.meaning of, 372, 797, 801

AD MEDIUM FILUM AQUAE RULEcommon law rule

highway, comparable rule applies to, 208nrationale, 208rule of construction, a, 209tidal waters outside rule, 208nvariously expressed, 208

Crown grantsexclusion, not inclusion, of bed to be established, 212reservation in, to be precise, 212nrule applies to, 212

INDEX

I-2

INDEX

(RTL) (Rel. 8, 2009)I-3

statute, relevant, to be examined, 212exclusion of rule

controlling legislation, as affecting construction of grant, 214express exception in grant normally required, 214generally, 214grantor, onus on, to rebut rule, 214immemorial usage may limit grant, 214“upland” used as synonymous with “land bounded by water”, 213

middle line, establishing“bank” and “bed” of river defined, 211thread of stream, meaning, views conflicting, 211, 216

navigable character of waterCanadian law, 210current use, including recreational, of waterway important, 210

statutory modification of ruleAlberta, 215British Columbia, 216counsel, some practical questions for, in interpreting legislation, 209generally, 209Manitoba, 217Ontario, 219Saskatchewan, 218

tests forlarge lakes in England, rule applies, 214, 216large navigable lakes in Canada, rule inapplicable, 214, 216small inland lake, application of rule uncertain, 214, 216

Torrens systemapplication, limited, 207deed registration system, compared with, 207objections, 207

transfer, other than by Crown grantexclusion, not inclusion, of bed to be established, 213rule applies to, 213separate grant of bed possible, 214surrounding circumstances, relevant only in an exceptional case, 213

ADEMPTION. See also TRANSMISSION.

ADMINISTRATION OF THE SYSTEMadministrative heads of offices

Crown corporation concept, 17enumerated, 22-27generally, 20, 21offices, 18policy, set by Minister, 20practice directives v. statutory rules, 28provincial jurisdiction in Canada, 19senior official carries out policy, 20

Alberta registrar of land titles, 24British Columbia, Northwest Territories, Nunavut and the Yukon

inspector of land titles offices or director of land titles, 24.1

INDEX

I-4

crown corporation, 17governmental control, 20legislative authority, 19Manitoba,

registrar-general, 22offices, 18officials, 21Ontario

director of land registration, 25director of titles, 26

practice directivesstatutory rules, distinguished, 28

registrarconflict of interest, 31errors and omissions of staff, 29original jurisdiction, 30pivot of administrative machinery, 29protection (statutory) when acting in good faith, 32senior support staff, 29“tends the store”, 29

Saskatchewan,registrar of titles, 23

Western Australia,commissioner of titles, 27

ADVERSE POSSESSION. See STATUTORY EXCEPTIONS TO INDEFEASIBILITYOF TITLE.

AIRSPACE OWNERSHIPairspace legislation

airspace and “air”, simpliciter, distinguished, 161nairspace, landowner’s residual rights in, 161airspace lies in grant, statutory declaration, 161airspace parcel, definition, 161nairspace plan, definition, 161nassurance fund, inapplicable to airspace title, 161certificate of title issued on deposit of airspace plan, 161condominium legislation, not a satisfactory alternative, 161desirability of legislation, submissions, 161nfee simple, new statutory, 161feoffment with livery of seisin concept abolished, 161governmental approval to airspace plan required, 161“higher zone” no “alien pall”, 161highway, airspace parcels may be created over, 161meaningful description of airspace now available, 161procedural, legislation basically, 161registration formerly by way of charge, 161“stairway to heaven,” no rush of applicants for, 161title to airspace originates with fee simple owner of surface, 161

INDEX

(RTL) (Rel. 8, 2009)I-4.1

orthodox viewairspace not susceptible of ownership, 160

ALLODIAL TITLE. See ABORIGINAL TITLE.

(Continued on page I-5)

pending applications, failure to make available to searcher, 987, 989refusal to register, appeal, not a claim against the fund, proper procedure, 988registrar of, coupled with that of wrongdoer, 987statutory provisions, 987Stonehouse v. A.G. B.C., 988sufficiency of evidence, matter for registrar, 988nsurety, position of, 987“wrongful act,” not applied to registrar in any moral sense, 987

Ontario,reliance on automated index, 985

operation of the Act, meaning, 977-978register, rectification, 980registrar,

mistake of 976, 987error of judgment, 988official searches of register, 989when registrar entitled to assignment of claimant’s judgment, 995

registrar, nominal defendant, 990right of action under the Dower Act (Alberta), 1016

effect of payment by married person of judgment, 1018prefatory, 1016remedy, 1017when judgment against married person not paid, 1019

protection of bona fide purchaser for value, 986statutory conditions, 975statutory defendants, 990title insurance, 973wrongdoer, primary defendant, 990

CONDITIONAL SALES ACTS. See PERSONAL PROPERTY SECURITY ACTS.

CONDOMINIUMS, 162certificate of title, 164condominium plan, 165

amendment of plan, 167bare strata land plan, 168

generally, 168function, 165leasehold strata plan, 169

deposit of, 169lessors rights, 169

phased strata plan, 170generally, 170

statutory requirements, 166condominium corporation, 171

adult-only condominiums, 180.2validity, 180.2

amalgamation of corporations, 180amalgamation agreements, 180

acquisition of property, 173generally, 173

INDEX

I-25 (RTL) (Rel. 7, 2013)

boards of directors, 178.2builders’ or mechanics’ liens, 175

generally, 175by-laws of corporation, 178

generally, 178common property

and easements, 179.4generally, 179.3what constitutes, 179.3

disposition of property, 174generally, 174

homestead and analogous rights, 176insurance right to sue on behalf of unit owner, 177.1

generally, 177.1judgment against corporation, 177

generally, 177legislative intent, 171lien or charge for owner’s unpaid common expenses, 179

enforcement of lien and, 179owner default and, 179priority of charge and, 179

limitation of actions, 180.4generally, 180.4

new home warranties plan, 176.1implied warranties, 176.1generally, 176.1

parking, 180.3leasing space to non-residents/ non-owners, 180.3

Pet Restrictions, 180.1by-laws, 180.1validity, 180.1

powers and duties, 171records, 179.2

generally, 179.2repairs and maintenance, 177.2rules, 178.1sale or lease according to propsed plan, 172

generally, 172shared facilities, 177.3special assessments, 179.1

common expenses and, 179.1statute and, 171termination, 181

by declaration of the court, 184dissolution of corporation, 193effect of registration of notice of termination, 192effect of registration of transfer and other documents, 190election by owners to terminate, 185generally, 181termination on substantial damage to units, 191

INDEX

I-26

transfer and other instruments, 189where building damaged, 182where owners elect for termination, simpliciter, 186where owners elect to terminate by way of sale, 188

voting rights, 178.3generally, 178.3

condominium plan, 165amendment of plan, 167bare strata land plan, 168

generally, 168function, 165

leasehold strata plan, 169deposit of, 169lessor’s rights, 169

phased strata plan, 170generally, 170statutory requirements, 166

legislation, 162generally, 162

“limited common property and”, 163statutory estate in fee simple, 163

CONDOMINIUM ACTSabbreviations, meaning of, 162administrator, appointment of, 178amendment of condominium plan

caveat by owner-developer to protect right to construct additional units, etc., 167conversion of “lots” into common property, 167methods, 167plan and prospectus may be amended, 167purposes, 167“replacement plan” concept, 167

assessment and taxation, 163bare land strata plan, ad medium filum viae rule, inapplicable to roads, 168

approval, governmental, criteria similar to plan of subdivision, 168block outline plan, interval posting, 168ncancellation, automatic, casus omissus, 168condominium plan, 176definition, 168easements of shelter, inapplicable, 168implied easements, inapplicable, 168mortal blow to “support structure plan” concept, 168plan of subdivision, essentiably a, 163, 168redefinition and possible avoidance of repetitive by-laws, 168roads within plan, not dedicated highways, 168builders’ and mechanics’ liens, 175by-laws, part of Act or subordinate thereto, 163Canadian Acts, discussion limited to those referred to and as affecting title, 162certificate of title, format unsatisfactory, 164common property, single certificate of title for, considered, 165

INDEX

I-27 (RTL) (Rel. 7, 2013)

condominium corporation. See CONDOMINIUM CORPORATION.condominium plan,

amendment of. See supra.charter of rights, privileges and obligations, 165common property generally, but not always, necessary, 165conversion of existing building, condition, 165declaration and description, a legislative counterpart, 165deemed to be incorporated in land titles register, effect when, 165identifies land affected, 165land surveyor, certificates of required as to external boundaries, etc., 165land titles register, complements, 165mines and minerals, excepted, 165nsignatures of all owners required, 165single surveyed parcel, must be founded on, 165statutory requirements, set out in Act, 165supplemental register offends single register concept, 165title to land affected required to be registered under Land Titles Act, 165

co-ownership with a difference, 162deed registration system incompatible with sophisticated condominium regime, 165destruction of unit, de facto and notional, 163discriminatory provisions in declaration invalid, 163dissolution of corporation, 163neasements, implied and arising on registration of plan, 162exclusive enjoyment, determinable right to, 163exclusive use concept, alternative, 163fee simple, statutory, 162land cannot be appurtenant to land, rule breached, 163lease, limitation on power to make, 163leasehold strata plan

certificate of leasehold charge issued to owner-developer, 169deposit, conditions for, 169ground lease, conversion to individual leases, 169Indian Act, surrendered lands, 169lessee, restrictions on powers of disposition, 169lessor, given right to purchase, 169

limited common property, 162phased strata plan

consolidation of each phase, automatic, 170corporations, amalgamation, automatic, 170definition, 170deposit, conditions for, 170registrar’s duties, not exceptional, 170

purpose, 162restrictions on powers of disposition, 163rules, 178.1socio-legal regulatory provisions, 162unit, dealing with, includes share in common property, 163unit entitlement, 163

INDEX

I-28

CONDOMINIUM CORPORATION. See also MORTGAGES.acquisition of property

asset or addition to common property, 173easement may be acquired or created in declaration, 173registrar required to update records, 173special resolution of owners required, 173title taken in corporate name, 173

adult-only, 180.2amalgamation of corporations

change of name, as mere, 180corporations, 2 or more, may amalgamate, 180effect, 180registrar’s duties, 180special resolution required, 180

board of directors, 178.2business corporations, distinguished from, 171by-laws of

breach of, by corporation, may trigger appointment of administrator, 168corporation required to have, 178devolution or disposition of unit, cannot restrict, 178lease, may limit owner’s right to, 178need to file with registrar questioned, 168registrar not required to police, 178registration process, do not affect, 178

common property, generally, 179.3creature of statute, 171deposit of plan, constitutes owners a, 171disposition of property

asset or part of common property may be disposed, 174certificate of corporation as to compliance with statute, 174lease of part of common property, may grant to owner, 174owners not necessary parties to instrument, 174special resolution of owners required, 174subdivision, disposition of part of common property is, 174

dissolution, 181-193homestead and analogous rights, 176insurance, right to sue on behalf of unit owner, 177.1judgment against, 177lien or charge on owner’s unit

caveat procedure, 179certificate of corporation stating that no moneys owing, 174default in payment of common expenses triggers, 179Dower Act, application of, 179enforcement, 179judgment, corporation may apply for, 179mortgage, blanket, 531payment of, 179priority of lien or charge not uniform, 179sale of unit, by corporation with court approval, 179

life-styles of members, may regulate, 171

INDEX

I-28.1 (RTL) (Rel. 7, 2013)

limitation of actions, 180.4litigation by, 177new home warranties plan, 176.1oppression remedy, 180.6parking, 180.3pet restrictions, 180.1powers and duties of

exercisable by council or board, 171fiduciary relationship, 171may sue or be sued, 171restrictions on transfer of unit, 163separate section corporation, may authorize formation of, 171

proposed condominium plan, sale or lease according tocontract, inoperative to pass title, 172developer or declarant may contract on compliance with specified conditions, 172general rule: no sale or lease before registration of plan, 172rescission of contract, purchaser’s right to, 172

records, 179.2rental restrictions, 180.5repairs and maintenance, 177.2rules, 178.1shared facilities, 177.3special assessments, 179.1termination of condominium status

continuance of corporation qua trustee for owners, 193court may order that Act cease to apply to plan, 184deemed destruction of building, court may declare, 185, 186, 188, 191, 193destruction, de facto, of building, 182dissolution, 193election by owners, 185, 186, 188, 193execution of transfer by corporation and owners, 189, 190leasehold strata plan, as affected by, 182, 193notice of termination, effect of registration of, 192owner-joint tenants remain as such, 193nowners may direct corporation to execute transfer, 193procedures, not uniform, 181special resolution required, 182transfer and other documents, effect of registration of, 189, 190, 193voting rights, 178.3

CONFLICT OF INTERESTgenerally, 31

CONSTRUCTIVE NOTICEbona fide purchaser for value and, 7defined, 7

CONVEYANCESfraudulent, 659, 660, 876

INDEX

I-28.2

INDEX

(RTL) (Rel. 4, 2011)I-28.3

CONVEYANCING, CHANGING FACE OFdefects of “old system”

bona fide purchaser for value, 6, 7constructive notice, 7criticism of Torrens system, 11nderivative character of titles, 6dynamic v. static security, 6evidence contradicting writing, 6, 8history, 11marketable title, 6nnon est factum, plea of, 8“not all bad”, 11noperation of deed registration system, 11private conveyancing, 8security of title, 6“shadowy equities”, 6, 8“sinews of the land”, title deeds as, 6vendor’s title, proof of, 6warranty of title, 6

simplification of titles, 10simplification of transfers, 9Statute of Uses and later statutes, 3, 4

CO-OWNERSHIPjoint tenancy, 244, 251-260tenancy in common, 244

CORPORATIONS. See also PARTIES; THE STATUTORY TRANSFER.directors

fiduciary relationship, 102instrument, where party to, 102

dissolutionreturns with corporate-registrar, failure to file with, 101

escheatcorporation, foreign, 101law, present, unsatisfactory, 101withdrawal of land from system, 101

instruments, execution byassurance fund, exoneration, 98capacity, 98, 100extra-provincial corporations, 100forgery, registrar no machinery to detect, 99power to hold and dispose of land, 100

(Continued on page I-29)

private or special Act regulating, 100seal, improper use of, 98statutory formulae for protection of purchasers, 99

CORRECTION OF PLANS. See also COURT ORDERS; INDEFEASIBILITY OF TITLE.corrected plan, effect, 145de-registration of plan of subdivision, 145general rule, no alteration permitted after plan registered, 145Master of Titles, Saskatchewan, corrective power vested in, 145microfilm, correction procedure where plan on, 145Planning Act (Ont.), difficulties affecting, 145registrar

audi alteram partem, must observe, 145must not prejudice rights conferred for value, 145plan must be duly noted with correction, 145statutory authority to correct plans given to, 145

COSTS. See MORTGAGES.

COURT ORDERS. See also FUNCTIONS OF THE REGISTRAR; INDEFEASIBILITY OFTITLE; TRANSMISSION.ancillary powers

ancillary administrative powers essential, 107-117instruments, deposit or production of may require, 109oaths, administration of, etc., 108summons or notice, may issue, 109

certificate of court registrar, distinction, 104correction of errors: registrar’s powers

audi alteram partem, 110dicta demonstrate limitations, 110duplicate certificate, production of, 110fraud, fact of cannot be decided by registrar, 111guidelines, 110indefeasibility enactments inexorably abridge power, 110mandate to registrar to commit error, no, 110mistakes of applicant as well as those of officials, includes, 110must not “speak with forked tongue”, 110original words not to be erased, 110, 112power emanates from legislation; error from human frailty, 110prejudice to bona fide purchaser, no, 110procedure governed by Act, 112proceeding per saltum to court, generally, not available, 110rectification of register, court may order, 110nregistrar’s personal signature to correction desirable, 112

compliance, with, 115.1court, sagacity of, presumed, 104drafting of, care and precision, 104limitation of enquiry

crime committed, information from governmental source, where, 106devious and spurious reasons to deter proceedings against fund, deplored, 106enquiries outside office, no duty to make, 106

INDEX

I-29 (RTL) (Rel. 10, 2015)

evidence obtained ex mero motu, effect, 106restricted, in general, to office records, 106unregistered mechanics’ lien, possibility, no duty to enquire, 106

marketable title, when to contain direction as to, 104priorities

competing priorities or contested rights, registrar no power to settle, 105equitable rights, Acts do not prevent court enforcing, 105records of office generally limit registrar’s jurisdiction, 105sheriff’s deed, registration, effect, 105unregistered transferee v. execution creditor, 105

protection to purchaser, statutory, 104Quieting Titles Act, inapplicable to Land Titles Acts, 104registrar

appellate jurisdiction, no, 104directive to obey order, superfluous, 104enquiry, where order ex facie without jurisdiction, 104necessary party, not in all cases, 104refusal to comply with, when upheld, 104subsisting decisions of court, may rely on, 104

registrationprompt, recommended, 104special procedures, no, 104

COVENANT, ACTION ON THE. See also MORTGAGES.discharge of mortgage, effect of, 539effect of final foreclosure order,

Alberta, 482Saskatchewan, 483

implied covenant to indemnify, on transfer of mortgaged land, 531, 533novation, effect of, 558personal judgment, in British Columbia, 457restrictions on mortgagee’s remedies,

Alberta, 472Saskatchewan, 473, 476

COVENANT AGAINST ASSIGNING or SUBLETTING. See also LEASES.breach of covenant

amalgamation of corporate-lessee, possible, 387nindefeasibility and forfeiture, 387mortgage of term is, 387

consent, lessor’sattorney may sign, when, 387failure to obtain and forfeiture, 387lessee bound to ask for, 387test for, is legal possession given, 387

covenant, theabsolute prohibition, effect, 387binding and effective, is, 387notice of in register, utility, 387

INDEX

I-30

lease subsequent to mortgage, extinguished by, 462order for sale, unavailable after, 462receiver, money in hands of, claim to, 461Residential Tenancy Act, applicability, 461“restoration” principle, applicability after, 462nsecond mortgagee, recovery of judgment after foreclosure, by first mortgagee, 462

order nisiappeal, may be set aside only on, 455bankruptcy, effect on, 454judgment of the court, 454order absolute, distinguished, 454order for trial, inconsistent with, 455parties, 450personal judgment against original mortgagor, and, 454rule 18A, interpretation, 454setting aside, generally, 455triable issue raised at hearing, discretion of court, 454

personal judgment, generally, 457petition, commenced by, 450

chattels, court has no jurisdiction to order return of, 450Clayton’s Case, applicability of rule in, 450Crown, priorities of, 450execution proceedings, distinguished from, 464fraud, misrepresentation, or negligence, allegations of, no change in character of

action, 450jury, no right to, 450lis pendens, filing of, cuts out specified subsequent claims, 450market value v. replacement cost, 450order for sale, approved by court, terminates right to foreclose, 450parties, 450summary judgment, 452

redemptionassignment, distinguished, 458.1exercise of right, when premature, 458explained, 458

redemption periodextending, 453, 456generally, 453interests of all parties, court considers, 453sale process, integrity of, 467service by registered post, effect, 453stay of execution pending appeal, 460subordination agreement, 459

FORECLOSURE AND JUDICIAL SALE IN ONTARIO, 468.3

FRAUDbona fide purchaser for value, 880no imputation of fraud,

knowledge, simpliciter, of unregistered interest, 881registered owner, dealing with, 882

INDEX

I-39 (RTL) (Rel. 6, 2013)

when does notice cease to bind bona fide purchaser for value, 883not proved, where, 872notice and fraud, 879principal and agent, 877proved, where, 871unregistered lease cases,

Alberta, 885British Columbia, 886

volunteer,where completing claim registered, 875where competing claim not registered, 876

FRAUD AND NOTICEabstract illustrations of, pointless, 872actual fraud, meaning of, 870alleged, specifically, and proved, must be, 877n, 879Assets Co. v. Mere Roihi, 874constructive notice, generally not fraud, 872, 874conveyances, fraudulent, 659, 660, 876court, judgment of, successful party acting on, not fraud, 878duress and undue influence, 878

bona fide purchaser for value protected, 878duplicate certificate of title, non-possession of, 878equitable remedy, right to, a mere equity, 878meaning of, 878non est factum, effect, 878undervalue and no independent advice, where, 878voidable, instrument executed under, 878

fictitious transferee, the, 873forged instrument, 873fraudulent conveyances, 659, 660, 876

consideration, good, defined, 876Gibbs v. Messer, 873instrument, executed under power of attorney, risk in accepting, 873mortgage, affected by, 876mortgage, forged, special considerations may apply to, 873mortgagor, attempt by to get rid of mortgage, when fraudulent, 872notice and fraud

actual notice and actual fraud, cannot be equated, 879bona fide purchaser for value, who and what he is, 880conduct, not notice, decisive, 879ndichotomy between, 879equitable doctrine of notice abolished, 879Midland Bank Trust Co. v. Green, 880motives, purchasers, relevancy, 880notice amounting to fraud, 879notice, meaning of, 879nnotice not amounting to fraud, 879“notice of unregistered instrument, of itself not to be imputed

INDEX

I-40

right of way instead of highway created by plan, where, 136title to highway, vesting of by plan

ad medium filum viae rule, inapplicable, 136conclusive, when, 136Crown’s title, when not a registered title, 136determinable fee, concept, 136public trust, concept, 136qualified, when, 136rights of dedicator, subject to, when, 136statutory fee simple, concept, 136

HOLOGRAPH WILL. See TRANSMISSION.

HOMESTEAD. See DOWER.

IMPROVEMENTS ON ANOTHER’S LAND UNDER MISTAKE OF TITLEacquiring registered title to the retained land

encumbrances, may court order discharge or variation of, 857n“forced sale,” concept, 857Land Titles Act, to be complied with, 857removal of improvement, may court order, 857nstraddling improvement, as affecting utilization and amenities of defendant, 857title, is only fee simple contemplated, 857ntransfer, by, on payment of compensation, 857vesting order, by, 857

applicant, who may apply for relief, 853belief of claimants must be an honest one, 855costs, 855encroachment agreement, registration of, 852encroachments, special enactments dealing with

British Columbia, 859compensation, 858, 859fence encroachments, 859Manitoba, 858statutory easement, 858title, vesting of, 858, 859

expropriation, statutes do not permit, 855fence, the encroaching, 854history, suggested, 851“lasting improvements,” evidence of, 854mistake of title v. mistake of identity, 855pending litigation, as affecting claimant, 855reasonableness, concept of, 855remedies

equitable relief, non-statutory, 860right to acquire title to subject land, 856statutory lien, 856

statutory provisions, the, 852“taking a chance,” effect of claimant, 855

INDEX

I-45 (RTL) (Rel. 9, 2012)

INDEFEASIBILITY OF TITLE. See also REGISTRATION; STATUTORY EXCEPTIONSTO INDEFEASIBILITY OF TITLE.achieved by a series of reciprocally related statutory provisions, 756adverse possession and limitation,

Alberta, 843statutory provisions, 843

assurance fund, 850bona fide purchaser for value, 844British Columbia, 845England, 849Newfoundland and Labrador, 848.1Nova Scotia, 848.2Ontario, 848Prince Edward Island, 848.4Saskatchewan, 847

assurance fund, compensation for hardships imposed by system, 756common law, Acts largely supersede, 760n“conclusiveness” used interchangeably with, 756ncontracts entered into, and trusts created, by registered owner binding, 766contracts, trusts, binding owner, 766court, jurisdiction to make corrections, 774“defeasible,” meaning of, 756deferred, 757deferred and immediate indefeasibility, jargon or doctrine, 757deferred indefeasibility and forgery, 758discharge of mortgage, voidassurance fund, liability to innocent taker of forged instrument, questioned, 762British Columbia, anomalous prima facie title to charge, as affecting, 762deferred or immediate indefeasibility, as affecting, 762dower legislation, as affecting, 1016easements,

prescription and abandonment,abandonment, 832.1prescription, 832

profit a prendre, 836registration, 840statutory jurisdiction of court to cancel or modify, 837statutory provisions,

Alberta, 823Australia, 827British Columbia, 824Manitoba, 825New Zealand, 827Ontario, 826Saskatchewan, 823Victoria, 825Western Australia, 825

subdivision of dominant tenement, 838

INDEX

I-46

tax sale titles, 839ejectment, 766expropriation,

(Continued on page I-47)

INDEX

I-46.1 (RTL) (Rel. 9, 2012)

inspectors, duties of, 391lease, lapsing on, cannot be sold by trustee, 391leasehold interest vests in trustee, 391lessor, rights of, governed by provincial law, 391mortgaged lease, 391ntrustee in bankruptcy

powers of, 391proposal, no vesting of title under, 391title to land vests in, 391

certificate of title, production of duplicate, 370clauses, special, 754commercial, construction, 382common law lease

defined, 366similar to, 365three types, 366

counterpart of common law lease, inapplicable, 371Crown federal (National Parks)

Crown provincial, powers, 390defined, 366determination of lease by legal proceeding

abandonment of premises by lessee, 395naudi alteram parte principle, 395cancellation of registration, 395first registration, on, 393“’legal proceedings,” defined, 395lessor, re-entry by, effect, 395registrar’s powers, 395statutory provisions, not uniform, 395

duplicate certificate, production, 370easements and, 150easement v. lease, 367neffluxion of time or the happening of an event

common law rule, 394corporate lessee, dissolution, 394njudge, order of, when required, 394landlord consenting to over holding, 394lapsing, statutory procedure, 394option to renew, as affecting expiry, 394Public Trustee Act, possible application, 394nregistrar, powers of, 394statutory provisions, 394

extension, modification or variation ofchargee prior registration of, effect, 386extended lease, future reference to, 386“extension,” an ambiguous word, 386registration, effect and method of, 386simplicity of transfer, technique advances, 386

extra-judicial determination of leasebona fide purchaser for value, intervention, effect, 395

INDEX

I-59 (RTL) (Rel. 9, 2014)

derivative charges, status, 395option to purchase, excepted, 395registrar’s duties, 395residential tenancy legislation, as affecting, 395statutory provisions, 395

formessentials of common law, contains, 371variation, reasonable, permitted, 371

generally, 148grazing lease, 367nguarantor, liability, 365id certum est quod certum reddi potest, maxim, 367inter vivos instrument, surrender by, 392interest in land, qualifies as, 606.5land description

bare land, survey may be required, 374building, all or part, 374clay or marl, as exception, 374notice of agreement for lease, 374notice of lease, 374postal address, simpliciter, unacceptable, 374registrar, must be satisfactory to, 374sand and gravel, as exception, 374“sketch plan,” defined, 374

landlord and tenant law, applies to, 365lease v. agreement for lease, 373leasehold estate unknown to the law, 367lessee

covenants, 384execution of lease by, 371implied covenants, 383implied powers, 385

lessorexecution of lease by, 371implied powers, 385

licence v. lease, 367manner of registration, 375merger, doctrine of

applies to Torrens system, 396caveat, not the term, only notice of it, 396intention paramount, 396registrar’s duties, 396statutory provisions, 396

mineral lease, statutory, 366mortgage, before or after lease, 388mortgaged land. See MORTGAGED LAND.notice of lease, registrability (Ontario), 369nof building or part of it, 149operation of law, surrender by, 393

INDEX

I-60

option to purchase. See OPTION TO PURCHASE.option to renew. See OPTION TO RENEW.parties

co-owners, both must execute lease, 377homestead legislation, must comply with, 377infant, lease to, voidable, 377Public Trustee may validate infant’s lease, 377nsociety, unincorporated, cannot make lease, 377

perpetuity rule, as affectingCrown lease, 368nlease, 368Quebec lease, 368nrenewal of lease, 368

petroleum and natural gas, 366prescribed or statutory form, use of, 369profit a prendre v. lease, 366quiet enjoyment, 396.1registrar’s power to determine, 395registration

caveat, by way of, 375certificate of charge, issue of, 375certificate of registration of lease, 375charge, by way of, 375effect of, 30, 367nleasehold certificate of title, 375lessee, failure to register, effect, 373lessor, to give registrable lease, 373manner of, entry in register, 375notice of agreement for lease, 375notice of lease, 375operative, fully, only on, 365option to purchase, included in lease, 375option to renew, included in lease, 375unregistered, equitable interest only, 373, 884-886

rents, assignment ofcommon law rules affecting “rent”, 399interest in land, whether, 399mortgage to, separately from reversion, 399statutory provisions, 399

restrictive covenants, 385.1reversionary lease, defined, 367nright of first refusal

assignability, 381ncaveatable interest, none apart from statute, 381contractual right, as, 381definition, 381lease originally a personal contract, 381nstatute elevating right to interest in land, 381uncertainty, may be void for, 381n

“short-term” lease

INDEX

I-61 (RTL) (Rel. 1, 2015)

execution, 369generally, 371option to purchase contained in,

caveat, should encompass lease and option, 372multiplicity of documents, avoids, 372registration, 372, 375

option to renew, 382overriding interest, as, 372nregistration

Acts, in general, do not contemplate, 369, 372commercial lessee may seek, 372deemed by statute, where, 388exception to indefeasibility of title, 372lessee, in general, not interested in, 372notice of, as affecting bona fide purchaser for value, 372, 375

vacant possession, agreement for, 372n. See also MORTGAGED LAND.short-term lease or agreement for lease, 372statutory lease, the, 371sub-lease, 397subordination agreement, effect, 556surrender by instrument inter vivos

modification of lease, operating as, 392mortgagee, when consent required, 392statutory provisions, 392sub-lessee

consent required, when, 392protection of, 392

surrender by operation of lawcourt to decide disputed cases, 393definition, 393notice to quit, invalid, effect, 393registration, evidence required, 393

termcertain beginning and end, 367“terminus” explained, 367nvoid, duty of registrar, 367termination of lease, 393.1

timeeffluxion of, 394happening of an event, 394

transfer of,generally, 397subleases, 397.1

transfer of leaseapportionment, recommendations as to, 395, 395nassignment, applies to rights, not duties, 395option to purchase in lease, assignment, 395part of leasehold interest, 395sublease, 397.1

INDEX

I-62

INDEX

(RTL) (Rel. 2, 2011)I-63

statutory provisions, 397transmission on death, 398unregistered, 884-86

registration,not requiring, 376

vendor, by, 389

LIENS. See also BUILDERS’, CONSTRUCTION AND MECHANICS’ LIENLEGISLATION.action,

discontinuance of, 919dismissal of, 920

assignment and transmission of claim of, 913bankruptcy, 911.2, 926.1discharge of lien, 921expiry of registered claim of, 916expiry of unregistered claim of, 915extra-judicial notice to claimant to commence action,

given by owner, 917given by registrar, on request, 918

foreclosure, 926judgments and executions, 911

sheltering, 911.1legislation,

condominium, 912nature of,

avoidance or circumvention of Act, 890co-owners, 889minimum amount of lien and registrability, 891statutory creation, 888

postponement, 914prefatory, 887priorities,

prior registration of claim of lien, 902prior registration of conveyance or mortgage, 903

Alberta, 904British Columbia, 904Manitoba, 904Ontario,

Construction Lien Act,“building mortgage”, 906general principle, 905“non building mortgage”

registered after first lien arising, 907registered prior to first lien arising, 908general priority, 908statutory “home buyer”, 910subsequent advances, 909

Saskatchewan, 903registrar,

REGISTRATION OF TITLE TO LAND

I-64

duties, 901removal by court of claim of lien on payment or on security being given, 924sale by or with approval of court, 925statutory requirements, 892

prefatory, 892registration of the claim, 893

certificate of lis pendens, 900crown federal land, 987crown provincial land, 898highways, 895leasehold interest, 896property affected, 894where registered, 899

withdrawal of claim of, 922wrongful registration of claim of, 923

LIFE ESTATE. See DOWER.LIMITATION STATUTES. See MORTGAGES.LIS PENDENS. See also BUILDERS’, CONSTRUCTION AND MECHANICS’ LIEN

LEGISLATION.abuse of process, action for, 670agreement for purchase and sale, completion of not affected by, 664alienation, pendente lite

British Columbia, 654common law, no restriction at, 654Torrens system, 654

cancelling or vacating registrationagreement for sale, subsisting, refusal of court to remove caveat, 665attorney, written request of to cancel, 668cancellation, effect of, 665“cancelled”, includes “vacated” and “discharged”, 665ncertificate of pending litigation, vacated by court, 665discontinuance or dismissal, where no, 668discontinued, action, where, 666dismissed, action, where, 667hardship and inconvenience, on grounds of, 669request in writing, by party initiating proceedings, 668security may be ordered, where, 669solicitor, written request of to cancel, 668statutory provisions, 665-669test for, Ontario, 665“without reasonable cause”, where registered, 670

certificate of lis pendens, distinguished, 651change of parties, 661charge, not a, 652doctrine, common law, stated, 652encumbrance, not a, on one view, 652

foreclosure. See FORECLOSURE AND JUDICIAL SALE IN BRITISH COLUMBIA;SALE AND FORECLOSURE IN ALBERTA; SALE AND FORECLOSURE INSASKATCHEWAN.

form, statutory, alleged simplicity, 424guarantors, 424, 558homestead, foreclosure, when exempt, 473implied covenant to indemnify, on transfer of mortgaged land, 531injunctive relief, 424limitation statutes, 537marshalling, 530mortgagee v. mortgagor, relationship, nature, 400novation, 558postponement of mortgage, 556power of sale, 442, 433-435, 498priorities, equitable mortgage, of, 407proceedings, multiplicity of, 400quit claim deed, 439registration, effect, 424Rice order. See SALE AND FORECLOSURE IN ALBERTA.sale. See SALE.security,

specified property to stand as, 404set off, 436, 535statutory mortgage,

accounts, state of, 535British Columbia mortgage, former, compared with, 413caveat, registration by, 592clauses, special, 754estoppel certificate, 761fixtures. 400, 424, 400.1guarantors, 424, 558indefeasibility, as affecting, 761land description, 127master form concept, 424mitigation principle, inapplicable to debt, 400modification of, see variation of terms of mortgage, infraOntario mortgage, 411.1priority, 762terms, standard, 424transfer to other land, 424

sub-mortgage, 536subordination agreement, 459transfer of mortgage

generally, 534statutory right to, 458.1, 534-536, 545sub-charge and sub-mortgage, 536transferee takes, subject to equities and state of account, 546

variation of terms of mortgage,modification, 557option to renew, 557

INDEX

I-69 (RTL) (Rel. 6, 2013)

rectification, 557renewal, 557

NON EST FACTUM, 8

NOTICE. See FRAUD AND NOTICE.

NOVATIONgenerally, 558

ONTARIO AND ENGLISH ACTSabsolute title, 16actual notice, doctrine of, 16indefeasibility, limits of, 16leasehold title, 16overriding interests, 16possessory title, 16qualified title, 16Torrens Acts, compared with, 16withdrawal of land from Act, 16

OPTION TO PURCHASEadministratrix, given by, validity of, 378characteristics

doubtful, if a contract for sale, 378indefeasibility, concept, as applying to, 378land affected limited to that leased, 378nmore than a mere qualification to form, 378

expiry of, registrar’s duty, 378first refusal, right of, distinguished, 378, 381forfeiture, equitable relief, 395nperpetuity rule, application to, 380registration, 378statutory provisions, authorizing inclusion in lease, 378

lessor bound to execute transfer, when, 378will, given by, valid, 378

OPTION TO RENEWcompliance with, strict, may be waived, 382conduct of parties as affecting, 382definition, 382equitable relief from “time of essence” clause, 382immediate indefeasibility, scope, 382interest in land

caveatable, 382equitable, 382

registrationlease, of, generally includes option, 382separate, may be required, 382

“short-term” lease, included in, effect, 382specifically enforceable, must be, 382waiver, principle of, 382n

INDEX

I-70

rights, 160governmental power and, 160, 161title legislation, 161registration of title to, 161

amendment of plan, 141generally, 141

cancellation of plans, 144petition and, 144

publish notice of, 144power of registrar and, 144

composite plans, 156consolidating plan and, 156generally, 156

consolidation of surveyed parcels, 142generally, 142written consent and, 142

correction of, 145generally, 145municipality and, 145registrar, power to, 145

effect of registration based on unaproved subdivision, 153bona fide purchaser for value, protection of, 153generally, 153

failure to comply with subdivision requirements, 139non-compliance, effect of, 139

Family Law Reform Act, 133government approval of subdivision of land, 146

“approving officer”, 146condition precedent to acceptance by registrar, 146government approval not required, when, 152

approving officer, discretion of, 152horizontal division of land, 159

hereditament,corporeal, 159incorporeal, 159

Land Title Survey Fund, 158generally, 158

mines and minerals under subdivided land, 134road allowances and, 134ad medium filum viae rule and, 134

miscellaneous plans, 155filing of, 155personal representative, 133plans of subdivisionmonuments,

paramountcy of, 130objectives of, 130public interest and, 129“required subdivision”, 130right to subdivide, 129

INDEX

I-73 (RTL) (Rel. 9, 2014)

curtailment of, 129signatureof mortgaee, 133of owner, 133of subdivider, 133Torrens system and, 130

re-establishment of boundaries of registered parcelsgenerally, 143

reference plans, 157registration and, 157

subdivision of farmland, 151where approving authority created after plan lodged with registrar, 154

generally, 154

POWER OF SALE — CONTRACTUALBritish Columbia,

conduct of sale. See Ontario, infracourt, intervention of, 434.1first choice, not, of mortgagees, 434Land Transfer Form Act, mortgage pursuant to, incorporates, 434“notice of intended power of sale,” advantages of filing, 434registration of mortgagee’s transfer, difficulties in obtaining, 434

court, jurisdiction, discretionary, 486generally, 485, 486grounds for, 486jurisdiction, 485, 486mortgagor, recovery of damages against mortgagee, when, 485parties, on application for, 486Ontario

advertising of sale, adequacy of, 444bid, referential, 445bona fide purchaser at sale, protection of, 447completing of exercise of power, when, 445conduct of sale, 443defective sales, generally, 443, 444foreign land, 397, 449good faith, essentiality of, 443, 444improper exercise of power, liability of assurance fund, 446injunctive relief against exercise of power, 436mechanic’s lien claimant, position of, 447mortgagee, no independant duty owed mortgagor, 358n, 443mortgagee selling, equated with registered owner, 435mortgagee, when denied “second helping”, 448nnotice, generally, 440notice of intention to sell, method and length, 442person damnified by exercise of power, remedy of, 435power, exercise of, after discontinuance of foreclosure action, 437proceeds of sale, 446prohibition of exercise of power, 448purchaser, reconveyance to mortgage, effect, 439

INDEX

I-74

statutory covenantsdominant tenement not required, 353hybrid legislation, 353statutory provisions, 353n

REVERTERpossibility of, 249

RIGHT OF FIRST REFUSALgenerally, 381statutory, 821

RIPARIAN RIGHTS. See also ACCRETION; AD MEDIUM FILUM AQUAE RULE; WATERAND HIGHWAY BOUNDARIES AS AFFECTING TITLE.American authority and, 205transfer of to non-riparian owner, 205

ROYALTY. See CAVEATS.

RULES OF COURTB.C. r. 18A, 454

SALE. See also BUILDERS’, CONSTRUCTION AND MECHANICS’ LIEN LEGISLA-TION; FORECLOSURE AND JUDICIAL SALE IN BRITISH COLUMBIA; JUDG-MENTS AND WRITS OF EXECUTION; SALE AND FORECLOSURE INALBERTA, SASKATCHEWAN AND TERRITORIES; STATUTORY EXCEPTIONSTO INDEFEASIBILITY OF TITLE; STATUTORY SALE AND FORECLOSUREPROCEEDINGS (MANITOBA)by unregistered plan, 140contractual power of sale under mortgage

after discontinuance of foreclosure action, 437after order nisi, suspended, 439bona fide purchaser, protection of, 447British Columbia, in, 434, 434.1compared with sale after final foreclosure order, 449conduct of sale, 443defective sales, 444injunctive relief against exercise of power, 436notice, 440, 441, 442, 442.1Ontario, in, 435prefatory, 433proceeds of, 446redemption action, separate, prevented by, 438when exercise of, complete, 445when exercise of, prohibited, 448

illegal contract, 140liens and, 140on discharge, one of several lots, 539order for, application of Interest Act, s. 2, to, 555protection from fraud, 140transfer by unregistered plan, 140with option to purchase, distinguished from transfer absolute in form, 409

INDEX

I-91 (RTL) (Rel. 9, 2014)

SALE AND FORECLOSURE IN ALBERTA, SASKATCHEWAN AND TERRITORIESconcurrent remedies, 400ncourt, proceedings to be taken in, 470foreclosure. See also RE-OPENING FINAL ORDER.

application for, triggers right to redeem, 472assignment of leases and rents, 484.1caveator, when not a necessary party, 470concurrent remedies, 432Crown, position of, 472“debt or liquidated demand,” not an action for, 476default, prior to proceedings essential, 470defences, 451evidence that final order subsisting, registrar may call for, 484final order, effect, 483generally, 473, 476, 478, 480, 483guarantor, as affecting, 476history, 470homestead, stay of final order, where, 480immediate order, when, 388, 475lease, prior, 388lessee, subsequent, 470mitigation principle, inapplicable to debt, 400, 400norder, reopening, 485-486parties, 470redemption, extension of time for, 480Rice-type order not a foreclosure order, 472, 475, 477, 482Saskatchewan Farm Security Act, effect, 473short-term lease, as affecting, 470nstatutory provisions, 472stay of proceedings, 478, 480term of art, as, in Alberta, 470nuse of word generally infelicitous, 469vesting of title, essentiality for, 470

order of foreclosure, final, effect. See also RE-OPENING FINAL ORDER.certificate of title based on, 482common law, at, 481“debt” referred to in statute that of mortgagor only, 482deficiency, claim for, separate from claim on mortgage security, 482evidence that final order subsisting, registrar entitled to call for, 484generally, 481, 482, 484guarantee extinguished by, 482lease, enforceability of, excepted from order, 482mortgagee subsequent, debt of not extinguished, 482statute, controlled by, 482

order, reopening, 462-463restrictions on mortgagee’s remedies

additional security or duplications of personal covenant, 472assignment of leases and rents, 484.1consumer protection law, example of, 472

INDEX

I-92

contracting out, 473Crown qua mortgagee, not affected, 472Farm Debt Review Act, 473.5Farm Land Security Act, 473guarantor, rights of, not affected, 472Home Owners’ Protection Act, 473intent, to frustrate recovery of personal judgment, 472Land Contracts (Actions) Act, 473.2land, generally, restricted to, 472Limitation of Civil Rights Act, 473.1mortgagor, corporate, generally not protected, 472National Housing Act (Canada) mortgages exempt, 473pleading, “pitfalls”, 472npurchase money mortgages, no personal judgment, 473purchaser, corporate, generally not protected, 472statutory provisions, 472transfer by way of security, within restrictions, 472n

Rice order, 472, 475, 477, 482sale

application for, triggers right to redeem, 472confirmation by Master, effect, 475consent order nisi for sale, effect, 476guarantor, debt ceasing, liability extinguished, 476highest bidder, not necessarily to, 475mortgagee, purchase by, 476price offered, must be realistic, 476, 467-468reopening final order of foreclosure. See 485-486.reserved bid, where less than, 476Rule 431, stated, 476statutory provisions, 472

stay of proceedingsexecution, stay of, when no basis for, 477generally, 477granting of, discretionary, 477renewal discussions, simpliciter, effect, 477second mortgagee not assignee of mortgagor, 477tender, late, effect, 477

SALE AND FORECLOSURE IN BRITISH COLUMBIA. See FORECLOSURE AND JU-DICIAL SALE IN BRITISH COLUMBIA.

STATUTORY EXCEPTIONS TO INDEFEASIBILITY OF TITLE. See also EXPROPRIA-TION; EASEMENTS; IMPROVEMENTS ON ANOTHER’S LAND UNDER MIS-TAKE OF TITLE; FRAUD — THE MAJOR EXCEPTION OF INDEFEASIBILTTYOF TITLE.adverse possession and limitation

adverse possession, meaning of, 842nAlberta, 842, 843, 844appeal from declaration, duty of registrar to enquire, 842assurance fund, 850Beaudoin v. Aubin, 845n

INDEX

I-93 (RTL) (Rel. 9, 2012)

bona fide purchaser for value, protection of, 844, 845break in possession, effect, 842British Columbia, 845caveat or lis pendens, registration by adverse possessor, 843court, declaration by, generally required, 842England, 849Gatz v. Kizin, 848ngeneral and instructive propositions relating to, 842“limitations,” meaning of, 842Lutz v. Kawa, 842Manitoba, 846New Brunswick, 848.3Newfoundland, 848.1Nova Scotia, 848.2Ontario, 848possession, nature of adverse, 842Prince Edward Island, 848.4Saskatchewan, 847Smith v. Nat. Trust Co., 846ntitle of adverse possessor, subject to existing charges and encumbrances, 843vesting order, where registrar authorized to make, 842

Aeronautics Act (Canada), zoning regulation, 864“cardinal principle,” of the Acts, 775Crown exceptions and reservations

absence in Act, effect, 777caveat, registrar may lodge, 781conclusiveness of register, as affecting, 777court, comment by, on registrar’s good sense in deferring to, 781nCrown federal, acquired from, status, 778defined, 776ejusdem generis, rule, application of, 781errors in register, correction of, by registrar, 782merger, doctrine of, application to, 781“mines” and “minerals,” not definite terms, 781mutual mistake, 785National Resources Transfer legislation, overriding, 783perpetuities, rule against, 781precision of expression, preferable, 776n, 777registration of, 781Sale or Lease of Certain Lands belonging to Her Majesty, An Act respecting the,

777sand and gravel, 784Soldier Settlement Act, 783statutory provisions, not uniform, 777tailings, right to, 781“undersurface rights,” use of words, 781“unless the contrary is expressly declared,” meaning of, 777use and enjoyment, matters affecting, as, 780

INDEX

I-94

Veterans’ Land Act, 783Crown land, when not affected by, 665, 779danger zone, 775

(Continued on page I-95)

INDEX

I-94.1 (RTL) (Rel. 9, 2012)

INDEX

(RTL) (Rel. 10, 2009)I-109

British Columbia, 700final acquisition of title by municipality, 696Manitoba,

municipal legislation, 702prefatory, 701Real Property Act, 703

minerals, 698Nova Scotia, 709Ontario,

cancellation of tax arrears certificate, 713continuation of proceedings under former Acts, 717effect of registration of tax deed or notice of vesting, 715mining rights, 716Municipal Tax Act Part XI, 710notice of registration of the tax arrears certificate, 712Provincial Land Tax Act, 718ublic sale, 714Tax arrears certificate, 711

persons ineligible to become tax sale purchasers, 719prefatory, 693sale by municipality, 695Saskatchewan,

issuance of certificate of title to municipality, 708prefatory, 704proceeding to request title, 707removal of tax lien, 706tax lien, 705

death, onademption, 685application to register, 674devisee, generally an assent on transfer necessary to vest title in, 672doctrine of relation back, 676duties and powers of registrar, 677exception to indefeasibility of title, death as, 672law prior to statutory vesting of title in personal representative, 672nmanner of registration, 675proof of death, 686statutory provisions, 672

devolution of office of personal representativeadministrators, 682executors, 681registrar, duty of, 680revocation of grant, 683

donatio mortis causa, 688Sen v. Headley, [1991] 2 W.L.R. 1308 (C.A.), 688n

eroded land, of, 206foreign court, jurisdiction teritorially limited, 690holograph will, 684joint tenants, 686mental incompetency

REGISTRATION OF TITLE TO LAND

I-110

assurance fund, exoneration of, 732bona fide purchaser for value, position of, 732caveat, lodgment by committee as public trustee, 735committee, powers of, 733court order prohibiting dealing, 736execution by committee of instruments, 738“foreign orders”, 735nguardian or official guardian, when may act, 736mortgage in favour of patient, how designated as “party”, 738notice, registration, 734patient, death of, effect on statutory powers, 733“patient” includes “mentally incompetent” and “dependent adult”, 733power of attorney given by patient, 739property guardian, 734public trustee v. committee simpliciter, 735registrar, power to lodge caveat, 735nsolicitor may be mulcted with costs in respect of litigation, when, 737statutory provisions, 732vesting of title in “committee”, not usual, 733

mentally incompetent,on owner becoming,

committee other than public trustee, 734costs, 737execution by committee of instruments, 738generally, 732power of attorney given by principal prior to his becoming a patient, 739

public trustee, 735vesting of title, 733when guardian/ official guardian may act, 736

Ontariotax sale, improper, damages, 715

order,authorizing but not operating as a disposition, 691registrar’s refusal to act on, 690

personal representativeapplication for registration, 674attorney, may in some jurisdicitons, act by, 679beneficiaries, consents of all, as validating transaction, 679bona fide purchaser for value, protection of, 679breach of trust, court will not order, 679computerization as affecting, 673nconflict of interest to be avoided, 679corporate executor, amalgamating, 674dealings by, statutory provisions, 677, 678deceased person, authority to issue certificate of title, in name of, 673ndelegate, generally no power to, 679“estate, the, of . . . deceased”, not a legal entity, 673general and special executors, distinction, 679njudgment debtor-beneficiary, registration of judgment against, 679lease by, does not authorize profit a prendre or option to purchase, 679

INDEX

(RTL) (Rel. 10, 2009)I-111

manner of registration, 675proving executor may sell, etc., 679registrar, duties of on dealing by, 677registration in the name of, 673relation back, doctrine of, 676resealed grant of probate as evidence of entitlement to registration, 674resealing, when dispensed with, 674residual legatee, as having no interest in land, 679volunteer, transfer to by beneficiary, effect, 679nwife, transfer to by husband-trustee, effect, 679

refusal to act on order, registrar’s, 690statutory vesting, 692survivorship legislation, 687tenant in common, deemed conversion of joint tenant to, 686transfer, and, distinction, 671vesting of title by operation of law generally a, 671, 689, 692vesting order, consequent on

appeal, question of, 689certificate of title, duplicate, production of, 689direction to register equated with, where, 689effective date of, debatable, 689encroachment of buildings, in respect of, 689nforeign court, jurisdiction territorially limited, 690instrument, is an, 689jurisdiction, 689, 690limitation statutes, generally not applicable to matters within, 689marketable title, order to include declaration as to, when, 692order authorizing action, but no vesting, 691purchaser, the paid-up, unable to obtain transfer, 689refusal to act on order, registrar’s, 690registered owner, execution of instrument by, requirement departed from, 689registrar, duties, 689statutory provisions, 689, 692

TREESgrant of, effect, 262

TRUSTS AND TRUSTEES. See REGISTRATION; TRANSMISSION.

VESTING ORDERS. See TRANSMISSION.

VOLUNTEERS. See FRAUD AND NOTICE: INDEFEASIBILITY OF TITLE.

WATER AND HIGHWAY BOUNDARIES AS AFFECTING TITLE. See alsoACCRETION; AD MEDIUM FILUM AQUAE RULE.ad medium filum viae rule

common law rule, stated, 221condominium plan, roads shown on ownership in tenancy in common, 226. See

also CONDOMINIUM ACTS.exclusion of common law rule, 223fencing of road allowances, effect, 225land v. “soil and freehold”, distinction, 224nnature of statutory title, 224

REGISTRATION OF TITLE TO LAND

I-112

private and public roads, common law rule applies to, 221private road, held by owners as tenants in common, rule inapplicable, 225npublic trust as affecting statutory title, 224rationales, 222road allowances, original, 225statutory title to highways, 224, 225title to highway, common law, 221

ambulatory or movable freehold, 197banks, river, 211boundaries adjacent to river, where settled by legislature, 194Crown grant, construction, 776custom, title by, 136dedication, 136easement, reservation of, effect, 194eroded land

avulsion, distinguished from, 206common law title of State preserves, 206Crown’s alleged title to, registrability, 206definition, 206determinable fee concept as applying to Crown’s title, 206erosion and accretion, as two arms of a single doctrine, 206Hawaii Torrens statute interpreted, 206land covered by water, as affected by statute, 206Land Titles Acts do not deal with, 206loss of title, mechanical and concurrent with change in water boundary, 206nmutuality, doctrine of, 206rebuttable presumption that movement of river is by erosion, 206re-emergence of land once lost by erosion, 206statutory powers to protect land from erosion, 206statutory registration procedure, need for, 206

riparian owner, definition, 194road allowance, as exception from grant or by statute, 194

WILLS. See TRANSMISSION.

WRITS OF EXECUTION. See also JUDGMENTS AND WRITS OF EXECUTION.assignment, 944beneficiary, against, 969definition, 939dower, 967entry of writ in records of land titles office, 943expiry of writs of execution, 946land,

ambit of exigibility,Alberta, 949Manitoba, 952Ontario, 953Nova Scotia, 953.1Saskatchewan, 951unregistered land, 950

“matrimonial judgment”

INDEX

(RTL) (Rel. 10, 2009)I-113

name,similar/ identical,

Alberta, 955British Columbia, 954Manitoba, 956Ontario, 957Saskatchewan, 955

no execution against land if debt less than statutory minimum, 940no severance of joint tenancy by registration of writ of execution or judgment, 964Ontario

Bail Act, 945Legal Aid Services Act, 1998, 945

partnership property, 970priority of unregistered mortgage over registered writ or certificate of judgment, 965prefatory, 927priority of floating charge over registered judgment, 968priority of writ of execution issued on a judgment in the action, 947receipt by registrar of writ, 941satisfaction/ discharge of writ, 948sheriff,

Alberta, 959British Columbia, 960Manitoba, 961Ontario, 962sale of land by, 958sale of registered mortgage by, 963Saskatchewan, 959

when debtor’s land bound by writ, 942writ of extent, 971