For well over the past 200 years, there have been two (2) land title registration systems in Ontario, but that has been changing. Over the past fifteen or so years, titles under the Registry Act land titles system have been converted from that land registry system to the Land Titles Act. The former is simply a document depository system from which lawyers have historically provided a title opinion after completing a 40 year search of title. The latter is a government certified regime that permits electronic registration. The Registry Act came into effect in 1796. The Land Titles Act was enacted approximately 100 years later for limited parts of Southern Ontario and the majority of Northen Ontario. Possessory title rights can be established under the former system, but are expressly prohibited from being established under the latter. Under the latter, legal or paper title is always “trump”.
Because it was merely a depository system (essentially codifying the practice established by British common law), the deed was the key evidence of title under the Registry Act. Under the Land Titles Act, the key evidence of title is the Parcel Register that has been created for the PIN. A brief explanation of the change from the paper deed to the computerized Parcel Register is in order.
Prior to title conversion of the land title system, the Ontario government “parcelized” every piece of land that appeared to be a “lot of record”. In 1995, there were approximately 4 million separate parcels of land (today the number is nearing 8 million) that, with the use of sophisticated GPS were plotted on Property Index Maps and then each assigned a Property Identifier Number (PIN) consisting of a larger neighbourhood Block number and then an individualized Parcel number. A computerized Parcel Register was then created for each PIN.
Initially, until a parcel was converted from the Registry Act land registry system to the Land Titles Act, the title to the property fell into what is called the Parcelized Day Forward (PDFR) Registry Act land registry system. While a parcel of land may have had a Parcel Register created for it, all that the “computerized” Parcel Register indicated was the PIN assigned to the property, its thumb nail (short form) legal description and the registration particulars of the last registered deed prior to the creation of the Parcel Register. This “interim” land registration system was rather cumbersome if not burdensome on lawyers as in order to provide a proper title opinion, a lawyer had to first look to the computerized Parcel Register to obtain the basic title information for the land, and then perform a full 40 year search in the existing Registry Act abstract books. The abstract books provide the list of all registered documents affect land from the issuance of the original Crown Patent forward. Entries were originally by hand and then subsequently by typewriter. Entries into these historic documents stopped when PDFR was implemented as the particulars of all subsequent document registrations were “abstracted” onto computerized Parcel Register.
The PDFR Parcel Registers did not include any rights of ways, easements or restrictive covenants in relation to other parcels. Therefore, if a lawyer was acting on a cottage purchase, the access to which was over another servient tenement(s), the lawyer would request that the paper deed for the land not only recite its assigned PIN, but that it also recite the PIN of each and every parcel over which the land had a right. In the cottage example, this would be the PIN of every piece of land over which physical access was obtained.
Conversely, under the Land Titles Act, the Parcel Register is the key evidence of title. This is confirmed by section 77.(1) of the Land Titles Act, which provides:
- (1) Except as otherwise provided by this Act, every instrument presented for registration by which, when registration thereof is completed, an interest in registered land is created, transferred or terminated shall be deemed to be an application to the land registrar to amend the registered title of the land mentioned therein.
Under the Land Titles Act, the Parcel Register sets out the PIN, the registered owner(s), the thumbnail legal description of the property, all easements to which the property benefits or is subject. All encumbrances, cautions or notices that affect title.
The Land Titles Act Conversion Qualified land registry system was created to facilitate the change of a title system permitting possessory title to one that does not. On the “Parcel Register” to a “Conversion Qualified” Land Titles Act Parcel Register, one will always read that the title is specifically subject to:
SUBSECTION 44(1) OF THE LAND TITLES ACT, EXCEPT PARAGRAPH 11, PARAGRAPH 14, PROVINCIAL SUCCESSION DUTIES AND ESCHEATS OR FORFEITURE TO THE CROWN.
THE RIGHTS OF ANY PERSON WHO WOULD, BUT FOR THE LAND TITLES ACT, BE ENTITLES TO THE LAND OR ANY PART OF IT THROUGH LENGTH OF ADVERSE POSSESSION, PRESCRIPTION, MISDESCRIPTION OR BOUNDARIES SETTLED BY CONVENTION.
As previously alluded to, section 51.(1) of the Land Titles Act provides:
- (1) Despite any provision of this Act, the Real Property Limitations Act or any other Act, no title to and no right or interest in land registered under this Act that is adverse to or in derogation of the title of the registered owner shall be acquired hereafter or be deemed to have been acquired heretofore by any length of possession or by prescription.
However, if adverse possession (exclusive possession for 10 years) or prescription (use of an easement for 20 years) had been established “prior to” the conversion of the title from the Registry Act land registry system to the Land Titles Act system and if such adverse possession or prescription continues, those rights, and notwithstanding conversion, have been preserved in the Land Titles Act Conversion Qualified land registry system.
If any land is intended to be developed as a registered plan of subdivision pursuant to the Planning Act, or as a condominium under the Condominium Act Land Titles Act, the title to the property must first be converted from the Land Titles Act Conversion Qualified land registry system to the Land Titles Act Absolute land titles system.
Prior to conversion to the Land Titles Act Absolute land registry system, a new reference plan of survey is prepared and a copy of which must be provided to each and every property owner abutting the subject property. This process gives those abutting land owners the opportunity to convert their possessory or prescriptive title into legal title by way. The legal or paper boundaries may be adjusted to accord with possession, or the location of easements may require further surveying and legal confirmation. Once these rights have been dealt with or assuming none, conversion to Land Titles Act Absolute will take place. This will result in words, “THE RIGHTS OF ANY PERSON WHO WOULD, BUT FOR THE LAND TITLES ACT, BE ENTITLES TO THE LAND OR ANY PART OF IT THROUGH LENGTH OF ADVERSE POSSESSION, PRESCRIPTION, MISDESCRIPTION OR BOUNDARIES SETTLED BY CONVENTION” being specifically deleted from all Parcel Registers.