Second Session,

46th General Assembly

58 Elizabeth II,

BILL 21

AN ACT RESPECTING THE REGISTRATION

OF DEEDS

AND OTHER DOCUMENTS

Received

and Read the First Time ...................................................................

Second

Reading ..............................................................................................

Committee ......................................................................................................

Third

Reading .................................................................................................

Royal

Assent ...................................................................................................

HONOURABLE KEVIN

O'BRIEN

Minister of

Government Services

Ordered to be printed by

the Honourable House of Assembly

EXPLANATORY NOTE

This Bill would repeal and replace

the Registration of Deeds Act to

revise and consolidate the law with respect to the registration of deeds and

other documents.

A BILL

AN ACT RESPECTING THE REGISTRATION OF DEEDS

AND OTHER DOCUMENTS

Analysis

Short title

Definitions

Registry

Registrar of Deeds

Deputy registrar

Protection of registrar

Registration

Mortgage document

Electronic registration

Registrar may refuse to register

Notice of registration

Tacking

Registration under power of attorney

Proof for registration

Documents executed in the province

Documents executed out of province

Execution

Proof where witnesses and parties dead

etc.

Compelling witnesses

Appeal

Proof of judgments

Information in registry

Effective time of registration

Documents to be confirmed

Registration of plans

Requirement to provide release of

mortgage

Release of mortgage to include reference

Partial releases

Licensed user

Searches

Indexes

Maintenance of books and records

Change of name

Affidavit of value

Interest not affected

Certified copies

Effect of registration

Regulations

Fees

Forms

Transitional

SNL2001 cE-5.2 Amdt.

RSNL1990 cR-10 Rep.

Commencement

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

Short title

1. This

Act may be cited as the Registration of

Deeds Act, 2009 .

Definitions

2. In

this Act

(a) "deed" means a written document by

which a person transfers ownership of real property to another;

(b) "instrument" includes every document

by which title to land is changed or affected;

(c) "licensed users" means those persons

approved by the registrar to conduct unlimited online searching and viewing of instruments

registered at the registry and available online;

(d) "minister" means the minister

appointed under the Executive Council Act

to administer this Act;

(e) "oath" includes a declaration and an

affirmation;

(f) "prescribed category of persons"

means those persons or category of persons approved by the registrar to file instruments

electronically;

(g) "registrar" means the Registrar of

Deeds appointed under

section 4 ; and

(h) "registry" means the Registry of

Deeds created under

section 3 .

Registry

(1) There

shall be a Registry of Deeds for the registration of deeds and other instruments

for the province.

(2) The registry shall contain fireproof safes or

vaults for the preservation of records, books, papers, microfilm, microfiche,

tapes, negatives, computer software and computer hardware belonging to the

registry, and of all deeds and other instruments situated and deposited there

for registration.

(3) The reference to "province" in

subsection (1) includes the offshore area as defined in the Hibernia Development Project Act ( Canada ).

Registrar of

Deeds

(1) The

minister shall appoint a Registrar of Deeds to carry out the duties imposed

under this Act.

(2) The registrar shall

(

a) supervise and direct the operation of the

registry;

(

b) supervise and direct the persons employed in

the registry in the performance of their duties and exercise of their powers under

this Act;

(

c) inspect the records of the registry; and

(

d) perform those other duties and exercise the

powers conferred by this Act.

(3) Those officers and employees that are

necessary for the proper conduct of the work of the registry shall be appointed

or employed in the manner authorized by law.

(4) The registrar may assign those officers and

employees appointed or employed under subsection (3) to perform those duties or

exercise those powers imposed upon the registrar under this Act.

Deputy registrar

5 . The

minister may appoint a deputy registrar who shall, when the registrar is absent

or unable to act, when the registrar considers it necessary to delegate his or

her authority, or when the office of the registrar is vacant, perform the

functions of and have all the powers and authority of the registrar.

Protection of

registrar

6. The

registrar or the deputy registrar appointed under

section 5 is not, nor is a person acting under his or her

authority, personally liable in an action or proceeding for or in respect of an

act or matter done or omitted by him or her in good faith in the exercise or

purported exercise of the powers conferred upon the registrar or in the

performance of his or her duties under this Act or a regulation made under this

Act, or for costs in connection with an action or proceeding.

Registration

(1) The

registrar shall register in paper format or electronically,

(

a) deeds, leases, assignments of leases,

assignments of rents, priority agreements and other instruments by which title

to land is changed or affected;

(

b) powers of attorney under which documents

referred to in paragraph (

a) are executed;

(

c) debentures;

(

d) judgments of foreclosure and other judgments

affecting an interest in or title to land;

(

e) notices of pending lawsuits, notices of

mortgages, notices of transfer of mortgage, notices of release of mortgage and

other notices in relation to a charge or encumbrance on land, in the form and

manner and containing the information that may be prescribed by regulation; and

(

f) notices of security interest or discharge within

the meaning of the Personal Property

Security Act that relate to personal property that has been incorporated

into or permanently affixed to land, in the form required by the registrar.

(2) The registrar may register other instruments

that the registrar has reasonable grounds to believe meet the requirements of

this Act.

(3) For the purpose of paragraph 7 (1)(e), only a notice of mortgage in a form

acceptable to the registrar shall be accepted for registration of a mortgage

however the registrar may register a full mortgage document in those

circumstances where he or she considers it necessary.

(4) Registration of the documents referred to in this

section in relation to the offshore area shall be effected in accordance with

this Act.

(5) In this section, "offshore area"

means offshore area as defined in the Hibernia

Development Project Act ( Canada ).

Mortgage document

8. Where

a notice of mortgage has been filed under paragraph 7 (1)(e),

the mortgagor may request from the mortgagee a full copy of the mortgage

document and the mortgagee shall provide that document within 30 days of

receipt of the request.

Electronic

registration

(1) Except

where provided by this Act or the regulations, an instrument submitted for

registration electronically in accordance with this Act and as prescribed by

the regulations shall have the same effect as an instrument submitted for registration

in paper format.

(2) A person, other than the registrar or a person

who is a member of a prescribed category of persons, may not electronically

register an instrument.

(3) The registrar may approve a person or category

of persons to file an instrument electronically where that person or category

of persons meet the requirements prescribed by the regulations.

(4) A

person who is a member of the prescribed category of persons may electronically

register an instrument referred to in

section 7 by complying with this Act and

the regulations.

(5) Where a person fails to comply with the requirements

of this Act and the regulations the registrar may remove the person from the

prescribed category of persons.

(6) A person submitting an instrument for

registration electronically under subsection (4) is responsible for the

accuracy of the instrument.

(7) When a person submits an instrument for

registration electronically under subsection (4) that person is certifying that

he or she has seen the original instrument with the original signatures and

that the instrument being submitted is a true copy of the original instrument.

(8) An instrument may be submitted electronically at

any time and shall be reviewed for compliance in a manner that may be prescribed

during the operating hours of the registry.

Registrar may

refuse to register

10. The

registrar may refuse to register an instrument where

(

a) a legible written description of the property

is not attached;

(

b) the instrument does not comply with this Act

or the regulations;

(

c) the instrument is contrary to law;

(

d) the registrar has reasonable grounds to

believe that the registration might result in a registration that is not in

accordance with law;

(

e) the instrument is wholly or partially

illegible;

(

f) the instrument contains or has attached to it

material that does not affect or relate to the land; or

(

g) the registrar has other reasonable grounds to

do so.

Notice of registration

(1) The

registration of an instrument under this Act shall constitute notice of the

instrument to a person claiming an interest in the land after the registration,

notwithstanding a defect in the proof for registration.

(2) Notwithstanding subsection (1), the registrar shall

not register an instrument unless the instrument has been proved in accordance

with this Act and unless all other requirements of the Act have been met.

Tacking

12. A

mortgage shall not have priority by reason of being held by or vested in the

same person with another of earlier date and registry.

Registration

under power of attorney

13. The

registration of an instrument executed under a power of attorney is not valid

unless

(

a) the power of attorney is registered before the

registration of the instrument or within 6 months after the registration; or

(

b) an instrument subsequently confirming the

execution of the first instrument is registered within 6 months after the registration

of that first instrument.

Proof for registration

(1) Before

an instrument is registered the execution of the instrument shall be proved in

accordance with this Act.

(2) Where an instrument is executed by more than

one person, the execution by each person shall be proved.

Documents executed

in the province

15. An

instrument executed in the province may be proven in the presence of

(

a) the registrar;

(

b) a judge of the Trial Division, Court of Appeal

or Provincial Court ;

(

c) the deputy registrar appointed under this Act;

(

d) a commissioner of the Supreme Court of

Newfoundland and Labrador ;

(

e) a justice of the peace;

(

f) the mayor of a city or town in the province;

(

g) an officer of the Royal Newfoundland

Constabulary;

(

h) a member of the Royal Canadian Mounted Police;

(

i) a notary public under his or her official

seal; or

(

j) a commissioner for oaths in and for the

province.

Documents executed

out of province

16. An

instrument executed outside the province may be proved in the presence of

(

a) a judge of a court of record;

(

b) the mayor of a city or town;

(

c) a notary public, under his or her official

seal;

(

d) an officer of a provincial or municipal police

force;

(

e) a member of the Royal Canadian Mounted Police;

(

f) a Canadian consul or vice-consul;

(

g) a commissioner of the Supreme Court of

Newfoundland and Labrador ; or

(

h) a commissioner for oaths outside the province,

and it shall be unnecessary to prove or

certify the seal or signature of a person referred to in paragraphs (

a) to (h),

attached, appended or subscribed to the acknowledgment, oath or affidavit.

Execution

(1) An

instrument shall be considered to be validly proven where executed in the

presence of a person referred to in

section 15

or 16 , as applicable,

(

a) where the person signs the instrument and sets

out immediately after his or her signature as witness the capacity in which the

person signs and, where required by

section 15

or 16 , as applicable, attaches his or her seal

under the signature; or

(

b) where the person signs a certificate attached

to the instrument that the instrument was executed in his or her presence and

sets out immediately after the signature to the certificate the capacity in

which he or she signs and, when required, attaches his or her seal near the

signature.

(2) An instrument shall also be considered to be

validly proven if executed in the presence of a person who is not a person

listed in

section 15 or 16 if the person in whose presence it was executed

signs an affidavit stating that he or she was present and did witness the signature

of the party and the affidavit is witnessed by a person listed in

section 15 or 16 , as

applicable, and that person sets out immediately after his or her signature the

capacity in which that person signs and where required attaches his or her seal

near the signature.

Proof where witnesses

and parties dead etc.

18. Where

the witness to the execution of an instrument and the parties to it are dead or

mentally incompetent, whether so found on an inquiry or not, or are incapable

of proving the instrument, or where the place of residence of the witnesses and

parties is unknown, the registrar shall register the instrument upon receiving

satisfactory proof upon oath

(

a) of the death, mental incompetence, or incapacity,

or of the fact that the place of residence is unknown; and

(

b) of the handwriting of the signing witness to

the execution of the instrument or of the parties to it.

Compelling witnesses

19. Where

(

a) a witness to an instrument, or a party

executing the instrument, after tender of those fees that are paid to a witness

attending a trial, refuses to attend for the purpose of proving the execution

of it before a person before whom proof may be given; or

(

b) a person having possession of an instrument

required to be registered refuses to produce it in order that it may be registered,

a person claiming to be interested in

having the instrument registered may make an application to the Trial Division,

for an order directing the attendance of the witness, or the party or the production

of the instrument.

Appeal

20. Where

the registrar refuses to register an instrument the person effected may appeal

the registrar's decision to the Trial Division within 30 days of the refusal.

Proof of judgments

21. A

judgment shall be proved by a copy certified by the Registrar of the Trial

Division, under the seal of the court.

Information in

registry

(1) The

registrar shall keep in the registry information with respect to every deed and

other instrument deposited for registration and the registrar shall record,

(

a) the time and date of registration;

(

b) the location of the property;

(

c) the type of instrument;

(

d) the date of the instrument;

(

e) the parties named in the instrument;.

(

f) the consideration stated in the instrument;

and

(

g) other information that the registrar considers

necessary.

(2) Information recorded by the registrar under

subsection (1) may be recorded in electronic format.

Effective time of

registration

(1) An

instrument submitted for registration shall be considered to have been

registered when it is delivered, either personally, by mail or in electronic

form if it is determined by the registrar to be in compliance with the requirements

of this Act.

(2) The instrument shall

(

a) be executed by all persons from whom an

interest passes;

(

b) have attached to it the proper proof;

(

c) be accompanied by the proper fee for

registration of that instrument;

(

d) be accompanied by a registration application

form;

(

e) be accompanied by a legible written description

of the property conveyed; and

(

f) meet the other requirements that may be

established by the registrar.

(3) Where an instrument is submitted for

registration under subsection (1) and it is determined by the registrar that it

is not in compliance with the requirements of this Act, it shall not be

considered to have been registered and shall be returned and may be resubmitted

for registration under subsection (1) when the required corrections have been

made.

(4) Where an instrument is registered under this

section, a person shall not alter that instrument.

(5) A deed of rectification may be registered to

correct an error in an instrument that has been registered under this section.

Documents to be

confirmed

(1) Where

an instrument is submitted for registration under subsection 23(1) and has been

determined by the registrar to be in compliance with the requirements of this

Act, that instrument shall receive confirmation of registration, which shall include

(

a) the time and date of registration of the

instrument;

(

b) the registration number at which the

instrument may be found on the computer storage and retrieval system;

(

c) the parties to the instrument;

(

d) the property location, where applicable;

(

e) the document type;

(

f) the registrar's signature and title;

(

g) the date of the confirmation;

(

h) the receipt number; and

(

i) other confirmation information that may be

prescribed.

(2) Confirmation information provided in

accordance with subsection (1) is receivable as evidence of proof of registration

and of the time of registration.

Registration of

plans

(1) A

person who wishes to register an instrument with a plan attached to that instrument

shall provide a copy of that plan and that plan shall be registered as a part

of that instrument.

(2) Where an instrument has a master plan

attached, that master plan shall be filed in paper format in the registry.

Requirement to provide

release of mortgage

26 .

(1) When

a mortgage is fully paid, the mortgagee shall, within 60 days after that, register

in the registry

(

a) a release of the mortgage;

(

b) where there is an assignment of rents

registered in relation to the property, a release of the assignment of rents;

and

(

c) other instrument required to enable the

mortgage to be released,

and the instruments required under

paragraphs (

a) to (

c) shall be in a form and contain the information

satisfactory to the registrar.

(2) When the mortgagee receives the registered

release of mortgage or registered assignment of rents or both from the registry

the mortgagee shall provide a copy to the mortgagor.

(3) A mortgagee who fails to comply with

subsection (1) or (2) is guilty of an offence and liable on

summary conviction to

a fine not exceeding $10,000.

Release of

mortgage to include reference

27 . Where

a property which has been subject to a mortgage is released from that mortgage

there shall be included in the release of mortgage a reference to the original

mortgage that is being released.

Partial releases

28 . A

partial release of mortgage shall include a clear description of the property that

is being released.

Licensed user

(1) A person who is approved as a licensed user may conduct unlimited

online searching and viewing of instruments registered at the registry and

available online.

(2) The registrar may approve a person to conduct

unlimited online searching and viewing of instruments registered at the

registry and available online where that person meets the requirements prescribed

by the regulations.

(3) A licensed user shall comply with the prescribed

rules for the online searching and viewing of instruments and failure to comply

with those rules may result in the cancellation of the license of the licensed

user.

Searches

(1) A person may have access to the online

registry system at any time except during scheduled or unscheduled outages, however

a person may only have access to the books, documents and the computer storage

and retrieval system in the registry during the regular office hours of the registry.

(2) A person shall not remove books, documents or

the computer software or computer hardware belonging to the registry from the registry.

(3) The registrar may prohibit a person

(

a) who has not exercised or who is not exercising

due care in the handling of books and indexes of the registry while making a

search;

(

b) who does not replace books which the person

has removed from the shelves of the registry back in their proper places on the

shelves when finished his or her examination of the books; or

(

c) who otherwise fails to comply with the

reasonable requirements of the registrar,

from searching in the registry for a

period of time that the registrar may determine, but the person may have the

prohibition removed where he or she undertakes, in writing, to comply with the

Indexes

31. The

registrar shall keep an index of all instruments registered in the registry.

Maintenance of

books and records

(1) Where

a book, record, plan, document or instrument kept in paper form, is from age or

use, becoming obliterated, unfit for further use or is in need of repair, the

registrar shall ensure the book, record, plan, document or instrument is copied

or repaired in a manner that he or she thinks necessary.

(2) Where the registrar is required to copy a

document, the copy shall be, as far as can be deciphered by examination, a true

and complete copy of the original and the registrar shall insert or subscribe

an oath to the effect that the original so copied is a true copy of the original

which purports to be a copy.

(3) A copy created for the purpose of subsection

(1) and in accordance with subsection (2) shall be acknowledged and received as

the original, and is considered to be a true copy of the original.

(4) Notwithstanding

section 30 , a book, record, plan or document requiring

replacement or repair may be removed from the registry for that purpose.

Change of name

(1) Where

a person's name is changed and at the time of the name change that person has

an interest in property evidenced by an instrument filed or registered under

this Act, the change of name may be recorded by

(

a) reciting the change of name in a subsequent

conveyance of that property interest; or

(

b) filing or registering a certificate of a

change of name issued under the Change of

Name Act, 2009 or a marriage certificate if the change of name was as a

result of a marriage or dissolution of a marriage .

(2) Upon receipt of a conveyance or certificate required

under subsection (1) the registrar shall record and index it as a conveyance

from the former name of the person concerned to the new name.

Affidavit of

value

(1) For

the purpose of this section, "affidavit of value" means proof made on

oath of the value of the property to which the instrument relates.

(2) An affidavit of value shall be registered

(

a) for a deed of gift;

(

b) for a deed of confirmation where no prior

registrations in relation to that transfer have been filed; and

(

c) where the registrar considers it advisable.

(3) The proof required for an affidavit of value

may be made before a person before whom a deed may be proved under sections 15 and 16 .

(4) In determining the value of a property, the

value of buildings attached to the land shall be included and the value of the

property shall be calculated at the time the property is conveyed or

transferred unless otherwise exempted by the regulations.

(5) Where the registrar is not satisfied with the affidavit

of value submitted with an instrument under subsection (2), the registrar may require

the person submitting the instrument for registration to produce a copy of the

municipal property assessment or a report of a qualified appraiser supporting

the valuation, however, if neither is available the registrar may accept a

market value estimate provided by an experienced realtor carrying on business

in the area where the property is located.

Interest not

affected

(1) Subject

section 50 of the Personal Property

Security Act , a person contracting or dealing with or taking or proposing

to take a transfer of or an interest in land is not affected by a registration

under the Personal Property Security Act ,

whether or not the person has notice of knowledge

of the registration.

(2) The fact that a person referred to in

subsection (1) has knowledge of a registration under the Personal Property Security Act , or that the person could have

obtained that knowledge is not evidence of fraud for the purpose of

section 37 .

Certified copies

36. The

registrar shall, when requested, provide certified copies of instruments that

shall be signed by the registrar.

Effect of registration

37 . An

instrument that has not been proved and registered shall be judged fraudulent

and void both at law and in equity, as against a subsequent purchaser or

mortgagee for valuable consideration who first registers the instrument, or

against a trustee of an insolvent estate or an assignee or trustee under a

conveyance for the benefit of the creditors.

Regulations

38. The

minister may make regulations

(

a) prescribing the manner in which instruments

may be electronically filed or registered;

(

b) prescribing the manner in which electronically

filed or registered instruments may be reviewed for compliance;

(

c) prescribing the persons or category of persons

that may be approved to be licensed users;

(

d) prescribing the rules governing licensed

users;

(

e) prescribing the circumstances which can result

in the cancellation of the licence of a licensed user;

(

f) prescribing the persons or category of persons

that may be approved to file instruments electronically;

(

g) prescribing the rules governing those approved

to file instruments electronically;

(

h) prescribing the circumstances which can result

in the cancellation of an approval of a person to file electronically;

(

i) prescribing information that may be required

under

section 24 for confirmation of

registration;

(

j) prescribing the information required and the form

and manner in which notices of mortgages and other notices required by the registrar

or this Act may be registered or filed;

(

k) respecting a matter necessary to accommodate

changes in technology relating to the registration of instruments;

(

l) respecting the exemption of property from the

requirements of subsection 34 (4);

(

m) defining a term used, but not defined, in this

Act; and

(

n) generally to give effect to the purpose of

this Act.

Fees

(1) The

minister may set fees to be collected by the registrar for the purpose of this

Act.

(2) A fee is not payable on the registration of a

deed or other instrument by or on behalf of the Crown.

Forms

40. Forms

approved by the registrar may be used for the purpose of this Act.

Transitional

41. A

deed or other instrument validly registered under the Registration of Deeds Act is considered to be validly registered under

this Act.

Consequential

Amdt.

42. (1) Paragraph 4(1)(

d) of the Electronic Commerce Act is repealed.

(2) Subsection 27(2) of the

Interpretation Act is amended by adding immediately after item 25

the following:

25.1

lis

pendens

pending

lawsuits

RSNL1990 cR-10 Rep.

43. The Registration

of Deeds Act is repealed.

Commencement

44. This Act comes into force on a day to be

proclaimed by the Lieutenant-Governor in Council.

Earl G. Tucker, Queen's Printer