Bill 89 — Second Session, 20Th Legislature, 33 Elizabeth Ii the Legislative Assembly of Alberta Bill 89 Real Property Statutes Amendment Act, 1984 the Attorney General (Legislature 20, Session 2)

L20 S2 3558

Alberta — Bills

1984 BILL 89 Second Session, 20th Legislature, 33 Elizabeth II THE LEGISLATIVE ASSEMBLY OF ALBERTA BILL 89 REAL PROPERTY STATUTES AMENDMENT ACT, 1984 THE ATTORNEY GENERAL First Reading Second Reading Committee ofthe Whole Third Reading Royal Assent

BiU 89 BILL 89 1984 REAL PROPERTY STATUTES AMENDMENT ACT, 1984 (Assented to , 19S4) HER MAJESTY, by and with the advice and consent ofthe Legislative Assembly of Alberta, enacts as foUows: Land Titles Act 1(1) The Land Titles Act is amended by this section.

(2) Section I is amended (

a) in clause (

j) by striking out "day book" and substituting "daily record"; (

b) in clause (

r) by striking out "pledged" and substituting "charged"; (

c) by repealing clause (w)(ii) and substituting the following: (

u) the entering on the certificate of title of a memorandum authorized by this Act or any other Act of any instrument or caveat, and

(3) Section 4(2) is repealed.

(4) Section 12 is amended by striking out "within the distiict to which he is appointed".

Land Titles Act 1(1) This

section will amend

chapter L-5 ofthe Revised Statutes of Alberta 1980.

(2) Section l(j), (

r) and (

w) presently read: / In this Act, (j) "filing" means the entering in the day book of any instrument or caveat; (r) "mortgagor" means the owner or transferor of land, or of any estate or interest in land pledged as security for a debt or a loan; (w) "registration" means (

i) the bringing of land under the provisions ofthis Act, (ii) the entering on the certificate of title of a memorandum au thorized by this Act of any document, and (iii) the entering in the proper register of any instrument or caveat authorized to be registered, of which a memorandum is not re quired to be entered on a certificate of title;

(3) Section 4 presently reads: 4(1) In each registration district at the place the Lieutenant Governor in Council determines there shaU be an office to be called the "Larui Titles Office."

(2) The Lieutenant Governor in CouncU may provide in each registration district at the public expense, and may thereafter maintain, in a proper state of repair a building of stone or brick, or partly of brick and partly of stone, to serve as the Land Titles Office, and as the place pf deposit and preservation of registers and other record books, certificates, instruments and documents connected with the registration of titles, and may fit up the office with any fire-proof safes and other secure places necessary,

(4) Section 12 presently reads: 12 The Inspector of Land Titles Offices, the Assistant Inspector of Land Titles Offices or any Registrar or Deputy Registrar or Assistant Deputy Explanatory Notes

(5) Section 15(2) is repealed.

(6) Section 16 is amended (

a) in subsection (1) by striking out "record caUed the "day book" " and substituting "daily record"; (

b) in subsections (3), (4) and (6) by striking out "day book" and substituting "daily record".

(7) Section 17(3) and (4) are repealed and the following is substituted:

(3) The Registrar shall keep a register called the "general regis ter" (

a) in which shaU be entered a record of aU copies of writs of execution and other instruments that charge generally or bino in the same manner as a writ the property interests of a pe • son, and (

b) that ShaU show in alphabetical order the names of the persons whose land is affected by writs of execution and otne instruments entered in the general register.

Registrar within the district to which he is appointed may administer any oath or take any affirmation or declaration in lieu of an oath respecting titles to land from anyone entitled by law to affirm or declare.

(5) Section 15(2) presently reads:

(2) During the hours when the Land Titles Office is required to be kept open, either the Registrar or his deputy shaU be in attendance.

(6) Section 16 presently reads: 16(1) The Registrar shaU keep a record called the "day book" which shaU contain particulars of every instrument and caveat accepted by the Regis trar for filing or registration.

(2) The Registrar shall cause each instrument or caveat received by him for filing or registration to be examined and if it is found to be complete and in the proper form and fit for filing or registration, the Registrar shad stamp the instrument or caveat with the serial number assigned to it arui the date on which the serial number is assigned.

(3) The Registrar shad enter a record of each stamped and signed instru ment or caveat in the day book.

(4) The Registrar in endorsing memoranda of instruments or caveats on a certificate of title and in entering memoranda on duplicate certificates shall take the serial number and date from the day book and shall sign the memoranda and the certificate or duplicate certificate on which the endorsement or entry is made.

(5) For purposes of priority between mortgagees, transferees and others, the serial number assigned to the instrument or caveat shaU determine the priority ofthe instrument or caveat filed or registered.

(6) UntU the duplicate certificate of title for the land affected is produced to him so as to enable him to enter the proper memorandum on the duplicate certificate, unless required to do so by order of a court, the Re gistrar shaH not receive or enter in the day book any instrument except (

a) executions against larui, builders' liens, easements arui instru ments referred to in

section 72, (

b) transfers by a sheriff or municipal officer or by order of a court, (

c) transfers on sales of land for taxes, (

d) tax arrears notifications arui other notices and cancellations under the Mineral Taxation Act, arui (

e) maps or plans that do not require to be registered, or certificates or orders of a court.

(7) Section 17(3) and (4) presently read:

(3) The Registrar shad also keep a book or books which shaU be called the "execution register", in which shaU be entered according to the dates when received a record ofaU copies of executions received by him from the sheriff or other officer and the register shaU be kept indexed showing in alphabetical order the names ofthe persons whose land is affected by the writs with the day and hour and minute of receipt.

(4) The Registrar shaU also keep a register which shaU be known as the "irrigation districts register", in which shaU be recorded an abstract ofthe information as to each irrigation district shown by the order forming the district as published in The Alberta Gazette or of any other order altering Explanatory Notes

(8) Section 24 is repealed and the following is substituted: 24(1) A Registrar shall, when required, fumish under seal a gen eral register certificate in the prescribed form.

(2) A general register certificate shaU not disclose an instmment registered in the general register where there is a material differ ence between the name in the instrument and the name to be searched as set forth in the request for the certificate.

(3) For the purpose ofthis

section and sections 122,130 and 171, there is a material difference in names where (

a) the surnames are not identical, (

b) none ofthe given names in one name are identical to one of the given names in the other name, (

c) one name contains the same number of given names as the other name but one of the given names in one name is not identical to or a commonly used variation of any of the given names in the other name, (

d) one name contains the same number of given names as the other name and the given names in one name are identi cal to or commonly used variations ofthe given names in the other name but the given names in one name do not appear in the same sequence as the given names in the other name, (

e) one name contains fewer given names than the other name but one of the given names in the name with the fewer given names is not identical to or a commonly used variation of any of the given names in the other name, or (

f) one name contains fewer given names than the other name and the given names in the name with the fewer given names are identical to or commonly used variations of the given names in the other name, but the given names in one name do not appear in the same sequence as the given names in the other name.

(4) In subsection (3)(c), (d), (

e) and (f), (a) "given name" includes an initial used in the place of a given name, and (

b) an initial and a given name shaU be considered to be commonly used variations of each other only where the ini tial is the same as the first letter of the given name. 24.1 A Registrar shaU, on request, fumish under seal photo- grahic copies of any instmment or caveat affecting land depos- ded, filed or registered in his office and if a photographic copy cannot be made, the Registrar may fumish under seal a copy of the instmment or caveat in any manner he sees fit.

the content of the district, arui the register shaU be open to inspection on payment of the fee prescribed by the regulations.

(8) Section 24 presently reads: 24(1) A Registrar shall, when required, furnish under seal a general reg istration certificate in the prescribed form.

(2) A Registrar shall, when required, furnish uruier seal photographic cop ies of any instrument or caveat affecting land deposited, filed or registered in his office, but if a photographic copy cannot be made, the Registrar may furnish under seal a copy of the instrument or caveat in any manner he sees fit. Explanatory Notes

(9) Section 25(1) is amended by striking out "day book" and substi tuting "daily record".

(10) Section 33 is amended by striking out "Deputy Minister or Act ing Deputy Minister of Indian Affairs and Northem Development" and substituting "deputy or acting deputy of the Minister charged with the administration ofthe National Parks Act (Canada)".

(11) Section 46 is amended by renumbering it as 46(1) arui by adding the following after subsection (1):

(2) Where the Registrar requires him to do so, an owner shall sign a receipt for a duphcate certificate of title before it is deUv ered to him.

(12) Section 48(3) is repealed.

(13) Section 65(2) is repealed and the following is substituted:

(2) Land mentioned in a certificate of title issued under the Tax Recovery Act,

Part 5 ofthe Irrigation Act or

Part 4 ofthe Drainage Districts Act, or in a certificate of title based on a foreclosure order, notwithstanding any other Act is, by imphcation and with out any special mention therein, subject to (

a) any easement or incorporeal right, a memorandum of which has been made under

section 70, 72 or 72.1, (

b) any instmment registered under

section 72(4), (

c) any condition or covenant mnning with or annexed to the land and registered under

section 52, (

d) any caveat protecting any such easement, incorporeal right, condition or covenant, duly filed, and (

e) a notice endorsed pursuant to

section 11 of the City Transportation Act, if the registration, endorsement or filing, as the case may be, was made prior to the registration of the judge's adjudication on the rate enforcement retum under the Irrigation Act or the Drainage Districts Act, or to the date of registration of the mortgage with respect to which a foreclosure order was made, as the case may be.

(14) Section 72 is repealed and the following is substituted: 72(1) If the registered owner of land grants to the CroAvn or a corporation a right on, over or under the land for

(9) Section 25(1) presently reads: 25(1) A grant shad be deemed to be registered under this Act when it has been marked by the Registrar with the serial number assigned to it, signed by the Registrar and a memorandum of its registration entered in the day book.

(10) Section 33 presently reads: 33 The Registrar shaU accept for registration and register duplicate orig inals, or copies certified under the hand ofthe Deputy Minister or Acting Deputy Minister of Indian Affairs and Northern Development, of any leases or other registerable instrument or instruments in connection with or re lating to the title to land situated within the area set apart for National Parks.

(11) Section 46 presently reads: 46 On every transfer of land mentioned in a certificate of title the certif icate of title to be granted shaU be granted by the Registrar and a duplicate certificate shad be issued to the transferee on application.

(12) Section 48(3) presently reads:

(3) An owner shall, if required by the Registrar to do so, before the delivery of a duplicate certificate, sign a receipt therefor in his own handwriting or otherwise furnish the Registrar with his signature so as to prevent imper sonation as far as possible.

(13) Section 65(2) presently reads:

(2) Land mentioned in a certificate of title issued under the Tax Recovery Act,

Part 5 ofthe Irrigation Act or

Part 4 ofthe Drainage Districts Act, or in a certificate of title based on a foreclosure order notwithstanding any other Act is, by implication and without any special mention therein, sub ject to (

a) any easement or incorporeal right, a memorandum of which has been made under

section 70 or 72, (

b) any instrument registered under

section 72(5), (

c) any condition or covenant running with or annexed to the land and registered under

section 52, (

d) any caveat protectmg any such easement, incorporeal right, con dition or covenant, duly filed, and (

e) a notice endorsed pursuant to

section 11 ofthe City Transportation Act, if the registration, endorsement or filing, as the case may be, was made prior to the registration ofthe judge's adjudication on the rate enforcement return under the Irrigation Act or the Drainage Districts Act, or to the date ofthe mortgage with respect to which a foreclosure order was made, as the case may be.

(14) Section 72 presendy reads: 72(1) If the registered owner of a parcel of land grants to the Crown or a municipal corporation or to any pipeline, public utility or railway company 4 Explanatory Notes

(

a) carrying, laying, erecting or budding pipes, conduits, ca bles, wires, poles or transmission lines, (

b) laying, constmcting, maintaining and operatmg pipelines for the transmission, transportation or conduct of any sub stance, (

c) conveying water, (

d) drainage, (

e) irrigation, (

f) disposing of sewage, (

g) erecting or maintaining a public work, or (

h) constmcting, maintaining and operating a radway, the instmment granting the right may be registered under this Act.

(2) The Crown or a corporation as a registered owner may grant to itself a right for any purpose described in subsection (1).

(3) On registration, the grantee has the right to use the land in accordance with the terms of the grant notwithstanding that the benefit of the right is not appurtenant or annexed to any land of the grantee.

(4) An instmment purporting to transfer, mortgage or encumber any right granted by an instmment registered under subsection (1) and executed by or on behalf of the grantee may be registered under this Act.

(5) The grantee may at any time, by an instmment to that effect registered under this Act, surrender the right granted by an in stmment registered under subsection (1).

(6) Notwithstanding subsection (5), a right that is subject to a mortgage or encumbrance shall not be smrendered unless the surrender is consented to by the mortgagee or encumbrancee. 72.1(1) When an authority requests the Registrar to issue a cer tificate of title for land that comprised a public road that the authority has permanently closed, the authority shall notify the Registrar of the particulars of any right granted under

section 72 that (

a) existed in respect of that land immediately before that land became a public road, and (

b) would still exist in respect of that land if the land had not become a public road.

(2) On being notified under subsection (1), the Registrar shall enter on the certificate of tide a memorandum ofthe instrument relating to the right in respect of which the notice was given.

(3) The entering of a memorandum on a certificate of title under subsection (2) revives the right effective on the day that the mem orandum is entered on the certificate of title.

or association the right to carry its pipes, wires, conductors or transmission lines on, over or under the parcel, the instrument granting the right may be registered under this Act.

(2) The Crown, a municipal corporation or any pipeline, public utility or railway company or association may grant to itself any rights described in subsection (1).

(3) On registration the right to use the parcel in accordance with the terms of the grant and all the conditions and covenants expressed therein are binding on and enure to the benefit ofthe Crown or municipal corporation or ofthe company or association, its successors and assigns, owners ofthe pipeline, public utility or railway and the grantor his heirs, executors, administrators and assigns being owners of the parcel.

(4) Notwithstanding subsection (3), the parties to any such grant or their successors, executors, administrators or assigns may at any time by an instrument to that effect duly registered, release any such right and there upon the Registrar shall cancel the registration ofthe grant.

(5) An instrument purporting to assign, mortgage, encumber or charge any right granted by instrument registered under subsection (1) and exe cuted by or on behalf of the Crown or municipal corporation or of the company or association, its successors and assigns, owners ofthe pipeline, public utility or railway may be registered under this Act.

(6) In the event of a registered owner of a parcel of land granting to the Crown or any Minister thereof the right to use and to permit the public or any part thereof to use the parcel or any part thereof as an intermediate aerodrome for aircraft, or for the site of an aircraft beacon, then on the registration of the grant by the grantee, the right to use the parcel in accordance with the terms ofthe grant and all the conditions arui cove- nants expressed therein are binding on and enure to the benefit of the Crown and the grantor his heirs, executors, administrators and assigns, being owners ofthe parcel, or its successors and assigns, being owners of the parcel, as the case may be.

(7) Notwithstaruiing subsection (6), the Crown may at any time by an instrument to that effect, duly registered, release any such right, and there upon the Registrar shall cancel the registration ofthe grant. Explanatory Notes

72.2(1) In this section, "party wall agreement" includes a decla ration registered under subsection (3).

(2) Persons who are registered owners of adjoining parcels of land may register a party wall agreement (

a) declaring certain existing walls or walls that are to be constmcted on those parcels to be party walls, and (

b) setting forth the rights, privUeges, easements and cove nants that exist in respect of the party walls.

(3) A person who is the registered owner of adjoining parcels of land may register a declaration (

a) declaring certain existing waUs or walls that are to be constmcted on those parcels to be party waUs, and (

b) setting forth the rights, privileges, easements and cove nants that exist in respect of the party walls.

(4) When land under this Act is subject to, or has as appurtenant to it, or enjoyed with it, any rights, privUeges, easements and covenants imder a party wall agreement, those rights, privileges, easements and covenants shall be deemed to mn with the land. 72.3 An encroachment agreement executed by the registered owner of a parcel of land to permit the encroachment of improve ments made on an adjoining parcel of land (

a) may be registered against the parcels of land affected by that agreement, and (

b) after registration shaU be binding on aU persons subse quently acquiring interests in the parcels of land affected by that agreement to the same extent as if it were an easement. 72.4 The Registrar shall cancel the registration of an easement, a restrictive covenant, a party wall agreement or an encroach ment agreement on production of a discharge in the prescribed form signed by the registered owner of the dominant tenement.

(15) Section 74(2) is repealed and the following is substituted:

(2) Subject to

section 180.1, the Registrar shaU (

a) enter on the certificate of tide a memorandum cancelling the certificate of title, in whole or in part, according to the terms of the judgment, and (

b) issue a new certificate of title to the person recovering the judgment.

(16) The following is added after

section 83.1: 83.2(1) In this

section "strata space" means volumetric space, whether or not it is (

a) located below or above or below and above the surface of the land, or

(15) Section 74(2) presently reads:

(2) At the expiration of 3 months after the filing thereof, the Registrar shall, unless he is satisfied that an appeal from the judgment is being taken, make, on the certificate of title in the register a memoraruium cancelling the certificate of title, either wholly or partially, according to the tenor of the judgment and setting forth the particulars of the judgment.

(16) Strata space. Explanatory Notes

(

b) occupied in whole or in part by any stmcture, and that is shown as strata space on a strata space plan.

(2) A registered owner desiring to subdivide volumetric space, other than mines and minerals lying on or under the surface of the land, into strata spaces may present a plan of survey to the Registrar for registration under this Act.

(3) Volumetric space shall not be subdivided into strata spaces unless the land in relation to which the subdivision is to be made is shown as a single parcel on a plan of survey registered under this Act.

(4) The boundaries of a strata space (

a) may consist of vertical, horizontal or inclined planes or curved surfaces that are satisfactory to the Registrar, and (

b) shall conform to or lie within the boundaries ofthe single parcel referred to in subsection (3).

(5) A strata space plan shall (

a) show (

i) the boundaries of the volumetric space that is to be subdivided into strata spaces, and (ii) the boundaries of each strata space, (

b) include a diagram to scale of the survey of the perimeter of the land affected, (

c) have noted on it the elevation of each comer or angle of the strata spaces relative to the elevation of a geodetic mon ument, (

d) assign a suitable letter or number to each strata space and designate each space as a strata space, (

e) be signed by the registered owner of the land, and (

f) show any other detads that the Registrar may require.

(6) Notwithstanding

section 83(6)(

d) and (6.1),

section 83(6), (6.2) and (6.3) apply to a strata space plan.

(7) On registration of the strata space plan the Registrar shall cancel the existing certificate of title to the extent necessary and issue new certificates of tide to the strata spaces shown on the strata space plan.

(17) The following is added after

section 92: 92.1(1) Where a parcel of land that adjoins land owned by the Crown in right of Alberta has a natural boundary, the Registrar, on apphcation by the registered owner ofthe parcel or the Crown, may amend the description of the parcel to reflect the current location of the natural boundary.

(17) Amendment of legal description affected by a change in a natural bound ary. Explanatory Notes

(2) An application under subsection (1) shaU be accompanied by (

a) a plan of survey or other evidence satisfactory to the Re gistrar showing the location ofthe natural boundary, (

b) the consent of the Minister charged with the administra tion of the Public Lands Act or a person authorized by him, where the Crown is not the applicant, and (

c) the consent of the registered owners of parcels that may be adversely affected by the amendment ofthe description.

(18) Section 103(3) is repealed and the following is substituted:

(3) Notwithstanding subsection (1), when (

a) a certificate of title has been issued for a leasehold estate, and (

b) an instmment or caveat is registered against that lease hold estate but not against the reversionary estate, the Registrar shall not register a surrender of the lease unless the person entitled to the benefit of that instmment or caveat con sents to the surrender of the lease.

(19) Section 106.1(1) is amended by striking out "or obligations" and substituting ", re-advances and obligations".

(20) Section 108 is amended (

a) in subsection (l)(

a) by striking out "of the mortgage or the encumbrance or evidence satisfactory to the Registrar of its loss or destmction, together with" and substituting "to the Registrar of"; (

b) by repealing subsections (3), (4) and (5).

(18) Section 103(3) presently reads:

(3) Notwithstanding subsection (1), no lease that is subject to mortgage or encumbrance shaU be surrendered without the consent ofthe mortgagee or encumbrancee.

(19) Section 106.1 presently reads: 106.1(1) Upon registration of a mortgage for a specific principal sum, the mortgage obtains priority in accordance with

section 16 ofthis Act for aU advances or obligations secured pursuant to the terms of the mortgage, notwithstanding that they are made or incurred subsequent to the registra tion, after this

section comes into force, of any other instrument or caveat.

(2) If a mortgagee refuses to make, or a mortgagor has and exercises a right to refuse to accept or be bound by, any further advances that would be secured under subsection (1), the mortgagee shall, on the request ofthe mortgagor provide a discharge ofthe mortgage as to the further advarwes.

(3) The rights given under the Builders' Lien Act are not affected by this section.

(20) Section 108 presently reads: 108(1) The Registrar shad discharge a mortgage or an encumbrance wholly or in part, or the land comprised therein wholly or in part, according to the tenor ofthe discharge, and shall make an entry ofthe discharge on the certificate of title affected by the discharge, in any of the following cases: (

a) on the production ofthe mortgage or the encumbrance or evidence satisfactory to the Registrar of its loss or destruction, together with a discharge in the prescribed form signed by the mortgagee or encum brancee and accompanied by the proper affidavit of execution, but when it is expressly stated in a mortgage or an encumbrance to 2 or more mortgagees or encumbrancees that the money has been ad vanced on a joint account, it is sufficient if the discharge ofthe mort gage or encumbrance is signed by any one ofthe mortgagees or en cumbrancees; (

b) on the production of a certificate signed by a judge certifying that the judge is satisfied ofthe payment ofaU or part ofthe money secured by the mortgage or encumbrance, and that the mortgagee or encum brancee is living, or if dead, that no succession duty or other tax is Explanatory Notes

(21) The following is added after

section 108: 108.1(1) A person entitled to the benefit of a mortgage, encumbr ance, lease or other instmment or a caveat registered against land may postpone his rights under it by registering a postponement in the prescribed form.

(2) The registration of a postponement has the effect of postpon ing the ri^ts under the postponed instmment or caveat to the rights under the instmment or caveat to which it is postponed in the same way.and to the same extent as if the postponed instru ment or caveat had been registered after the instmment or caveat to which it is to be postponed.

(22) Section 110(2) is amended by striking out", and shaU notify the mortgagor ofthe facts".

(23) Section 121 is repealed.

payable to the Crown in right of Alberta with respect to the mortgage or encumbrance; (

c) on the production of a certificate signed by a judge certifying that the right of any person to recover any money secured by the mortgage or encumbrance has been extinguished by reason ofthe operation of the Limitation of Actions Act.

(2) On the entry being made on the certificate of title, the land or the estate, or interest in the land, or the portion of the land mentioned or referred to in the endorsement as aforesaid, ceases to be subject to or liable for the principal sum or annuity, or as the case may be, for the part thereof mentioned in the entry as discharged.

(3) Any person entitled to the benefit of a caveat or of a mortgage, en cumbrance, lease or other instrument registered against land, may post pone his rights thereunder by filing with the Registrar a postponement in the prescribed form.

(4) The Registrar shad thereupon register the postponement by entering on the certificate of title and the duplicate certificate a memoraruium thereof.

(5) The registration has the effect of postponing the rights with regard to the land of the person mentioned in the postponement in the same way and to the same extent as if the postponed mortgage, encumbrance, lease or other instrument or the postponed caveat had been executed and regis tered immediately after the mortgage, encumbrance, lease or other instru ment or the postponed caveat or the last ofthe instruments to which it is expressed to be postponed.

(21) Postponements. (22)

Section 110(2) presently reads:

(2) Any mortgagee may transfer a part ofthe sum secured by the mortgage by a transfer in the prescribed form, and the part so transferred continues to be secured by the mortgage and may be given priority over the remain ing part or may be deferred or may continue to rank equally with it under the security of the original mortgage, as stated in the transfer and the Registrar shall enter on the certificate of title a memorandum ofthe amount ofthe mortgage so transferred, the name ofthe transferee, and how the sum so transferred is to rank, and shaU notify the mortgagor of the facts.

(23) Section 121 presently reads: 121(1) If land or a mortgage, lease or encumbrance is transmitted in consequence ofthe death of an owner thereof the Registrar shaU not reg ister any instrument signed by his executor or administrator (

a) purporting to transfer mortgage, lease or give a charge on the land that is the subject ofthe transmission, or Explanatory Notes

(24) Section 122 is amended (

a) by adding the following after subsection (2): (2.1) Subsection (2)(

b) does not apply where there is a mate rial difference, within the meaning of

section 24(3), between a name as it appears on a writ and the name as h appears on the instmment executed by the execution debtor. (

b) in subsection (5) by striking out "within Alberta".

(25) Section 123 is repealed and the following is substituted: 123 The Registrar shaU discharge a writ against all or a portion ofthe land bound by the writ on production to the Registrar ol (

a) a judge's order directing the discharge ofthe writ agamst all or a portion of the land, (

b) evidence from the sheriff showing the expiration, satisfac tion or withdrawal of the writ, or (

c) a discharge executed by the judgment creditor.

(26) Section 124 is amended (

a) in subsection (1), by striking out "execution against the land of some person of the same or a similar name," and substituting "instmment entered in the general register"; (

b) by repealing subsection (8) and substituting the following:

(8) A notice of any change of sohcitors, in respect of an exe cution against land, that is certified by a sheriff or clerk of tne 10

(

b) purporting to discharge, transfer or assign any mortgage, lease or encumbrance that is the subject ofthe transmission, unless there is filed with him a certificate of discharge issued under the Estate Tax Act (Canada), or a consent under

section 47 thereof.

(2) If larui or a mortgage, lease or encumbrance passes on death by sur vivorship, the Registrar shaU not act on the passing unless there is filed with him a certificate of discharge issued under the Estate Tax Act (Can ada), or a consent uruier

section 47 thereof.

(3) This

section applies only with respect to deaths occurring on and afier January 1, 1959.

(24) Section 122(2) and (5) presently read:

(2) On and after the receipt by the Registrar ofthe copy ofthe writ, (

a) aU legal arui equitable interests ofthe execution debtor in any land there or thereafter registered in his name and including his interest, if any, as an unpaid vendor ofthe land, are bound by the execution, and (

b) no certificate of title shall be granted arui no transfer, mortgage, encumbrance, lease or other instrument executed by the execution debtor ofthe land is effectual except subject to the rights ofthe exe cution creditor under the writ while it is legally in force, and the Registrar, on granting a certificate of title and on registering any transfer mortgage or other instrument executed by the debtor affecting the land, shall, by memoraruium on the certificate of title in the register arui on the duplicate issued by him, express that the certificate, transfer, mort gage, or other instrument is subject to those rights

(5) Every person delivering or transmitting any such writ shad deliver or transmit therewith an address within Alberta where notice may be served on the judgment creditor and the address shaU be at some building of which the street and number and in the case of an office building the number ofthe room, shall be given, or of which the location is otherwise accurately determined, which shall be known as his registered address, arui no writ of execution shad be entered unless that address is furnished.

(25) Section 123 presently reads: 123 On the production to the Registrar of a judge's order or evidence from the sheriff showing the expiration, satisfaction or withdrawal of a writ as against all or a portion ofthe land bound by the writ, the Registrar shad make a memorandum on the certificate of title to that effect if the land has been brought under this Act and, if not, on or opposite to the entry ofthe writ in the execution register and the land or portion of land, as the case may be, shaU be deemed to be absolutely released and dis charged from the writ.

(26) Section 124(1) and (8) presently read: 124(1) A registered owner of land whose dealings therewith are made or proposed to be made subject by the Registrar to an execution against the land of some person ofthe same or a similar name, may make an affidavit in duplicate in the prescribed form or to the like effect, and file it in the Land Titles Office for the land registration district in which his land is situated, or may mad it to the Registrar ofthe district in a fully prepaid registered letter 10 Explanatory Notes

court may be filed with the Registrar of the land registration district in which the execution is filed and on the notice being filed with the Registrar he shaU note the change in the general register.

(27) The following is added after

section 124: 124.1 When another Act provides that (

a) an instrument may be registered in a Land Titles Office, and (

b) the effect ofthe registration is to charge generaUy or bind in the same manner as a writ the property interests of a per son named in the instmment, then, notwithstanduig that other Act,

section 124 ofthis Act ap phes, with aU necessary modifications, to that instmment as if h were a writ.

(28) Section 125 is repealed arui the following is substituted: 125(1) No sale by a sheriff" or other officer, under process of law, (

a) of any land for which a certificate of tide has been granted, or (

b) of a lease of land or a mortgage or encumbrance on land is of any effect until it has been confirmed by the court.

(2) The Registrar shall not register an instmment executed by the sheriff or other officer to give effect to a sale unless (

a) an order of the court confirming the sale is endorsed on the instmment or attached to the instmment, and (

b) the requirements of

section 180.1 have been compUed with.

(29) Section 128 and the title immediately preceding it are repealed and the following is substituted: Names of Married Persons 128(1) When a married person who is the owner of an interest in land adopts the sumame of the spouse, the Registrar may make a memorandum of the change of name on the appropriate certificate of title on production of (

a) an affidavit by that person verifying (

i) the date of the marriage, (ii) the place where the marriage was solemnized, and (iii) the spouse's full name. 11

(8) A sheriff or clerk ofthe court, on receiving notice of any change of solicitor or solicitors in respect of an execution against land shaU forthwith notify the Registrar ofthe land registration district in which the execution IS filed and the Registrar shaU note the change on the execution.

(27) Application of

section 124 to other instruments.

(28) Section 125 presently reads: 125 No sale by a sheriff or other officer under process of law, of any land for which a certificate of title has been granted or of any lease thereof or any mortgage or encumbrance thereon is of any effect untd it has been confirmed by the court, but when any such land is sold under the process of law, the Registrar on the production to him ofthe transfer of it in the prescribed form, with proof of the due execution thereof and with an order ofthe confirmation ofthe sale endorsed on the transfer or attached thereto, shall, after the expiration of 4 weeks after receiving it, (

a) register the transfer (

b) cancel the existing certificate of title wholly or in part, if less than the whole ofthe land comprised therein is sold, (

c) grant a certificate of title to the transferee, and (

d) issue to him a duplicate certificate in the prescribed form, unless the registration is in the meantime stayed by the order ofthe court, and in that case the registration shall not be made except according to the order and direction ofthe court.

(29) Section 128 presently reads: Marriage of Female Owner 128(1) When a woman who is the owner of an interest in land marries and adopts the surname of her husband, the Registrar may make a mem orandum ofthe change of name on the appropriate certificate of title on production of an affidavit by the woman verifying the date ofthe marriage, the place where the marriage was solemnized and her husband's fuU name accompanied by the duplicate certificate of title and by an official certifi cate ofthe marriage or any other evidence that the Registrar may require to substantiate the particulars ofthe marriage.

(2) If a married or formerly married woman is the owner of an interest in land and uses, instead ofthe surname of her husband or former husband, her maiden name or a hyphenated surname that incorporates her maiden surname and the surname of her husband or former husband, the Registrar may make a memorandum of the change of name on the appropriate 11 Explanatory Notes

(

b) the duphcate certificate of title, and (

c) a certificate of marriage or any other evidence that the Registrar may require to substantiate the identity of that per son.

(2) When an interest in land is registered in the name of a person under the sumame of that person's spouse or former spouse and that person now uses (

a) her original sumame, (

b) a hyphenated sumame that incorporates her original sur name and the surname of her spouse or former spouse, or (

c) the sumame of a spouse from a previous marriage, the Registrar may make a memorandum of the change of name on the appropriate certificate of title on the production of (

d) an affidavit by that person verifying the sumame now used by that person, (

e) the duphcate certificate of title, and (

f) a certificate of marriage or any other evidence that the Registrar may require to substantiate the identity of that per son.

(30) The following is added after

section 129: Amending Agreements 129.1 Where the registered owner of land and the owner of an interest in that land under an instmment registered under this Act have entered into an agreement amending any of the terms ofthe instmment, that agreement may be registered as an instru ment.

(31) Section 130(

a) is amended by striking out "or" at the end of subclause (iii) and by repealing subclause (iv) and substituting the following: (iv) an instmment registered in the general register, where the creditor seeks to affect land in which the debtor is interested beneficiaUy but the tide to which is in the name of some other person, or (

v) an instmment registered in the general register, where (

A) the creditor seeks to affect land owned by a debtor, and (

B) there is a material difference, within the meaning of sec tion 24(3), between the name ofthe registered owner and the name ofthe debtor. 12

certificate of title on production of an affidavit by the woman verifying the surname that she uses and accompanied by the duplicate certificate of title and an official certificate ofthe marriage or any other evidence that the Registrar may require to substantiate identity.

(30) Section 129.1 provides for the registration of amending agreements.

(31) Section 130(

a) presently reads: 130 A person claiming to be interested in land for which a certificate of title has been issued or in a mortgage or encumbrance relating to that land (

a) pursuant to (

i) a will, settlement or trust deed, (ii) an instrument of transfer or transmission, (iii) an unregistered instrument, or (iv) an execution where the execution creditor seeks to affect land in which the execution debtor is interested beneficially but the title to which is registered in the name of some other person, may cause to be filed with the Registrar a caveat on his behalf in the prescribed form against the registration of any person as transferee or owner of, or any instrument affecting, the estate or interest, unless the certificate of title is expressed to be subject to the claim ofthe caveator 12 Explanatory Notes

(32) Section 132(2) is amended by striking out "day book" and sub stituting "daily record".

(33) Section 146 is repealed and the following is substituted: 146(1) A person claiming an interest in any land, mortgage or encumbrance may, in lieu of filing a caveat or after filing a caveat, proceed by way of action to enforce his claim and register a certificate of lis pendens in the prescribed form.

(2) A person who has proceeded by way of action to call into question some title or interest in any land may register a certifi cate of lis pendens in the prescribed form.

(34) The following is added after

section 146: 146.1 A person registering or continuing a certificate of hs pen dens without reasonable cause is liable to make compensation to any person who may have sustained damage thereby.

(35) Section 148.1 is amended by striking out "or" at the end of clause (a), by adding "or" at the end of clause (

b) and by adding the following after clause (b): (

c) where a certificate of lis pendens relates to a caveat that was signed by an attomey or agent, a withdrawal of the certificate of lis pendens signed by the attomey or agent.

(36) Section 151 is repealed and the following is substituted: 151 Subject to

section 152.1, every instmment executed within the limits of Alberta and that may be registered under this Act shall be witnessed by one person, who shaU sign his name to the instmment as a witness and make an affidavit in the prescribed form.

(37) Section 152(1) is amended (

a) by renumbering U as

section 152; (

b) by striking out "required to" and substituting "that may'^ 13

(32) Section 132(2) presently reads:

(2) On receipt of a notice of change of address for sen/ice, in the prescribed form or to the like effect, and his proper fee, the Registrar shad enter the notice in the day book and shaU make a memorandum thereof on the certificate of title affected by the caveat.

(33) Section 146 presently reads: 146 A person claiming an interest in any land, mortgage or encumbr ance, may, in lieu of or after filing a caveat, proceed by way of action to enforce his claim.

(34) Compensation re a certificate of hs pendens.

(35) Section 148.1 presently reads: 148.1 The Registrar shall cancel the registration of a certificate of lis pendens on receiving (

a) a certificate under seal ofthe clerk ofthe court stating that pro ceedings for which the certificate of lis pendens was granted are dis continued, or (

b) a withdrawal ofthe certificate of lis pendens signed by the person on whose behalf the certificate was registered.

(36) Section 151 presently reads: Attestation of Instruments 151(1) Subject to

section 152.1, every instrument executed within the lim its of Alberta and requiring to be registered under this Act shaU be wit nessed by one person, who shad sign his name to the instrument as a witness and who shad appear before the Inspector or Assistant Inspector of Land Titles Offices or the Registrar or Deputy Registrar ofthe registra tion district in which the land is situated, or before a judge, provincial judge, notary public, commissioner for taking affidavits, or a justice ofthe peace in or for Alberta, and make an affidavit in the prescribed form. (1.1) and

(2) Repealed 1983 c46 s2.

(37) Section 152 presently reads: 152(1) Subject to

section 152.1, every instrument executed outside the lim its of Alberta and required to be registered under this Act, shall be witnessed by one person, who shaU sign his name to the instrument as a witness and who shad appear before one of the following persons and make an affidavit in the prescribed form: (

a) if made in any province of Canada, before a judge of any court of record, a commissioner authorized to take affidavits in the province for use in any court of record in Alberta, or before a notary public under his official seal; 13 Explanatory Notes

(38) The following is added after

section 152: 152.01 A person is not eligible to be a witness to an instrument if that person is a party to the instmment. 152.02 A Registrar is not required to register an instmment or a caveat if the person who acted as a commissioner for oaths or notary public in respect of that instmment or caveat is a party to the instmment.

(39) Section 152.3 is repealed and the following is substituted: 152.3 An instmment or caveat executed by a corporation, not withstanding anything to the contrary in the Act, statute, con stating documents, charter or memorandum and articles of as sociation incorporating the corporation, shall for the purposes of this Act be deemed to be sufficiently executed if the instmment or caveat is (

a) sealed with the corporate seal of the corporation and countersigned by at least 1 officer of the corporation, or (

b) executed by at least 1 officer of the corporation who (

i) has his signature attested to under

section 151 or 152, and (ii) verifies by affidavit in the prescribed form his author ity to execute the instmment or caveat.

(40) Section 157 is amended (

a) in subsection (1) by striking out "and by investing the money together with all interest and profits accmed thereon from time to time in securities approved of by the Lieutenant Governor in Council"; (

b) by repealing subsection (2) and substituting the following:

(2) The assurance fund may be invested in (

a) securities or obhgations ofthe Govemment of Alberta, 14

(

b) if made in Great Britain or Northern Ireland, before a judge ofthe Supreme Court of Judicature in England or Northern Ireland, or of the Court of Session or ofthe Judiciary Court in Scotland, or a judge of any ofthe county courts within his county, or the mayor of a city or incorporated town, under the common seal ofthe city or town, or before any commissioner in Great Britain or Northern Ireland, au thorized to take affidavits therein, for use in any court of record in Alberta, or a notary public under his official seal; (

c) if made in any British Dominion, colony or possession out of Can ada, before a judge of any court of record, the mayor of a city or incorporated town under the common seal of the city or town, or a notary public under his official seal; (

d) if made in any foreign country, before the mayor of any city or incorporated town, under the common seal of the city or town, or before the Canadian or British consul, vice-consul or consular agent residing therein or before a judge of any court of record or a notary public under his official seal.

(2) Repealed 1983 c46 s2.

(38) Persons ineligible to act as witnesses or to administer oaths.

(39) Section 152.3 presently reads: 152.3 Any document executed by a corporation, notwithstanding any thing to the contrary in the Act, statute, charter or memorandum and articles ojf association incorporating the corporation, shaUfor the purposes of this Act be deemed to be sufficiently executed if it is sealed with the corporate seal ofthe corporation and countersigned by at least one officer ofthe corporation.

(40) Section 157 presently reads: 157(1) The assurance fund herein provided for shad be formed by the Provincial Treasurer from the money paid to and received by him for that purpose by and from the Registrars as hereinbefore provided and by in vesting the money together with aU interest and profits accrued thereon from time to time in securities approved of by the Lieutenant Governor in Council

(2) Notwithstanding subsection (1), the assurance fund may be invested in securities or obligations ofthe Government of Alberta. 14 Explanatory Notes

(

b) the Consolidated Cash Investment Tmst Fund estab lished under the Financial Administration Act, or (

c) any document evidencing an interest in a debt obli gation if the payment of the debt and interest is msured under a policy of insurance issued by a company regis tered under the Canadian and British Insurance Compa nies Act (Canada).

(2.1) Any income eamed from investments made under diis

section accmes to the General Revenue Fund.

(41) Section 165 is repealed arui the foUowing is substituted: 165(1) The Provincial Treasurer shaU pay the amount of any (

a) judgment recovered against the Registrar, or (

b) claim directed to be paid pursuant to

section 170, as the case may be, out of (

c) the assurance fund, and (

d) to the extent that the assurance fund is insufficient to pay the judgment or claim, out of the General Revenue Fund.

(2) Notwithstanding subsection (1), no judgment or claim shall be paid out ofthe General Revenue Fund in respect of any amount that exceeds an amount equal to $31 000 000 plus the amounts paid into the assurance fund after March 31, 1983, less the amoimts paid out ofthe assurance fund and the General Revenue Fund, if any, pursuant to claims under this Act after March 31, 1983.

(42) Section 170(1) is repealed and the following is substituted: 170(1) If a claim is or might be the subject of an action for damages against the Registrar as a nominal defendant under this Act or the Dower Act, (

a) the Attomey General, in the case of a claim for $5000 or less, may direct the payment of the claim together with a reasonable sum for costs incurred in the making ofthe claim, and (

b) the Lieutenant Govemor in CouncU, in the case of a claim for more than $5000, may, on the recommendation of the Attomey General, direct the payment of the claim together with a reasonable sum for costs incurred in the making ofthe claim.

(43) Section 171(

d) is repealed and the following is substituted: (

d) by reason of the improper execution of an instmment on behalf of a corporation or the want of capacity in a corporation to deal with the estate or interest involved or to execute or take the benefit ofthe instmment registered. 15

(3) When the assurance fund reaches the sum of $75 000 any sum in excess of that amount may by direction ofthe Lieutenant Governor in Council, from time to time be transferred to and form part ofthe General Revenue Fund.

(41) Section 165 presendy reads: 765 The Provincial Treasurer shad pay the amount of any judgment re covered against the Registrar out ofthe assurance fund provided by this Act.

(42) Section 170(1) presently reads: 170(1) If the Attorney General is satisfied that a claim that is or might be the subject of an action for damages against the Registrar as a nominal defendant under this Act or the Dower Act is wed founded, (

a) in the case of a claim for $5000 or less, the Attorney General may direct the payment of the claim together with a reasonable sum for costs incurred in the making ofthe claim, and (

b) in the case of a claim for more than $5000, the Lieutenant Gov ernor in Council, on the recommendation of the Attorney General, may direct the payment ofthe claim together with a reasonable sum for costs incurred in the making ofthe claim.

(43) Section 171(

d) presently reads: 171 The assurance fund is not under any circumstances liable for com pensation for loss, damage or deprivation (

d) by reason ofthe improper use ofthe seal of a corporation or the want of capacity in a corporation to deal with the estate or interest involved or to execute or take the benefit ofthe instrument registered. 15 Explanatory Notes

(d.

l) by reason ofthe registration of an instmment where there is a material difference, within the meaning of

section 24(3), be tween the name of a person described in that instmment and the name of a person described in an instmment registered in the general register, or

(44) Section 175(

d) is amended by striking out "day book," and sub stituting "daily record".

(45) The following is added after

section 202: 202.1 Any person who knowingly makes a false statement in (

a) an instmment or a caveat, or (

b) a written representation prepared in respect of (

i) an instmment or a caveat, or (ii) a submission to the Registrar to enter a memorandum on a certificate of title, is guilty of an offence and subject to a fine of not more than $10 000 or to imprisonment for a term of not more than 6 months or to both a fine and imprisonment. Land Titles Amendment Act, 1982 2(1) The Land Titles Amendment Act, 1982 is amended by this sec tion.

(2) Section 11 is repealed. 16

(44) Section 175(

d) presently reads: 175 If a question arises with regard to the performance of any duty or the exercise of any function by this Act conferred or imposed on a Registrar or if in the exercise of any duty of a Registrar a question arises (

d) as to the mode in which any entry or memoraruium ought to be made in the day book, or register or on any certificate of title or duplicate thereof, or

(45) False statements. Land Titles Amendment Act, 1982 2(1) This

section will amend

chapter 23 ofthe Statutes of Alberta, 1982.

(2) Section 11 ofthe Land Titles Amendment Act, 1982 presently reads: 11 The following is added after

section 92: 92.1(1) Where a parcel of land has a water boundary and the water boundary has changed, the registered owner of the parcel may apply to the Registrar to have the description ofthe parcel amended to in clude accreted land.

(2) An application uruier subsection (1) shaU be accompanied by (

a) a certificate from the Minister charged with the administra tion ofthe Public Lands Act or a person authorized by him certi fying that the Crown does not claim ownership of the accreted land, (

b) a plan of survey or other evidence satisfactory to the Registrar showing the present boundary ofthe accreted land, and (

c) the consent ofthe registered owners of other parcels that may be adversely affected by the amendment ofthe description. 16 Explanatory Notes

Law of Property Act 3(1) The Law of Property Act is amended by this section.

(2) The title of

Part 1 is amended by striking out "OF LAND".

(3) The following is added after

section 8: 8.1 Subject to

Part 3, when 2 or more persons hold any land or any mortgage, encumbrance or lease in joint tenancy, other than as executors, administrators or tmstees, those joint tenants are, after this

section comes into force, incapable of severing that joint tenancy unless (

a) the document under which the severance is to take place is executed by aU the joint tenants, or (

b) aU the joint tenants, other than those executing the doc ument under which the severance is to take place, give their written consent to the severance. 8.2 When 2 or more persons hold any land, mortgage, encumbr ance or lease (

a) as joint tenants, those persons may transfer that land, mortgage, encumbrance or lease to themselves as tenants in common, or (

b) as tenants in common, those persons may transfer that land, mortgage, encumbrance or lease to themselves as joint tenants.

(4) The following is added after

section 59: 59.1(1) The following are equitable interests in land: (

a) a right of first refusal to acquire an interest in land; (

b) an assignment of rents payable pursuant to a lease of land.

(2) When (

a) an assignment of rents payable pursuant to a lease of land is made, (

b) a tenant is served with written notice of the assignment of rents, and (

c) pursuant to that notice the tenant in good faith pays his rent to the assignee or a person on his behalf, that payment discharges the tenant from any further obligation with respect to that portion of the rent for which the payment was made. In accordance with

section 4(1) ofthe

Interpretation Act, this BiU comes into force on the date d receives Royal Assent. 17

Law of Property Act 3(1) This

section will amend

chapter L-8 ofthe Revised Statutes of Alberta 1980.

(2) The title of

Part 1 presently reads: TRANSFER AND DESCENT OF LAND

(3) Section 8.1 provides for the severance of a joint tenancy.

Section 8,2 allows persons to transfer to themselves as joint tenants or tenants in com mon.

(4) Right of first refusal and assignment of rents are equitable interests in land. 17 Explanatory Notes Title: 1984 (20th, 2nd) Bill 89, Real Property Statutes Amendment Act, 1984

Document details

Collection	Alberta — Bills
Citation	L20 S2 3558
Type	bill
Volume / chapter	L20 S2 3558
Language	en
Format	json
Source	PROVINCIAL
Identifier	f4f5f0bc0d46eacd1803eff477b89bfd47503f11

Source file is stored in the law ingest library (json).