A lawyer may certify title to interests acquired by prescription in accordance with legislation, common law and equity.

A lawyer must document sufficient actual facts evidencing prescriptive rights that will meet all the tests of establishing prescription. The documentation to be obtained and filed by the lawyer must contain the best possible and reasonably attainable evidence. The evidence should include affidavits or statutory declarations of knowledgeable and impartial persons, such as surveyors and neighbouring property owners, which should provide facts evidencing prescription and address the extent of the prescriptive rights. In determining whether the standard of proof of prescriptive rights has been met, a lawyer must consider the quantity and quality of the evidence as a whole and exercise professional judgment accordingly.

When preparing an opinion of title to certify title to interests acquired by prescription, a lawyer must consider the effect of the Land Registration Act with respect to prescriptive rights 1 and advise the client accordingly.

When qualifying an opinion of title to a client with respect to an interest that may be lost by the operation of the Land Registration Act, a lawyer must explain the qualifications to the client and confirm the client’s instruction prior to closing. 2


1. Land Registration Act, S.N.S. 2001 c. 6, ss. 73 75. See also Limitation of Actions Act, R.S.N.S. 1989, c. 258; Vendors and Purchasers Act, R.S.N.S. 1989, c. 487; Marketable Titles Act, S.N.S. 1995 96, c. 9, s. 7; Federal Real Property and Federal Immovables Act, S.C. 1991, c. 50, ss. 13-14.

2. Standard 1.5 – Documentation of Advice and Instruction

Additional Resources

Amended by Council on September 25, 2009