When auditing an AFR, some of the transaction types or issues reviewed include statutory declarations enabling a registered interest, statutory declaration as the enabling instrument, property access types (properties with access shown as ‘private – prescription’ and properties with access shown as ‘private – openly used and enjoyed), root of title with a date and range of less than 40 years and statements regarding title insurance.
During year one of the program, AFRs on 54 different PIDs were audited and mistakes were found on 21 PIDs (39%). There were instances where one PID contained several mistakes which required correcting.
When relying upon the Limitations of Actions Act to certify title, the Statutory Declarations must be identified as the enabling instruments and must contain sufficient quality of evidence purporting to establish possessory title.
Practice Standard 3.2 on Possessory Title states that:
- A lawyer may certify title established by possession in accordance with legislation, common law and equity.
- A lawyer must document sufficient actual facts evidencing possession that will meet all the tests set by the courts for establishing possession sufficient to extinguish the interest of the paper title holder. 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 possession and address the extent of the area of land possessed. In determining whether the standard of proof of possessory title 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 established by possession, a lawyer must consider the effect of the Land Registration Act with respect to possessory interests and lasting improvements 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.
The lawyer should understand what is required to meet the threshold of sufficient quality of evidence and register appropriately worded Statutory Declarations.