A lawyer who prepares an opinion of title must confirm the nature of the access, if any, to the parcel and whether the access is public or private.1
If the lawyer determines the access to be private, the lawyer must determine whether the access has been granted.
If the lawyer determines the access to be private and granted, the lawyer must ensure that there is marketable title for the grant of easement to the parcel.2 If access is referenced for the whole of the marketable title time frame, the grant may be presumed.
If the lawyer determines the access to be private and not granted, the lawyer must be satisfied that there is authority for its continued use in conjunction with the parcel.3 Authority for continued use must be based on a factual foundation as documented on record.
A lawyer should consider the implications of the legal description of a servient parcel that does not reference a private access to which it is subject.
A lawyer should examine plans arising from the search and survey information affecting the parcel to ascertain whether the access granted and the actual travelled way correlate, and advise the client with regard to any material discrepancies.
A lawyer must explain to the client any limitation associated with a private right of way access and confirm the client’s instructions prior to closing. 4
- Land Registration Act, S.N.S. 2001, c. 6, s. 37(4)(b) and (c), Public Access: Public Highways Act, R.S.N.S. 1989, c. 371
- Standard 3.1 – General Principles of Title Review
- Standards 3.2 – Possessory Title, Standard 3.3 – Prescriptive Rights and Herman v. Whynot (1976), 21 N.S.R. (2d) 201 (N.S.S.C.T.D.) for authority for easements dedicated to public use
- Standard 1.5 – Documentation of Advice and Instruction
Gordon, Garth C / Access – red flag issues under LRA
MacLean, Ian H / Title searching land registered parcels (April 2016)
Amended by Council on November 24, 2006