In preparing an opinion of title, a lawyer must advise the client that any opinion provided to the client will be qualified as being subject to survey.1
A lawyer must advise the client that the lawyer does not deal with ‘extent’ and that boundary and location are only ascertained through a survey and recommend that the client retain the services of a surveyor to determine the extent of title to the parcel being examined.
A lawyer must confirm the qualification of the opinion as subject to survey prior to closing. The lawyer must confirm the client’s instructions prior to closing.2
Before finalizing an opinion of title, a lawyer must examine plans arising from the search and survey information affecting the parcel. A lawyer should identify and reconcile where possible any material discrepancies between the legal description for the parcel or any information contained in the abstract, and survey information.3
After preparing an opinion of title, a lawyer should advise the client of material discrepancies between plans arising from the search and survey information affecting the parcel.
A lawyer should explain to their client the difference between obtaining an up to date survey or location certificate and obtaining a title insurance policy.4
- Opinions subject to survey: Ravina and A & R Properties Ltd. v. Stern (1987), 77 N.S.R. (2d) 406, per Clarke C.J.N.S. (N.S.S.C.A.D.)
- Standard 1.5: Documentation of Advice and Instruction
- Advice about survey matters: Marwood v. Charter Credit Corp. (1971), 2 N.S.R. (2d) 743, per Coffin J.A. (N.S.S.C.A.D.)
- See Standard 5.5: Title Insurance
- Parcel descriptions: Land Registration Act, S.N.S. 2001, c. 6, s. 21(1)
- MacLean, Ian H / Title searching land registered parcels (April 2016)
It is good practice to provide a copy of any survey or plan material showing the approved lot to the client for review, particularly if the approved plan is an instrument of subdivision, as instruments of subdivision are not usually drawn to the same standard as survey plans. A client who is familiar with the land may identify a problem which the lawyer would not have the knowledge to recognize.
Revised by Council on September 25, 2020