2.6 Tidal Waters/Non-Tidal Waters

Standard

A lawyer must explain to the client the limits of a parcel boundary located beneath or adjacent to water.

Where a parcel is bounded by water, the lawyer should include in the explanation of the limits of the parcel that there is an increased risk that all, or a portion, of the parcel is “infill”. The lawyer should explain to the client how title to infilled areas may be acquired and the risk of losing the opportunity to acquire title pursuant to the provisions of the Land Registration Act.¹

The lawyer must confirm the explanation of the limitations to the client. The lawyer must confirm the client’s instructions prior to closing.²

Footnotes

1. Land Registration Act, S.N.S. 2001, c. 6, ss 74-75
2. Standard 1.5: Documentation of Advice and Instruction

Additional Resources

• Caselaw on Qualifications: Ravina and A & R Properties Ltd. v. Stern (1987), 1987 Carswell NS 348, 77 N.S.R. (2d) 406, 191 A.P.R. 406 (C.A.)
• Caselaw on riparian rights: Corkum v. Nash, 1990 CanLII 4127 (NS SC); See also “Water Law in Canada – The Atlantic Provinces” (Ottawa: Queens Printer, 1973) by Gerald V. LaForest
• K.H.A. Robinson, “Alteration of a Water Course” in Real Estate (C.L.E.S.N.S., April 1994)
• Caselaw on adverse possession of water lot: Nickerson v. Canada (Attorney General), 2000, NSSC 9 (CanLII)
• Chapman, Anthony L. / Of Wharves, Water Lots and Kings – Paper and Schedule (2005)
• Gordon KC, Garth C. / Water Lots, Watercourses & Wetlands (Nova Scotia): an Aide Memoire for Reviewing Title and Uses (June 2010)
• Definition of watercourse and vesting of watercourses: Environment Act, S.N.S. 1994-95, c. 1, ss. 3(be), 103
• Acquisition of an interest in a water lot, wharf, watercourse or infill by adverse possession or prescription: Environment Act, S.N.S. 1994-95, c. 1, s. 108(2). See also Federal Real Property and Federal Immovables Act, S.C. 1991, c. 50, s.14, Crown Lands Act, R.S.N.S. 1989, c. 114, ss. 39(1), 51(1)(k), Real Property Limitations Act, R.S.N.S. 1989, c. 258, ss. 21-22, and Land Registration Act, S.N.S. 2001, c.6, ss.74-75.
• Acquisition of interest by grant, release, easement, licence or lease from Crown: Federal Real Property and Federal Immovables Act, S.C. 1991, c. 50, s.4, Fishing and Recreational Harbours Act, R.S.C. 1985, c. F-24, Crown Lands Act, R.S.N.S. 1989, c. 114, s. 51, Beaches and Foreshores Act, R.S.N.S. 1989, c. 33, s. 2
• Determination of beach area: Beaches Act, RSNS 1989, c 32, s. 5(1)
• Approval, permit or licence requirements for development or activities: Environment Act, S.N.S. 1994-95, c. 1 and its Regulations; Canadian Navigable Waters Act, R.S.C. 1985, c. N-22; Fisheries Act,
  R.S.C. 1985, c. F-14 and its Regulation entitled Maritime Provinces Fishery Regulations (SOR/93-55); Fisheries and Coastal Resources Act, S.N.S. 1996, c. 25; Fishing Regulations made under the Wildlife Act, R.S.N.S. 1989, c. 504; Angling Act, RS.N.S. 1989, c. 14.

Practice Notes

It is advisable for a lawyer to recommend a survey to the client to determine the boundaries of the client’s parcel of land abutting tidal or non-tidal waters or to suggest the client obtains title insurance coverage, and to document such recommendations. See Ravina and A & R Properties Ltd. V. Stern (1987), 1987 Carswell NS 348, 77 N.S.R. (2d) 406, 191 A.P.R. 406 (C.A.). See also Standard 2.4: Plans and Surveys.

When searching title to a wharf, water lot, foreshore, watercourse or land no longer covered by water claimed by a client, careful consideration is to be taken by a lawyer in providing their opinion for the purpose of registration of the title pursuant to section 37(9)(b) of the Land Registration Act, including and not limited to the location, description and nature of the interest, its ownership in 1867, its conveyances and any evidence of adverse possession. It is more likely that the federal and or provincial Crowns have jurisdiction over these interests and have legislative protective provisions for its usage. See Gordon KC, Garth C. / Water Lots, Watercourses & Wetlands (Nova Scotia): an Aide Memoire for Reviewing Title and Uses (June 2010). See also Practice Tools below.

Practice Tools

Checklist for Water Lots, Wharves, Infills and Waterfront Lots

Approved by Council on November 22, 2002; revised March 21, 2025.