A lawyer may only certify title to (and therefore migrate under the Land Registration Act1) a parcel which has a chain of title in which each conveyance either complies with, is exempted by or is validated by subdivision legislation. A conveyance of a parcel which does not comply with, is not exempted by, or is not validated by, subdivision legislation is ineffective.2
In order to determine that a parcel complies with subdivision legislation, the lawyer must find:
- an approved plan of subdivision3 or instrument of subdivision4 is filed in the Registry Of Deeds/Land Registration Office5; or
- Satisfactory evidence of a de facto consolidation has been registered.6
A lawyer who is preparing the documents to subdivide land based on an exemption7 after May 11, 20158 must ensure that the documents effecting the subdivision:
- state an intention to create a subdivision;
- specify the particular exemption;
- set out the facts upon which the exemption is based;
- evidence the consent of the owner or other person entitled to subdivide; and
- be registered.9
In order to determine that a parcel has been validated by subdivision legislation, the lawyer must find:
- the title or interest in the real property conveyed, or purported to have been conveyed, was created by deed, lease, mortgage or other instrument before April 16, 198710; or
- the subdivision is validated by the Registrar General.11
De Facto Consolidation
A lawyer who relies on a de facto consolidation in order to certify subdivision legislation compliance must ensure that the statutory requirements for de facto consolidation are met.
In order to effect a de facto consolidation a lawyer must first ensure that the parcels which are to be consolidated are contiguous and migrated.12 The lawyer must then record a statutory declaration or declarations which must comply with evidentiary requirements13 on a balance of probabilities14 which attests or attest to all of the following:
- that the lots have been and remain in common ownership since April 15, 1987;
- that the lots have been used together since April 15, 1987; and
- the facts that support the statements in the declaration.
Following subdivision of a migrated parcel, before any request is made to change the registered owner, the lawyer representing the registered owner who effected the subdivision must file:
- a Form 45 for each resulting parcel, adding, confirming, deleting or correcting any interests, textual qualifications and parcel access type in the parcel registers, and
- corresponding amendments to the parcel description.15
A lawyer who amends a parcel description after a subdivision in which any interests are inherited by any part of the new parcel should do so in such a way as to indicate the part of the parcel to which the interest attaches unless this is otherwise clear in the parcel register.16
Intervening Parcel, Road, Watercourse
One legal description may upon investigation contain multiple parcels of land separated from each other on the ground by any one or more of an intervening parcel, a public road17, a railway18 or a watercourse which creates a natural boundary.19 In such cases the original land has been legally subdivided.20
It is common for non-LR parcels on opposite sides of a road, railway or river assessed to common owners to be mapped as single PID even though they are separate parcels subdivided by the road, river or railway. When migrating such a parcel, the migrating lawyer must file a Form 1 request for PID Assignment in order to obtain separate PIDs for each parcel.
While the lawyer for the registered owner selling the property is usually responsible for updating inherited interests in a newly subdivided lot, the lawyer representing the buyer must update the parcel register with any new interests created by the deed registered immediately after subdivision. Having said that, the lawyer for the registered owner who created the subdivision, should consider whether it might be better to register the benefits or burdens and restrictive covenants which will affect the entire subdivision immediately after the subdivision and before any lots are conveyed. Easements and restrictive covenants can be entered into parcel registers by the registered owner granting an easement to itself or imposing restrictive covenants on itself prior to any sale. It is preferable in many cases for the developer to undertake these tasks in order to preserve consistency from parcel to parcel within a subdivision and to ensure accuracy as the seller developer’s counsel generally will have greater knowledge of the interests intended to be created than the buyer’s counsel.
De Facto Consolidations
Although the legislation specifies a single statutory declaration, multiple declarations may be required to prove the facts required in a de facto consolidation see, e.g., Polycorp, para159-160.
A parcel must be migrated in order to be approved for subdivision21 unless the subdivision:
- creates fewer than three lots, including any remainder;
- is for the sole purpose of creating lots to be gifted to family;22
- is a consolidation of exclusively non-LR parcels;23 or
- is exempt from subdivision approval.24
There is authority to support the proposition that a parcel may be created by adverse possession without compliance with subdivision regulation, especially in cases where such parcels are evidenced by documentation which is registered before April 16, 1987.1 This would appear to be well settled in Ontario.2 Nova Scotia jurisprudence has not confirmed whether the legislation is to be interpreted the same way in this province. Lawyers should exercise professional judgment in certifying parcels which are created by adverse possession, and which are not otherwise in compliance with, exempted by or validated by subdivision legislation.
2Municipal Government Act, S.N.S. 1998, c.18, s.287. Note throughout this standard Part IX of the Halifax Regional Municipality Charter, S.N.S. 2008 applies in that municipality. See also Toulany v. Abboud, 174 N.S.R. (2d) 347 (S.C.), Canadian Imperial Bank of Commerce v. Hi-Tech Woodworkers Ltd. (sub nom. Bedford Ready-Mix Ltd. V. Canadian Imperial Bank of Commerce) (1992, 118 N.S.R. (2d) 73 (C.A.). Note also that “subdivision” includes consolidation: Municipal Government Act, s.191(q).
3An approved plan of subdivision approves the remainder parcel as well as those specifically subdivided. Municipal Government Act, s.281A deems any underlying subdivision lots to have been consolidated. Lawyers are cautioned that, although complying with subdivision legislation, remainder lots are usually not certified in the survey plans depicting them, and clients should be particularly cautioned that the lawyer’s opinion will be subject to survey.
4Municipal Government Act, s.269.
6Municipal Government Act, s.268A. See below for quality of evidence required.
7Municipal Government Act, s.268(2); Nova Scotia Power Privatization Act, S.N.S. 1992, c.8, s.22(2); Agriculture and Rural Credit Act, R.S.N.S. 1989, c.7. Planning Act, R.S.N.S. 1989, c.346, s.102 (2)(1) permitted minimum 25-acre parcels without subdivision approval between 1983 and April 1,1999, expressly requiring an affidavit. These are examples and other exemptions also apply.
8Municipal Government Act (Amended), S.N.S. 2015, c.23.
9Municipal Government Act, s.268(3).
10Municipal Government Act, s.291(1).
11Municipal Government Act, s.268C
13Including, eg., Nova Scotia Civil Procedure Rule 39.04(2)(b), that any evidence not within the witness’s personal knowledge be supported by evidence of the source and belief in the truth of the information. See also Waverly (Village) v. Nova Scotia (Acting Minister of Municipal Affairs), 126 N.S.R. (2d) 147 (S.C.).
14Polycorp Properties Inc. v. Halifax (Regional Municipality), 2011 NSSC 241, esp. para.155-156
17Public Highways Act , R.S.N.S. 1989, c. 371, esp. s.11(2).
18Various statutes vest title in some railroads. See, e.g., Garth C. Gordon KC, “Access – Red Flag Issues under LRA”, (revised March 2, 2007), Part 13, various exceptions applying.
19Environment Act, S.N.S. 1994-5, c.1, s.103 & Municipal Government Act, s. 268B. See also Ian H. MacLean KC, “De Facto Refresher: Update After Bill 75”, presented to the Real Estate Lawyers’ Association of Nova Scotia on December 8, 2015.
20But see Municipal Government Act, s.268B(2), which may mean the parcel is not legally subdivided if it has been migrated as one parcel.
21Land Registration Act , s.23.
22Land Registration Act, s.46(1)(b).
23Land Registration Act, s.46(3)(ae).
24See footnote 7 (above).
26 Re Turner and Turner Funeral Home Ltd .,  2 O.R. 851, 27 D.L.R. (3d) 30; Re Duthie and Wall (1979), 24 O.R. (2d) 49 (H.C.); MacMain v. Hurontario Mgmt Services Ltd (1980), 14 R.P.R. 158.
Approved by Council on January 20, 2017. Standard reviewed by Committee on December 11, 2019. No changes required.