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 1. 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 improvements2 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.3
1. Evidence of knowledgeable and disinterested persons: Hebb v. Woods, 1996 CanLII 5480, 150 N.S.R. (2d) 16 (S.C.) at para. 12: “’The declarations or affidavits to prove possession should not be confined to general statements that the trespasser has been “in possession” or “occupation.” There ought to be evidence of the actual facts which are relied upon as constituting the possession or occupation under the Statute. Thus the person in possession should show whether the land has been fenced and whether that is what is relied upon; whether it has been resided on, and if so, whether continuously or at intervals; whether it has been cultivated, and how – whether by continuous occupation or by taking crops off and leaving the land vacant between visits. In all cases the purchaser should be put in possession of the actual facts, so that he may exercise his judgment upon their effect, instead of stating the effect, leaving him in ignorance of the facts upon which the vendor relies.”
2. Land Registration Act, S.N.S. 2001 c. 6, ss. 73-76. See also Limitations of Actions Act, R.S.N.S. 1989, c. 258, Quieting Titles Act, R.S.N.S. 1989, c. 382, Public Highways Act, R.S.N.S. 1989, c. 371, Municipal Government Act, S.N.S. 1998, c. 18, s. 308(4), Vendors and Purchasers Act, R.S.N.S. 1989 c. 487, Federal Real Property and Federal Immovables Act, S.C. 1991, c. 50, ss. 13-14, Marketable title: Parsons v. Smith, 1971 CanLII 49, 3 N.S.R. (2d) 561 (S.C. (T.D.)), Hart J.
- Marketable title: Parsons v. Smith, 1971 CanLII 49, 3 N.S.R. (2d) 561 (S.C. (T.D.)); declarations: Hebb v. Woods, 1996 CanLII 5480, 150 N.S.R. (2d) 16 (S.C.), Carver J.; exclusivity: Robertson v. McCarron, 1985 CanLII 192, 71 N.S.R. (2d) 34 (S.C. (T.D.)), Hallett J.; O’Neil v. MacAulay, 1976 CanLII 63, 21 N.S.R. (2d) 210 (S.C.), and Spicer v. Bowater Mersey Paper Co., 2004 NSCA 39 (CanLII), 222 N.S.R. (2d) 103; commencement: Keohane v. McNaulty, 1989 CanLII 1493, 92 N.S.R. (2d) 261 (S.C. (T.D.)); continuity: Taylor v. Willigar, 1979 CanLII 88, 32 N.S.R. (2d) 11 (S.C. (A.D.)), Cooper J.A.; co tenant: Lynch v. Nova Scotia (Attorney General), 1985 CanLII 191, (sub nom. Lynch et al. v. Lynch et al.) 71 N.S.R. (2d) 69 (S.C. (T.D.)), Hallett J.; nature of possession: Gillis v. Gillis, 1979 CanLII 87, 32 N.S.R. (2d) 40 (S.C. (A.D.)), MacDonald J.A.; acts of possession: Keohane v. McNaulty, 1989 CanLII 1493, 92 N.S.R. (2d) 261 (S.C. (T.D.)); colour of right: Wood v. LeBlanc (1904), 34 S.C.R. 627, 1904 CarswellNB 58 (WC), Davies J., and Board of Trustees of Common Lands v. Tanner, 2005 NSSC 245 (CanLII), 236 N.S.R. (2d) 295; tenancy at will: MacLean v. Reid, 1978 CanLII 72, 30 N.S.R. (2d) 499 (S.C. (A.D.)), MacDonald J.A.; mutual mistake: Gould v. Edmonds, 2001 NSCA 184 (CanLII), 203 N.S.R. (2d) 163, Freeman J.A.
- C.W. MacIntosh, Nova Scotia Real Property Practice Manual, looseleaf (Toronto: Butterworths, 1988) c. 7
- Acquisition of an interest in a watercourse by adverse possession or prescription: Environment Act, S.N.S. 1994-95, c. 1, s. 108; Land Registration Act,S.N.S. 2001, c. 6, s. 103(3)
- C. S. Walker KC, “Adverse possession and prescriptive rights old doctrines in a new environment” in Real Property Conference: Property Practice in New Environments: The Ground is Shifting: Creating a Strong Foundation for Your Practice (February 2003)
- J. A. Keith, “Adverse Possession – Pulling Out All the Stops” in Real Property Conference: Crown Interests and Due Diligence Under LRA: “The Sophomore Year” (February 2006)
- G. C. Gordon KC, “Access – red flag issues under LRA ” in Real Property Conference: Year III: the Junior Year: Best Practices: Topics, Tools & Methods (March 2007)
- G. C. Gordon KC, “Affidavit templates & comments for documenting possessory interests” in Real Property Conference: Crown Interests And Due Diligence Under LRA: “The Sophomore Year” (February 2006)
- Nova Scotia (Attorney General) v. Brill, 2010 NSCA 69
Amended by Council on September 25, 2009