A lawyer may certify title to interests acquired by prescription in accordance with legislation, common law and equity.
A lawyer must document sufficient actual facts evidencing prescriptive rights that will meet all the tests of establishing prescription. 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 prescription and address the extent of the prescriptive rights. In determining whether the standard of proof of prescriptive rights 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 to interests acquired by prescription, a lawyer must consider the effect of the Land Registration Act with respect to prescriptive rights 1 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. 2
1. Land Registration Act, S.N.S. 2001 c. 6, ss. 73 75. See also Limitation of Actions Act, R.S.N.S. 1989, c. 258; Vendors and Purchasers Act, R.S.N.S. 1989, c. 487; Marketable Titles Act, S.N.S. 1995 96, c. 9, s. 7; Federal Real Property and Federal Immovables Act, S.C. 1991, c. 50, ss. 13-14.
- Nature of use: Gilfoy v. Westhaver, 1989 CanLII 1494, 92 N.S.R. (2d) 425 (S.C. (T.D.)) at para. 31, Tidman J.: “open, continuous, unobstructed, and without permission of the landowner” and Publicover v. Publicover, 1991 CanLII 4464, 101 N.S.R. (2d) 75 (S.C. (T.D.)), Roscoe J.; Permission: Bellefontaine v. Ivany Apartment Co. Ltd., 1974 CanLII 48, 19 N.S.R. (2d) 581 (S.C. (T.D.)), Cowan C.J.T.D.; Lost modern grant: Langille v. Tanner, 1973 CanLII 62, 14 N.S.R. (2d) 311 (S.C. (T.D.)), Hart J.; Successive users: McLean v. McRae (1917), 50 N.S.R. 536, 1917 CarswellNS 16 (WC)(S.C.); Nature of prescriptive right: Moore v. Ritchie et al. (1900), 33 N.S.R. 216, 1900 CarswellNS 28 (WC)(S.C.)
- C.W. MacIntosh, Nova Scotia Real Property Practice Manual, looseleaf (Toronto: Butterworths, 1988) c. 7
- A.G.H. Fordham, “Easements, Licenses and Rights of Way” in Real Property, C.L.E.S.N.S. (April 1987)
- 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