Nova Scotia

Contributing Editor: Maureen Foley Ryan
Updated: April 2017

Law

Question 1: Under which legislation is the registration system governed?

Answer:

Land Registration Act, 2001,c.6 and Registry Act, R.S., c. 392

Comments:

Where a land parcel is registered pursuant to the Land Registration Act, the Registry Act ceases to apply to the parcel except with respect to the interpretation of any document recorded pursuant to that Act.

Possessory Title

Question 2: Can title to property be obtained by adverse possession over a period of time?

Answer:

Yes, if the required period of adverse possession or prescription was completed before the parcel was first registered under the Land Registration Act.

Real Property Limitations Act, generally 20 years.

Comments:

However, any interest in a parcel acquired by adverse possession or prescription before the date the parcel is first registered pursuant to the Land Registration Act is absolutely void against the registered owner of the parcel in which the interest is claimed ten years after the parcel is first registered pursuant to the Land Registration Act, unless:

  1. an order of the court confirming the interest;
  2. a certificate of lis pendens certifying that an action has been commenced to confirm the interest;
  3. an affidavit confirming that the interest has been claimed pursuant to Section 37 of the Crown Lands Act; or
  4. the agreement of the registered owner confirming the interest, has been registered or recorded before that time.

Title Search Period

Question 3: What is the title search period?

Answer:

40 years

But, the 40 year search period  does not apply to tax deeds, land in respect of which a certificate of title has been issued under the Quieting Titles Act; land registered under the Land Titles Clarification Act or the Land Titles Act; or any interest in land that a registered owner may no longer recover by reason of the Real Property Limitation Act, and an adverse interest acknowledged or specifically referred to in the description of land in a deed forming part of the chain of title to the land.

Comments:

Marketable Titles Act, 1995-96, c. 9:

s.4 (1) A person has a marketable title at common law or equity or otherwise to an interest in land if that person has a good and sufficient chain of title during a period greater than forty years immediately preceding the date the marketability is to be determined.

(2) A chain of title commences with the registered instrument, other than a will, that conveys or purports to convey that interest in the land and is dated most recently before the forty years immediately preceding the date the marketability is to be determined.

Exceptions to the Marketable Title Act include:

  1. any interest in land created or preserved by a statute;
  2. the interest of a municipal government in a public street, road, highway or road reserve;
  3. a right of way or easement in favour of a public utility or a municipal government;
  4. mineral rights; or (e) an easement or right of way that is being used and enjoyed.

Agreement of Purchase and Sale (APS)

Question 4: Is there a standard APS used for most transactions or is it tailored for each property?  Who generally prepares the agreement?

Answer:

Yes, standard forms APS are prepared by real estate agents and used in most transactions.

In private sales lawyers usually draft the APS.

Comments:

For residential, vacant lots and some commercial transactions, there are Canadian Real Estate Association (CREA) standard form contracts that are only available through a realtor. Agreements are drafted by the realtor and contain a standard clause making them subject to the review and approval of the parties’ lawyers.

In transactions for the sale of commercial property, lawyers often draft the agreements of purchase and sale.

Access to Registry

Question 5: How is a search of title conducted?  How is registration completed?

Answer:

Online. Registrations of most documents are done by e-submission while others require paper filing.

Comments:

Title searches are conducted electronically through the Nova Scotia Property Online computerized system accessible by subscription.

Most documents are scanned and submitted electronically except for a few documents which must be done manually.

With the electronic filing, lawyers and other permitted users keep the originals until they have been registered and may then give the originals to their client, the bank etc.

When documents are paper filed, the originals are scanned into the computer system by the staff at the Land Registration Office and then returned to the lawyer.

Surveys

Question 6: How are surveys part of the transaction?

Answer:

Surveys are optional.

Title insurance is more affordable and more popular although it does not provide any boundary definition or monument location information. Title insurance is popular because it covers other risks not covered by a survey such as tax status, encroachments, locations of wells, etc.

Comments:

Real property practice standards dictate that lawyers should advise purchasers to obtain a current survey (or at least a location certificate) or title insurance prior to the purchase.

Surveys and location certificates are prepared by Nova Scotia Land Surveyors. The survey provides the boundary definition. In a location certificate, the surveyor certifies the location of the buildings within the apparent lot lines but does not certify the boundary lines. 

Lawyers certify title subject to survey.

Property

Question 7: How can property be held?

Answer:

  • Fee simple
  • In Trust
  • A Trustee
  • A life estate
  • Remainder interests
  • An interest of Her Majesty
  • An interest arising from a legislative enactment

Comments:

Title may be held individually, as joint tenants (with right of survivorship), as tenants in common, or as a mixture of joint tenants and tenants in common.

Registration

Question 8: What is the registration process?

Answer:

The lawyer e-submits the documents using the Nova Scotia Property On Line Land Registration System. The recording fees ($100 per document) and deed transfer tax (if applicable) are electronically deducted from the lawyer’s trust account.

Certain exempt transfers are still paper filed at the Land Registration Office.

Comments:

Deeds for valuable consideration and mortgages are only accepted for registration if the parcel has been migrated first from the Registry Act to the Land Registration Act.  Therefore, the migration of the title from the old Registry Act to the modern computerized Land Registration Act system is necessitated by the need to convey or mortgage the property.

All documents (except plans of subdivision) submitted for registration must be accompanied by a Certificate of Legal Effect certified by a solicitor with payment of the recording costs.

The solicitor signing the Certificate of Legal Effect is liable to the Registrar General for any negligent error or omission if the Registrar General has been required to pay compensation as a result of the solicitor’s negligent error or omission in the certificate.

Land Transfer Tax

Question 9: Is there a land transfer tax applicable to the usual transfer?  How is it known? How much? Are rebates available?

Answer:

Although the Deed Transfer Tax is collected by the Province of Nova Scotia when deeds are recorded, it is a municipal tax which varies from municipality to municipality. Not all municipalities charge the tax.

The deed transfer tax affidavit discloses the purchase price.

The range is between 0.5% and 1.5% of the purchase price.

There are no rebates.

Comments:

Municipalities with a deed transfer tax, charge it on all transactions for valuable consideration with a few limited exceptions. The tax is based on the purchase price.

When recording a Deed, it is mandatory to file a sworn Deed Transfer Tax Affidavit. The parties’ names, contact information and price paid for the property is included in the Affidavit. The tax is calculated as a percentage of the price listed in the Affidavit.

Some transfers are exempt, such as transfers for no consideration and transfers between spouses or former spouses.

With new construction, to avoid charging tax on tax, the Affidavit includes the contract price minus HST.