Prince Edward Island

Contributing Editor: Perlene J. Morrison and Chenchen Yu
Updated: anuary 2018

Law

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

Answer:

Registry Act, R.S.P.E.I.1988, Cap. R-10

Possessory Title

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

Answer:

Time required is 20 years of continuous possession (60 years if the claim is against the Crown).

Comments:

In PEI, possession necessary to extinguish title of true owner must be open, visible, continuous, notorious and to the exclusion of the legal owner for a period of 20 years. The 20 year period is established by statute - the other requirements have been established and interpreted by case law.

In PEI, a party claiming adverse possession to land can extinguish title of legal owner through operation of sections 16 and 46 of the Statute of Limitations, R.S.P.E.I. 1988 Cap. S-7. The relevant sections read as follows:

16. No person shall take proceedings to recover any land except within twenty years next after the time of which the right to do so first accrued to some person through whom he claims (hereinafter called “predecessor”) or if the right did not accrue to a predecessor then within twenty years next after the time at which such right first accrued to the person taking the proceedings (hereinafter called the “claimant”)

46. At the determination of the period limited by this Act to any person for the taking of proceedings to recover any land, rent, charge or money charged on the land, the right and title of such person to the land, or rent, charge or the recovery of the money out of the land shall be extinguished.

A person claiming title based on 20 years adverse possession, in accordance with section 16 of the Statute of Limitations, can apply to the PEI Supreme Court for a certificate of title under the Quieting Titles Act.

Title Search Period

Question 3: What is the title search period?

Answer:

Forty years (general rule)

Comments:

Section 2 of Investigation of Title Act, R.S.P.E.I. (1988) I-10:  

2. (1) No person in dealing with land is required to show that he is lawfully entitled to the land as owner thereof through a good and sufficient chain of title, save and except during the period of forty years immediately preceding the date of such dealing as aforesaid, and no claim that has been in existence longer than the forty-year period affects the land, unless the claim has been acknowledged or specifically referred to or contained in an instrument registered against the land within the forty-year period or unless a notice is registered against the land as provided in sections 3, 4, 5 and 6.

There are some exceptions to the 40 year rule for searching a good root of title. It is, for instance, not necessary to search behind a Certificate of Title issued by the court pursuant to the Quieting Titles Act.

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

Comments:

Most residential purchases involve an Agreement of Purchase and Sale with the Prince Edward Island Real Estate Association’s standard form contract.

Real estate agents normally prepare the agreement. When there is no real estate agent, the agreement is typically prepared by the purchaser’s lawyer.

Access to Registry

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

Answer:

The title search is conducted at the Registry Office. We have three registries in PEI – Prince County Registry Office in Summerside and both the Queens County and Kings County Registries in Charlottetown. There is no electronic registration system in PEI. A title searcher would search “conveyances to” each owner for a 40 year period, or for such longer period as is required in order to locate a warranty deed that is at least forty years old (with a few exceptions, such as a deed from the Director, Veterans Land Act, or a certificate of title under the Quieting Titles Act).

A title searcher will search “conveyances from” and “mortgages from” all of the owners of the property during the 40 year period to ensure there are no unsatisfied mortgages or pieces of the parcel that have already been conveyed. Mechanics’ liens, judgments and pending actions against anyone who has owned the property in the last 20 years are also searched.

Registration must be completed at the land registry office. In most cases registration can occur on the same day the document is received at the registry office. Original documents are required for registration and the execution of the document must be proven in accordance with the Registry Act. The document to be registered must be accompanied by the registration fee and payment of the Land Transfer Tax, if applicable. Deeds must also be accompanied by an affidavit of transfer sworn by the purchaser or the purchaser’s agent (lawyer).

Surveys

Question 6: How are surveys part of the transaction?

Answer:

A qualified land surveyor may provide a survey or plot plan to show the size and shape of the lands, position of the building and other structures on the property in relation to lot boundaries, to confirm municipal setback requirements are met, and to delineate encroachments on or from adjacent lands and to identify encumbrances, (such as rights-of-way and easements). A survey is also used to identify discrepancies between the deeded dimensions and the actual dimensions on the ground.

A survey is not required for a real estate transaction as title insurance can be obtained instead, but it is recommended.

Property

Question 7: How can property be held?

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Registration

Question 8: What is the registration process?

Answer:

Documents must be submitted at the Registry Office. We have three registries in PEI – Prince County Registry Office in Summerside and both the Queens County and Kings County Registries in Charlottetown. There is no electronic registration system in PEI. 

Registration must be completed at the land registry office. In most cases registration can occur on the same day the document is received at the registry office. Original documents are required for registration and the execution of the document must be proven in accordance with the Registry Act. The document to be registered must be accompanied by the registration fee and payment for the Land Transfer Tax, if applicable. Deeds must also be accompanied by an affidavit of transfer sworn by either the purchaser or the purchaser’s agent (lawyer).

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:

Yes, the purchaser will be charged a land transfer tax equivalent to the greater of 1% of the purchase price or 1% of the assessed value. Some exemptions exist.

A tax refund is available in limited circumstances.

Comments:

A land transfer tax is charged in a usual transaction under s. 3(1) of the Real Property Transfer Tax Act, R.S.P.E.I. 1988, Cap. R-5.1 (Act):

3. (1) Every person who tenders for registration in the province a deed shall, before the deed is registered, pay a tax computed at the rate of one percent of the greater of (a) the consideration for the transfer; and (b) the assessed value of the real property.

In certain circumstances, a transfer of real property is exempt. 21 exemptions are listed in section 4 of the Act and a first time homebuyers’ exemption is provided in section 5 of the Act. First time homebuyers who did not qualify for the first time homebuyers’ exemption at the time of registration due to their failure to meet the residency requirements can receive a refund of the tax paid if they subsequently occupy the property for 183 consecutive days following the date the deed is registered (see section 5 of the Act).