109 Extinguishment Of Highway Not Shown On Plan

PRACTICE

Section 109 of the Land Title Act provides a method for a subdivider who owns land within a rural area on either side of a highway that was closed by notice in the Gazette to have the lands comprising the closed highway vested in favour of the subdivider via a designated highways official approving the subdivision or reference plan under s. 109. The approval of a designated highways official negates the need for a separate transfer document to revest title to the lands comprising the closed highway, as the effect of the approval is to vest title to the extinguished highway pursuant to s. 109(2)(b). The designated highways official must confirm that the highway was established in accordance with the Transportation Act, and that the highway has not already been excepted from the title to the subdivided lands.

The surveyor should ghost in the closed highway area in the body of the plan and refer to the manner in which the highway was created and the date and page of the Gazette where the notice of the highway's discontinuance and closure appears. The approval of the designated highways official on the Application to Deposit Plan form should refer to s. 109 and set out that the highway was established in accordance with the Transportation Act. A copy of the Gazette notice that discontinued and closed the highway should be attached to the Application to Deposit Plan form.

Pursuant to s. 109(2)(c), existing charges not limited to a portion of the parent property are automatically extended over the lands comprising the closed highway. An existing charge that is restricted to a portion of the parent property is not extended by the operation of s. 109.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

See s. 1 of the Act for the definition of a “designated highways official”.

See Di Castri, Registration of Title to Land, vol. 1, §6:12.