181 Interest Or Right Reserved To Transferor

FORMS

Transfer Containing an Exception, Reservation, or Condition

A Form A Fee Simple that contains an Exception, Reservation, or Condition in favour of, or for the benefit of, the transferor that is an interest in land capable of registration under the Land Title Act must be clearly defined in an electronic Form E. The transferor must apply concurrently to register that interest in an electronic Form 17 Charge, Notation or Filing.

PRACTICE

Registration of Charges

Entitlement to Register

Section 181 does not create new classes of interests or rights. In considering whether to register the reservation of an interest or charge, the registrar considers whether the applicant has established a good safe holding and marketable title to the reservation or charge claimed in accordance with s. 197 of the Act.

Specific Application Required to Register Interest or Right

At common law, a deed of land typically contained reservations of rights to the transferor. These might be easements, restrictive covenants, statutory rights of way or other conditions, exceptions, or reservations. Section 181 changes this situation and provides that an applicant must make specific application to register such a charge. The application may be made by either the transferor or the transferee.

Rights Reserved in Crown Grants and Federal Letters Patent under the Great Seal or Instrument of Grant

Electronic Submissions

For an electronic submission of a Crown Grant or Federal Letters Patent or Instrument of Grant that contains an Exception, Reservation, or Condition, the Exception, Reservation, or Condition must be clearly defined. The transferor must apply to register that interest in an electronic Form 17 Charge, Notation or Filing.

Hardcopy Submission

Registrar Assigns Separate Number

The registrar assigns a separate number to register rights reserved in a Crown grant.

Exception of Minerals

Effect is given to an exception of minerals contained in a transfer by invoking the provisions of s. 181. The registrar endorses the charge on title as “Undersurface Rights”. See s. 179 of the Act.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Statutory Building and Letting Schemes

See s. 220 of this Act.

Common Law Building Schemes

Some common law building schemes still exist having lots which have not yet been sold to individual purchasers. These schemes are based on reservations imposed on purchasers by the common owner of all of the lots in the building scheme and require that the reservations be registered in accordance with s. 181. See s. 220 of the Act for further information on common law building schemes.

Disposition of Land under Land Act

See s. 50 of the Land Act, which provides that, subject to specified exceptions, a disposition of Crown land under that or another Act excepts and reserves certain interests, rights, privileges, and titles and conveys no subsurface rights or interest in highways. Also see s. 54 of the Land Act, which provides for the delivery and registration of a Crown grant.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 1, para. 263, vol. 2, para. 331, and vol. 3, para. 840.