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An Act to Amend the Land Titles Act

Legislature :
55
Session :
3
Bill No. :
17
Member :
Hon. Mockler
First Reading :
2005-12-13
Second Reading :
2005-12-14
Committee of the Whole :
2006-6-20
Amended :
2006-6-20
Third Reading :
2006-6-21
Royal Assent :
2006-6-22
Download PDF :
Bill 17

Text of Bill :
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:



1                           Section 3 of the Land Titles Act, chapter L-1.1 of the Acts of New Brunswick, 1981, is amended



(a)               by adding the following definitions in alphabetical order:



"electronic instrument" means an instrument in electronic format;



"prescribed form" means



(a)               when referring to a document in paper format, a form prescribed by regulation, and



(b)               when referring to a document in electronic format, an electronic format approved by the Registrar General;



"subscriber" means a member of the Law Society of New Brunswick authorized to practise law who has entered into an agreement with Service New Brunswick respecting the authentication and submission of electronic instruments;



(b)               by repealing the definition "prescribed".



2                           Section 11 of the Act is amended



(a)               in subsection (2) of the French version, by striking out "formule" wherever it appears and substituting "forme";



(b)               by adding after subsection (2) the following:



11(3)               Notwithstanding subsection (2), where an application under this section is submitted electronically by a subscriber, the subscriber shall



(a)               provide the certificate of title in an electronic format approved by the Registrar General, and



(b)               certify in the application that he or she has possession of the affidavit of the applicant or a copy of the affidavit in the prescribed form in paper format.



11(4)               A subscriber shall not submit an application in electronic format unless the subscriber has in his or her possession the affidavit of the applicant or a copy of the affidavit in the prescribed form in paper format.



11(5)               Where an application is submitted electronically, payment of the prescribed fee shall be made in such manner and at such time as is established by the Registrar General.



11(6)               A subscriber shall retain the affidavit of the applicant or a copy of the affidavit for such minimum period of time as is required by the regulations.



11(7)               The Registrar General may at any time require a subscriber or a former subscriber to produce for inspection the affidavit of the applicant or a copy of the affidavit and any other related material, and the subscriber or former subscriber shall do so without delay.



3                           The Act is amended by adding after section 17 the following:



ELECTRONIC INSTRUMENTS

17.1(1)          Subject to subsection (6) and the regulations, those instruments designated by regulation shall be submitted to a land titles office for filing or registration in an electronic format only.



17.1(2)          No instruments other than those designated under subsection (1) shall be submitted in an electronic format.



17.1(3)          An instrument designated under subsection (1)



(a)               shall be in an electronic format that has been approved by the Registrar General as being equivalent, when printed, in form and content to its counterpart prescribed by regulation, and



(b)               shall be submitted using the technology put in place by Service New Brunswick.



17.1(4)          Subject to subsection (5), no person other than a subscriber shall submit an electronic instrument.



17.1(5)          The owner of a mortgage who has entered into an agreement with Service New Brunswick may, in accordance with the agreement and the regulations, submit an electronic instrument that is an assignment of the mortgage or a discharge of the mortgage, if those instruments are designated under subsection (1).



17.1(6)          An instrument designated under subsection (1) may be submitted in a paper format to a land titles office for filing or registration if



(a)               the instrument is submitted personally by an individual who is a registered owner of the land to which the instrument relates,



(b)               the instrument is submitted personally by an authorized officer or authorized employee of a corporation that is the registered owner of the land to which the instrument relates,



(c)                the submission has been authorized by the Registrar General, or



(d)               the instrument was executed before a date specified by regulation.



17.1(7)          A person who submits an instrument under paragraph (6)(a) or (b) shall provide to the registrar evidence of his or her identity or authorization that is satisfactory to the registrar.



17.2(1)          An electronic instrument shall not be submitted by a subscriber for filing or registration unless the instrument has been authenticated by a subscriber in the manner established by Service New Brunswick.



17.2(2)          Nothing in this section requires that the subscriber who authenticates an electronic instrument be the subscriber who submits the instrument for registration or filing.



17.2(3)          A subscriber shall not authenticate an electronic instrument unless



(a)               the subscriber has in his or her possession an instrument that has been designated under subsection 17.1(1), in prescribed form and in paper format, that has been duly executed and witnessed, and



(b)               the electronic instrument contains every material provision and particular of the instrument referred to in paragraph (a).



17.2(4)          The authentication by a subscriber under subsection (3) is a certification by the subscriber that



(a)               the subscriber has in his or her possession an instrument that has been designated under subsection 17.1(1), in prescribed form and in paper format, that has been duly executed and witnessed, and



(b)               the electronic instrument that is authenticated contains every material provision and particular contained in the instrument referred to in paragraph (a).



17.3(1)          A subscriber, when authenticating an electronic instrument pursuant to section 17.2, shall provide the information required by the Registrar General in respect of



(a)               the affidavit of execution, certificate of execution or affidavit of corporate execution, or statutory declaration if the instrument is executed under a power of attorney, that accompanies the instrument referred to in paragraph 17.2(3)(a), and



(b)               the affidavit of marital status, if any, that accompanies the instrument referred to in paragraph 17.2(3)(a).



17.3(2)          The provision of the information under subsection (1) by a subscriber is a certification by the subscriber that the information provided is accurate and that the subscriber has in his or her possession, in prescribed form and in paper format, the affidavit of execution, certificate of execution or statutory declaration, as the case may be, and the affidavit of marital status, if any.



17.4                  A subscriber who authenticates an electronic instrument pursuant to section 17.2 shall retain the instrument referred to in paragraph 17.2(3)(a) and the affidavits, certificate or statutory declaration that accompany the instrument for such minimum period of time as is required by the regulations.



17.5                  The submission of an electronic instrument by a subscriber to a land titles office is a certification by the subscriber that he or she is authorized to submit the instrument for registration or filing.



17.6                  Notwithstanding the Statute of Frauds or any provision in any other Act or any rule of law, an electronic instrument that is received at a land titles office is not required to be in writing or to be signed by the parties and has the same effect for all purposes as an instrument that is in writing and is signed by the parties.



17.7(1)          The Registrar General may at any time require a subscriber or a former subscriber to produce for inspection any of the documents referred to in section 17.4.



17.7(2)          A subscriber or former subscriber to whom a request is made shall without delay produce the documents requested under subsection (1).



17.8(1)          A member of the Law Society of New Brunswick who wishes to submit electronic instruments to a land titles office shall enter into an agreement with Service New Brunswick for the purposes of



(a)               obtaining access to the technology put in place by Service New Brunswick for the authentication and submission of electronic instruments and establishing the circumstances in which access privileges may be lost,



(b)               providing for the duties, obligations and liabilities of the subscriber relating to the authentication and submission of electronic instruments, and



(c)                establishing an account with Service New Brunswick for electronic funds transfers.



17.8(2)          Service New Brunswick shall not enter into an agreement under subsection (1) unless there is in place an agreement between the Law Society of New Brunswick and Service New Brunswick by which the Law Society of New Brunswick assumes responsibility for



(a)               certifying the eligibility of the member to practise law in the Province, and



(b)               promptly revoking access to the technology put in place by Service New Brunswick in the event that such eligibility is lost.



4                           Section 21 of the Act is repealed and the following is substituted:



21                        Registered land may be transferred by the registration of a transfer in prescribed form.



5                           Section 47 of the Act is amended by adding after subsection (4) the following:



47(5)               A statutory declaration is not required to accompany an instrument in electronic format that is submitted for registration.



47(6)               Notwithstanding that an electronic instrument is not required to be accompanied by a statutory declaration, subsection (4) applies to those instruments in paper format that a subscriber is required to have in his or her possession under paragraph 17.2(3)(a).



6                           Subsection 54(2) of the Act is amended by striking out "executed".



7                           Section 55 of the Act is amended



(a)               in subsection (1) by striking out "Every instrument" and substituting "Except for electronic instruments, every instrument";



(b)               in subsection (4) of the French version, by striking out "formule" and substituting "forme";



(c)               by adding after subsection (6) the following:



55(7)               Notwithstanding that an electronic instrument is not required to be accompanied by an affidavit of execution, certificate of execution or an affidavit of corporate execution, subsections (1) and (2) apply to those instruments in paper format that a subscriber is required to have in his or her possession under paragraph 17.2(3)(a).



8                           Section 56 of the Act is amended



(a)               in subsection (1) by striking out "shall have endorsed thereon or annexed thereto an address in the Province" and substituting "shall contain an address";



(b)               in subsection (2) by striking out "in the Province".



9                           Subsection 60(1) of the Act is amended by adding "in paper format" after "instrument".



10                        Section 65 of the French version of the Act is repealed and the following is substituted:



65                        Lorsque plus d'une personne sont propriétaires enregistrés conjoints d'un bien-fonds ou d'un droit dans ce bien-fonds et que l'un d'eux décède, le registrateur doit enregistrer le bien-fonds ou le droit dans ce bien-fonds au nom du survivant comme propriétaire lorsqu'une demande est déposée auprès du registrateur en la forme prescrite et accompagnée d'autres documents que le registrateur juge nécessaires.



11                        Section 76.01 of the English version of the Act is amended by striking out "The Service New Brunswick" and substituting "Service New Brunswick".



12                        Subsection 79(4) of the French version of the Act is amended by striking out "selon la formule prescrite" and substituting "en la forme prescrite".



13                        Section 80 of the Act is amended



(a)               by adding after subsection (1) the following:



80(1.1)          Payment of any fees or taxes in respect of the registration of an electronic instrument shall be made by electronic means in such manner and at such time as is established by the Registrar General.



(b)               by adding after subsection (4) the following:



80(4.1)          Notwithstanding subsection (4), where a transfer is submitted in electronic format, the subscriber who submits the transfer shall provide a declaration in electronic format of all the material facts that would have been contained in an affidavit of value if the transfer had been submitted for registration in paper format.



80(4.2)          Where a subscriber submits a declaration in electronic format under subsection (4.1), the declaration satisfies any requirements under this or any other Act to file an affidavit of value with the registrar.



(c)               in subsection (5) by adding "or an electronic declaration filed under subsection (4.1)" after "subsection (4)";



(d)               in subsection (6) by striking out "so sworn to or affirmed" and substituting "so sworn to, affirmed or declared".



14                        Section 81 of the Act is amended by striking out "that is to be registered under this Act".



15                        Section 83 of the Act is amended by adding after paragraph (d) the following:



(d.1)          designating instruments that are to be submitted in electronic format and providing for restrictions or conditions that apply in respect of the instruments designated;



(d.2)          specifying a date for the purposes of paragraph 17.1(6)(d);



(d.3)          respecting the possession and retention of instruments and other documents in paper format by a subscriber or former subscriber, including the minimum period of time those instruments and documents are to be retained, and the inspection and copying of such instruments and documents by the Registrar General;



(d.4)          respecting the submission of electronic instruments, including the restrictions, conditions or circumstances under which the owner of a mortgage may submit an assignment of the mortgage or discharge of the mortgage in electronic format;



(d.5)          respecting the registration or filing of electronic instruments;



(d.6)          respecting the requirements that an owner of a mortgage must meet in order to obtain access to the technology put in place by Service New Brunswick for the submission of an assignment of the mortgage or discharge of the mortgage in electronic format;



(d.7)          respecting the retention of documents by the owner of a mortgage who submits an assignment of the mortgage or a discharge of the mortgage in electronic format for registration or filing;



(d.8)          prescribing information that is to accompany the submission of an electronic instrument;



CONSEQUENTIAL AMENDMENTS

Real Property Transfer Tax Act

16                        Section 2 of the Real Property Transfer Tax Act, chapter R-2.1 of the Acts of New Brunswick, 1983, is amended by adding after subsection (1) the following:



2(1.1)             In the case of a registration of a deed that is in an electronic format, the tax required to be paid under this section shall be paid by electronic means at the time and in the manner approved by the Minister.



COMMENCEMENT

17                        This Act or any provision of this Act comes into force on a day or days to be fixed by proclamation.



EXPLANATORY NOTES



Section 1



(a)               New definitions are added to the Act.



(b)               The definition "prescribed" is repealed.



Section 2



(a)               The existing provision is as follows:



11(2)               La demande doit être faite suivant la formule prescrite, décrire la parcelle qui fait l'objet de la demande par son numéro d'identification approuvé et être accompagnée



a)                  du droit prescrit;



b)                  d'un certificat de titre, selon la formule prescrite, certifié par un membre du Barreau du Nouveau-Brunswick autorisé à exercer le droit;



c)                  d'un affidavit du requérant suivant la formule prescrite;



d)                  Abrogé : 1998, c.38, art.3.



e)                  de tous renseignements complémentaires susceptibles d'éclairer le registrateur général et le registrateur dans l'étude de la demande; et



f)                   de tous les autres renseignements prescrits.



(b)               This amendment provides for the electronic submission for an application for first registration of title under the Land Titles Act and the requirements that are to be met when submitting an application in electronic format.



Section 3



This amendment provides for the submission of certain instruments in electronic format for registration or filing in a land titles office, establishes who may submit an electronic instrument, sets out the circumstances and conditions under which such submissions are to be made and provides for the legal effect of such electronic instruments.



Section 4



This amendment is consequential on the amendment in section 3 of this amending Act. The existing provision is as follows:



21                        When a parcel of registered land is intended to be transferred the registered owner shall execute a transfer in prescribed form.



Section 5



This amendment is consequential on the amendment in section 3 of this amending Act.



Section 6



This amendment is consequential on the amendment in section 3 of this amending Act.



Section 7



(a)               This amendment is consequential on the amendment in section 3 of this amending Act.



(b)               Terminology is corrected in the French version.



(c)                This amendment is consequential on the amendment in section 3 of this amending Act.



Section 8



(a)               The existing provision is as follows:



56(1)               Every application, transfer, mortgage or lease and every instrument assigning or claiming an interest in or a right relating to or affecting the title to land or any interest therein presented to the registrar for registration or filing shall have endorsed thereon or annexed thereto an address in the Province of the applicant, transferee, mortgagee, lessee, assignee or claimant, as the case may be.



(b)               The existing provision is as follows:



56(2)               A person may notify the registrar in writing of a change of his name or address in the Province.



Section 9



This amendment is consequential on the amendment in section 3 of this amending Act.



Section 10



The existing provision is as follows:



65                        Lorsque plus d'une personne sont propriétaires conjoints d'un bien-fonds ou d'un droit dans ce bien-fonds et que l'un d'eux décède, le registrateur enregistre le bien-fonds ou le droit dans ce bien-fonds au nom du survivant comme propriétaire lorsqu'une demande est déposée auprès du registrateur dans la forme prescrite et accompagnée d'autres documents que le registrateur juge nécessaires.



Section 11



A grammatical mistake is corrected in the English version.



Section 12



This amendment is consequential on the amendment in section 3 of this amending Act.



Section 13



(a)               This subsection provides the Registrar General with the authority to establish payment of fees or taxes by electronic means.



(b)               This amendment imposes requirements for a declaration made in respect of a transfer that is submitted in electronic format.



(c)                This amendment is consequential on the amendment in paragraph 13(c) of this amending Act.



(d)               This amendment is consequential on the amendment in paragraph 13(c) of this amending Act.



Section 14



This amendment is consequential on the amendment in section 3 of this amending Act.



Section 15



The regulation-making authority is expanded.



Section 16



Consequential amendment.



Section 17



Commencement provision.

 

Amendment : Section 3

In section 17.2

(a) strike out paragraph (3)(a) and substitute the following:

(a) the subscriber has in his or her possession an instrument that has been designated under subsection 17.1(1), in prescribed form and in paper format that, to the best of the subscriber's knowledge and belief, has been duly executed and witnessed, and

(b) strike out paragraph (4)(a) and substitute the following:

(a) the subscriber has in his or her possession an instrument that has been designated under subsection 17.1(1), in prescribed form and in paper format that, to the best of the subscriber's knowledge and belief, has been duly executed and witnessed, and

(c) add after subsection (4) the following:

17.2(5) Where a subscriber authenticates an electronic instrument and the instrument referred to in paragraph (3)(a) has not been witnessed by the subscriber, the subscriber is entitled to rely on the certification of the person as to the due execution of that instrument or the sworn affidavit of the person who was a witness to the execution of the instrument as to the due execution of that instrument unless the subscriber has reason to believe that

(a) the person who certified as to the due execution of the instrument was not lawfully entitled to do so or the person who took the affidavit of the witness was not lawfully entitled to do so, or

(b) the instrument was signed or witnessed by a person who is not the person who is purported to have signed or witnessed the instrument.


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