BILL 19 - An Act to Amend the Quieting of Titles Act

BILL 19

An Act to Amend the Quieting of Titles Act

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

1 Section 1 of the Quieting of Titles Act, chapter Q-4 of the Revised Statutes, 1973, is amended

(a) in subsection (5) by adding after paragraph (b) the following:

(b.1) a plan and a description of the land prepared by, and verified by the affidavit of, a land surveyor registered under the New Brunswick Land Surveyors Act, 1986 who has personally inspected the land;

(b) by adding after subsection (5) the following:

1(5.1) A plan referred to in paragraph (5)(b.1) shall be prepared in accordance with the requirements of the coordinate survey system established under the Surveys Act and shall show the location of any easement or encroachment on the land.

1(5.2) The affidavit of the land surveyor referred to in paragraph (5)(b.1) shall state

(a) the manner in which the described land is indicated on the plan,

(b) the connection between the plan and the title deeds and other documentary evidence of title, if any, on which the applicant relies,

(c) the name of any person in actual occupation of the whole or any part of the land indicated on the plan, and

(d) any facts observed by the land surveyor that might be evidence of continued possession and that might be of assistance to The Court of Queen's Bench of New Brunswick in considering the application.

2 Section 6 of the Act is amended by adding "or plans" after "further evidence".

3 Section 7 of the Act is amended

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

7(1.1) The judge shall order that a notice of the making of the application be given by the applicant to the owners of the lands adjoining the land in question for the period and in the manner that the judge orders, and the applicant shall give the notice in accordance with the order.

(b) by repealing subsection (2) and substituting the following:

7(2) The notice shall state the time within which adverse claims may be filed with the clerk of The Court of Queen’s Bench of New Brunswick with whom the Notice of Application was filed under section 1, and the certificate or the conveyance shall not be signed or executed until after the expiration of the latest of

(a) four weeks from the first publication of the notice under subsection (1),

(b) four weeks from the giving of the notice in accordance with subsection (1.1), and

(c) such further period as the judge may direct.

4 Subsection 8(1) of the Act is amended by striking out "published or posted notice" and substituting "notice given under section 7".

5 Section 11 of the Act is repealed and the following is substituted:

11 Before granting the certificate or directing the execution of the conveyance, the judge may require that any notice that the judge considers necessary be given in the manner that the judge directs to any person who may be affected by the granting of the certificate or the execution of the conveyance.

6 The Act is amended by adding after section 11 the following:

11.1 Every notice required under this Act, other than a notice published in a newspaper or in The Royal Gazette, shall include a copy of the plan required under paragraph 1(5)(b.1) or under section 6, as the case may be, unless the judge directs otherwise.

7 Section 20 of the Act is repealed and the following is substituted:

20(1) When an order of the judge for a certificate of title is filed in The Court of Queen's Bench of New Brunswick, the clerk with whom the Notice of Application was filed under section 1 shall issue under his or her hand and the seal of the Court a certificate of title, which shall include a copy of the plan required under paragraph 1(5)(b.1) or under section 6, as the case may be.

20(2) The certificate of title and any schedule to it, including a copy of the plan required under paragraph 1(5)(b.1) or under section 6, as the case may be, may be registered in full in the registry office for the county in which the lands are situated, and no further proof of the certificate of title is required for purposes of the registration.

8 Section 23 of the Act is amended by striking out "section 20" and substituting "subsection 20(1)".

9 Section 26 of the Act is repealed and the following is substituted:

26 A person who claims to be the owner of land or to have any other estate or interest in land may apply to The Court of Queen’s Bench of New Brunswick or a judge of that Court under this section for an investigation, ascertainment and declaration concerning

(a) whether or not there is a lien or an encumbrance on the land,

(b) whether or not the applicant or another person is the owner of or has any or a particular estate or interest in the land, or

(c) any other fact or matter respecting the title to the land or the estate or interest claimed in the land.

10 Section 27 of the Act is repealed and the following is substituted:

27(1) An application under section 26 shall be made by filing with The Court of Queen’s Bench of New Brunswick a Notice of Application, in which the land to which the application relates shall be identified and in which the question to be determined and a concise statement of all facts on which the applicant relies and all other facts that are material to the application shall be set out.

27(2) An application referred to in subsection (1) shall be accompanied by

(a) copies of any title deeds or other documentary evidence of title, liens or encumbrances that are in the possession of, under the control of or reasonably obtainable by the applicant and that are relevant to the determination of the question,

(b) an affidavit in accordance with subsection (3), unless the judge for special reasons dispenses with one, and

(c) a schedule of the particulars produced under this section.

27(3) An affidavit required under paragraph 2(b) shall fully and fairly state, to the best of the deponent’s knowledge, information and belief

(a) that the applicant is entitled to the declaration sought,

(b) that the application and the documents accompanying the application disclose all facts on which the applicant relies, all other facts that are material to the declaration claimed by the applicant and all contracts and dealings that affect the declaration or any part of it or give any right as against the applicant,

(c) that the declaration sought by the applicant is or would be, or is not and would not be, disputed or questioned by another person,

(d) if the declaration would be disputed or questioned to the best of the applicant’s knowledge, information and belief, all the facts in relation to that dispute or question, and

(e) the names and addresses of all persons who are in possession of the land or who do or could dispute or question the declaration or be affected by it.

27(4) The affidavit may be made by a person other than the applicant or one person may depose to one fact and another person to another fact required to be proven, but it is in the discretion of the judge hearing the application to receive or reject an affidavit of a person other than the applicant.

27(5) No plan of the land to which the application relates is required unless

(a) a plan is expressly required by the judge, or

(b) the application involves a dispute over the boundaries of the land.

27(6) Notice shall be given by the applicant, in accordance with the directions of the judge, to

(a) any persons who are in possession of the land or who do or could dispute or question the declaration or are or could be affected by it, and

(b) such other persons as may be specified by the judge.

27(7) Subject to this section, the proceedings in relation to the Notice of Application under this section shall be as similar as is practicable to those provided for in this Act for an application under section 1, and any declaration granted at the conclusion of the matter shall be registered in the same way and may be proven in the same manner as for a certificate granted under section 8.

27(8) The declaration when registered is conclusive and indefeasible in favour of the person to whom it was granted and all persons claiming by, from, through or under that person, as regards Her Majesty and all other persons, and is evidence in favour of all other persons as against Her Majesty and all other persons, of the truth of the fact or matter declared in the declaration.

11 The heading "EFFECT OF FRAUD IN OBTAINING CERTIFICATE" preceding section 28 of the Act is repealed and the following is substituted:

EFFECT OF FRAUD IN OBTAINING CERTIFICATE, DECLARATION OR CONVEYANCE

12 Section 28 of the Act is amended by adding a comma followed by "declaration" after "certificate".

13 Section 29 of the Act is amended

(a) in subsection (1) by adding "or declaration" after "certificate";

(b) by repealing subsection (3) and substituting the following:

29(3) No proceeding on such Notice of Application shall affect the title of any person, who, after the date of the certificate, declaration or conveyance under this Act and before the registration of the certificate of filing of a Notice of Application, has without notice acquired by sale, mortgage or contract, for valuable consideration, any estate or interest in the land described in the certificate, declaration or conveyance.

14 Section 35 of the Act is amended by adding a comma followed by "declaration" after "certificate".

15 Notwithstanding the amendments made to the Quieting of Titles Act in this Act, and any amendments made to rules 70.01 to 70.05 of the Rules of Court and related forms under the Rules of Court concurrent with the commencement of this section, all proceedings commenced by a Notice of Application under the Quieting of Titles Act before the commencement of this section shall be dealt with and completed in accordance with that Act, as if it had not been amended in this Act, and with rules 70.01 to 70.05 of the Rules of Court and related forms under the Rules of Court, as if they had not been amended concurrent with the commencement of this section.

16 Paragraph 52(1)(e) of the Land Titles Act, chapter L-1.1 of the Acts of New Brunswick, 1981, is amended by striking out "order, judgment or certificate" and substituting "order, judgment, certificate or declaration".

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

EXPLANATORY NOTES

Section 1

(a) With the amendment, a plan and a description of the land prepared by, and verified by the affidavit of, a registered land surveyor will be required with a Notice of Application.

(b) Requirements for the plan and the affidavit of the land surveyor are established.

Section 2

With the amendment, the judge will have authority to order production of further plans if not satisfied with the evidence of title.

Section 3

(a) With the amendment, the applicant will be required to notify adjoining landowners of the making of an application under the Act.

(b) The amendment is consequential on the amendment made in paragraph 3(a) of this amending Act. The existing provision is as follows:

7(2) The notice shall state the time within which adverse claims may be filed with the clerk of The Court of Queen’s Bench of New Brunswick with whom the Notice of Application was filed under section 1, and the certificate or the conveyance shall not be signed or executed until after the expiration of four weeks from the first publication of the notice or of such further period as the judge may direct.

Section 4

The amendment is consequential on the amendment made in paragraph 3(a) of this amending Act. The existing provision is as follows:

8(1) Where the judge is satisfied respecting the title and considers that the certificate of title can be safely granted or the conveyance can be safely executed without any other notice of application than the published or posted notice, he may order the certificate to issue or direct the execution of the conveyance.

Section 5

The amendment is consequential on the amendment made in paragraph 3(a) of this amending Act. The existing provision is as follows:

11 Before granting the certificate or directing the execution of the conveyance the judge may require that such notice as he deems necessary be given in such manner as he may direct to the owners of adjoining lands or to any other persons who may be affected by the granting of the certificate or the execution of the conveyance.

Section 6

With the amendment, notices required under the Act, other than those published in a newspaper or The Royal Gazette, will be required to include a copy of the plan, unless the judge directs otherwise.

Section 7

The existing provision is as follows:

20 Upon an order of the judge for a certificate of title being filed in The Court of Queen's Bench of New Brunswick, the clerk with whom the Notice of Application was filed under section 1 shall issue under his hand and the seal of the Court a certificate of title, and this certificate of title and the schedule, if any, thereto, or a duplicate or counterpart of same, may be registered in full in the Registry Office for the county wherein the lands are situate without any further proof thereof.

Section 8

A cross-reference is amended as a consequential amendment to the amendment made in section 7 of this amending Act.

Section 9

The existing provision is as follows:

26 Where a person domiciled in or claiming land in New Brunswick desires to establish that he is the legitimate child of his parents or that the marriage of his father and mother or of his grandfather and grandmother was a valid marriage, or that his own marriage was a valid marriage or that he is one of the next of kin of any person deceased or that he is a natural born subject of Her Majesty, he may, if the Court thinks fit, have any of such matters judicially investigated and declared.

Section 10

The existing provision is as follows:

27(1) An application for an investigation and declaration under Section 26 shall be by Notice of Application specifying the land claimed, if any, and supported by an affidavit of the applicant verifying the statement of the Notice of Application and stating that his claim is to his knowledge disputed or questioned or stating that his claim is not disputed or questioned by any person, or, if his claim is to his knowledge disputed or questioned, the facts in relation to such dispute or question and that he is not aware of any dispute or question except what he has set forth, and stating such other facts as may satisfy the Court of the propriety of proceeding with the investigation.

27(2) The proceedings upon the Notice of Application shall be the same as nearly as may be as in cases under the preceding sections and the certificate granted on the investigation shall be registered in the same way and may be proved by the like evidence as in the case of certificate granted under section 8.

 

27(3) The certificate when registered is conclusive and indefeasible in favour of the person to whom the same was granted and all persons claiming by, from, through or under him, as regards Her Majesty and all persons whomsoever, and is prima facie evidence in favour of all other persons as against Her Majesty and all persons whomsoever of the truth of the fact therein declared.

Section 11

The amendment is consequential on the amendment made in section 9 of this amending Act.

Section 12

The amendment is consequential on the amendment made in section 9 of this amending Act.

Section 13

(a) The amendment is consequential on the amendment made in section 9 of this amending Act.

(b) The amendments are consequential on the amendment made in section 9 of this amending Act. The existing provision is as follows:

29(3) No proceeding on such Notice of Application shall affect the title of any person, who, after the date of the certificate or conveyance under this Act and before the registration of the certificate of filing of a Notice of Application, has without notice acquired by sale, mortgage or contract, for valuable consideration, any estate or interest in the land described in the certificate or conveyance or, if the certificate was granted under section 27, in any land or other property, the title to which was derived from, through, or under the person named in the certificate in the character which is thereby declared to belong to him.

Section 14

The amendment is consequential on the amendment made in section 9 of this amending Act.

Section 15

A transitional provision provides for the continuation of proceedings commenced under the Quieting of Titles Act and the related rules and forms under the Rules of Court before the commencement of the amendments in this amending Act.

 

Section 16

The amendment is consequential on the amendment made in section 9 of this amending Act. The existing provision of the Land Titles Act is as follows:

52(1) A person who claims to be entitled to be registered as the owner of any registered land or the owner of an estate or interest therein ...

(e) pursuant to an order, judgment or certificate issued under the Quieting of Titles Act; or ...

shall, where no other provision of this Act provides for the registration of that person as owner of the land, interest or estate therein, file the judgment or appropriate documents evidencing his right to be registered as owner thereof with the registrar who shall forthwith forward them to the Registrar General.

Section 17

Commencement provision.