Acts and Regulations

Q-4 - Quieting of Titles Act

Full text
Repealed on 1 November 2014
CHAPTER Q-4
Quieting of Titles Act
Repealed: 2007, c.52, s.1.
Landowner respecting judicial investigation of title
1(1)A person claiming to be the owner of any land is entitled to have his title thereto judicially investigated and the validity thereof ascertained and declared, whether he has the legal estate or not, and whether his title is or is not subject to a charge or encumbrance.
Minister respecting judicial investigation of title
1(2)The Attorney General may apply for an investigation, ascertainment and declaration of the title of the Crown to any land, and the application may be made by information, but in other respects the practice and procedure shall be the same as in other applications.
Application of person claiming estate or interest in land
1(3)Any other person who claims an estate or interest in land may apply for an investigation, ascertainment and declaration, but it is in the discretion of the judge before whom the proceedings are taken to grant or refuse the application, and such discretion may be exercised at any stage of the proceedings, and the decision of the judge in exercising the discretion is subject to appeal.
Application to Court of Queen’s Bench
1(4)Every application shall be made to The Court of Queen’s Bench of New Brunswick or a judge thereof and subject to the provisions of subsection (2) shall be by Notice of Application which shall be filed in the Court.
Particulars to be filed with application
1(5)The application shall be supported by the following particulars which shall be filed with the Notice of Application:
(a) the title deeds and other documentary evidence of title, if any, in the possession or under the control of the applicant;
(b) an abstract of title, together with a concise statement of the facts relied on by the applicant to make out the title and which do not appear by such abstract, certified by a solicitor of The Court of Queen’s Bench of New Brunswick;
(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, unless the judge dispenses with them for special reason;
(c) an affidavit in accordance with section 2 by the applicant or other person or persons, unless the judge for special reason dispenses therewith;
(d) a schedule of the particulars produced under this subsection.
Requirements for plan
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.
Requirements for affidavit of land surveyor
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.
Order to file registered instrument or memorial
1(6)On the hearing of the application the judge may order that a certified copy of any registered instrument or registered memorial affecting the title shall be filed by the claimant within such time as the judge may direct.
R.S., c.190, s.1; 1967, c.38, s.2; 1979, c.41, s.105; 1980, c.32, s.31; 1981, c.6, s.1; 1983, c.74, s.1; 2000, c.11, s.1
Affidavit
2(1)The affidavit of the applicant shall state to the best of his knowledge, information and belief that he is the owner of the estate or interest claimed by him, subject only to the charges and encumbrances set forth in the Notice of Application or in the schedule thereto, or that there is no charge or encumbrance affecting the land; that the deeds and documentary evidences of title which he produces, and of which a list is contained in the schedule produced under section 1 are all the title deeds and documentary evidences of title relating to the land in his possession or under his control, and that he is not aware of the existence of any claim adverse to or inconsistent with his own to any part of the land, or to any interest therein; or, if he is aware of any adverse claim, he shall set forth that adverse claim, and shall depose that he is not aware of any except what he sets forth.
2(2)The affidavit shall also set forth whether or not anyone is in possession of the land, and if in possession, under what claim, right or title, and shall state that to the best of the deponent’s knowledge, information and belief the affidavit and all papers produced therewith fully and fairly disclose all facts material to the title claimed by the applicant, and all contracts and dealings which affect the same or any part thereof, or give any right as against him.
2(3)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.
R.S., c.190, s.2; 1983, c.74, s.2
Certificate of attorney
3The certificate of the solicitor shall state that he has investigated the title and believes the applicant to be the owner of the estate that he claims in the land, subject only to any charge or encumbrance set forth in the Notice of Application or in the schedule thereto, or that he so believes subject to any condition, qualification or exemption set forth in the certificate; and that he has conferred with the deponent or deponents on the subject of various matters set forth in the affidavit or affidavits referred to in sections 1 and 2, and believes the affidavit or affidavits to be true.
R.S., c.190, s.3; 1983, c.74, s.3
Power of Court of Queen’s Bench Judge respecting evidence
4(1)The judge in investigating the title may receive and act upon any evidence receivable by The Court of Queen’s Bench of New Brunswick on a question of title, or any other evidence whether the same is or is not receivable or sufficient in point of strict law, if the same satisfies the judge of the truth of the fact intended to be established thereby.
4(2)It is not necessary to produce or account for the originals of any registered deeds, documents or instruments, unless the judge otherwise directs.
4(3)The proof may be by affidavit or certificate or may be given orally or in any manner or form satisfactory to the judge.
R.S., c.190, s.4; 1979, c.41, s.105
Payment of taxes, rates and assessments before issuance of certificate
5Before the order for a certificate of title is granted, satisfactory evidence shall be given by certificate, affidavit, or otherwise, that all taxes, rates and assessments for which the land is liable have been paid, or that all except those for the current year have been paid.
R.S., c.190, s.5
Right of applicant to produce further evidence or plans
6If the judge is not satisfied with the evidence of title produced in the first instance, he shall give a reasonable opportunity to produce further evidence or plans or to remove defects in the evidence produced.
R.S., c.190, s.6; 2000, c.11, s.2
Notice of application
7(1)Subject to the provisions hereinafter contained, the judge shall order that a notice of the making of the application or of his order or decision thereon, be published once in The Royal Gazette, and also, if he so decides, for such period as he may direct, in one or more newspapers, or that a printed notice be posted in a conspicuous place on the land in question for such period as he may direct.
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.
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.
7(3)Where the value of the land is proved to be not more than one thousand dollars the judge may dispense with the publication of the notice and in lieu thereof may direct that for such period as he may think fit a printed or typewritten notice of the application, or of the order or decision of the judge thereon, be posted up in one or more conspicuous places on the land, and in such other place, if any, as he may think fit, and the certificate or conveyance shall not be signed or executed until the period limited by such notice for filing adverse claims has expired.
R.S., c.190, s.7; 1979, c.41, s.105; 1980, c.32, s.31; 1983, c.7, s.16; 1983, c.74, s.4; 2000, c.11, s.3
Power of judge to issue certificate or execute conveyance
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 notice given under section 7, he may order the certificate to issue or direct the execution of the conveyance.
Crown rights
8(2)Where the judge considers that the applicant is entitled to the land, except as against the Crown by reason of failure to prove possession for sixty years or more, he may order a certificate to that effect or order a conveyance, except as against the Crown.
Crown rights
8(3)Where the certificate or conveyance mentioned in subsection (2) has been given, the Lieutenant-Governor in Council upon application may as of date of the certificate or conveyance grant the land comprised therein in fee to the person entitled thereunder.
R.S., c.190, s.8; 2000, c.11, s.4
Notice to adverse claimant
9Where it appears that there is a person who may have a claim adverse to or inconsistent with that of the applicant to or in respect of any part of the land, the judge shall direct such notice as he deems necessary to be mailed to or served on that person, his agent or solicitor.
R.S., c.190, s.9
Litigation guardian
10(1)Where it appears that a minor or person not in esse may be interested in opposing the claim of the applicant, the judge may appoint a litigation guardian to represent such minor or person not in esse, and such minor or person not in esse is bound by the adjudication.
10(2)The judge may order that the costs of the litigation guardian be paid by the applicant.
R.S., c.190, s.10; 1986, c.4, s.46; 1987, c.6, s.95
Notice to affected parties
11Before 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.
R.S., c.190, s.11; 2000, c.11, s.5
Copy of plan to be included with notice
11.1Every 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.
2000, c.11, s.6
Statement of claim of adverse claimant
12(1)A person having an adverse claim or a claim not recognized in the Notice of Application may, at any time before the certificate is issued or the conveyance is executed, file and serve on the applicant, his solicitor or agent, a statement of his claim.
12(2)The claim shall be verified by an affidavit to be filed therewith.
R.S., c.190, s.12; 1983, c.74, s.5
Powers of Court of Queen’s Bench Judge respecting contested claim
13In case of a contest the judge may either decide the question of title on the evidence before him, or may refer the same or any matter involved therein to the Court of Appeal, or may direct any mode of investigation that he deems expedient and may defer granting the certificate or directing the execution of the conveyance.
R.S., c.190, s.13; 1979, c.41, s.105
Court order respecting security for costs
14The judge may at any stage of the proceedings order security for costs to be given by the applicant or by any person making an adverse claim.
R.S., c.190, s.14
Costs
15The judge may order costs, either as between party and party, or as between solicitor and client, to be paid by or to any party to a proceeding and may give directions as to the fund out of which any costs shall be paid.
R.S., c.190, s.15
Withdrawal of application
16The applicant may by leave of the judge withdraw his application at any time before final adjudication on payment of all costs incurred in the investigation by himself and by any adverse claimant.
R.S., c.190, s.16
Officer of the court
17Subject to the Rules of Court, the judge may refer a Notice of Application or a question arising in the course of any proceeding thereon to any officer of the Court or barrister named by the judge, who shall proceed as the judge himself should do had the reference not been made, and shall have all the powers of the judge, except the power to grant a certificate or to direct the execution of the conveyance.
R.S., c.190, s.17; 1979, c.41, s.105; 1983, c.74, s.6
Exceptions and qualifications
18(1)Unless the Notice of Application expressly states the contrary, every claim or title under this Act shall be presumed to be subject to the following exceptions and qualifications:
(a) the reservations, if any, contained in the original grant from the Crown;
(b) any municipal or rural community charges, rates or assessments theretofore imposed for local improvements, and not yet due and payable;
(c) any title or lien, which, by possession or improvements or other means, the owner or person interested in any adjoining land has acquired to or in respect of the land;
(d) any lease or agreement for a lease or other holding for a period yet to run where there is actual occupation under the same;
(e) any public highway, right of way, watercourse and right of water and other easement.
18(2)If the applicant desires the certificate to declare the title to be free from such exceptions or qualifications or any of them, the applicant shall so state, and the investigation shall proceed accordingly, but this subsection does not apply to the exception or qualification as to a public highway or to the exception or qualification referred to in paragraph (1)(a).
R.S., c.190, s.18; 1983, c.74, s.7; 1991, c.20, s.1; 1996, c.79, s.8; 2005, c.7, s.71
CERTIFICATE OF TITLE
Court order respecting form of certificate of title
19The judge may make an order for one certificate of title comprising all the lands mentioned in the Notice of Application or may make an order for separate certificates as to separate parts of the lands.
R.S., c.190, s.19; 1983, c.74, s.8
Issuance and registration of certificate of title
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.
R.S., c.190, s.20; 1979, c.41, s.105; 1980, c.32, s.31; 1983, c.74, s.9; 2000, c.11, s.7
Endorsement of registration on certificate of title
21A certificate of the registration shall be endorsed on the certificate of title or any counterpart or certified copy thereof, and shall be evidence of the registration mentioned therein.
R.S., c.190, s.21
Effect of registration of certificate of title
22The certificate of title sealed, signed and registered as required by section 20 shall be conclusive and the title therein mentioned shall be deemed absolute and indefeasible on and from the date of the certificate as regards Her Majesty and all persons whomever, subject only to any charges or encumbrances, exceptions, or qualifications mentioned therein or in the schedule thereto, and shall be conclusive evidence that every application, notice, publication, proceeding, consent, and act which ought to have been made, given and done before the granting of the certificate has been made, given and done by the proper person.
R.S., c.190, s.22
Evidence
23After a certificate of title is registered a copy thereof purporting to be signed by the clerk who issued the certificate of title under subsection 20(1), and certified as a copy by the Registrar of Deeds, shall be admissible evidence of the certificate for all purposes without further evidence of such copy and without accounting for the non-production of the certificate.
R.S., c.190, s.23; 1979, c.41, s.105; 1980, c.32, s.31; 1983, c.74, s.10; 2000, c.11, s.8
CONVEYANCES
Sale by Court
24In case of a sale by The Court of Queen’s Bench of New Brunswick, the Court may investigate the title with a view to granting an indefeasible title and in that case a conveyance executed to the purchaser under the seal of the Court and purporting to be under the authority of this Act has the same effect as a certificate.
R.S., c.190, s.24; 1979, c.41, s.105; 1983, c.74, s.11
Investigation of title by the Court respecting order for specific performance
25Where judgment is given for the specific performance of a contract for the sale of land and it is provided by the contract that the vendor shall give an indefeasible title, the Court may investigate the title with a view to granting an indefeasible title and the conveyance may be according to the form prescribed by the Rules of Court.
R.S., c.190, s.25; 1983, c.74, s.12
JUDICIAL INVESTIGATION OF
PARTICULAR FACTS AFFECTING TITLES
Judicial investigation
26A 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.
R.S., c.190, s.26; 2000, c.11, s.9
Judicial investigation
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.
R.S., c.190, s.27; 1983, c.74, s.13; 2000, c.11, s.10
EFFECT OF FRAUD IN OBTAINING
CERTIFICATE, DECLARATION OR
CONVEYANCE
2000, c.11, s.11
Effect of fraud on certificate, declaration or conveyance
28If in the course of a proceeding a person acting either as principal or agent knowingly and with intent to deceive makes or asserts or joins in or is privy to the making of any material false statement or representation, or suppresses, withholds or conceals or joins in or is privy to the suppression, withholding or concealing from the Court of any material document, fact or matter of information, a certificate, declaration or conveyance obtained by means of such fraud or falsehood shall be of no effect except when the land has been afterwards conveyed to a purchaser for valuable consideration without notice.
R.S., c.190, s.28; 2000, c.11, s.12
RE-INVESTIGATION
Reinvestigation of title
29(1)After a certificate or declaration is granted or a conveyance is executed any person aggrieved thereby may on filing a Notice of Application and after satisfactorily accounting for his delay, by leave of the Court or a judge, have a title or claim reinvestigated on such terms as may be deemed just.
29(2)A certificate of the filing of a Notice of Application shall be registered in the Registry of Deeds.
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.
29(4)The Court or judge may make such order on the Notice of Application as he may deem just having regard to the provisions of subsection (3) and of section 28.
R.S., c.190, s.29; 1983, c.74, s.14; 2000, c.11, s.13
APPEALS
Appeal
30An appeal lies from an order or decision of a judge under this Act to the Court of Appeal in the same manner and subject to the same restrictions as in the case of an appeal from a judgment or order of a judge in an action.
R.S., c.190, s.30; 1979, c.41, s.105
MISCELLANEOUS
Effect of filing
31All papers filed in The Court of Queen’s Bench of New Brunswick shall be kept of record as the papers of a cause or matter of that Court or in accordance with any rules that may be made by The Court of Queen’s Bench of New Brunswick or the Registrar thereof.
R.S., c.190, s.31; 1979, c.41, s.105; 1980, c.32, s.31
Infants and mental incompetents
32Where a person who, if not under disability, might have made an application, given a consent, done any act, or been party to any proceeding under this Act, is a minor, or a person mentally incompetent, the guardian of the minor or committee of the estate of the person mentally incompetent may make such application, give such consent, do such act and be party to such proceeding as such person might if free from disability and shall otherwise represent such person for the purposes of this Act, and if the minor has no guardian or the person mentally incompetent no committee of his estate, the Court or judge may appoint a person with like power to act for the minor, or person mentally incompetent.
R.S., c.190, s.32; 1986, c.4, s.46
Power of Court to issue order for possession
33No objection to a Notice of Application shall be allowed upon the ground that the applicant should first have brought an action and if it appears upon the determination of the investigation that the applicant is entitled to the possession of the land, he may obtain an order against any other party to the proceeding for the delivery of possession thereof.
R.S., c.190, s.33; 1983, c.74, s.15
Abatement or suspension of proceedings
34Proceedings shall not abate or be suspended by death or transmission or change of interest but in any such event the Court or a judge may require notice to be given to persons becoming interested or may make any order for discontinuing or suspending or carrying on the proceedings or otherwise in relation thereto as may seem just.
R.S., c.190, s.34
Effect of want of form
35No Notice of Application, order, affidavit, certificate, declaration, registration or other proceeding shall be invalid by reason of any informality or technical irregularity therein or of any mistake not affecting the substantial justice of the proceeding.
R.S., c.190, s.35; 1983, c.74, s.16; 2000, c.11, s.14
Rules
36(1)The Registrar of The Court of Queen’s Bench of New Brunswick may make and promulgate rules
(a) respecting the filing of papers in his office and with other officers of the Court,
(b) respecting the transmission of papers and documents from one office to another, and
(c) generally, respecting all matters relating to keeping of records of proceedings under this Act.
36(2)Such rules, when approved by the Court, shall be published in The Royal Gazette and shall be in force from the day of first publication.
R.S., c.190, s.36; 1979, c.41, s.105
Application of the Judicature Act and Rules of Court
37Unless otherwise provided by this Act and the rules made hereunder, the practice and procedure under the Judicature Act and Rules of Court shall apply to proceedings under this Act.
R.S., c.190, s.37
38Repealed: 1983, c.74, s.18
1973, c.74, s.67; 1983, c.74, s.18
N.B. This Act is consolidated to November 1, 2014.