Acts and Regulations

Rule-70 - TITLE CERTIFICATIONS

Table of contents
Full text
Current to 1 January 2024
PARTICULAR PROCEEDINGS
RULE 70
TITLE CERTIFICATIONS
70.01Definitions
In this rule,
applicant includes a plaintiff and a prospective applicant;
full title declaration means a title declaration referred to in clause (a) of the definition “title declaration”;
limited title declaration means a title declaration referred to in clause (b) of the definition “title declaration”;
registered land means registered land as defined in the Land Titles Act;
Registrar General means Registrar General as defined in the Land Titles Act;
surveyor means a land surveyor as defined in the New Brunswick Land Surveyors Act, 1986;
title declaration means a declaration that is binding on all persons and
(a) certifies that a person is the owner of an identified parcel of land, or
(b) certifies any interest, encumbrance, fact or matter relating to the title to land or the boundaries of land, other than the interest described in clause (a).
70.02Application of Other Rules
Unless otherwise provided by this rule, the rules applicable to an application or an action, as the case may be, apply to a proceeding conducted under this rule.
70.03Notice of Intent to Apply for a Title Declaration
(1)Any person who intends to apply for a title declaration shall give notice of such intent
(a) by a Notice of Intent to Apply for a Title Declaration (Form 70A), or
(b) as directed by a judge on a preliminary motion.
(2)The notice referred to in paragraph (1) shall identify the land to which it relates and state:
(a) the title declaration sought;
(b) the date by which a person who disputes or questions the proposed title declaration shall so notify the person giving the notice; and
(c) the name and address of the person to whom a dispute note referred to in Rule 70.04 may be sent.
(3)The date stated in a notice referred to in clause (1)(a) shall be at least 4 weeks after the date when the last of the actions required under paragraph (4), (5) or (6) will be taken.
(4)If a person applies for a full title declaration, the notice referred to in clause (1)(a) shall be
(a) given to
(i) any persons who are in possession of the land or who do or could dispute or question the title declaration sought, and
(ii) the owners of the lands adjoining the land in question,
(b) posted in a conspicuous place on the land; and
(c) published once in The Royal Gazette and once in a newspaper having general circulation in the area where the land is located.
(5)If a person applies for a limited title declaration, the notice referred to in clause (1)(a) shall be
(a) given, posted and published in accordance with paragraph (4), or
(b) given
(i) to any persons who are in possession of the land or who do or could dispute or question the title declaration sought, and
(ii) in such other manner as is likely to bring the notice to the attention of other persons affected by the title declaration sought.
(6)The notice referred to in paragraph (4) or (5) shall also be given to the Registrar General.
70.04Dispute Note
(1)Any person who disputes or questions a proposed title declaration shall send a dispute note to the person who gave notice under Rule 70.03(1) by the date stated in that notice and shall state the reasons for his or her objection in the dispute note.
(2)A dispute note may be in Form 70B.
70.05Commencement of Proceeding
(1)After the date stated in the notice referred to in Rule 70.03, the person who gave the notice may commence a proceeding for a title declaration.
(2)The parties to the proceeding are the applicant and any person who sent a dispute note to the applicant under Rule 70.04.
(3)Other parties may be added at any stage of the proceeding in accordance with Rule 5.
(4)The style of proceeding
(a) shall refer to “all persons affected” as being the respondent if no person has sent a dispute note under Rule 70.04; or
(b) shall refer to “all persons affected” as being an additional defendant or respondent if there is also a named defendant or respondent in accordance with paragraph (2).
(5)If the proceeding is an application, the hearing date shall be at least 4 weeks after the commencement of the proceeding.
(6)As soon as practicable after the proceeding is commenced, the applicant shall give a Notice of Proceeding (Form 70C) to every person to whom a notice was given under Rule 70.03 but who did not send a dispute note to the applicant under Rule 70.04.
70.06Supporting Documents
(1)An originating process for a full title declaration shall be supported by the following particulars which shall be filed and, if there is a named defendant or respondent, served with the originating process:
(a) copies of any relevant 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;
(b) an affidavit of the applicant in accordance with paragraph (3);
(c) a certificate of a solicitor stating the following:
(i) that he or she has investigated the title and believes the applicant to be the owner of the land, subject only to any charge or encumbrance mentioned in the originating process, or that he or she so believes subject to any condition, qualification or exemption mentioned in the certificate; and
(ii) that he or she has conferred with the deponent or deponents on the subject of the various matters mentioned in the affidavit or affidavits referred to in this paragraph and believes the affidavit or affidavits to be true;
(d) an abstract of title certified by a solicitor and a concise statement, certified by that solicitor, of the facts which are relied on by the applicant to make out the title but which do not appear by such abstract;
(e) a plan or description of the land that is certified by a surveyor as meeting the standards prescribed in New Brunswick Regulation 2000-40 under the Land Titles Act and shows the location of any easement or encroachment on the land;
(f) an affidavit in accordance with paragraph (5) of a surveyor who has personally inspected the land; and
(g) a certificate of a solicitor, or an affidavit of the applicant, that describes the notices given under Rule 70.03 and any responses received.
(2)An originating process for a limited title declaration shall be supported by the following particulars which shall be filed and, if there is a named defendant or respondent, served with the originating process:
(a) copies of any relevant 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;
(b) an affidavit of the applicant in accordance with paragraph (3);
(c) a certificate of a solicitor stating the following:
(i) the intended legal effect of the title declaration in relation to the title to the land;
(ii) that he or she has investigated the title and believes the applicant to be entitled to the title declaration sought, or that he or she so believes subject to any condition, qualification or exemption mentioned in the certificate; and
(iii) that he or she has conferred with the deponent or deponents on the subject of the various matters mentioned in the affidavit or affidavits referred to in this paragraph and believes the affidavit or affidavits to be true;
(d) if relevant to the title declaration sought, an abstract or partial abstract of title certified by a solicitor and a concise statement, certified by that solicitor, of the facts which are relied on by the applicant to make out the title but which do not appear by such abstract or partial abstract;
(e) if relevant to the title declaration sought, a plan or description that is certified by a surveyor as being an appropriate plan or description of the land or any part of it or of the location of anything on the land;
(f) if the title declaration sought relates to the boundaries or occupation of the land or to the location of anything on the land, an affidavit in accordance with paragraph (5) of a surveyor who has personally inspected the land; and
(g) a certificate of a solicitor, or an affidavit of the applicant, that describes the notices given under Rule 70.03 and any responses received.
(3)In the affidavit required under clause (1)(b) or (2)(b), the applicant shall fully and fairly state, to the best of his or her knowledge, information and belief,
(a) that he or she is entitled to the title declaration sought,
(b) that the originating process and the supporting documents disclose all facts on which he or she relies, all other facts that are material to the title declaration sought and all contracts and dealings that affect the title declaration or any part of it or give any right as against the applicant,
(c) that the title declaration sought is or would be, or is not and would not be, disputed or questioned by another person,
(d) if the title declaration is or would be disputed or questioned, all the facts in relation to that dispute or question to the best of his or her knowledge, information and belief, 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 title declaration or be affected by it.
(4)A solicitor who has made any or all of the certificates, abstracts and statements referred to in clauses (1)(c), (d) and (g) and (2)(c), (d) and (g) may represent the applicant in the proceeding.
(5)In the affidavit referred to in clause (1)(f) or (2)(f), the surveyor shall state the following:
(a) the manner in which the land is indicated on the plan or by the description of the land;
(b) the connection between the plan or description 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; and
(d) any facts observed by the surveyor that might be evidence of continued possession and that might be of assistance to the judge.
70.07Registrar General Entitled to Be Heard
The applicant shall give a copy of an originating process for a title declaration and the supporting documents to the Registrar General who is entitled to be heard at the proceeding.
70.08Further Notice
At any time in a proceeding conducted under this rule, the judge may order such further notice to the public, or any person who may be affected by the proceeding, as the judge considers necessary.
70.09Amendment of Originating Process or Pleadings
If a proceeding was not commenced under this rule, the judge may grant leave to the applicant to amend any originating process or pleading to bring the proceeding under this rule. The applicant shall give such notice of the amended originating process or pleading as is directed by the judge.
70.10Full Disclosure
In a proceeding conducted under this rule, the applicant shall make full and fair disclosure of all relevant facts, documents and information.
70.11Power of the Judge Respecting Evidence
In a proceeding conducted under this rule, the judge may consider all relevant facts, documents and information, whether or not they are otherwise admissible in evidence, and may make any inquiries that he or she considers appropriate.
70.12Taxes, Rates and Assessments
Before a title declaration 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.
70.13Title Declaration
(1)If satisfied that a title declaration should be granted, the judge may make one title declaration comprising all of the land mentioned in the originating process or may make separate title declarations as to separate parts of the land.
(2)A title declaration that pertains to registered land shall refer to the parcel identifier assigned to the land.
(3)A title declaration is binding on all persons but may be set aside in accordance with Rule 70.14.
(4)A title declaration shall be submitted for registration under the Registry Act or the Land Titles Act and section 19 of the Registry Act and section 15 of the Land Titles Act apply to the title declaration.
(5)Unless the contrary is expressly stated in the title declaration, the land mentioned in the title declaration, whether registered land or not, is, by implication and without any special mention in the title declaration, subject to the rights and interests referred to as overriding incidents in subsection 17(4) of the Land Titles Act.
(6)The statement referred to in paragraph (5) shall not be included in a title declaration unless notice has been given under Rule 70.03 to the person whose right or interest will be affected by it.
70.14Setting Aside Title Declaration
(1)With leave of a judge and after accounting for his or her delay, an aggrieved person may apply to have a title declaration set aside or for another title declaration or other order to be made.
(2)A title declaration may be set aside on such terms as the judge may order.
(3)An order setting aside a title declaration shall be submitted for registration under the Registry Act or the Land Titles Act and section 19 of the Registry Act and section 15 of the Land Titles Act apply to the order.
(4)The setting aside of a title declaration shall not affect the title of a person, who, after the date of the title declaration and before the registration of a certificate of pending litigation, has acquired without notice for valuable consideration an estate or interest in the land mentioned in the title declaration.
(5)Nothing in this subrule limits any other grounds on which a person may apply to have a judgment set aside.
Rule 70: 85-5; 2003-12; 2014-76