Don’t Push Off Pulling Title: A Summary of Registrations on Title

• Ben
  Throndson

  Ben
  Throndson

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In Alberta, the provincial Land Titles Office maintains the official records of land ownership.

Every piece of titled land has a publicly-accessible Certificate of Title. By law, the Certificate of Title sets out important information about the property, including the legal description of the land, the identity of the legal owner of the land, and how the land was acquired by the current landowner.

Crucially, a title search will also show all legal interests properly registered against the land. The law allows third parties to register certain types of legal interests against a Certificate of Title. Third parties will register interests to secure some obligation owed by the landowner to the third party (e.g. to repay a debt) or to warn purchasers of the third party’s prior claim against the land.

In a real estate transaction, the parties’ lawyers, real estate agents, or occasionally the parties themselves, will “pull title” by obtaining a copy of the Certificate of Title from the Land Titles Office. This is done in order to review the title for unexpected or problematic registrations. Unless properly discharged, registrations on title will carry over to a successor owner of the land. As such, pulling title is an important aspect of any real estate transaction.

The rest of this article summarizes certain kinds of registrations found on Certificates of Title, in order to help sellers and buyers of real property to better understand the purpose and importance of pulling title.

Mortgage: It is very common to see that a mortgage is registered on a title. This document is between a borrower (mortgagor) and a lender (mortgagee). Under the terms of a mortgage, the borrower’s land is pledged as security for repayment of the loan proceeds advanced by the lender. If the borrower defaults on the mortgage, the lender generally has the right to initiate foreclosure proceedings. Upon a sale of property, it is important for proper arrangements to be made by the parties’ lawyers to ensure the discharge of the seller’s mortgage and the registration of the buyer’s new mortgage.

Caveat: A caveat (Latin for “warning”) is simply a warning on title of some interest in land claimed by a third party. There are a wide variety of caveats that may be registered, and it can be the case that a caveat will refer to a separate agreement that is not attached to the caveat itself. Potential purchasers of land should be careful to evaluate any registered caveats to ensure they are acceptable to remain on title or to make arrangements for the caveat to be discharged.

Utility Right-of-Way: A utility right-of-way is an interest in land which permits utility infrastructure such as gas and oil pipelines, electrical infrastructure, or other municipal utilities (sewer, water, etc.) to cross the land against which the interest is registered. The corporation that benefits from the utility right-of-way is often granted associated rights to access and maintain the infrastructure, upon terms set out in the utility right-of-way agreement.

Encroachment Agreement: An encroachment agreement allows for an improvement located primarily on one parcel of land to cross over, or “encroach”, onto another adjacent parcel. An example would be if a landowner had mistakenly constructed a fence which crossed the property line onto the neighbour’s land.

Easement: At a high level, an easement gives a landowner the right to use the land of another person in some other way. Common types of easements include access easements (e.g. allowing Party A to cross Party B’s land in order to access Party A’s land), drainage easements (e.g. allowing water from Party A’s land to flow across Party B’s land). It is important to understand the nature of any easement on title as this can impact how the land can be used.

Restrictive Covenant: A restrictive covenant is an agreement between the owners of benefiting land (the “dominant tenement”) and burdened land (the “servient tenement”) whereby the owner of the servient tenement agrees to place certain restrictions on the manner in which the servient land may be used. If properly drafted and registered, a restrictive covenant will bind successor owners of the lands.

Certificate of Lis Pendens: A Certificate of Lis Pendens is a relative (Latin for “suit/lawsuit pending”) is a registration that indicates that litigation has been commenced in which a party has claimed an interest in the land (e.g. a foreclosure action, or an action to enforce a contract for the purchase of land). Potential purchasers should be extremely cautious when there is a Certificate of Lis Pendens on title and seek legal advice with respect to the purchase.

Understanding the various registrations on a Certificate of Title is essential for anyone involved in a real estate transaction. Whether you’re buying or selling property, pulling title helps uncover any legal interests that may impact ownership or land use. By carefully reviewing these registrations and seeking legal advice when needed, parties can ensure a smoother transaction and avoid unexpected complications down the road.

_{This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.}