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Fifth Session, Thirty-Ninth Legislature

This version is based on the printed bill that was distributed in the Legislature after First Reading.   It is not the official version.   If accuracy is critical, you can obtain a copy of the printed bill from Statutory Publications or view the online bilingual version (PDF).

Bill 43

THE REAL PROPERTY AMENDMENT ACT


Explanatory Note

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. R30 amended

1           The Real Property Act is amended by this Act.

2(1)        Section 1 is amended by adding the following definitions:

"development scheme" means a development scheme affecting of two or more parcels of land that is established by a declaration or agreement registered under section 76.2; (« projet d'aménagement »)

"electronic information system" means the electronic information system of the land titles offices; (« système d'information électronique »)

"fraud" includes forgery; (« fraude »)

"statutory easement" means

(a) an easement in respect of a right granted by an instrument that is registered under subsection 111.1(2), and

(b) a right deemed to be a statutory easement under subsection 111.2(2); (« servitude législative »)

2(2)        The definitions "instrument", "register" and "title" in section 1 are amended by striking out "data storage system" and substituting "electronic information system".

3(1)        Subsection 2(6) is replaced with the following:

When registration is completed and takes effect

2(6)        Registration of an instrument which is registrable under this Act is completed by

(a) the certificate of registration being signed by the district registrar; or

(b) the data being entered in the electronic information system and given accepted status by the district registrar;

and takes effect from the day the instrument is assigned a serial number.

3(2)        The following is added after subsection 2(7):

Equitable doctrines about notice abolished

2(8)        The equitable doctrines known as "notice" and "constructive notice" are abolished for the purpose of determining if conduct is fraudulent under the Act.

4           Subsection 12(7) is replaced with the following:

Referral by person to Registrar-General

12(7)       A person who is dissatisfied with an act or omission of a district registrar or the examiner of surveys may refer the matter to the Registrar-General for a decision.

Complying with Registrar-General's decision

12(7.1)     If the Registrar-General makes a decision under subsection (7), the district registrar or the examiner of surveys, as the case may be, must act in accordance with the decision.

Person may apply for Registrar-General's order

12(7.2)     If the matter under subsection (7) relates to an act or omission of a district registrar referred to in clause 169.2(1)(b) or (c), the Registrar-General may, instead of making a decision, advise the person to file an application under section 169.2 for an order with respect to the matter.

5           Subsection 13(4) is amended by striking out ", certificates of charge" wherever it occurs.

6           Section 16 is repealed.

7           Subsection 20(3) is amended by striking out "data storage system of the land titles office" and substituting "information system".

8           Section 21 is repealed.

9           Subsection 45(5) is replaced with the following:

Land subject to registered instruments

45(5)       Land that is sold for taxes is deemed to be sold subject to

(a) easement agreements, including party wall and right of way agreements;

(b) statutory easements;

(c) a right analogous to an easement, as defined in subsection 111.2(1), if, subject to subsection 111.2(5), a statutory easement may be created in respect of the right;

(d) building restriction covenants;

(e) declarations under subsection 76(2);

(f) development schemes;

(g) caveats relating to

(i) zoning or subdivision, or

(ii) development agreements made under The Planning Act or The City of Winnipeg Charter;

(h) caveats or agreements filed relating to an expropriation;

(i) notices filed under subsection 7(1), or liens described in subsection 36(4), of The Contaminated Sites Remediation Act;

(j) orders or caveats filed in a land titles office under section 17 of The Water Resources Administration Act; and

(k) a notice under subsection 4(4), 5.4(3) or 5.10(2) of The Condominium Act.

10          The following is added after subsection 58(1):

Non-application

58(1.1)     Clause (1)(c) does not apply in respect of a right granted by an instrument under subsection 111(2) that has not been registered under subsection 111.1(2).

11(1)       Subsection 59(1) is replaced with the following:

Conclusive evidence — title paramount (indefeasible)

59(1)       Every certificate of title or registered instrument, as long as it remains in force and is not cancelled or discharged, is conclusive evidence at law and in equity, as against the Crown and all persons, that the owner is indefeasibly entitled to the land or the interest specified in the title or instrument.

Exception — title subject to section 58

59(1.1)      Despite subsection (1), a person may show that a certificate of title is subject to any of the exceptions or reservations mentioned in section 58.

Exception — fraud or wrongful act by owner

59(1.2)     Despite subsection (1), in a proceeding under this Act, a person may show that the owner is not entitled to the land or the interest specified in the title or the registered instrument when the owner of the land or the owner of the registered instrument has participated or colluded in fraud or a wrongful act.

Exception — owner deprived due to fraud or wrongful act

59(1.3)      Despite subsection (1), in a proceeding under this Act, an owner who is deprived of an estate or interest in land as a result of fraud or a wrongful act, is entitled to have the estate or interest restored, unless a court determines that it is just in the circumstances to order otherwise.

11(2)       The following is added after subsection 59(2):

Court order — two certificates for same land

59(3)       Subsection (2) applies unless a court determines that it is just in the circumstances to order otherwise.

12          Clause 60(3)(a) is amended by striking out "data storage system of the land titles office" and substituting "information system".

13          Subsection 63(2) is repealed.

14          Subsection 67(2) is amended by striking out "to which subsection 111(1) or section 112 applies" and substituting "granting a statutory easement or a right analogous to an easement, as defined in subsection 111.2(1),".

15          Section 68 is replaced with the following:

Disclaimer of estate or interest in land

68          A person who has been registered as the owner of an estate or interest in land, without giving consent, may sign a disclaimer of that estate or interest and apply to the Registrar-General under clause 169.2(1)(a) to have that estate or interest cancelled or corrected.

16          Subsection 71(2) is amended

(a) by replacing the section heading with "Government not liable"; and

(b) by striking out "The Assurance Fund or the district registrar" and substituting "The government".

17          Section 72 is replaced with the following:

Evidence Necessary for Registering Instruments

Application

72(1)       This section and sections 72.1 to 72.9 apply to the evidence required for registering instruments.

Definitions

72(2)       The following definitions apply in this section and sections 72.1 to 72.9.

"financial institution" means

(a) a bank;

(b) a credit union; or

(c) any other financial institution that may be specified in the regulations. (« institution financière »)

"mortgage" means the following, the form of which is prescribed in the regulations:

(a) mortgage;

(b) encumbrance;

(c) mortgage of a mortgage;

(d) mortgage of an encumbrance. (« hypothèque »)

"mortgagor" includes a person entitled to be a mortgagor. (« débiteur hypothécaire »)

"transfer" means the following transfers, the form of which is prescribed in the regulations:

(a) transfer of land;

(b) transfer of mortgage;

(c) transfer of leasehold title;

(d) transfer of encumbrance. (« transfert »)

"transferor" means a registered owner or a person entitled to be registered as owner. (« auteur du transfert »)

Evidence required for each instrument

72.1        Each instrument presented for registration must be accompanied by

(a) evidence as to the execution of the instrument, if applicable, in accordance with section 72.4;

(b) evidence as may be required under The Homesteads Act; and

(c) any other evidence required by the district registrar.

Party cannot also witness execution

72.2        A person who is a party to an instrument must not also

(a) be a witness to the execution of that instrument; or

(b) make an affidavit, or provide any evidence, as to the execution of that instrument.

Affidavit, etc. not to be sworn before party

72.3        An affidavit, affirmation or statutory declaration that forms part of an instrument must not be sworn, affirmed or declared before a person who is a party to the instrument.

Proving execution of instruments

72.4(1)     The execution of an instrument by a registered owner, or a person entitled to be registered as the owner, must be proved as follows:

(a) the execution of a transfer must be proved in accordance with sections 72.5 and 72.6;

(b) the execution of a mortgage must be proved in accordance with sections 72.7 and 72.8;

(c) the execution of all other instruments — except a transfer, mortgage, request or transmission — must be proved in accordance with section 72.9.

Non-application

72.4(2)     Subsection (1) does not apply to the execution of an instrument by

(a) the Government of Manitoba or an agency of the Government of Manitoba;

(b) the Government of Canada or an agency of the Government of Canada;

(c) a government or a government agency outside Canada; or

(d) any other public body designated in the regulations.

Transfers Executed Within Canada

Transfers witnessed by barristers or solicitors

72.5(1)     If a transfer is executed within Canada, the signature of the transferor must be witnessed by a barrister or solicitor entitled to practise in the province or territory where the transfer is executed.

Transfers witnessed by notaries

72.5(2)     In addition to a transfer being witnessed in accordance with subsection (1),

(a) within British Columbia, the signature of the transferor may be witnessed by a notary public who is authorized to practise in accordance with the laws of British Columbia; and

(b) within Quebec, the signature of the transferor may be witnessed by a notary who is authorized to practise in accordance with the laws of Quebec.

Exception — particular circumstances

72.5(3)     If the signature of a transferor cannot, due to particular circumstances, be witnessed in accordance with subsection (1) or (2), the district registrar may, in his or her discretion, accept a transfer for registration that is witnessed by a person entitled to administer oaths either within or outside Manitoba, as set out in sections 62 and 63 of The Manitoba Evidence Act.

Required witness information to prove execution

72.5(4)     Execution of a transfer that is witnessed in accordance with subsections (1) to (3) may be proved by the witness clearly disclosing his or her name, position and address under his or her signature as the witness.

Effect of witness's signature

72.5(5)     The act of the witness in witnessing a transfer in accordance with this section is satisfactory evidence

(a) that

(i) the person who executes the transfer as the transferor is personally known to the witness, or

(ii) the identity of the person who executes the transfer as the transferor has been proven to the satisfaction of the witness; and

(b) that the transferor acknowledged to the witness that he or she

(i) is the person named in the transfer as the transferor and the person who signed as transferor,

(ii) has attained the age of majority in Manitoba, and

(iii) is authorized to execute the instrument.

Transfers Executed Outside Canada

Witness to transfer executed outside Canada

72.6(1)     If a transfer is executed outside Canada, the signature of the transferor must be witnessed by one of the following persons:

(a) a barrister, solicitor or lawyer entitled to practise in the jurisdiction where the transfer is executed;

(b) a notary or notary public authorized to practise in accordance with the laws of the jurisdiction where the transfer is executed;

(c) a person entitled to administer oaths outside Manitoba, as set out in section 63 of The Manitoba Evidence Act.

Applicable provisions — witness

72.6(2)     When the signature of the transferor is witnessed by a person specified in subsection (1), the following provisions apply, with necessary changes, to proving execution of the transfer:

(a) subsection 72.5(4) (required witness information to prove execution);

(b) subsection 72.5(5) (effect of witness's signature).

Execution by notary public under Evidence Act

72.6(3)     In addition to proving the execution of a transfer in accordance with subsections (1) and (2), the execution of a transfer outside Canada may be proved by a notary public in accordance with section 68 of The Manitoba Evidence Act.

Mortgages Executed Within Canada

Mortgages witnessed by barristers or solicitors

72.7(1)     If a mortgage is executed within Canada, the signature of the mortgagor must be witnessed by a barrister or solicitor entitled to practise in the province or territory where the mortgage is executed.

Mortgages witnessed by notaries or financial institutions

72.7(2)     In addition to a mortgage being witnessed in accordance with subsection (1),

(a) within British Columbia, the signature of the mortgagor may be witnessed by a notary public who is authorized to practise in accordance with the laws of British Columbia;

(b) within Quebec, the signature of the mortgagor may be witnessed by a notary who is authorized to practise in accordance with the laws of Quebec; and

(c) if the mortgagee is a financial institution, the signature of the mortgagor may be witnessed by an officer or employee of the financial institution.

Applicable provisions re execution of mortgage

72.7(3)     The following provisions apply, with necessary changes, to proving the execution of a mortgage within Canada, in the same manner as they apply to the execution of a transfer within Canada:

(a) subsection 72.5(3) (particular circumstances);

(b) subsection 72.5(4) (required witness information to prove execution);

(c) subsection 72.5(5) (effect of witness's signature).

Mortgages Executed Outside Canada

Witness to mortgage executed outside Canada

72.8(1)     If a mortgage is executed outside Canada, the signature of the mortgagor must be witnessed by one of the following persons:

(a) a barrister, solicitor or lawyer entitled to practise in the jurisdiction where the mortgage is executed;

(b) a notary or notary public authorized to practise in accordance with the laws of the jurisdiction where the mortgage is executed;

(c) a person entitled to administer oaths outside Manitoba, as set out in section 63 of The Manitoba Evidence Act;

(d) if the mortgagee is a financial institution, an officer or employee of the financial institution.

Applicable provisions — witness

72.8(2)     The following provisions apply, with necessary changes, to proving the execution of a mortgage outside Canada, in the same manner as they apply to the execution of a transfer outside Canada:

(a) subsection 72.5(4) (required witness information to prove execution);

(b) subsection 72.5(5) (effect of witness's signature).

Execution by notary public under Evidence Act

72.8(3)     In addition to proving the execution of a mortgage in accordance with subsections (1) and (2), the execution of a mortgage outside Canada may be proved by a notary public in accordance with section 68 of The Manitoba Evidence Act.

Execution of Other Instruments

Instruments witnessed

72.9(1)     To prove the execution of an instrument — other than a transfer, mortgage, request or transmission — the witness to the signature of the registered owner, or the person entitled to be registered as owner, must make an affidavit as to

(a) the execution of the instrument by the registered owner or the person entitled to be registered as the owner; and

(b) the identity and age of the registered owner or the person entitled to be registered as the owner.

Affidavit of execution

72.9(2)     The affidavit of the witness as to the execution of the instrument must be sworn or affirmed in accordance with

(a) section 62 of The Manitoba Evidence Act, if the instrument is executed within Manitoba; or

(b) section 63 of The Manitoba Evidence Act, if the instrument is executed outside Manitoba.

Execution by barrister, solicitor or other officer

72.9(3)     In addition to proving execution of an instrument in accordance with subsections (1) and (2),

(a) if the instrument is executed within Canada and the signature of the party is witnessed by a barrister or solicitor or another officer as specified in subsections 72.5(1) and (2) (execution within Canada), the following provisions apply, with necessary changes, to proving execution of the instrument in the same manner as they apply to proving execution of a transfer:

(i) subsection 72.5(3) (particular circumstances),

(ii) subsection 72.5(4) (required witness information to prove execution),

(iii) subsection 72.5(5) (effect of witness's signature); or

(b) if the instrument is executed outside Canada and the signature of the party is witnessed by a barrister or solicitor or another officer as specified in subsection 72.6(1) (execution outside Canada), the following provisions apply, with necessary changes, to proving execution of the instrument in the same manner as they apply to proving execution of a transfer:

(i) subsection 72.6(2) (applicable provisions re execution by witness),

(ii) subsection 72.6(3) (execution by notary public under Evidence Act).

OTHER MATTERS

18          Subsections 76(1) to (2.1) are replaced with the following:

Party wall, right of way and easement agreements

76(1)       A party wall agreement, a right of way agreement or an easement agreement may be registered against the lands affected by such an agreement if, at the time it is registered,

(a) the district registrar is satisfied that the lands affected are

(i) adjoining, in the case of a party wall agreement, or

(ii) in reasonable proximity, in the case of a right of way agreement or an easement agreement;

(b) the agreement has been executed by persons who are, or are entitled to be, the registered owners of the lands affected by the agreement; and

(c) all persons with a registered claim or interest in the lands affected by the agreement consent to the registration.

Effect of declaration

76(2)       A declaration made by the owner of the land has the same force and effect as an agreement referred to in subsection (1) if

(a) the declaration is set out in an instrument that is in a form approved by the district registrar;

(b) the declaration is registered; and

(c) at the time it is registered, all persons with a registered claim or interest in the land consent to the registration.

No consent for respecting statutory easements, etc

76(2.1)      For the purpose of subsections (1) and (2), consent is not required from

(a) the holder of a statutory easement; or

(b) the holder of a right analogous to an easement, as defined in subsection 111.2(1).

19          The following is added after section 76:

Definition of "registered owner"

76.1        In sections 76.2 and 76.4, "registered owner" includes a person who is entitled to be the registered owner of the land.

Registration of development scheme

76.2(1)     A development scheme that affects two or more parcels of land may be registered if

(a) the following is registered against each of the parcels:

(i) if the parcels are owned by one registered owner, a declaration that complies with subsection (3),

(ii) if the parcels are owned by more than one registered owner, an agreement that complies with subsection (3); and

(b) the district registrar is satisfied that, at the time the declaration or agreement is registered, all persons with a registered claim or interest in any of the parcels consents to the registration.

No consent for statutory easements, etc.

76.2(2)     Under clause (1)(b), the consent of a person who has a claim or interest by virtue of a statutory easement or a right analogous to an easement, as defined in subsection 111.2(1), is not required.

Requirements — declaration or agreement

76.2(3)     A declaration or agreement in respect of a development scheme must

(a) be in a form approved by the district registrar;

(b) be executed by the registered owner or, if there is more than one, by each registered owner;

(c) set out the legal description of each affected parcel;

(d) contain one or more restrictions respecting the land, or on, over or under the land, that are

(i) negative in effect,

(ii) consistent with the orderly development of the land,

(iii) subject to clause (e), applicable to each of the parcels, and

(iv) clearly described;

(e) identify the parcels, if any, that are subject to variations or exemptions in respect of the restrictions, and describe the variations or exemptions;

(f) contain a statement that the restrictions are intended to benefit each of the parcels; and

(g) contain a statement that the benefit and burden of the declaration or agreement attaches to and runs with each of the parcels.

When restriction is negative in effect

76.2(4)     For the purpose of subclause (3)(d)(i), a restriction is negative in effect if it may be enforced by way of injunction.

Land not required to be contiguous

76.2(5)     The parcels of land affected by a development scheme must be in reasonable proximity to each other, but the parcels need not be contiguous.

Effect of registration

76.3(1)     Upon registration, a declaration or agreement respecting a development scheme attaches to and runs with the affected land, as provided for in the scheme, and any subsequent instrument affecting the land that is registered under this Act is subject to the development scheme, regardless of whether the scheme is mentioned in the instrument.

Effect of other obligations being included

76.3(2)     A declaration or agreement respecting a development scheme is not invalid because one or more of the obligations it imposes on a party or person does not comply with clause 76.2(3)(d), but for greater certainty, such an obligation does not attach to or run with the land affected by the development scheme.

Changes ordered by Municipal Board

76.4(1)     The district registrar must vary, cancel or substitute a development scheme in accordance with an order made by The Municipal Board under section 104 of The Municipal Board Act.

Amending or discharging scheme

76.4(2)     The district registrar may register an instrument that amends or discharges a development scheme if the instrument is

(a) in a form approved by the district registrar;

(b) executed by the registered owners of all the parcels of lands against which the development scheme is registered; and

(c) consented to by all persons with a registered claim or interest in any one or more of the parcels of land affected by the development scheme.

No consent required — statutory easement, etc.

76.4(3)     Under clause (2)(c), the consent of a person who has a claim or interest by virtue of a statutory easement or a right analogous to an easement, as defined in subsection 111.2(1), is not required.

20          Section 80 is replaced with the following:

Definitions

80(1)       The following definitions apply in this section.

"interest" includes any estate or interest in land. (« intérêt »)

"owner" includes

(a) the owner of any registered interest in whose name the interest is registered; or

(b) the caveator or assignee of a caveat in whose name the caveat is registered. (« propriétaire »)

Protection for person accepting transfer

80(2)       A person who contracts for, deals with, takes or proposes to take a transfer, mortgage, encumbrance, lease or other interest from an owner is not — except in the case of fraud or a wrongful act in which that person has participated or colluded —

(a) required for the purpose of obtaining priority over a trust or other interest that is not registered by an instrument or caveat,

(i) to inquire into or ascertain the circumstances in or the consideration for which the owner or any previous owner of the interest acquired the interest, or

(ii) to see to the application of the purchase money or any part of the money; and

(b) affected by any notice, direct, implied or constructive, of any trust or other interest in the land that is not registered by an instrument or caveat, despite any rule of law or equity to the contrary.

Knowledge of trust

80(3)       A person's knowledge that a trust or interest is in existence — although it is not registered by an instrument or a caveat — shall not of itself be imputed as fraud or a wrongful act.

21          Subsection 96(7.1) is amended by striking out "The assurance fund and the district registrar are" and substituting "The government is".

22          Subsection 100(2) is repealed.

23          The following is added after section 105:

Interest holder to register discharge of interest

105.1(1)    A person who is registered as an owner of an interest in land that is less than a fee simple interest must submit to the district registrar in the appropriate land titles office, a discharge of the interest in a form that is registrable under this Act, within 60 days after

(a) all of the obligations under the instrument or this Act on which the interest is based have been performed; or

(b) the interest has ceased to exist by operation of the law;

whichever is earlier.

Notice of discharge

105.1(2)    The person who submits a discharge of an interest to the district registrar under subsection (1) must as soon as practicable after the discharge is registered, give written notice to the following persons that the discharge was registered:

(a) the owner of the land;

(b) the person who paid the charge under subsection (3).

Charge for providing discharge

105.1(3)    The person who submits a discharge of an interest to a district registrar under subsection (1) must not charge an amount for preparing and registering the discharge that exceeds the maximum amount set out in the regulations.

24          Clause 109(1)(f) is replaced with the following:

(f) a statutory easement;

25          Section 111 is replaced with the following:

Definition of "eligible grantee"

111(1)      In this section and in sections 111.1 to 111.5, "eligible grantee" means

(a) the Crown, Manitoba Hydro, a municipality, a local government district or an industrial townsite incorporated under The Local Government Districts Act;

(b) MTS Allstream Inc. or the owner of a public utility, as defined in The Public Utilities Board Act, not otherwise described in clause (a);

(c) a person who carries on an activity or undertaking described in clause (3)(a) or acquires a right to do so; or

(d) a person in a class of persons designated by regulation.

Granting right that is registrable as a statutory easement

111(2)      In respect of an activity or undertaking described in subsection (3), the following may, by executing an instrument, grant to an eligible grantee a right over land that may be registered as a statutory easement:

(a) the owner of the land;

(b) any person entitled to be registered as the owner of the land;

(c) if the land has been sold by agreement of purchase and sale, both the vendor and the purchaser under the agreement or by their personal representatives or assigns.

Activities and undertakings

111(3)      A right over land under this section may be granted in respect of the following activities or undertakings:

(a) constructing, erecting, laying, carrying, operating, maintaining or doing the following:

(i) storing, conveying or supplying water,

(ii) inundating water,

(iii) drainage or supplying drainage services,

(iv) disposing of sewage or supplying sewage services,

(v) supplying light, telephone, telegraph, cable television, Internet, telecommunications or fire protection,

(vi) supplying or generating power,

(vii) a public work, as defined in The Public Works Act, gas pipe line, as defined in The Gas Pipe Line Act, pipeline, as defined in The Oil and Gas Act, railway or wind turbine,

(viii) an activity or undertaking similar to those in subclauses (i) to (vii);

(b) works and facilities that are related to the activities and undertakings described in clause (a), such as pipes, conduits, cables, wires, poles, transmission lines, waterworks and water control works.

Applicable to old and new system land

111(4)      A right under this section may be granted in respect of land, whether under the old or new system.

Liability of grantor limited

111(5)      Unless the instrument granting the right under this section expressly provides otherwise, the grantor is not liable for a breach of a covenant contained in the instrument that is committed after the grantor ceases to hold an interest in the land affected by the statutory easement.

Interpretation of "instrument"

111(6)      An instrument under this section includes an instrument granting an interest in land or transferring administration and control of Crown land between the Crown in right of Canada and the Crown in right of Manitoba.

Right becomes statutory easement on registration

111.1(1)    Once the instrument is registered in accordance with subsection (2), a right granted by an instrument under section 111

(a) becomes a statutory easement and is an easement for all purposes;

(b) is an interest in land; and

(c) runs with the land notwithstanding that the benefit of the right is not appurtenant or annexed to any land of the eligible grantee in whose favour the right was granted;

and the conditions and covenants expressed in the instrument apply to and bind the respective successors, personal representatives and assigns of the grantor and grantee, except to the extent that a contrary intention appears in the instrument.

Registration of statutory easement

111.1(2)    To register a right granted by an instrument under section 111 as a statutory easement, an eligible grantee must register,

(a) if the land is under the old system, the instrument granting the right in the registry office in the district in which the land is situated; or

(b) if the land is under the new system,

(i) the instrument granting the right, if is in a form satisfactory to the district registrar, or

(ii) a caveat that has a copy of the instrument attached to it.

Declaration also required

111.1(3)    To register an instrument referred to in subsection (2), an eligible grantee must also provide the district registrar with a statutory declaration that is satisfactory to the district registrar declaring that they are an eligible grantee.

Definition of "right analogous to an easement"

111.2(1)    In this section, "right analogous to an easement" means a right granted by an instrument under subsection 111(1), as that subsection read immediately before the coming into force of this section.

Transition — rights analogous to easements

111.2(2)    A right analogous to an easement is deemed to be a statutory easement and is an easement for all purposes if,

(a) in accordance with section 111, as that provision read before the coming into force of this section, the following was registered or filed:

(i) the instrument that granted the right,

(ii) a caveat with a copy of the instrument attached; or

(b) after the coming into force of this section, an eligible grantee registers or files

(i) the instrument that granted the right, or

(ii) a caveat with a copy of the instrument attached.

Current interest in land not required to register a right

111.2(3)    Subject to subsection (4), an instrument or caveat described in clause (2)(b) may be accepted by the district registrar despite the instrument having been executed by a person who has ceased to hold the interest in the land by virtue of which the person executed the instrument.

Registration without current interest time limited

111.2(4)    Subsection (3) ceases to have effect on or after the day that is 10 years after the day this section came into force.

Registration after time limit does not create statutory easement

111.2(5)    For greater certainty, a statutory easement is not created by the registering or filing of an instrument that granted a right analogous to an easement, or by registering a caveat with a copy of the instrument attached, if the registration or filing takes effect on or after a day that is 10 years after the day this section came into force.

Limitation on assignment or transfer

111.3(1)    A statutory easement may be

(a) assigned, if in respect of land under the old system; or

(b) transferred, if in respect of land under the new system;

only to another eligible grantee.

Declaration required

111.3(2)    An assignment or transfer of a statutory easement may be registered but to do so, the assignee or transferee must provide the district registrar with a statutory declaration declaring that they are an eligible grantee.

Discharge of statutory easement

111.4(1)    By executing a discharge, an eligible grantee may discharge a statutory easement in respect of all or any part of the land over which the statutory easement has been granted.

Effect of discharge

111.4(2)    On the registration of a discharge, all rights of the eligible grantee under the instrument that created the statutory easement cease to the extent those rights are discharged.

District registrar may vacate statutory easements

111.5(1)    On request, the district registrar may issue a notice of intent to vacate a statutory easement and serve it on the person who holds the rights under it, if satisfied that

(a) the person has ceased to be an eligible grantee;

(b) the person has ceased to carry on any of the activities and undertakings described in clause 111(3)(a); or

(c) the person has abandoned the right to carry on an activity or undertaking described in clause 111(3)(a) in respect of the land over which the statutory easement was granted.

When district registrar may take action

111.5(2)    The district registrar may vacate a statutory easement under subsection (1) unless, within 30 days after the notice of his or her intent to do so is served on the person who holds the rights under the easement, the person shows cause why the statutory easement should not be vacated.

Restriction

111.5(3)    A notice under this section may not be issued in respect of an entity described in clause 111(1)(a) or (b).

Service of notice

111.5(4)    A notice given under subsection (1) must be served in the manner prescribed for the service of notices under subsection 147(2).

26          Section 112 is replaced with the following:

Issue of statutory easement titles

112(1)      An eligible grantee may request that the district registrar issue a title in respect of the grantee's rights under a statutory easement, if the statutory easement is registered against land under the new system.

Requirements for title to issue

112(2)      A title may be issued in respect of a statutory easement if the following plan, as applicable, has been registered, as well as the instrument granting the statutory easement:

(a) if a request is made in respect of

(i) a gas pipe line or a pipeline, a plan certified by a Manitoba land surveyor and approved by the Examiner of Surveys, or

(ii) an expropriation that is subject to The Gas Pipe Line Act, a plan of survey defining the lands covered by the expropriation;

(b) in any other case, a plan certified by a Manitoba land surveyor and approved by the Examiner of Surveys, if the district registrar is of the opinion that such a plan is required.

Registered encumbrances on titles

112(3)      The title for a statutory easement shall issue clear of any prior registered interest that affect the easement, other than any encumbrances created by the owner of the easement.

Cancelling a statutory easement title

112(4)      A title for a statutory easement may be cancelled if

(a) the holder of the statutory easement registers a discharge under section 111.4 and all parties having registered encumbrances against the title of the statutory easement consent to the title being cancelled;

(b) the statutory easement has been vacated by the district registrar under section 111.5; or

(c) the court has ordered that the title be cancelled.

Easement title may be transferred

112(5)      The holder of a statutory easement may transfer a title for a statutory easement, but only by way of a transfer of land and only to another eligible grantee.

Requirements to subdivide easement title

112(6)      A title for a statutory easement may be subdivided and transferred to another eligible grantee if a plan certified by a Manitoba land surveyor and approved by the Examiner of Surveys has been registered in respect of the subdivision.

27(1)       Subsection 119(2) is amended by striking out ", grant of right of user, or a right of a like nature relating to the operation of a pipeline registered under section 112" wherever it appears.

27(2)       The following is added after subsection 119(2):

Definition of "pipeline easement"

119(3)      In subsection (2), "pipeline easement" means an easement for a gas pipe line as defined in The Gas Pipe Line Act, or a pipeline as defined in The Oil and Gas Act.

28          Subsection 127(1) is amended by replacing everything before clause (a) with the following:

Requirement for plan of survey

127(1)      A district registrar may require an eligible grantee, as defined in subsection 111(1), or an owner of land who wishes to file an instrument or a caveat, or an assignment of an instrument or caveat, against land respecting a statutory easement to file a plan of survey if, in the opinion of the district registrar, the location of the land or statutory easement is not sufficiently defined on any registered plan, and if the owner or eligible grantee does not comply with the requirement the district registrar may

29          Section 141 is replaced with the following:

Land subject to registered instruments

141         Land that is sold under an order for sale made by the district registrar, or that vests in a mortgagee by order of foreclosure issued by the district registrar, is deemed to have been sold or vested subject to the registered instruments described in subsection 45(5).

30          The following is added after section 148:

Caveat — right to have registration revised

148.1       A person who has a right to have a certificate of title — or an interest affecting a certificate of title — cancelled, restored, corrected, altered or vacated has an interest that entitles the person to file a caveat.

31          Subsection 154(2) is replaced with the following:

Caveat to show both tenancies

154(2)      A caveat that is registered to protect an interest that creates or purports to create a right of way or an easement, other than a statutory easement, must contain the legal description of the dominant and servient tenement.

32          Subsection 157(3) is amended by adding "development scheme or" before "building" wherever it occurs.

33          The following is added after section 158:

Lapsing of development schemes

158.1       Subject to section 159, if a development scheme provides that it expires on a date, or after a period of time, specified in the declaration or agreement respecting the scheme, the district registrar may lapse the scheme after the date or after the end of the period, as the case may be.

34          Section 159 is replaced with the following:

Expiry of building restriction caveats and development schemes

159(1)      A building restriction caveat or a declaration or agreement respecting a development scheme ceases to have effect 50 years after the date on which it was first registered.

Vacating building restriction caveats and development schemes

159(2)      The district registrar may vacate a building restriction caveat or a declaration or agreement respecting a development scheme that has ceased to have effect under subsection (1).

35          Subsection 163(3) is replaced with the following:

Court order

163(3)      On hearing an application under this section, the court may make any order that the court considers just, including an order

(a) dismissing the application;

(b) discharging or withdrawing the caveat;

(c) directing security or payment into court of an amount equal to the claim of the applicant and any additional money payable with respect to that claim and ordering the caveat to be discharged or withdrawn from the certificate of title to the affected land;

(d) directing that any money paid into court or any security given under clause (c) stands in place of the land against which the caveat was registered; or

(e) directing a party to commence proceedings.

Order for payment out of court

163(4)      When money has been paid into court or security has been given under clause (3)(c), the court may, upon application and upon notice to every person affected, order the money to be paid out or the security to be delivered, as the case may be, to the person entitled to it.

36          The following is added before section 170 and the centred heading before it:

PROCEEDINGS BEFORE REGISTRAR-GENERAL

General Provisions

Applicable proceedings

169.1(1)    This section applies to the following proceedings before the Registrar-General:

(a) an application under section 169.2 for an order by the Registrar-General, in relation to a matter set out in subsection 169.2(1);

(b) an application under section 169.4 for a report by the Registrar-General to be confirmed by the court, in relation to a matter set out in subsection 169.4(1).

Proceedings before Registrar-General instead of court

169.1(2)    Despite section 173, a matter set out in subsection 169.2(1) or 169.4(1) must be commenced by an application to the Registrar-General and not to the court.

Rules of practice and procedure

169.1(3)    The Registrar-General may make rules of practice and procedure to govern proceedings referred to in subsection (1).

Powers under Evidence Act

169.1(4)    The Registrar-General has the powers of a commissioner under Part V of The Manitoba Evidence Act with respect to a proceeding.

Application

169.1(5)    An application referred to in subsection (1) must be in a form approved by the Registrar-General.

Providing information

169.1(6)    The applicant must provide the Registrar-General with all information relevant to the application, including any additional information requested by the Registrar-General.

Registering notice of application

169.1(7)    On receipt of an application, the Registrar-General must register notice of it in the appropriate land titles office.

Hearing

169.1(8)    Subject to section 169.5, the Registrar-General must hold a hearing to consider an application.

Notice of hearing

169.1(9)    The Registrar-General must

(a) set a time, date and place for a hearing to consider the application; and

(b) serve all interested persons, as determined by the Registrar-General, with

(i) the application,

(ii) all documents received from the applicant, and

(iii) notice of the time, date and place for the hearing.

Conduct of hearings

169.1(10)   The Registrar-General must give full opportunity to the persons participating in the hearing to present evidence and make submissions.

Hearings conducted orally or in writing

169.1(11)   The Registrar-General may conduct a hearing orally, including by telephone, or in writing or partly orally and partly in writing and may adjourn the hearing from time to time.

Orders Made by Registrar-General

Application to Registrar-General

169.2(1)    A person who has or had an estate or interest in land or an instrument may apply to the Registrar-General for an order with respect to one or more of the following matters:

(a) the applicant has been registered as the owner of an estate or interest in land without giving consent, as referred to in section 68;

(b) other than with respect to a matter referred to in subsection 169.4(1), a registration of an instrument or the cancellation, restoration, correction, alteration or vacating of a registered instrument by a district registrar was invalid or not authorized by this Act;

(c) there was an omission or refusal by a district registrar to register an instrument or cancel, restore, correct, alter or vacate a registered instrument, as required by this Act;

(d) as a consequence of a matter referred to in clause (a), (b) or (c), the applicant is entitled to compensation, in accordance with this Act.

Order

169.2(2)    After a hearing with respect to the matters set out in the application, the Registrar-General may make one or more of the following orders:

(a) with respect to a matter referred to in clause (1)(a), and on receipt of a disclaimer from the applicant referred to in section 68,

(i) an order directing that an entry be made in the register to give effect to the disclaimer, and

(ii) an order directing that the affected instrument be cancelled or corrected;

(b) an order directing that a title for the estate or interest in land be issued in the name of the person entitled to it;

(c) an order directing that an instrument be registered, corrected, altered or vacated or the registration of an instrument be restored or cancelled;

(d) an order directing that an entry be made in the register to give effect to an order under this subsection;

(e) if, as a consequence of a matter set out in subsection (1), the Registrar-General determines that a person is entitled to compensation

(i) an order that compensation be paid in accordance with this Act, and

(ii) an order setting the amount to be paid as compensation, in accordance with sections 182 to 191;

(f) an order dismissing an application.

Serving and registering order

169.2(3)    The Registrar-General must

(a) serve the order on the applicant and all persons who were served with the application; and

(b) register the order in the appropriate land titles office.

Appeal of Registrar-General's Order

Appealing Registrar-General's order to court

169.3(1)    The applicant under section 169.2 and all persons who were served with the application and participated in the hearing may appeal the Registrar-General's order to the court within 30 days after being served with a copy of the order, or within such further time as the court may allow.

Registrar-General's order stayed

169.3(2)    An appeal from an order of the Registrar-General stays the order pending the hearing of the appeal, unless the court orders otherwise.

Registrar-General entitled to be heard

169.3(3)    The Registrar-General is entitled to be heard, by counsel or otherwise, on an appeal.

Decision on appeal

169.3(4)    On hearing the appeal, the court may

(a) confirm or vary the Registrar-General's order;

(b) quash the Registrar-General's order;

(c) refer the matter back to the Registrar-General for further consideration in accordance with any direction of the court;

(d) make any order that the Registrar-General could make;

(e) direct the Registrar-General to make any entry in the register so as to give effect to an order under this section; or

(f) make any other order that the court considers just.

Registrar-General's Report and Confirmation by Court Order

Application to Registrar-General for report

169.4(1)    A person who has or had an estate or interest in land or an instrument may apply to the Registrar-General for a report, to be confirmed by the court, that sets out the Registrar-General's findings and recommendations with respect to one or more of the following matters:

(a) that he or she or another person was deprived of an estate or interest in land or a registered instrument because of fraud or a wrongful act in which the owner of the land or the registered instrument participated or colluded;

(b) that the registration of an instrument is the result of fraud or a wrongful act;

(c) that as a consequence of a matter referred to in clause (a) or (b), the applicant is entitled to compensation, in accordance with this Act.

Report

169.4(2)    After a hearing, the Registrar-General must issue a report for the court setting out

(a) his or her findings as to the matters set out in subsection (1) that were alleged by the applicant; and

(b) his or her recommendations as to whether

(i) a title should be issued for an estate or interest in the land in the name of the person entitled to it,

(ii) a registered instrument should be corrected, altered or vacated or the registration of an instrument should be restored, cancelled or discharged,

(iii) any other entry should be made in the register to give effect to a finding or recommendation under this section, and

(iv) a person is entitled to compensation in accordance with this Act and, if so,

(A) recommend that an order for the payment of compensation be made, and

(B) recommend the amount of compensation that should be paid, in accordance with sections 182 to 191.

Application to court to confirm report

169.4(3)    The Registrar-General must apply to the court for confirmation of his or her report and file the report as part of the court application.

Report must be confirmed

169.4(4)    A report of the Registrar-General has no effect until it is confirmed by an order of the court.

Serving report and court application

169.4(5)    The Registrar-General must serve the applicant under subsection (1) and all persons who participated in the proceeding with

(a) the Registrar-General's report; and

(b) the Registrar-General's application to court requesting that the report be confirmed by the court.

If confirmation of report opposed

169.4(6)    Subject to the court ordering otherwise, if a person who is served with the Registrar-General's application intends to oppose the application, the Registrar-General must

(a) file a record of the proceedings before the Registrar-General in the court; and

(b) serve the record on the applicant and the other persons who participated in the proceeding.

Registrar-General entitled to be heard

169.4(7)    The Registrar-General is entitled to be heard, by counsel or otherwise, on an application for confirmation.

Court order

169.4(8)    The court may

(a) adopt all or some of the findings and recommendations of the Registrar-General and confirm the report in whole or in part;

(b) refer the report back to the Registrar-General for further inquiries to be made or for further consideration, and for a further report as to his or her findings and recommendations;

(c) refuse to confirm the Registrar-General's report; or

(d) make any other order that the court considers just.

Confirmed report is court order

169.4(9)    If the report of the Registrar-General is confirmed, it becomes an order of the court.

Serving and registering order

169.4(10)   On receipt of the court order, the Registrar-General must

(a) serve the order on the persons who were served under subsection (5); and

(b) register the order in the appropriate land titles office.

Registrar-General Declines to Hear or Determine Application

Registrar-General may decline to hear or determine application

169.5(1)    The Registrar-General may, in his or her sole discretion, decline to hear an application under section 169.2 or 169.4, or decline to make an order under section 169.2 or a report under section 169.4, having regard to one or more of the following:

(a) the complexity of the matter;

(b) the nature of the interests involved;

(c) the number of persons or interests involved.

Court proceedings

169.5(2)    If the Registrar-General declines to hear or determine an application under subsection (1), the applicant may initiate a proceeding in the court for a determination of the matter.

Court order if applicant initiates court proceedings

169.5(3)    The court may, in a proceeding initiated by the applicant,

(a) with respect to a matter referred to in section 169.2, make any order that the Registrar-General could make under subsection 169.2(2) or direct the Registrar-General to do so; or

(b) with respect to a matter referred to in section 169.4, make any order with respect to any matter about which the Registrar-General could make a finding or recommendation.

37          Section 171 is amended

(a) by adding "the Registrar-General or" before "the district registrar"; and

(b) by striking out "he deems just" and substituting "the Registrar-General or the district registrar considers just".

38          Subsection 172(2) is amended by striking out "the district registrar" wherever it occurs and substituting "the Registrar-General".

39          Subsection 173(1) is amended

(a) by striking out "order, of the district registrar, he" and substituting "order of the district registrar, other than a matter referred to in subsection 169.1(2), the person";

(b) by striking out "under his hand";

(c) by striking out "a judge in chambers, by notice of motion, setting forth the particulars and grounds of his dissatisfaction;" and substituting "the court"; and

(d) by striking out ", the Registrar-General, and the minister" and substituting "and the Registrar-General".

40          The following is added after subsection 176(2):

Referral to the Registrar-General

176(3)      If, in a proceeding under subsection (1) — whether commenced before or after the coming into force of this subsection — it appears to the court that a matter before it could be dealt with by the Registrar-General under section 169.2 or 169.4, the court may make an order

(a) directing the applicant to apply to the Registrar-General

(i) for an order by the Registrar-General with respect to a matter under subsection 169.2(1), or

(ii) for a report by the Registrar-General to be confirmed by the court with respect to a matter under subsection 169.4(1); and

(b) staying the court proceeding, or the part of it that relates to the application to the Registrar-General referred to in clause (a).

41          The centred heading before section 182 and sections 182 to 192 are replaced with the following:

COMPENSATION

Compensation from assurance fund

182         Sections 183 to 192 apply to a person who is entitled to compensation from the assurance fund under this Act.

Amount of compensation re estate or interest in land

183(1)      Subject to this section and sections 184 to 191, compensation with respect to an estate or interest in land, other than an estate or interest in mines and minerals referred to in subsection (2), is payable as follows:

(a) with respect to the estate or interest in land

(i) if a person is deprived of an estate or interest, the value of the estate or interest, or

(ii) if the priority of an interest of a person is subordinated to another interest, the reduction in the value of the subordinated interest;

(b) reasonable expenses incurred in bringing the claim for compensation;

(c) a further sum, not exceeding $5,000, for all other losses incurred by the person claiming compensation;

(d) interest on the amount payable under clause (a) from the relevant date under subsection (3), at the prejudgment interest rate established under The Court of Queen's Bench Act.

Amount of compensation — mines and minerals

183(2)      Subject to this section and sections 184 to 191, compensation with respect to an estate or interest in mines and minerals, or any of them, in, under or upon land, is payable as follows:

(a) the money actually paid for that estate or interest in mines and minerals;

(b) a further sum, not exceeding $5,000, for all other losses, including expenses and interest, incurred by the person claiming compensation.

Effective date of compensation

183(3)      The amount of compensation under subsection (1) or (2) must be determined as of the date on which the person

(a) makes an application to the Registrar-General for an order for compensation; or

(b) commences a court proceeding respecting land or respecting the estate or interest in land which results in an order for compensation;

whichever is earlier.

Time limit

184(1)      The government is not liable to pay compensation from the assurance fund to a person unless, before the expiration of two years after the person knows or ought to have known of the loss sustained, the person brings a claim for compensation.

Time limit for person claiming through predecessor

184(2)      In the case of a claim for compensation commenced by a person claiming through a predecessor in the estate or interest in land, the person claiming through the predecessor is deemed to have knowledge of the loss sustained on

(a) the day on which the predecessor first knew or ought to have known of the loss; or

(b) the day on which the person claiming through the predecessor first knew or ought to have known of the loss;

whichever is earlier.

Fraud or wrongful act bar to compensation

185         The government is not liable to pay compensation to a person if the loss was sustained as a result of the person participating or colluding in fraud or a wrongful act.

No compensation if caveat not registered

186         The government is not liable to pay compensation to a person if the loss was sustained because the person — with actual knowledge of the right to have a registration cancelled, restored, corrected, altered or vacated — failed, without reasonable excuse, to give notice of that right by promptly filing a caveat referred to in section 148.1.

No compensation if notice of severing joint tenancy

187         The government is not liable to pay compensation to a person for any loss sustained as a consequence of severing a joint tenancy if the person was served with a notice under section 79.

No compensation re district registrar's notice

188         The government is not liable to pay compensation to a person for any loss sustained if the person was served with a notice from a district registrar or, not having been served, had knowledge that the district registrar was about to

(a) bring land in respect of which the notice was issued, under this Act; or

(b) take the action for which the notice was issued.

No compensation if relying on duplicate title

189         The government is not liable to pay compensation to a person for any loss sustained by relying on a duplicate certificate of title.

Actions — trusts, corporations and municipalities

190(1)      The government is not liable to pay compensation to a person for any loss sustained

(a) due to the breach by a registered owner of a trust, whether an expressed, implied or constructive trust;

(b) due to a breach of trust by, or an act of misfeasance of, an executor, administrator or trustee;

(c) with respect to a corporation, by

(i) the improper execution of an instrument on behalf of the corporation, or

(ii) the lack of capacity in a corporation to deal with the estate or interest involved or to execute or take the benefit of a registered instrument; or

(d) with respect to a municipality, by

(i) the improper execution of an instrument on behalf of a municipality, or

(ii) the lack of capacity in a municipality to deal with the estate or interest involved or to execute or take the benefit of a registered instrument.

Definition of "municipality"

190(2)      For the purpose of clause (1)(d), "municipality" includes

(a) a local government district; and

(b) an incorporated community under The Northern Affairs Act.

Payment of Compensation

Effect of compensation order

191(1)      After an order for compensation is made under this Act, the Registrar-General must certify to the Minister of Finance that the person is entitled to the compensation as set out in the order.

No further compensation

191(2)      Upon payment of compensation to the person, the person ceases to be entitled to further compensation under this Act in relation to the matters to which the order relates.

Compensation payable from assurance fund

192(1)      Upon receipt of a certificate of the Registrar-General under section 191 as to the amount of compensation due, the Minister of Finance must pay to the person the amount of compensation as set out in the certificate from the assurance fund.

Payment from Consolidated Fund

192(2)      If there are not sufficient funds in the assurance fund to satisfy the amount payable under subsection (1), any amount not paid out of the assurance fund must be paid out of the Consolidated Fund.

MISCELLANEOUS PROVISIONS

Subrogation

192.1       When a person is entitled to compensation under sections 182 to 191, the government is subrogated to the person's rights and is entitled to recover the amount of the compensation from any one or more persons responsible for the loss, other than the Registrar-General, a district registrar or another employee of a land titles office. A court action may be commenced in the name of Her Majesty in right of the province.

Liability protection

192.2       Other than with respect to a claim for compensation as provided for in sections 182 to 191, no action or other proceeding may be brought against the Registrar-General, a district registrar or another employee of a land titles office acting under the authority of this Act or any other Act because of anything done or omitted in good faith

(a) in the performance or intended performance of a duty under this Act or any other Act; or

(b) in the exercise or intended exercise of a power under this Act or any other Act.

42          The centred heading "MISCELLANEOUS" before section 193 is struck out.

43(1)       Section 193 is amended

(a) by renumbering it as subsection 193(1);

(b) by replacing clause (g) with the following:

(g) is a party to, or has participated or colluded in, fraud or a wrongful act in any matter connected with this Act;

(c) by striking out everything after "guilty of an offence".

43(2)       Section 193 is further amended by adding the following after subsection (1):

Penalty — individuals

193(2)      An individual who commits an offence under subsection (1) is liable on summary conviction to a fine of not more that $50,000, or imprisonment for a term of not more than two years, or both.

Penalty — corporations

193(3)      A corporation that commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $250,000.

Order for restitution

193(4)      If a person is convicted of an offence under this section, the court may, in addition to any other penalty, order the person to pay restitution in respect of the offence.

Limitation

193(5)      No proceeding under this section shall be commenced more than six years after the facts on which the proceeding is based first came to the knowledge of the Registrar-General.

Filing restitution order in the court

193(6)      The person to whom restitution is payable under an order made under subsection (4) may file the order in the court. Once filed, it may be enforced as a judgment of the court.

44          The following is added after clause 195(b):

(b.1) specifying financial institutions for the purpose of the definition "financial institution" in subsection 72(2);

(b.2) designating public bodies for the purpose of subsection 72.4(2);

(b.3) prescribing the maximum amount chargeable for preparing and registering a discharge of an interest under section 105.1;

(b.4) designating classes of persons as eligible grantees for the purpose of clause 111(1)(d);

TRANSITIONAL PROVISIONS

Definition of "former Act"

45(1)       In this section, "former Act" means The Real Property Act, R.S.M. 1988, c. R30, as it read immediately before the coming into force of this section.

Conclusive evidence — title paramount

45(2)       Subsections 59(1) to (1.3) and (3), as enacted by this Act, apply to a matter pending but not finally disposed of under the former Act before December 5, 2011.

Evidence for registering instruments

45(3)       Sections 72 to 72.9, as enacted by this Act, apply in relation to instruments executed on or after December 5, 2011.

Discharges of instruments

45(4)       Section 105.1, as enacted by this Act, applies to the discharge of an interest referred to in subsection 105.1(1) that is required under clause (a) or (b) to be discharged on or after December 5, 2011.  A provision in an agreement — whether made before or after the coming into force of this subsection — is of no force or effect to the extent that the provision contemplates a charge for preparing and discharging an instrument in an amount that exceeds the maximum amount prescribed by regulation.

Application to discharge caveat

45(5)       Subsections 163(3) and (4), as enacted by this Act, apply in relation to a court proceeding commenced on or after December 5, 2011.

Proceedings before Registrar-General

45(6)       Sections 169.1 to 169.5 and 182 to 192.1, as enacted by this Act, apply in relation to a proceeding commenced on or after December 5, 2011, whether the events giving rise to the proceeding occurred before or after the coming into force of this subsection.

Limitation period

45(7)       For a proceeding commenced under section 169.2 or 169.4 in relation to a cause of action or an event that occurred before December 5, 2011, if the limitation period for commencing the proceeding has changed from what it had been under the former Act, then the applicant may benefit from the limitation period that is more favourable to the applicant.

Regulations

45(8)       The Lieutenant Governor in Council may make regulations to provide for any further transitional and saving matters that the Lieutenant Governor in Council considers necessary or advisable to remedy any difficulty or inconsistency.

CONSEQUENTIAL AMENDMENTS

C.C.S.M. c. G50 amended

46          Clause 26(5)(b) of The Gas Pipe Line Act is replaced with the following:

(b) is a statutory easement to which sections 111 to 112 of The Real Property Act apply, and

(i) the instrument granting it may be registered as provided for in section 111.1 of that Act, and

(ii) if the right is expropriated, the declaration of expropriation registered in the land titles office in respect of the expropriation is deemed to be an instrument registered under that section.

C.C.S.M. c. H80 amended

47(1)       The Homesteads Act is amended by this section.

47(2)       The definition "assurance fund" in section 1 is repealed.

47(3)       Subsection 16(2) and section 17 are repealed.

47(4)       Clauses 22(2)(b) and 23(5)(b) are amended

(a) by striking out "subsection 72(4)" and substituting "section 72.5"; and

(b) by striking out "that subsection" and substituting "that section".

C.C.S.M. c. L90 amended

48(1)       The Law of Property Act is amended by this section.

48(2)       Subsection 7(1) is amended

(a) in the section heading, by adding "and development schemes" after "covenants"; and

(b) by adding "or development scheme" after "covenant".

48(3)       Subsection 7(2) is amended by adding "or development scheme" after "covenant".

C.C.S.M. c. M240 amended

49(1)       The Municipal Board Act is amended by this section.

49(2)       The centred heading before section 104 is amended by adding "AND DEVELOPMENT SCHEMES'' at the end.

49(3)       Subsection 104(1) is replaced with the following:

Power to vary caveats, declarations and agreements

104(1)      Subject to subsection (3), the board may, after such notice and hearing as it considers appropriate and on any terms and conditions it may determine,

(a) by order, vary, cancel or substitute, in whole or in part, a building restriction or development scheme affecting lands, or the use of lands, regardless of how it was created; and

(b) for the purpose of giving effect to an order made under clause (a), order the discharge, removal or amendment of

(i) the caveat recording the building restriction, or

(ii) the declaration or agreement registered under section 76.2 of The Real Property Act in respect of the development scheme.

49(4)       Subsection 104(3) is amended by adding "or development scheme" after "building restriction" wherever it occurs.

C.C.S.M. c. P80 amended

50          Section 84 of The Planning Act is renumbered as subsection 84(1) and the following is added as subsection 84(2):

Development scheme is a restriction

84(2)        For greater certainty, a development scheme registered under section 76.2 of The Real Property Act is a restriction for the purpose of subsection (1).

C.C.S.M. c. P250 amended

51          Section 66 of The Public Schools Act is replaced with the following:

Exemption — building restrictions and development schemes

66          A school board that purchases land that is subject to a building restriction caveat or a development scheme may use the land for its purposes in any manner, and the use is not subject to the building restriction or development scheme, or any instrument, declaration or agreement registered in respect of the building restriction or development scheme.

C.C.S.M. c. R50 amended

52          Subsection 20(2) of The Registry Act is amended by striking out "The Assurance Fund or the registrar" and substituting "The government".

S.M. 2002, c. 39 amended

53          Section 238 of The City of Winnipeg Charter is renumbered as subsection 238(1) and the following is added as subsection 238(2):

Development scheme is a restriction

238(2)       For greater certainty, a development scheme registered under section 76.2 of The Real Property Act is a restriction for the purposes of subsection (1).

COMING INTO FORCE

Coming into force

54(1)       Subject to subsection (2), this Act comes into force on the day it receives royal assent.

54(2)       The following provisions come into force on December 5, 2011:

(a) subsection 2(1), insofar as it enacts the definition "fraud";

(b) subsection 3(2);

(c) sections 4 to 6, 8, 11, 15 to 17, 20 to 23, 30 and 35 to 43;

(d) section 44, insofar as it enacts clauses 195(b.1) to (b.3);

(e) sections 45, 47 and 52.

Explanatory Note

This Bill makes several significant amendments to The Real Property Act.

The Bill provides a streamlined process for dealing with a loss arising from a land titles registration. Instead of applying to the court for relief, the person suffering the loss may apply to the Registrar-General.

  • Unless it involves fraud or a wrongful act, the Registrar-General may make an order about the registration in question and may order the payment of compensation by the government. This order may be appealed to the court.
  • If it involves fraud or a wrongful act, the Registrar-General issues a report about the matter. The report is reviewed by the court, which may confirm, vary or set aside the findings and recommendations set out in the report. Confirmation of the report makes it an order of the court.

Also, if a person's loss results from fraud or a wrongful act, the person no longer needs to seek compensation from the wrongdoer before seeking compensation from the government.

The Bill also requires that the witness to a transfer of land or a mortgage be a lawyer or other specified official.

The Bill requires a mortgage holder to register a discharge of a mortgage within 60 days after the mortgage is paid off. A maximum fee for preparing and discharging the mortgage will be set by regulation.

A development scheme imposes development restrictions on parcels of land affected by the scheme. The Bill facilitates the registration of a development scheme against all affected parcels before any of them are sold. This eliminates the need for the registration of an agreement with the first buyer of each parcel affected by the restrictions.

Amendments are made to allow statutory easements to be created for public purposes and to recognize rights analogous to easements as statutory easements.

The Bill also makes administrative and housekeeping amendments, and contains consequential amendments to other Acts.

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