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The Real Property Act
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This version was current from November 8, 2007 to June 15, 2011.

Note: It does not reflect any retroactive amendment enacted after June 15, 2011.
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at the end of the amending Act.

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C.C.S.M. c. R30

The Real Property Act

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

Definitions

1           In this Act, and in instruments purporting to be made or registered under this Act, unless the context otherwise requires

"certificate of title" means a certificate bound in the register and issued by the district registrar in the form approved by the regulations; (« certificat de titre »)

"court" means Her Majesty's Court of Queen's Bench for Manitoba; (« tribunal »)

"crown reserve" means land which vests in the Crown which is not dedicated to the public; (« réserve de la Couronne »)

"encumbrance" means a charge or lien on land other than a mortgage, and includes an hypothecation of the charge or lien; (« charge »)

"encumbrancer" means the owner of an encumbrance; (« bénéficiaire de charge »)

"instrument" means a certificate of title, title, certificate of search or charge, book, record, plan, or data stored in the data storage system, relating to a dealing with land, or creating a mortgage, encumbrance, or lien thereon, or evidencing title thereto and includes any duplicate of the instrument; (« instrument »)

"issuing of certificate of title" or "issuing title" means the signing of a certificate of title or the acceptance of a title by the district registrar; (« délivrance de certificat de titre » ou « délivrance de titre »)

"judge" means a judge of the court; (« juge »)

"land" means land, messuages, tenements, hereditaments, corporeal and incorporeal, of every kind and description, whatever the estate or interest therein, and whether legal or equitable, together with all paths, passages, ways, watercourses, liberties, privileges, and easements, appertaining thereto, and all trees and timber thereon, and all mines, minerals, and quarries, unless specially excepted; (« bien-fonds »)

"lease" includes a sub-lease; (« bail »)

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)

"mortgage" a charge on land created for securing a debt existing, future or contingent, or a loan, and includes an hypothecation of the charge; (« hypothèque »)

"mortgagee" means the owner of a mortgage; (« créancier hypothécaire »)

"mortgagor" means the owner of land subject to a mortgage; (« débiteur hypothécaire »)

"new system" means the system of registration provided by this Act; (« nouveau système »)

"old system" means the system of registration provided by The Registry Act; (« ancien système »)

"owner" means a person registered under this Act as owner of land or of a mortgage, encumbrance, or lease, whether entitled thereto in his own right or in his representative capacity and in the case of a title, includes without specific mention, an owner of an estate in fee simple in possession; (« propriétaire »)

"person of unsound mind" means a person, not an infant, who is incapable, from infirmity of mind, of managing his own affairs; (« faible d'esprit »)

"public reserve" means land which vests in a municipality and which is dedicated to the public; (« réserve publique »)

"register" means the books kept in a land titles office in which certificates of title are entered and bound and includes the data storage system where data concerning titles are entered and accepted; (« registre »)

"title" means data entered in the data storage system which conforms to the form of the title as provided in the regulations and given accepted status by the district registrar; (« titre »)

"transmission" means the passing of title to land, mortgages, encumbrances, or leases, in any manner other than by transfer from the owner. (« transmission »)

S.M. 1993, c. 48, s. 94; S.M. 2004, c. 42, s. 47.

Meaning of "issued under this Act"

2(1)        Wherever in this Act reference is made to a certificate of title "issued under this Act" it shall be construed to include all certificates of title issued under any Real Property Act previously in force in the province.

Reference to "certificate of title"

2(2)        Where in this or any other Act, or in any regulation made thereunder, the expression "certificate of title" is used that expression shall be deemed to include a title issued under this Act and the expression "duplicate certificate of title" includes duplicate title.

Reference in other Acts

2(3)        Where in any other Act or in any regulation made under that Act, the word "memorial" or "memorandum" is used, they shall be deemed to include any memorial, memorandum or entry under the Act.

Meaning of joint tenants

2(4)        The expression "as joint tenants" where used in this Act or in a title, instrument or other document means as joint tenants and not as tenants in common.

Subject to new system

2(5)        The expression "subject to the new system" means that no registration affecting title to land may be made other than under the new system.

When registration is completed and takes effect

2(6)        Registration of an instrument which is registrable under this Act is completed by the signing of the certificate of registration by the district registrar and takes effect from the day the instrument is assigned a serial number.

Extent of lien

2(7)        Where, under this or any other Act of the Legislature, an instrument binds and forms or purports to bind and form, a lien and charge on the lands of a debtor, that instrument when registered in the general register of a Land Titles Office binds and charges only the lands of the debtor named in the instrument and registered at that Land Titles Office in the identical name of the debtor as set out in the instrument.

S.M. 1993, c. 7, s. 2.

OBJECTS OF THE ACT

Objects of the Act

3           The objects of this Act are to simplify the title to land, to give certainty thereto, to facilitate the proof thereof, and to expedite dealings therewith; and the Act shall be construed in a manner to best give effect to those objects.

LAND TITLES DISTRICTS AND OFFICES

Land titles district

4(1)        The Lieutenant Governor in Council may constitute such portions of the province as he deems proper into land titles districts, and may change the boundaries thereof.

Land titles office

4(2)        In each district, at such places as the Lieutenant Governor in Council appoints, there shall be an office to be called "The Land Titles Office for (insert here the name of the district)".

Present districts and offices continued

4(3)        The present land titles districts and offices shall continue until changed under this Act.

Buildings

5           In each district, at the place appointed for a land titles office, the Lieutenant Governor in Council may procure a site and cause a suitable building to be erected thereon, or may purchase or rent a building to be used as the land titles office and properly furnish it.

Old registrations continue

6           Instruments, books, records, documents, plans, and other papers, and registrations made in a registration district prior to the transfer of the territory thereof to a land titles district, continue to have the same effect on and after the date of the transfer, as if this Act or any former Act styled The Real Property Act had not been passed.

Certain registrations invalid

7           No registration made under the old system affects land that is subject to or under the new system, nor does a registration under the new system affect land that is not subject to, or under, the new system.

Effect after change of system

8           No registration made in a registration district prior to the date when it, or any part of it, has become incorporated into a land titles district, or in the office of a land titles district prior to the date when a portion thereof is added to some other district, has, after that date, the effect of binding land other than the land that would have been bound or affected thereby had that registration district not been brought into a land titles district, or that portion of a land titles district not been added to some other district.

Certified copies for new districts

9           A district registrar may furnish originals or certified copies of registers, books, or instruments, or of certified copies of registers, books, or instruments, in his office, affecting lands formerly within his district or under his control, upon the lands being added to, or formed into, another land titles district; and all such originals or certified copies are of the same force and effect, when deposited in the office of the new district, as if they were originals and had been originally registered, deposited, or kept, in that office.

Effect of change of district

10          Where the area included in a land titles district, or in a part thereof, is transferred to, and becomes part of, another land titles district, all certificates of judgment registered prior to the transfer cease to form a lien or charge on land within the area so transferred at the time at which they would, under The Judgments Act cease to form a lien or charge on the land, if the area aforesaid were not so transferred, unless before that time they are re-registered, as provided in The Judgments Act, in the land titles office for the land titles district to which the area is transferred.

Offices to be open certain days and hours

11(1)        Subject to subsections (3) and (4), each land titles office shall be open

(a) Monday through Friday except as determined under The Civil Service Act, a regulation made under that Act, or a collective agreement entered into under that Act; and

(b) during such hours as the Lieutenant Governor in Council may prescribe by regulation.

Registration hours

11(2)       On any day that the office is required to be kept open as provided in subsection (1) instruments shall be received for registration in every land titles office during such period as the Lieutenant Governor in Council may prescribe.

Closing on other days

11(3)       The Lieutenant Governor in Council may order that any land titles office be closed during the whole or part of any day that he deems is generally observed as a public holiday in the municipality in which the land titles office is situated.

Effect of order

11(4)       An order made under subsection (3) may apply to a designated day in every year or in any one or more years, specified in the order.

S.M. 1995, c. 27, s. 2.

DISTRICT REGISTRARS AND OFFICIALS

Appointment

12(1)       For each district an official, who shall be called "the district registrar", and such clerks and other officials as are deemed advisable may be appointed as provided in The Civil Service Act.

Appointment of Registrar-General

12(2)       An official who shall be known as "the Registrar-General" may be appointed as provided in The Civil Service Act.

Appointment of Examiner of Surveys

12(3)       An official who shall be known as "the Examiner of Surveys" shall be appointed as provided in The Civil Service Act.

Duties of staff

12(4)       Every person appointed under this section shall as may be prescribed by the Lieutenant Governor in Council, discharge the duties of, and hold, any office authorized by law.

Duties of Registrar-General

12(5)       The Registrar-General shall,

(a) exercise a general supervision over all land titles offices, inspect the books and records thereof, and make and enforce rules of practice therefor;

(b) have and may exercise in each land titles district all the powers which the district registrar may exercise therein; and

(c) possess such powers and have such duties, in addition to those prescribed under this or any Act, as are given or assigned to him by the Lieutenant Governor in Council.

Reference to Registrar-General

12(6)       A district registrar may refer to the Registrar-General for his opinion any point of law or practice arising in the office of the district registrar or the examiner of surveys.

Reference by a person

12(7)       A person who is dissatisfied with an act or ruling of a district registrar or the examiner of surveys may refer the matter to the Registrar-General for his decision; and the district registrar shall act in accordance therewith.

Certain officers to be barristers

12(8)       No person shall be appointed Registrar General or as a district registrar or a deputy district registrar unless the person is a duly qualified barrister or solicitor entitled to practise in Manitoba.

Examiner of Surveys

12(9)       No person shall be appointed Examiner of Surveys unless the person holds a commission from the Association of Manitoba Land Surveyors entitling the person to practise as a surveyor of lands in and for Manitoba.

Appointment and powers of deputies

13(1)       A deputy of the Registrar-General and one or more deputy district registrars and deputy examiners of surveys may be appointed as provided in The Civil Service Act, and each deputy has all the powers, and is entitled to perform all the duties, of the district registrar or Registrar-General or Examiner of Surveys for whom he is deputy.

When deputy to act

13(2)       In case of the death or removal from office or resignation of a district registrar or the Registrar-General, the deputy district registrar or deputy Registrar-General shall act as, and with the powers of, a district registrar or the Registrar-General until the appointment of a new district registrar or Registrar-General.

Dist. regs. and deps. interchangeable

13(3)       The district registrar and each deputy district registrar of each land titles district is a deputy district registrar of each other land titles district and, subject to this Act, shall perform his duties as such as the Registrar-General or the minister may direct.

Authority to act for dist. reg.

13(4)       The Registrar-General may by written order authorize any employee of the government employed in the administration of this Act in a land titles office to perform such duties of the district registrar in that land titles office as are specified in the order and without limiting the generality of the foregoing the authority may include authority to sign memorials, certificates of registration, certificates of charge or certificates of title on behalf of the district registrar, and when a person so authorized signs any memorial, certificate of registration, certificates of charge or certificate of title on behalf of a district registrar he shall sign as assistant district registrar.

S.M. 1993, c. 48, s. 94.

Daily record of dist. reg.

14(1)       The district registrar shall record and make all entries of every instrument presented for registration, and assign a serial number to the instrument and such other data as the Registrar General may prescribe, in the order in which it was presented together with the date of presentation; and the record of these entries shall be called the daily record.

Serial number of rejected instrument

14(2)       If an instrument is rejected, the serial number assigned to it upon registration shall be cancelled and if the same instrument is again presented for registration it shall be assigned a new serial number in the order in which it was presented for the subsequent registration and it shall be entitled to priority according to the new serial number assigned at that time.

S.M. 1995, c. 27, s. 3.

Certain books

15          The fee book, receiving book and transfer journal kept in a land titles office shall be deemed to be a part of the daily record, and any entry made in the fee book, receiving book or transfer journal shall be deemed to be an entry made in the daily record.

Officers not to act as agents

16(1)       No district registrar, examiner of surveys, examiner of titles, officer, or clerk, in a land titles office shall,

(a) directly or indirectly act as the agent of a person investing money and taking securities on real estate within the province; or

(b) advise, for a fee or reward, upon the title to land, or practise as a conveyancer; or

(c) carry on or transact within the office any business or occupation other than his duties under this Act; or

(d) practise as a barrister, attorney, or solicitor, or surveyor.

Penalty

16(2)       The penalty for a breach of subsection (1) is, at the discretion of the Lieutenant Governor in Council, dismissal from office.

When fees to be paid

17(1)       No service shall be rendered by an official of a land titles office until all fees chargeable therefor have been paid to the district registrar or charged to a credit account maintained by the district registrar in the name of the person for or on whose behalf the service is rendered.

17(2)       Repealed, S.M. 1993, c. 48, s. 35.

S.M. 1993, c. 48, s. 35.

18          Repealed.

S.M. 1992, c. 5, s. 2.

Dist. reg. to keep account

19(1)       The Registrar-General and each district registrar shall keep a correct account of all sums of money received by him, and shall pay them to the Minister of Finance at such times and in such manner as the Minister of Finance directs.

Official not to retain fees

19(2)       No official, clerk, or other employee in a land titles office is entitled to retain for his use any fee received for work done or information furnished in connection with his office.

Penalty for retaining

19(3)       The penalty for any violation of this section is dismissal from office.

Dist. reg. not compellable

20(1)       When the attendance of a district registrar as a witness, whether personally or in his official capacity, is required in an action or proceeding in a court, and the attendance necessitates his absence from the city, town, or village, in which his office is situated, a notice thereof in writing shall, in addition to the service of the subpoena, order, or summons, on him, be served upon, or sent to, the Registrar-General so that it is received at his office at least one week before the attendance of the district registrar is so required, otherwise the district registrar is not bound to attend thereon.

Books in another office

20(2)       A district registrar may produce in court a book, record or instrument from the office of any other district registrar or of any registrar, and the book, record or instrument shall be deemed to have been produced by the proper officer and from the proper custody.

Production of certified copies

20(3)       Where a district registrar is required to produce in any court any certificate of title or other document, unless the judge or presiding officer of the court otherwise orders, the requirement is, as provided in section 180, satisfied by the production by the district registrar of a copy of the certificate of title or document, certified by the district registrar to be a true copy of the original of which it purports to be a copy, or by the production by the district registrar of an extract of the information stored in the electronic data storage system of the land titles office relating to that title or document and certified by the district registrar to be a true and accurate extract of that information.

Cost of certified copies

20(4)       The person requiring the attendance of the district registrar as a witness shall pay the cost of any certified copies produced as provided in subsection (3) according to the tariff of land titles office fees.

S.M. 1993, c. 48, s. 35.

Officers not liable

21          Neither a district registrar, nor a person acting under his authority, nor a surety of the district registrar or of such a person, is personally liable to any action or proceeding for, or in respect of, an act bona fide done, or omitted to be done, in the exercise, or supposed exercise, of the powers given by this Act or any Act or by an order, rule, or regulation, made in pursuance thereof.

POWERS AND DUTIES OF DISTRICT REGISTRARS

Powers

22(1)       In addition to the other powers conferred under this Act, a district registrar may,

(a) enter a caveat to prohibit the transfer or dealing with any land, mortgage, encumbrance or lease belonging, or supposed to belong, to the Crown or to a person under disability, and also to prohibit the dealing with any land, mortgage, encumbrance or lease where it appears to him that an error has been made in a certificate of title or other instrument, or for the prevention of error or of fraud or improper dealing;

(b) summon a person to produce before him an instrument which that person, in any capacity, has in his possession or within his control affecting any land, mortgage, or encumbrance, or the title thereto;

(c) summon a person, whose evidence may be necessary or material in respect of a matter pending before him, to appear and give evidence upon oath respecting that matter, and to produce an instrument or evidence of title before him or before any other person appointed under his order;

(d) lapse any caveat entered by him under clause (a) when, in his opinion, it has served the purpose for which it was filed and is no longer required;

(e) on request, issue a certificate of search;

(f) issue certified copies of any title or of any document registered or filed in the land titles office of the district registrar;

(g) delegate to any member of the staff of his land titles office authority to certify copies issued under clause (f) and to sign a certificate of search issued under clause (e);

(h) present for registration, a request to issue a new certificate of title and dispense with the production of the duplicate certificate of title of the outstanding certificate of title if issued, and make an entry therein, to the effect that the duplicate certificate of title shall be produced, where necessary, on the next dealing with the land described in the new certificate of title;

(i) destroy a duplicate certificate of title upon presentation thereof to the land titles office, where the original title to which the duplicate certificate of title relates has been cancelled and a new certificate of title or title previously issued for any reason;

(j) repealed, S.M. 2001, c. 8, s. 2.

Appointment of special examiner

22(2)       The order of a district registrar under the hand of the district registrar is sufficient authority to the person therein named as a special examiner, to administer the oath to and to take the evidence of any person summoned to appear before the special examiner; and the evidence when so taken shall be transmitted to the district registrar and has the same effect as if taken before the district registrar.

Microfilming of registered documents

22(3)       The district registrar may cause an instrument that is registered under this Act to be photographed on microfilm.

Certified copy as proof

22(4)       Where an instrument has been microfilmed under subsection (3), a printed reproduction from the microfilm certified by the district registrar as a true copy of the instrument is prima facie proof of the instrument and its contents for all purposes.

Destruction of instruments

22(5)       Where an instrument has been microfilmed under subsection (3), the district registrar may destroy the instrument or cause it to be destroyed forthwith, and upon destruction of the instrument the microfilm record of the instrument stands in place of the instrument for all purposes.

Proof of lost instruments

22(6)       Where a district registrar is required to produce any instrument, document, or other record and is unable to do so by reason of it having been lost, mislaid, or destroyed, he shall give his written certificate to that effect, signed by him, to the court or person making the requisition; and he may then produce, in lieu of the instrument, document, or record, any memorial, entry, or record relating thereto and it shall be accepted as compliance with the requisition and as evidence of the nature and contents of the instrument, document, or record that has been lost, mislaid, or destroyed.

Substitute title

22(7)       Where the Registrar General is satisfied that a certificate of title has been destroyed or lost, or cannot be found, or has been inadvertently purged from the register, the Registrar General may order the district registrar to prepare from the records in the office of the district registrar, a substitute title which shall be as nearly as possible a copy of the original title with all endorsements or entries and shall be recorded as a substitute title.

Entire register destroyed

22(8)       Where the Registrar General is satisfied that the register or any portion thereof has been destroyed, lost, or cannot be found, or has been inadvertently purged, the Registrar General may make an order under subsection (7) which applies to those titles in the register which remain active.

Date of substitute title

22(9)       The date of a substitute title prepared pursuant to an order made under subsection (7) or (8) shall be the date of the title which it replaces; but the district registrar shall certify the date upon which the substitute title was entered in the register.

Where evidence not available

22(10)      Where evidence of original signatures of memorials is not available, it is sufficient evidence that the memorials were duly signed if

(a) the word "signed" is entered in the space provided for the signatures; or

(b) the district registrar accepts the substituted title.

Effect of substitute certificate

22(11)      Notwithstanding anything contained in this Act or any other Act of the Legislature, a substitute certificate of title prepared pursuant to an order made under subsection (7) or (8) shall, for all purposes, be the certificate of title to the land therein described and shall have the same force and effect as the original certificate of title.

Substitute instruments

22(12)      Where the district registrar is satisfied that any instrument filed or registered in the Land Titles Office, other than a certificate of title or duplicate certificate of title, has been destroyed or lost or mislaid, he may, if the instrument has been microfilmed, certify that an enlarged print from the microfilm is a copy thereof and thereupon the print shall, without further proof, have the same force and effect as the original instrument.

S.M. 2001, c. 8, s. 2.

Correcting

23(1)       Where it appears to a district registrar,

(a) that a certificate of title or other instrument has been issued in error or contains a misdescription; or

(b) that an entry or endorsement has been made in error on a certificate of title or other instrument, or been omitted therefrom; or

(c) that a certificate of title, instrument, entry, or endorsement, was fraudulently or wrongfully obtained;

he may, whether the certificate or instrument is in his custody or is produced to him under a summons, without prejudicing rights conferred for value, correct the error in, or in the case of fraud or wrong cancel, the certificate of title, instrument, entry, or endorsement, or any memorial, certificate, exemplification or copy thereof, as the case requires, and may supply entries omitted.

Original words not to be erased

23(2)       In the correction of an error, the district registrar shall not erase or render illegible the original words; and he shall affix the date upon which the correction was made or the entry supplied.

Effect of correction

23(3)       A certificate of title so corrected, or an entry so corrected or supplied, has the like validity and effect as if the error had not been made or the entry omitted.

District registrar may summon

24(1)       Where a person summoned by a district registrar to produce a certificate of title or other instrument refuses to comply therewith, the district registrar may apply to the court, on notice of motion returnable in chambers, calling upon that person to appear before the court and show cause why the certificate or instrument should not be delivered up to the district registrar to be cancelled or corrected by him.

Refusal to obey the summons

24(2)       Where the person, when served with the notice of motion, neglects or refuses to attend before the court, at the time therein appointed, the judge may issue a warrant authorizing and directing him to be apprehended and brought before the court for examination.

Jurisdiction of court

24(3)       Upon his appearance, the court may examine him upon oath, and may order him to deliver up the certificate of title or instrument, and, upon his refusal or neglect to comply with the order, may commit him to a common gaol for a period not exceeding six months, unless the certificate of title or instrument is sooner delivered up, and in such case, or in case he has absconded, so that the notice of motion or warrant cannot be served upon him, the court may direct the district registrar to cancel or correct the certificate or instrument, or an entry or endorsement thereon, or to substitute or issue such certificate of title or instrument, or make such entry or endorsement thereon, as the circumstances of the case require.

Form and enforcement

25          A summons issued by a district registrar may be in the form prescribed by the regulations and, in the event of disobedience of a summons being certified to the court, it may be enforced by the court as a subpoena of the court.

Dispensing with production of duplicate title

26(1)       Where a duplicate certificate of title is lost or destroyed, the district registrar may, upon a registration affecting the land, dispense with the production of the duplicate certificate.

Non-production to be accounted for

26(2)       Before completing the registration, the district registrar shall be satisfied that the certificate of title has not been deposited by way of lien or as security for a loan, and of the reason for its non-production.

26(3)       Repealed, S.M. 1991-92, c. 41, s. 24.

26(4)       Repealed, S.M. 2001, c. 8, s. 3.

Dispensation with production

26(5)       Where land under the new system, or an estate or interest therein, is vested in Her Majesty or any other person under, or pursuant to authority granted by, an Act of the Legislature, or under an order of a court of competent jurisdiction, the district registrar may, and where so required by this Act or any other Act of the Legislature shall, summarily dispense with the production of the duplicate certificate of title therefor and cancel it, in full or partially as the case requires.

S.M. 1991-92, c. 41, s. 24; S.M. 2001, c. 8, s. 3.

APPLICATIONS UNDER THE ACT

CROWN GRANTS

Land granted by Crown

27          Where a patent or grant of land from the Crown has issued after February 20, 1914, the land is at once subject to this Act, and upon filing it and filing an application for title, the district registrar shall issue a certificate of title to the patentee or grantee or to his personal representative.

Issue of certificate of title

28          In the case of land in respect to which the patent or grant has been filed by the Minister of Conservation on behalf of the patentee or grantee under The Crown Lands Act, the district registrar shall issue a certificate of title.

S.M. 2000, c. 35, s. 74.

WHERE LAND UNDER OLD SYSTEM

Application

29(1)       The owner of an estate or interest in land under the old system, may apply to the district registrar of the district in which the land is situated, to have his estate or interest or the whole title to the land registered under the new system, but the district registrar may refuse to entertain the application, unless all persons who are interested in the land are consenting parties thereto.

Reduction of fees

29(2)       Where land under the old system has been sold for taxes and application for title has been made thereunder, but the land has been redeemed therefrom, if, within one year of the redemption, an application is made under subsection (1), the fees normally payable on that application shall be reduced by the amount of the fees paid on the tax sale application.

Effect of filing application

30(1)       Upon the filing of an application to bring land under this Act, regardless of whether the application is made by a person entitled to make it, or is in accordance with this Act, the land becomes subject to the new system; and, subject to section 99 and to subsection (2), no registration or filing affecting the land shall be accepted until a certificate of title for the land has been issued pursuant to the application, unless the application is rejected by the district registrar or withdrawn.

Filings in the application

30(2)       Claims for liens under The Builders' Liens Act affecting the land may, and instruments required by the district registrar for the completion of the title of the applicant to the land shall, be filed in the application; and, if the application is withdrawn or rejected, any such filing shall be returned with the application or entered as a registration in the abstract book respecting the land as the district registrar may determine.

Vacating of prior claims

30(3)       Subject to section 103, where a certificate of title to land, issued pursuant to an application under section 29, contains a memorial or entry or other reference giving notice of a claim, reservation, or interest alleged to have been acquired or established prior to the date upon which the application was filed, if the district registrar is satisfied that the claim, reservation, or interest has been released, discharged, or disposed of by the person who would benefit by the maintenance thereof, or otherwise no longer exists, he may, upon the filing of a request of the registered owner, vacate the memorial or entry or reference; and any quit claim, release, or other document or evidence presented in support of the request shall be attached thereto and filed therewith.

Order to vacate claim

30(4)       The owner of land may apply to the court for an order vacating a claim, reservation or interest referred to in subsection (3) and the court, if satisfied that the claim, reservation or interest is not valid or enforceable or has expired, may grant an order vacating it.

District registrar may vacate claim or interest

30(5)       The district registrar may vacate the registration of a claim, reservation or interest referred to in subsection (3), where it appears that it is not valid or enforceable or has expired,

(a) 30 days after the district registrar gives notice to the person entitled to benefit by the maintenance of the claim, reservation or interest, to commence proceedings in the court with respect to the claim, reservation or interest;

(b) without notice where the claim, reservation or interest is a mineral lease that specifies an expiry date, period of time, or extension of time that has expired; or

(c) without notice where the district registrar is satisfied from the face of the record that the claim, reservation or interest has expired or has been extinguished.

Method of giving notice

30(6)       Subsection 147(2) applies to the giving of notice under subsection (5).

Appl. of secs. 150 to 152

30(7)       Sections 150 to 152 apply with such modifications as the circumstances require to proceedings under this section.

Proceedings to establish right

30(8)       The person entitled to benefit by the maintenance of the claim, reservation or interest referred to in subsection (3) may take proceedings in court by originating notice of motion to establish his right to maintain the claim, reservation or interest.

Restriction on further registration

30(9)       After a claim, reservation or interest referred to in subsection (3) has been vacated under this section, no caveat shall be filed relating to the same claim, reservation or interest unless the district registrar gives his approval thereto in writing.

S.M. 1992, c. 5, s. 3.

Land in one application

31(1)       Subject to subsection (2), contiguous unsubdivided lands, not exceeding altogether 2,000 acres, (a road not to be considered a break in the contiguity), or any number of lots under the same plan of subdivision, may be included in a single application; but in no case shall a first or subsequent certificate of title issue for more than 50 lots, or for unsubdivided lands that are not contiguous or that contain more than 2,000 acres.

Variations of restrictions

31(2)       Where the district registrar deems that the inclusion in a single certificate of title of

(a) a number of acres or lots greater or less than that stated in subsection (1); or

(b) lots that are not under the same plan of subdivision; or

(c) unsubdivided lands that are not contiguous;

would facilitate dealings with the land, he may issue a certificate of title accordingly.

Plan may be required

32(1)       Where an application is made to bring land under this Act, the district registrar may require the applicant to file a plan of survey defining the limits of the land for which the application is made.

Land subject to mortgage

32(2)       Where land subject to mortgage is brought under the new system, all rights, remedies, and matters of contract, between the mortgagor and mortgagee in relation thereto remain intact as if the land had continued under the old system.

Undivided interests

33(1)       An application shall not be received to bring under the new system an undivided interest in land, unless an application is also made for all other undivided interests in the land; and no withdrawal or rejection of an application for an undivided interest shall be permitted, unless the application for all other undivided interests in the same land is withdrawn or rejected.

Restriction on subsec. (1)

33(2)       Subsection (1) does not apply to an undivided interest in mines or minerals.

Application on behalf of infant or person of unsound mind

34(1)       An application to bring land under this Act may be made

(a) on behalf of an infant, by either parent of the infant;

(b) on behalf of a person of unsound mind, by

(i) the person's committee of the estate, or

(ii) the person's substitute decision maker for property appointed under The Vulnerable Persons Living with a Mental Disability Act, if the substitute decision maker has the power to deal with the land.

Application by guardian

34(2)       Where both parents of an infant are dead or another person is the guardian of or stands in loco parentis to the infant, an application under subsection (1) may be made by the guardian of the infant or the person who stands in loco parentis to the infant.

Application by attorney

34(3)       A person holding a power of attorney authorizing the sale of land may apply, in respect of the land, in the name and on behalf of the owner, unless the power of attorney expressly prohibits him from so doing.

S.M. 1993, c. 29, s. 201.

Direction to issue certificate

35(1)       Any person, except a purchaser at a tax sale, applying to bring land under the new system, may in his application, or upon request in writing addressed to the district registrar prior to the drafting of the certificate of title, direct the certificate for the land, or any part thereof, to be issued in the name of some other person or in the names of himself and some other person.

Effect of direction

35(2)       The direction, whether comprised in an application or in a request, from the time of its filing has the effect of conveying and transferring to that other person or to the applicant and that other person, as the case is, all the estate or interest in the land to which the applicant is entitled, and which he directs to be transferred, as fully and effectually as if the estate or interest were transferred by deed and the deed duly registered.

Application of Homesteads Act

35(3)       Every direction is a disposition within the meaning of The Homesteads Act; and no application or request containing a direction shall be accepted unless it is in compliance with The Homesteads Act.

S.M. 1992, c. 46, s. 64.

Withdrawal of application

36(1)       An applicant may, upon such terms as to the district registrar seems proper, withdraw his application as to the whole or any part of the land comprised therein at any time prior to the issue of the certificate of title.

Expenses of caveator on withdrawal

36(2)       In case of the withdrawal of application, if a caveator has been put to expense, without sufficient cause, by reason of the application, he is entitled to receive from the applicant such compensation as a judge on a motion in chambers orders.

Rejection of application

37          The district registrar may reject the application as to the whole or a part of the land comprised therein, if the applicant fails within a reasonable time to produce evidence necessary to make out a good safe-holding title, unless the applicant adduces satisfactory proof that he is proceeding without unnecessary delay in removing defects and complying with the requisitions made on the title.

Appl. for additional land required

38(1)       Where an application to bring land under this Act is made by a grantee of part only of the contiguous land formerly owned by the grantor in any quarter section, parish lot or lot shown on a plan, the district registrar shall reject the application unless an application is also made to bring under this Act the balance of the land owned by the grantor in the quarter section, parish lot or lot shown on the plan.

Waiver of subsec. (1)

38(2)       Where the deed or direction under which a grantee making an application to which subsection (1) applies acquired his interest was made before January 1, 1976, the district registrar may waive the requirement of subsection (1) if it appears to him that it would be inequitable in the circumstances to insist upon an application by the grantor to bring under this Act the balance of the land owned by the grantor in the quarter section, parish lot or lot shown on a plan.

Approval under Planning Act

38(3)       Where the deed or direction under which the grantee making an application to which subsection (1) applies acquired his interest was made after January 1, 1976, the application shall be accompanied by the approval of the approving authority under The Planning Act.

Meaning of "grantee" and "grantor"

38(4)       For the purposes of this section, "grantee" includes a person to whom a certificate of title is directed to be issued in an application to bring land under this Act and "grantor" includes an applicant who, in an application to bring land under this Act, gives a direction to issue a certificate of title to land to another person.

Entry in old system

39          On the withdrawal or rejection of an application either in whole or in part, the district registrar shall make an entry in the abstract of title under the old system, to that effect, and upon the entry, the land thereby affected ceases to be subject to the new system, and immediately becomes subject to the old system.

Effect where direction filed

40(1)       In the case of the withdrawal or rejection in whole or in part of an application to bring land under the new system, under which a direction has been filed with the district registrar, that title issue to some person other than the applicant, either alone or conjointly with the applicant, the recording of the partial withdrawal or rejection, in the abstract of title under the old system, has the effect of revesting the land affected in the person in whom, had no direction been filed, it would have remained vested, as fully and effectively as if no direction had been made.

Direction not notice of right

40(2)       No person shall, from the filing of a direction, be deemed to have notice of any right to the land existing between the persons named in the direction.

Consent of directee

40(3)       The district registrar shall not allow the withdrawal or rejection, except upon the written consent of the person to whom, either alone or conjointly with the applicant, the certificate of title was directed to issue, or, in the case of a rejection, upon the expiration of the time limited in a notice of intention to reject given to him by the district registrar.

Rights of parties saved

40(4)       Nothing in this section affects the rights as between themselves of any of the persons named in the direction.

Service on adverse claimants

41(1)       Where the district registrar finds that some person other than the applicant has, or appears to have, some right or claim to, or against, the land respecting which the application is made, he may issue a notice, and cause that person to be served with a copy thereof, to the effect that a certificate of title will issue for the land pursuant to the application, unless that person, within the time limited by the notice, which shall, in each case, be fixed by the district registrar, take proceedings to stop the issue thereof.

Substitutional service

41(2)       Where a person required to be served in an application to bring land under the new system cannot, after due diligence, be found, the district registrar may, in his discretion, direct that any notice required to be given under or in respect of the application may be served substitutionally, in such manner as the district registrar may direct; and the substitutional service has the same effect as personal service upon the person intended to be affected thereby.

Patents accepted as final

42          In the investigation of titles, a patent as to which the district registrar has no notice of cancellation or of proceedings taken to set it aside, shall be accepted by the district registrar as final; and it is not necessary to inquire whether it has been properly issued or not.

Issue of certificate

43          The district registrar, on being satisfied of the due service of all notices that he deems requisite, and that the title to the land is safe-holding, may bring the land under the new system, and issue a certificate of title therefor to the person who appears to be entitled thereto.

Proclamation

44          The Lieutenant Governor may, by proclamation, appoint a day on which all land, other than Crown land, not registered under or subject to this Act shall become subject to this Act, and, on and after that day, no registration affecting the land may be effected under the old system in any land titles office.

TAX SALE APPLICATIONS

Appl. by tax purchaser

45(1)       In case of an application under a tax sale, where the value of the land, as shown by the latest revised assessment roll of the municipality or of the school district in unorganized territory in which the land is situated, exceeds $10,000.,

(a) the treasurer of the municipality or the collector of the school district shall furnish the district registrar with a certificate showing the years for which there were taxes due and in arrear for which the land was sold at the sale;

(b) the district registrar shall satisfy himself that the sale was fairly and openly conducted; and

(c) subject to subsection (6), the district registrar shall cause to be served upon all persons appearing to be the persons, who other than the tax purchaser or the assigns of the tax purchaser, are interested in the land, a notice requiring them, within the time limited by the notice to contest the claim of the tax purchaser or to redeem the land, if it is open to redemption.

Effect of notice

45(2)       In default of a pending litigation order being filed and in default of redemption, before the registration as owner of the person entitled under the tax sale, all persons, so served, are forever estopped and debarred from setting up any claim to, or in respect of, the land so sold for taxes; and the district registrar shall register the person entitled under the tax sale as owner of the land.

Application including several parcels

45(3)       Where an application under a tax sale includes more than one parcel of land, the applicant shall be deemed to have made a separate application in respect of each parcel; and this section applies only to those parcels in which the value of the land as determined in subsection (1) exceeds $10,000.

Power of district registrar

45(4)       The district registrar, in a case where he deems it proper, may

(a) extend the time for redemption fixed by the notice; and

(b) order that the notice be served substitutionally, and such substitutional service has the same effect as personal service upon the person intended to be affected thereby.

Land subject to encumbrances

45(5)       Where land is sold for taxes it shall be deemed to have been sold subject to those instruments set out in subsection 111(1), utility and pipeline easements and any rights for carrying, laying, erecting or building wind turbines as set out in section 112, building restriction covenants, easement agreements, including party wall and right of way agreements, declarations under subsection 76(2), caveats relating to zoning, subdivision or development agreements, caveats or agreements filed relating to an expropriation, any notice filed under subsection 7(1) of The Contaminated Sites Remediation Act and any order or caveat filed in a land titles office under section 17 of The Water Resources Administration Act.

Application of sections

45(6)       This section applies to applications whether the land is under the new or old system.

S.M. 1991-92, c. 41, s. 24; S.M. 1996, c. 40, s. 69; S.M. 1998, c. 18, s. 4; S.M. 2004, c. 42, s. 47; S.M. 2007, c. 8, s. 2.

Cancellation of certificate

46          Where land is under the new system, on the issue of a certificate of title pursuant to the application of a person entitled under a tax sale, the district registrar may summarily dispense with the production of the duplicate certificate of title and cancel it in full or partially, as the case requires, by memorial or entry on the certificate of title in the register.

Meaning of "mines and minerals"

47(1)       In this section the expression "mines and minerals" has the same meaning as that expression has in Part XVII of The Municipal Act.

Exceptions from title issued

47(2)       Where any land, whether the title thereto is under this Act or The Registry Act,

(a) is, or has heretofore been, sold by a municipality or local government district for arrears of taxes all or part of which were imposed after December 31, 1944;

(b) the purchaser at the tax sale makes application to be registered as owner of the land pursuant to the tax sale; and

(c) the land is not redeemed;

the certificate of title issued pursuant to the tax sale application shall except therefrom

(d) any mines and minerals not included in the title of the owner whose title is extinguished by the tax sale proceedings; and

(e) all mines and minerals to which clause (d) does not apply.

Title extinguished

47(3)       Upon the issue of a certificate of title to the tax sale applicant as provided in subsection (2), the title of the former owner to all mines and minerals to which clause (2)(e) applies is extinguished; and title to those mines and minerals is vested in the Crown in right of Manitoba.

Proof of vesting

47(4)       It is sufficient proof of the vesting of title to mines and minerals in the Crown in right of Manitoba under subsection (3),

(a) where title to the land sold at the tax sale is under this Act, if the district registrar endorses a memorial or makes an entry of the vesting upon the certificate of title of the registered owner whose title to mines and minerals is extinguished under subsection (3); and

(b) where title to that land is under The Registry Act, if the district registrar makes an entry in the appropriate abstract of title of the fact of the vesting of title to the mines and minerals in the Crown in right of Manitoba.

TRANSMISSIONS

Transmission on death

48(1)       Where any land, mortgage, encumbrance, or lease, under the new system becomes the subject of a transmission the person claiming to be entitled to the transmission shall, before the registration of any dealing therewith, make application in writing to the district registrar to be registered as owner thereof; and the district registrar may, pursuant to the application, transmit the land, mortgage, encumbrance, or lease, to that person.

When entitled

48(2)       Where a person becomes registered as owner of the mortgage, encumbrance, or lease, as executor or administrator of a deceased person, he shall thereupon, be invested with all the rights and powers of which the deceased owner was possessed.

Expropriated land

48(3)       Where land under the new system is vested in the Crown in right of Canada pursuant to the Expropriation Act (Canada), and the Crown in right of Canada subsequently makes a grant of the land, the grantee may make application in writing to the district registrar to be registered as owner thereof, and, notwithstanding that a certificate of title to the land has not been issued to the Crown in right of Canada, the district registrar may, pursuant to the application, transmit the land to the grantee.

Dispensing with production

48(4)       Where a person applying to be registered as owner of land under subsection (3) is unable to produce the outstanding duplicate certificate of title to the land, the district registrar may dispense with the production of the duplicate certificate of title without complying with subsections 26(2) and (3).

Assignment to creditors

49(1)       Upon an assignment being made by the owner of any land, mortgage, encumbrance, or lease, for the benefit of his creditors, or under an authorized assignment, or in connection with a proposal by a debtor for a composition, extension, or scheme of arrangement, to or with his creditors under the Bankruptcy Act (Canada), the assignee or trustee may by way of a transmission application apply to the district registrar to be registered as owner of any land, mortgage, encumbrance, or lease, included in the assignment, and the district registrar may, pursuant to the application, transmit any land, mortgage, encumbrance, or lease, so included, to the assignee or trustee, who shall become the owner thereof and shall be vested with all the rights and powers of which the assignor was possessed.

Trust position not to appear

49(2)       The district registrar shall not, except in the case of authorized assignments or compositions, extensions, schemes, or arrangements, with creditors under the Bankruptcy Act (Canada), in issuing a certificate of title to the assignee, or in entries he makes regarding the transmission, refer to the fact that the new owner is an assignee or trustee, or that he holds the land, mortgage, encumbrance, or lease, for any other than his own absolute use, and for the purpose of a registered dealing therewith he shall be deemed to be the absolute owner thereof.

Custodian of Enemy Property

49(3)       Upon the registration in a land titles office of a vesting certificate by the secretary of State of Canada in his capacity as Custodian of Enemy Property, the Custodian may make an application to the district registrar to be registered as owner of any land, mortgage, encumbrance, or lease, included in the certificate of vesting and the district registrar may, pursuant to the application, transmit any land, mortgage, encumbrance, or lease, so included to the applicant; and for the purpose of a registered dealing therewith the Custodian shall be deemed to be the absolute owner thereof.

Joint tenancies

50(1)       Where any land, mortgage, encumbrance, or lease registered under this Act is held in joint tenancy or by one or more life tenants and one of the owners or the life tenant or one of the life tenants dies, an application to the district registrar to be registered as owner or owners thereof may be made by way of request

(a) in the case of a joint tenancy

(i) by the survivor or survivors; or

(ii) if the last survivor has died, by his personal representative, in which case the request may be included in a transmission application; and

(b) in the case of a life tenancy

(i) by the surviving life tenant or life tenants; or

(ii) if a single life tenant or the last surviving life tenant has died, by the remainderman.

Action of district registrar

50(2)       Upon proof being made to the satisfaction of the district registrar that the request should be granted, he may make the appropriate entries or issue title, as are necessary to give effect to the request.

Title by accretion

51(1)       Where the registered owner of land bordering upon a body of water becomes entitled to be registered as owner of adjoining land by reason of accretion, he may file in the proper land titles office an application for transmission or, if the accreted land is under the old system, a real property application.

Supporting material

51(2)       The application shall be supported by a plan of survey, to be filed in the land titles office, showing the limits of the accreted portion, and by

(a) an order of the court, to be filed in the land titles office, declaring that the accreted portion as shown on the plan is vested in the applicant; or

(b) a certificate under section 19 of The Crown Lands Act, together with the consents of the adjoining riparian owners to the issuance of title to the accreted portion shown on the plan to the applicant, and the certificate and consents shall be endorsed on the plan.

Form and consents

51(3)       The certificate and the consents required under subsection (2) shall be in a form approved by the Registrar-General.

Dispensing with consent

51(4)       The district registrar may dispense with the consent of an adjoining riparian owner if he is satisfied that the boundaries of the accreted portion shown on the plan are such that the adjoining riparian owner would not be adversely affected by the issuance of title to the applicant.

Notice where failure to consent

51(5)       Where the consent of an adjoining riparian owner that has not been dispensed with cannot after due diligence be obtained, the applicant may request the district registrar to issue a notice for service upon the adjoining riparian owner, and the notice shall state that the adjoining riparian owner is required, within 30 days after service of the notice, to either give the consent or

(a) commence an action in the court disputing the right of the applicant to acquire title to the accreted land shown on the plan or to a portion thereof, as the case may be; and

(b) file a pending litigation order in the proper land titles office.

Service of notice

51(6)       Unless the district registrar otherwise orders, the notice shall be served personally upon the adjoining riparian owner.

Failure to file pending litigation order

51(7)       If the pending litigation order is not filed within the time limited in the notice, title to the accreted land shown on the plan may issue to the applicant, and the adjoining riparian owner named in the notice and his heirs, successors and assigns shall after issuance of the title be forever estopped and debarred from setting up any claim thereto.

Certificate of title

51(8)       No separate certificate of title may be issued for the accreted land but it shall be consolidated with the adjoining land in a new certificate of title and shall be subject to the same encumbrances, liens and interests which at that time affect the title to the adjoining land.

S.M. 1992, c. 5, s. 4.

ISSUING CERTIFICATES OF TITLE

Form of title

52(1)       Title shall issue in the form prescribed by the regulations and shall be known as a certificate of title, in the case of a paper title, or where issued as a result of an electronic entry, a title.

No duplicate title to be issued

52(2)       No duplicate certificate of title shall be issued.

Existing duplicate titles may be destroyed

52(2.1)     The district registrar may destroy a duplicate certificate of title that is produced to him or her or that is retained on file at the land titles office.

When title deemed issued

52(3)       Title shall be deemed to have issued, under and for the purpose of this Act

(a) where a certificate of title has been signed by the district registrar; or

(b) in the case of a title, where the entry has been given accepted status by the district registrar.

Effective date of title, certificate of title

52(3.1)     A title or certificate of title issued under this Act takes effect from the day on which the instrument leading to its issuance is assigned a serial number, and the instrument is not rejected before the title or certificate of title issues.

Successive transfers

52(4)       Where

(a) the land described in a transfer is the subject of a further transfer; or

(b) the district registrar has reason to believe that such a further transfer is pending; or

(c) the district registrar is satisfied that the existing certificate of title with the memorials endorsed thereon is good and sufficient evidence of the title of the transferee in the first transfer;

he may complete the registration by signing a memorial thereof on the certificate of title issued in respect of the land.

Effect of memorial

52(5)       The signing of a memorial as authorized in subsection (2) constitutes the transferee the registered owner of the lands described in the certificate of title as effectively, and in like manner, as though a certificate of title in respect of the lands described in the transfer had issued as prescribed herein.

Definitions

52(6)       In this section the expression "transfer" includes a transmission application or a request, and the word "transferee" includes a person entitled to be the registered owner pursuant to a transmission application or a request.

S.M. 1993, c. 7, s. 3; S.M. 2001, c. 8, s. 4.

53          Repealed.

S.M. 2001, c. 8, s. 5.

Date of certificate of title

54          In the interpretation of this Act, the date of a certificate of title is the date appearing in the body thereof, or the date upon which the last mortgage, encumbrance, or lease, created under the hand of a registered owner of the land was registered, whichever is the later date.

Certificate to executor

55(1)       Every certificate of title issued to an executor, administrator, or trustee under a will, shall describe the owner as an executor, administrator, or trustee.

Effect

55(2)       The executor, administrator, or trustee shall, when described as provided in subsection (1), hold the land in respect of which he is registered upon the trusts and for the purposes to which it is subject by law.

Uncancelled title

56(1)       The district registrar may order that the titles in a register that remain uncancelled

(a) be transferred to; or

(b) be entered into; or

(c) in certain cases, be transferred to, and in other cases be entered into;

a new register.

District registrar to attach order

56(2)       Where the district registrar makes an order under subsection (1), the district registrar shall attach

(a) the order; and

(b) the affidavit or declaration of the district registrar, or the affidavit or declaration of a person appointed by the district registrar for the purpose to the effect that the new register has been constituted in accordance with the order of the district registrar, and that the entries are true entries of the original titles of which they purport to be entries;

and the entries shall, for all purposes be accepted and received as original titles and as evidence of the contents thereof.

Books to be repaired

56(3)       The district registrar may order a book in a land titles office is out of repair and unfit for use to be repaired in such manner as the district registrar thinks necessary.

Conversion to electronic titles

56(4)       The district registrar may order that the certificates of title that remain uncancelled be entered as titles in the register, and once accepted, shall be received as the original title and as evidence of the contents thereof.

Cancellation

57(1)       A district registrar shall cancel the certificate of title in the office of the district registrar in respect of lands held by Her Majesty the Queen in Right of Canada or Her Majesty the Queen in Right of Manitoba on receiving a request from the registered owner thereof and dispense with production of the duplicate certificate of title.

Lands removed

57(2)       Upon the cancellation of the certificate of title under subsection (1), the land shall thereupon be removed from the operation of this Act, and may be re-granted by Her Majesty.

Plan of survey

57(3)       Where lands are re-granted by Her Majesty, a plan of survey of the affected lands must either precede or accompany the grant when registered at a land titles office, for the district in which the land is situated.

Land acquired subject to change

57(4)       Where pursuant to this Act land is acquired by or revested in Her Majesty subject to a mortgage, encumbrance, lien or charge, the district registrar shall not cancel the certificate of title with respect to the land until the mortgage, encumbrance, lien or charge has been discharged or otherwise disposed of.

EFFECT OF CERTIFICATES

Restrictions on certificate

58(1)       The land, mentioned in a certificate of title, shall, by implication and without special mention in the certificate, unless the contrary be expressly declared, be deemed to be subject to

(a) any subsisting reservation contained in the original grant of the land from the Crown;

(b) any municipal charge, rate, or assessment, existing at the date of the certificate, or subsequently imposed on the land and any sale of the land for tax arrears for which no return has been received by the district registrar;

(c) any right-of-way or other easement, howsoever created, upon, over, or in respect of, the land;

(d) any subsisting lease or agreement for a lease for a period not exceeding three years, where there is actual occupation of the land thereunder;

(e) any drainage levy or builders' lien affecting the land;

(f) any instrument registered and maintained in force in the general register pursuant to section 69, which describes the debtor in a name identical to that of the owner as set out in the certificate of title;

(g) any pending litigation order issued out of a court in the province and registered since the date of the certificate of title;

(h) any right of expropriation by statute;

(i) the title of a person adversely in actual occupation of, and rightly entitled to, the land at the time it was brought under this Act, and who continues in such occupation;

(j) caveats affecting the land filed since the date of the certificate;

(k) a development plan, zoning by-law or other by-law authorized under The Planning Act or under the charter of any city and any by-law passed by any municipal corporation under The Municipal Act or the charter of any city relating to residential areas or zoning;

(l) any zoning regulation, as that expression is defined in the Aeronautics Act (Canada), made under that Act and deposited in the land titles office; and

(m) any limitation or restriction under The Highways Protection Act or a permit issued under The Highways Protection Act.

Highways

58(2)       Public highways embraced in the description of the land included in a certificate shall be deemed to be excluded.

Limitation on subsec. (2)

58(3)       Where a certificate of title has issued to the Crown or to a municipality for land all or part of which is included in a highway, subsection (2) does not apply to that certificate of title or to the land therein described.

Meaning of "fractional"

58(4)       Where land is described in a certificate of title as a fractional section or as a fractional portion of a section, the description means an incomplete section, or an incomplete portion of a section, as the case may be, granted in the original grant of the land from the Crown.

S.M. 1992, c. 5, s. 5; S.M. 1998, c. 39, s. 77.

Conclusive evidence

59(1)       Every certificate of title, so long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against Her Majesty and all persons, that the person named in the certificate is entitled to the land described therein for the estate or interest therein specified, subject, however, to the right of any person to show that the land is subject to any of the exceptions or reservations mentioned in section 58, or to show fraud wherein the registered owner, mortgagee, or encumbrancer, has participated or colluded and as against the registered owner, mortgagee, or encumbrancer; but the onus of proving that the certificate is so subject, or of proving the fraud, is upon the person who alleges it.

Two certificates for same land

59(2)       Where more than one certificate of title has been issued in respect of a particular estate or interest in land, the person claiming under the prior certificate appearing in the register is entitled to the estate or interest; and that person shall be deemed to hold under a prior certificate who is the holder of, or whose claim is derived directly or indirectly from the person who was the holder of, the earliest certificate issued.

Production of title

60(1)       The production in a court of a document purporting to be a title is prima facie proof that the document is a title duly signed and sealed, without proof of signature or seal, and that the title is in force and uncancelled.

Certificate of search

60(2)       The production in court of a certificate of search of a title is prima facie proof that the certificate is a reproduction of the original title.

Record of Title and Status of Title

60(3)       A document entitled either "Record of Title" or "Status of Title" issued by a land titles office in a form prescribed by regulation and

(a) purporting to contain an extract of information stored in the electronic data storage system of the land titles office relating to a specified title; and

(b) certified by the district registrar of the land titles office, or by a staff member of the land titles office delegated under clause 22(1)(g) to certify copies, to contain a true  and accurate extract of the information described in clause (a);

is admissible in evidence in any court as prima facie proof of the information of which it purports to be an extract.

S.M. 1993, c. 48, s. 35.

Void against title by possession

61(1)       Every certificate of title is void as against the title of a person adversely in actual occupation of, and rightly entitled to, the land at the time the land was brought under the new system, and who continues in such occupation.

Title by possession abolished

61(2)       After land has been brought under this Act, no title thereto adverse to, or in derogation of, the title of the registered owner is acquired by any length of possession merely.

No actions of ejectment

62(1)       No action of ejectment or other action for the recovery of land under the new system lies or shall be sustained against the registered owner for the estate or interest in respect of which he is so registered, except in the following cases:

(a) The case of a mortgagee or encumbrancer as against a mortgagor or owner of land subject to an encumbrance in default, and in that case a mortgagee or encumbrancer is entitled to bring action notwithstanding the mortgage or encumbrance is a security only.

(b) The case of a lessor as against a lessee.

(c) The case of a person deprived of land by fraud or error as against the person registered as owner through fraud or error, or as against a person deriving his right or title, otherwise than bona fide for value, from or through a person so registered through fraud or error.

(d) The case of a person deprived of land included in a certificate of title of other land by misdescription of the other land or its boundaries, as against the registered owner of the other land, not being a transferee thereof bona fide for value or deriving from or through such a transferee.

(e) The case of a registered owner claiming under the certificate of title prior in date of registration, where two or more certificates of title have been issued in respect of the same land.

(f) For rights arising or partly arising after the date of the certificate of title under which the registered owner claims.

(g) For rights arising under any of the matters as to which the certificate of title is subject by implication.

Certificate of title absolute bar

62(2)       In any other case, the production of the certificate of title shall be held to be an absolute bar and estoppel of such an action against the person named in the certificate as owner of the land therein described.

REGISTRATION OF TITLES AND OTHER INSTRUMENTS

Registration Details Application

63(1)       Every instrument or series of instruments presented for registration shall be accompanied by a Registration Details Application in the form prescribed by the regulations.

When instrument is registered and takes effect

63(2)       Every instrument purporting to affect land under the new system shall be deemed to be registered when a certificate of registration has been endorsed upon the instrument and has been signed by the district registrar and takes effect from the day the instrument is assigned a serial number, and the certificate shall be received in all courts as conclusive proof that the instrument was duly registered.

Deemed embodied in register

63(3)       Upon registration, an instrument shall be deemed to be embodied in the register, and thereupon it creates, transfers, surrenders, charges, or discharges, as the case requires, the land or the estate or interest therein mentioned in the instrument.

Dist. reg. to file instrument

63(4)       The district registrar, upon registration of an instrument, shall file it, or a duplicate thereof, in the office of the district registrar.

Prescribed form document prevails

63(5)       A document attached as a schedule to a document whose form is prescribed shall be deemed to be part of the document; and where there is a conflict between contents of a document whose form is prescribed and the contents of a document attached to it as a schedule, the document whose form is prescribed prevails.

S.M. 1993, c. 7, s. 4; S.M. 1995, c. 27, s. 7.

Priority of registration

64          Instruments shall be registered in the order of the serial numbers assigned to them and entered in the daily record and instruments registered in respect of or affecting the same estates or interests shall, notwithstanding any expressed, implied or constructive notice, be entitled to priority according to the serial number.

Effect of certificate of registration

65(1)       The certificate so endorsed shall be received in all courts as conclusive proof that the instrument was duly registered.

Issue of new certificates of title

65(2)       Where, by reason of the number or complexity of the memorials already recorded on a certificate of title, or by reason of deterioration of, or damage to, the certificate of title, the district registrar is of the opinion that the title to the land to which the certificate of title relates can be more clearly set forth by issuing a new certificate of title, or new certificates of title, for the land, or part of the land, he may require the registered owner, or his agent, to request that such a new certificate of title, or new certificates of title, be issued before permitting further dealings with that land.

Instruments unfit for registration

66(1)       The district registrar may reject an instrument appearing to be unfit for registration or filing and shall not register or file an instrument purporting to transfer or otherwise deal with or affect land under the new system except in the manner herein provided for registration or filing under the new system, nor unless the instrument is in accordance with the provisions of this Act, as applicable to the new system.

Illegible instrument

66(2)       The district registrar may refuse to accept for registration an instrument that is wholly or partly illegible or unsuitable for microfilming.

Documents registered in series

66(3)       Where two or more documents are marked as being registered or filed in series and one of the documents is unfit for registration or filing, all documents registered or filed in the series shall be deemed to be unfit for registration or filing.

Registration essential

66(4)       No instrument is effectual to pass an interest in land under the new system or to render the land liable as security for the payment of money as against a bona fide transferee thereof, until the instrument is registered in accordance with this Act.

Instruments in old form

66(5)       Where an instrument, in accordance with the forms in use, or sufficient to pass an estate or interest in land, under the old system, deals with land under the new system, the Registrar-General may direct the district registrar to register it under the new system and, when so registered, it has the same effect, as to the operative parts thereof, as, and shall by implication be held to contain all such covenants as are implied in, an instrument of a like nature under the new system.

Mortgage in the old system

66(6)       Where a mortgage has been registered as provided in subsection (5), the mortgagee may, for the purpose of sale or foreclosure thereunder, elect to proceed either under the provisions of this Act or as if the land were under the old system; but, in case he proceeds under the provisions of this Act, and the mortgage covers other land not under the new system, he shall before doing so bring all the land intended to be sold or foreclosed under the new system.

Instrument affecting Crown oil and gas rights

66.1(1)     No person may register, and the district registrar shall refuse to accept for registration, a disposition or instrument, as those terms are defined in The Oil and Gas Act, or a caveat that affects oil and gas rights held by the Crown.

Correction by district registrar

66.1(2)     The district registrar may, in accordance with section 23, correct the purported registration of a disposition or instrument referred to in subsection (1) in so far as it affects Crown oil and gas rights.

S.M. 1993, c. 4, s. 236.

All land must be in same district

67(1)       Subject to subsection (2), except where the Registrar-General permits the registration of an instrument in the old system form, and except instruments affecting land without specific description, builders' liens and by-laws of municipalities for opening or closing highways or drains, no instrument shall be registered under the new system unless all the land affected thereby is under the operation of the new system, and within the same land titles district.

Registration in more than one district

67(2)       Where lands described in a mortgage, encumbrance, or lease or in an instrument to which subsection 111(1) or section 112 applies are in more than one land titles district, the mortgage, encumbrance, lease, or other instrument, or a certified copy thereof issued by the district registrar of one of the land titles districts in which registration of the original has been effected, may be registered in each of those districts in respect of such part of the lands as is situated in that district.

Disclaimer of interest

68          Where a person has, without his consent, been registered as the owner of an estate or interest in land, he may execute a deed or other instrument of disclaimer of the estate or interest, and the Registrar-General may, if satisfied as to the lack of consent upon the production of the deed or instrument, order the cancellation, alteration, or correction, of the register and of the certificate or other instrument of title affected thereby, or he may order such entry in the register and upon the certificate or other instruments affected as will give effect to the disclaimer.

Entries in G.R. bind all land

69          Where an instrument was registered that did not contain a land description, but purported to claim an interest in or charge on the land of the debtor named therein, and where the name of the debtor was entered into an index called the general register in the land titles office for a Land Titles District, that instrument, from the date of registration thereof shall be deemed to have formed a lien or charge against all land owned by the debtor under the new system or old system in a name of the debtor identical to that set out in the instrument.

Entries in Deposit Register

70          Any instrument or charge conditions presented for registration other than those instruments referred to in section 69 or discharges of instruments which affect the title to the land but do not contain a land description, shall be entered in an index called the Deposit Register in the land titles office for a land titles district, and shall thereupon be deemed to be registered under both the new and old systems.

Registration in Deposit Register

71(1)       The original of any instrument, a certified copy of the original, certified as previously having been registered at another land titles office, a certified copy of any record, document, plan, book or paper issued by a department of either the federal or provincial governments, or the Yukon Territory, the Northwest Territories or Nunavut, a copy certified to the satisfaction of the district registrar, a copy authenticated by affidavit, or a copy certified by a notary public to be a true copy, is registrable in the Deposit Register as evidence of any transaction of the original record, document, plan, book or paper that it purports to be.

Attachment to instrument as evidence

71(1.1)     The following may be attached as evidence to an instrument registered under this Act:

(a) the original of an instrument;

(b) a certified copy of an original instrument, certified as having been registered at another land titles office;

(c) a certified copy of any record, document, plan, book or paper issued by a department of the federal government, a provincial government, the Yukon Territory, the Northwest Territories or Nunavut;

(d) a copy of a document or instrument certified to the satisfaction of the district registrar;

(e) a copy of a document or instrument authenticated by affidavit to the satisfaction of the district registrar; or

(f) a copy of a document or instrument certified by a notary public to be a true copy.

Assurance Fund not liable

71(2)       The Assurance Fund or the district registrar is not liable to pay compensation to any claimant for loss occasioned by the registration of any instrument, record, document, plan, book or paper set out in subsection (1) or (1.1) by reason that the instrument or record is not a copy of the authentic instrument or record that it purports to be.

S.M. 1992, c. 5, s. 6; S.M. 1995, c. 27, s. 8; S.M. 1999, c. 17, s. 3.

Evidence necessary for registration

72(1)       An instrument other than a request or transmission executed by a registered owner or a person entitled to be registered as owner, when presented for registration, shall be accompanied by an affidavit as to the execution by, and the identity and age of, the owner or person so entitled, and such other evidence as is required under The Homesteads Act or as the district registrar requires.

Making and signing of affidavits

72(2)       No one who is a party to an instrument shall also be a witness to the execution of that instrument or make an affidavit of the execution of that instrument.

Not to be sworn before party

72(3)       An affidavit, affirmation, or statutory declaration that is required or authorized to be included in, or attached to, or that forms part of, an instrument shall not be sworn, affirmed, or declared before a person who is a party to the instrument.

Witness to signature

72(4)       Where the signature of the party to an instrument is witnessed by a barrister, solicitor or notary public, referred to in subsection (5) as an officer, the officer may prove execution of the instrument by signing as witness and clearly identifying the name, position and address of the witness under the signature of the witness.

Effect of signature of witness

72(5)       The act of the officer in witnessing the instrument shall be deemed to be a certification by the officer that the registered owner or person entitled to be the registered owner is personally known to the officer or the identity of the registered owner or person entitled to be the registered owner has been proven to the satisfaction of the officer and that the registered owner or person entitled to be registered owner acknowledged to the officer

(a) that he or she is the person named in the instrument and whose name is subscribed to it; and

(b) that he or she is of the full age of majority.

S.M. 1989-90, c. 90, s. 38; S.M. 1992, c. 46,  s. 64; S.M. 1993, c. 7, s. 5.

Address for mailing

73(1)       Every transfer, mortgage, lease or certificate of judgment, and every instrument claiming an interest in, or a mortgage, lien or charge upon land, presented for registration or for filing, shall have included as part thereof, or shall have endorsed thereon or attached thereto, a memorandum giving the address of the transferee, mortgagee, lessee, judgment creditor or claimant, as the case requires.

Registered address

73(2)       Upon the registration or filing of the instrument, the address shall be deemed to be the registered address of the transferee, mortgagee, lessee, judgment creditor, or claimant, and, to effect service on him under this Act or any other Act of a notice relating to the instrument or to the land described therein, where service thereof is permitted to be by mailing, it shall be sufficient to mail the notice, postage prepaid and registered, directed to him at that address.

Change of address

73(3)       The transferee, mortgagee, lessee, judgment creditor, or claimant may, from time to time, notify the district registrar of a change in his address and the last address of which the district registrar has notice shall be deemed to be his registered address for the purposes of this section.

Priority

74          Where an instrument is presented for registration and

(a) a registered certificate of judgment, or an order for payment of alimony or maintenance; or

(b) a lien or charge created by, or arising pursuant to, an Act of the Legislature in favour of Her Majesty in right of Manitoba or in favour of a municipality;

appears to affect the land described therein, but the applicant for registration claims that the certificate, lien, or charge, does not affect the land, or is not equitably entitled to priority over the instrument, notwithstanding its priority of registration, the district registrar may take such evidence under oath or otherwise in the matter as he deems necessary, and may thereupon decide whether the certificate of judgment, lien, or charge, does or does not affect the land, or whether the certificate of judgment, lien, or charge, is or is not entitled to priority over the instrument, and may register the instrument according to that decision.

G.R. to be maintained until 1989

75(1)       The district registrar of a Land Titles District shall not maintain the general register beyond August 18, 1989.

No new registrations to be made in G.R.

75(2)       The district registrar shall not register any new or further instruments in the general register on or after August 19, 1987 except a renewal of an instrument made in accordance with subsection (5).

Registrations in G.R. to lapse

75(3)       The registration in the general register of every instrument and any renewal thereof in accordance with subsection (5) lapses and no longer has any force or effect on August 20, 1989.

Notice to claimants

75(4)       Where an instrument is registered in the general register, the district registrar shall, not later than February 19, 1989, notify

(a) each claimant for whom an address for service is provided in the instrument; and

(b) each claimant under the instrument with respect to a maintenance order at such address of the claimant as may be provided by the Maintenance Enforcement Programs Branch of the Department of Justice;

that the registration will lapse as mentioned in subsection (3) unless it is renewed in accordance with subsection (6).

Renewal where no legal description

75(5)       Where the renewal of an instrument previously registered in the general register does not contain a legal description of the lands to be charged by the instrument, the claimant may, nevertheless, renew the instrument on or before February 19, 1988 by filing with the district registrar a Renewal of General Register Instrument as prescribed by the regulations showing the following information:

(a) the name of the claimant;

(b) the address for service of the claimant; and

(c) the date of registration and registration number of the instrument sought to be renewed and of any renewals thereof.

Renewal where legal description

75(6)       Where the renewal of an instrument previously registered in the general register contains a legal description of the lands to be charged by the instrument, the claimant may renew the instrument on or before August 18, 1989 by filing with the district registrar a Renewal of General Register Instrument as prescribed by the regulations showing the following information:

(a) the name of the claimant;

(b) the address for service of the claimant;

(c) the date of registration and registration number of the instrument sought to be renewed and of any renewals thereof; and

(d) the legal description of the lands charged.

Registration of new instruments

75(7)       Where a claimant under a judgment, lien or other instrument, except a renewal of an instrument under subsection (5) or (6), presents a document or instrument to the district registrar for registration purporting to claim an interest in or charge on land of a debtor, the document or instrument shall be in such form as may be prescribed in the regulations and shall contain the following information:

(a) the address for service of the claimant;

(b) the full name of the debtor;

(c) the legal description of the specific land to be charged; and

(d) such other particulars as may be indicated by the form.

Execution of discharge

75(7.1)     An agent who executes an instrument registered under subsection (6) or (7) may execute a discharge of the instrument.

Entry on abstract of title

75(8)       A renewal registered under subsection (6) or a new instrument presented for registration for the first time under subsection (7) shall not be registered by the district registrar in the general register but the district registrar shall upon registration of the instrument make an entry of the registration in the abstract of title under the old system or on the title under new system, as the case may require.

Names must be identical

75(9)       Where under subsection (5) or (6), a person presents a renewal of an instrument to the district registrar for registration, the district registrar shall not register the instrument in the general register or against the title of the debtor unless the name of the debtor as stated in the instrument, in the general register and on the title are identical.

Non-identical name

75(10)      Where an instrument is registered under subsection (7), the registration thereof is not incomplete or improper solely because the name of the debtor as set out in the instrument is not identical to the name of the registered owner of the land described in the title, or the land described in the title is registered in the name of the debtor and one or more persons.

Statement in support of registration under ss. (7)

75(10.1)    The district registrar shall refuse to register an instrument referred to in subsection (7) if the instrument is not supported by a statement of the claimant that he or she believes

(a) the debtor referred to in the instrument is the registered owner, or a registered owner, of the land to be charged by way of the instrument; or

(b) that the debtor is not the registered owner of the land referred to in the instrument, but has an interest in the land.

Liability for instrument under ss. (7)

75(10.2)    A claimant under an instrument referred to in subsection (7) is liable to any person who sustains loss because of the initial registration or its continuance unless the court finds that the initial registration or its continuance was reasonable under the circumstances.

Joint liability

75(10.3)    Where a statement under subsection (10.1) is registered by the attorney or agent of a claimant, the attorney or agent and the claimant are jointly and severally liable as provided in subsection (10.2).

Owners to be notified

75(11)      Where an instrument is registered against specific land in accordance with this section, the district registrar shall forthwith notify the owner of the land affected by the registration of the instrument by ordinary mail.

Lapsing of instrument

75(12)      An instrument registered against or charging specific land as legally described therein may be disposed of by the district registrar as having lapsed upon the expiration of 30 days after notice given by the district registrar to the claimant under the instrument to establish the validity of the claim as it affects the title charged by the instrument, unless the claimant within the 30 days files with the district registrar evidence satisfactory to the district registrar that court proceedings have been taken to establish the claim.

Manner of service

75(13)      The notice referred to under subsection (12) shall be given in the manner provided for the service of documents under subsection 147(2).

Crown bound

75(14)      The Crown is bound by this section.

S.M. 1988-89, c. 13, s. 38; S.M. 1990-91, c. 12, s. 16; S.M. 1992, c. 5, s. 7; S.M. 1993, c. 7, s. 6; S.M. 1993, c. 48, s. 94.

Certain party wall agreements

76(1)       Subject to subsection (2.1), a party wall agreement, a right of way agreement or easement agreement executed by the persons who are, or are entitled to be, the registered owners of adjoining lands at the time the agreement is presented for registration may be registered against the lands affected thereby, if all persons whose names appear on the register to have a claim or interest before the date of the agreement consent to its registration.

Effect of declaration

76(2)       Subject to subsection (2.1), a declaration set out in an instrument by the owner of the land in a form approved by the district registrar has the same force and effect as an agreement referred to in subsection (1), if all those persons appearing on the register to have a claim or interest prior to the date of the declaration, consent to the registration thereof.

Consent not required respecting utility

76(2.1)     For the purpose of subsections (1) and (2), no consent is required with respect to a registered easement agreement for the supply of utility services, or a caveat for the same purpose.

Effect of registration of declaration

76(3)       A declaration registered under subsection (2) has the same force and effect as a party wall agreement, a right of way agreement or easement agreement and shall, for all purposes, be deemed to be a party wall agreement, a right of way agreement or easement agreement and "party wall agreement", where used in any Act of the Legislature, includes a declaration registered under subsection (2).

Party wall, right of way, and easement agreements

76(4)       Where land under this Act is subject to, or has as appurtenant thereto, or enjoyed therewith, any rights, privileges, or easements, under a party wall agreement, a right of way agreement or easement agreement, whether the agreement was registered before or after the land was brought under this Act, those rights, privileges, or easements, and all covenants relating thereto, shall be deemed to run with the land; and an instrument affecting the land registered under this Act shall, without special mention thereof in the instrument, be deemed to be subject to, or to carry with it, all such rights, privileges, easements, and covenants, to the same extent as if the instrument were made subject to, or contained an express assignment or acknowledgment of, the party wall agreement, right of way agreement or easement agreement, and of all rights, privileges, easements, and covenants, thereunder.

Discharge of party wall agreement

76(5)       The registration of an agreement under subsection (1) as to all or part of the lands affected thereby may be discharged by the registration of a discharge thereof in a form approved by the district registrar executed by the registered owners of all the lands against which the agreement is registered, and consent to which has been given by all persons appearing on the register to have an interest in the lands, and who are affected by the agreement.

S.M. 1992, c. 5, s. 8; S.M. 1993, c. 7, s. 7.

Implied covenants in transfer

77          In every instrument transferring land for which a certificate of title has been issued subject to a mortgage or encumbrance, there shall be implied, unless otherwise expressed, the following covenant by the transferee both with the transferor and the mortgagee, that is to say: That the transferee will pay the principal money, interest, annuity, or rent charge secured by the mortgage or encumbrance, at the rate and at the time specified in the instrument creating it, will be bound by every other covenant, term and condition in the mortgage or encumbrance, and will indemnify and keep harmless the transferor from and against the principal sum or other moneys secured thereby, and from and against liability in respect of every other covenant, term and condition therein contained or, under this Act, implied on the part of the transferor.

S.M. 1995, c. 8, s. 2.

Definition of "residential mortgage"

77.1(1)      In this section and sections 77.2 and 77.3, "residential mortgage" means a mortgage that is registered against the residence where the borrower resides and is granted, entered into or assumed for the purpose of permitting the borrower

(a) to acquire the residence;

(b) to make improvements to the residence;

(c) to make expenditures for family or household purposes; or

(d) to re-finance for a purpose referred to in clauses (a) to (c).

Definition of "borrower"

77.1(2)      In subsection (1), "borrower" means

(a) the mortgagor; or

(b) where the mortgage is assumed, the person who assumes the mortgage.

Liability under "personal covenant" or "covenant"

77.1(3)      In sections 77.2 and 77.3, "personal covenant" or "covenant" means all covenants, terms and conditions in a residential mortgage, and where those sections provide that liability in respect of the covenants ceases, liability ceases with respect to all personal covenants, covenants, terms and conditions in the mortgage.

S.M. 1995, c. 8, s. 3.

Personal covenant in residential mortgage

77.2(1)      Notwithstanding section 77, a person who transfers an estate in land that is subject to a residential mortgage ceases to be liable under the personal covenant in the mortgage three months after the day the existing term of the mortgage expires, unless the mortgagee serves, within those three months, a written demand on the person for payment of the amount owing under the mortgage.

Application to mortgage payable without demand

77.2(2)      Subsection (1) applies despite any provision of the residential mortgage providing that all amounts outstanding at the end of the term are payable without a demand.

Liability under mortgage payable on demand

77.2(3)      Notwithstanding section 77, a person who transfers an estate in land that is subject to a residential mortgage that is, under the terms of the mortgage, payable on demand ceases to be liable under the personal covenant in the mortgage three months after the day the person serves the mortgagee a written notice of the transfer, unless the mortgagee serves on the person, within three months after being served with the notice, a written demand for payment of the amount owing under the mortgage.

Waiver of benefit

77.2(4)      A waiver of the benefit contained in subsection (1) or (3) by the person who transfers the estate in the land subject to the mortgage is of no force or effect unless it is entered into after the transfer referred to in subsections (1) and (3).

S.M. 1995, c. 8, s. 3.

Liability ceases on approval of new mortgagor

77.3(1)      Notwithstanding section 77, where a mortgagee under a residential mortgage gives written approval to the assumption of the mortgage by the person to whom the mortgagor transfers an estate in the land that is subject to the mortgage, the mortgagor who transfers the estate in land ceases to be liable under all covenants contained in the mortgage.

Mortgagor may request approval

77.3(2)      A mortgagor who has transferred, or who proposes to transfer, an estate in the land that is subject to the mortgage and who wishes to obtain approval for the purpose of subsection (1) shall serve a written request for approval on the mortgagee not later than three months after the registration of the transfer.

Mortgagee may require information and fee

77.3(3)      The mortgagee may require the person seeking approval to provide

(a) reasonable financial information respecting the transferee or proposed transferee; and

(b) a reasonable fee to cover administrative costs, including the cost of obtaining a credit report.

Approval not to be unreasonably withheld

77.3(4)      A mortgagee shall not unreasonably withhold or refuse to give approval under this section.

Mortgagor may apply to court for approval

77.3(5)      Where a mortgagee fails to give approval under this section, the mortgagor may apply to the court and the court may, where it finds that the approval is unreasonably withheld or refused, give the approval, and the approval is as valid as though it were given by the mortgagee.

S.M. 1995, c. 8, s. 3.

Service in accordance with mortgage or Q.B. Rules

77.4         A document that is required under section 77.2 or 77.3 to be served shall be served

(a) in the manner provided in the mortgage; or

(b) in accordance with the rules of the court respecting the personal service of documents or, where personal service cannot be effected, the other rules of the court respecting service.

S.M. 1995, c. 8, s. 3.

Unregistered instrument

78          Every instrument, signed by an owner or other person claiming through or under him, purporting to pass an estate or interest in land, or to create a mortgage or encumbrance, for the registration of which provision is made by this Act, shall, until registered, be deemed to confer upon the person intended to take under the instrument, and upon others claiming through or under him, a right or claim to the registration of the mortgage, encumbrance, estate, or interest.

Severance of joint tenancy

79(1)       The district registrar shall not accept for registration an instrument, that has the affect of severing a joint tenancy, other than a transmission by a trustee in bankruptcy or one giving effect to an order of the court, unless

(a) the instrument is executed by all the joint tenants, or

(b) all the joint tenants, other than those executing the instrument, give their written consent to the instrument; or

(c) the district registrar is provided with evidence satisfactorily to the district registrar, that all the joint tenants who have not executed the instrument or given their consent to it, have been served with a notice of intent to sever, in a form as prescribed in the regulations, at least 30 days prior to the registration of the instruments.

Service of notice

79(2)       A notice of intent to sever given under subsection (1) shall be served personally; but in case a person to be served cannot after due diligence be found, the district registrar may direct notice to be served substitutionally in such manner as the district registrar may order.

Court order for further action

79(3)       At any time before the expiration of 30 days from the time notice of intent to sever has been given under subsection (1) the party served may file with the district registrar evidence to the satisfaction of the district registrar of proceedings in court taken pursuant to the notice, and the district registrar shall not proceed with any registration of an instrument under subsection (1) until the matter is disposed of by an order of the court.

Extension of time

79(4)       At any time before the expiration of the time limited for proceeding upon the notice of intent to sever,

(a) upon application made to the court, and

(b) after reasonable notice of the application has been given;

the court, for sufficient cause shown, and subject to such conditions as it may impose, may order that the time for proceeding under the notice of intent to sever be extended for such further period as is stated in the order; and the order shall forthwith be filed in the land titles office.

Earlier effect of severance

79(5)       Notwithstanding the date of registration of the instrument severing a joint tenancy, severance may take effect from a date earlier as determined by a judge on an application therefor.

Purchaser not bound to make inquiries

80          Except in the case of fraud on his part, no person, contracting or dealing with, or taking or proposing to take an instrument from, a registered owner, shall be required to inquire into or to ascertain the circumstances under, or the consideration for, which the owner or any previous owner is or was registered, or to see to the application of the purchase money or of any part thereof; nor is a person affected by notice, direct, implied, or constructive, of a trust or unregistered interest, and the knowledge that a trust or unregistered interest is in existence shall not of itself be imputed as fraud.

No entry of trusts

81(1)       Except in case of land, mortgages, encumbrances, or leases, held by an executor or administrator or a trustee under a will or in trust for, or to be used in connection with, a church or as a cemetery under The Cemeteries Act, or by a person as a trustee in bankruptcy, or under an authorized assignment, or in connection with a proposal by a debtor for a composition, extension, or scheme of arrangement, to or with his creditors under the Bankruptcy Act (Canada), the district registrar shall not make any entry in the register containing notice of trusts, expressed, implied, or constructive.

Refusal of registration

81(2)       Where, in a transfer, mortgage, encumbrance, or lease the transferee, mortgagee, encumbrancer, or lessee is stated to be a trustee in that part of the instrument in which, in any form that may be prescribed in the regulations, provision is made for setting out his name, residence, and occupation or other description, the district registrar may refuse to register the instrument.

Dist. reg. need not inquire

81(3)       Where a transferee, mortgagee, encumbrancer, or lessee is described as a trustee, or a trust is disclosed, in any recital, covenant, undertaking, or charge, added to the form of transfer, mortgage, encumbrance, or lease, whether or not the beneficiary or object of the trust is mentioned, that description or disclosure does not impose upon the district registrar the duty of making inquiry as to the power of the owner in respect of the land, mortgage, encumbrance, lease, or charge, or the money secured thereby; but, subject to the registration of a caveat, the land, mortgage, encumbrance, lease, or charge may be dealt with as if the description or disclosure had not been included.

Implied covenants may be modified

82(1)       Every covenant and power, declared to be implied in an instrument under this Act, may be negatived or modified by express declaration in the instrument or by endorsement thereon.

Proceedings on implied covenant

82(2)       In any action for an alleged breach of such a covenant, the covenant shall be specified, and it shall be alleged that the party against whom the action is brought did so covenant.

Effect of implied covenant

82(3)       Every implied covenant has the same force and effect, and may be enforced in the same manner, as if it had been set out at length in the instrument.

Covenants several, not joint

82(4)       Where a memorandum of transfer or other instrument, in accordance with this Act, is executed by more parties than one, the covenants implied therein shall be construed to be several and not to bind the parties jointly.

Power of attorney

83(1)       A person may, under power of attorney, authorize another person to act for him in respect of the transfer or other dealing with any land, mortgage, encumbrance, or lease.

Revocation or notice of death filed

83(2)       No registered power of attorney shall be deemed revoked by act of the parties thereto nor by death unless and until a revocation thereof is registered, or the registration is lapsed upon request, with evidence of death attached.

Death between execution and reg.

84          Where a party to an instrument affecting land dies after execution thereof, but before its registration, the registration of the instrument may nevertheless be proceeded with in accordance with this Act, and is valid notwithstanding the death.

TRANSFERS

Transfer of land

85(1)       Where land under the new system is to be transferred, the registered owner may execute a transfer in such form as may be prescribed by the regulations, which transfer shall contain an accurate statement of the estate, interest, or easement, being transferred or created, and a memorandum of all leases, mortgages, encumbrances, or liens, to which the land is subject, and upon the registration of the transfer the duplicate certificate of title or duplicate title, if issued, shall be delivered up for cancellation in whole or in part.

Easements not to be registered

85(2)       A district registrar shall refuse to register a transfer that creates or purports to create an easement or right in the nature of an easement.

Declaration re farm instruments

85(3)       Every transfer of land, mortgage, encumbrance, memorandum of lease, caveat claiming an interest in land pursuant to an agreement to purchase, an option, a lease or a loan, transmission or application for final order of foreclosure in respect of farm land (in this section collectively called "farm instruments") tendered for registration shall be accompanied by a statutory declaration as to the ownership of the farm land of the person claiming the interest or of a person acting on behalf of the person claiming the interest, in such form and containing such information as may be prescribed by the regulations.

85(4)       Repealed, S.M. 1996, c. 68, s. 9.

District registrar may refuse registration

85(5)       If the district registrar is not satisfied that the statutory declaration referred to in subsection (3) discloses only interests in farm land as permitted by The Farm Lands Ownership Act, he may refuse to register the farm instrument.

Reliance on statutory declaration

85(5.1)     A district registrar is not required to make enquiry as to the truth of any of the matters set forth in a statutory declaration as to the ownership of farm land made under subsection (3).

Regulations

85(6)       The Lieutenant Governor in Council may make regulations exempting

(a) a class of land; or

(b) land or an area of land in any specified part of Manitoba;

from the operation of this section.

Exemption from providing information

85(7)       The board may exempt any person from the requirement to provide any information required under this section upon such conditions, if any, as it considers appropriate.

85(8)       Repealed, S.M. 1996, c. 68, s. 9.

Who may make statutory declaration

85(9)       A statutory declaration under this section may be made by the person claiming the interest in the farm land who is an individual, an officer of a corporation, or a solicitor for the person claiming the interest, but such declaration shall be made only by a person having personal knowledge of the facts deposed to therein, and may not be made on the basis of information obtained by him and his belief therein.

85(10) and (11)  Repealed, S.M. 1996, c. 68, s. 9.

Farm Lands Ownership Act

85(12)      The registration of an instrument by the district registrar does not relieve any person of the obligation to comply with The Farm Lands Ownership Act.

85(13)      Repealed, S.M. 1996, c. 68, s. 9.

S.M. 1993, c. 10, s. 5; S.M. 1996, c. 68, s. 9.

Restrictions on fractional interests

86          A district registrar shall not register a transfer, mortgage or encumbrance, caveat or assignment thereof or court order, which creates an undivided fractional interest in the mines and minerals, or in one or more minerals in, under or upon any parcel of land

(a) if that fractional interest is less than an undivided 1/16 interest in the mines and minerals, or in one or more minerals, in under or upon that parcel of land; or

(b) if as a result of the transfer, mortgage or encumbrance, there will be outstanding a title for less than an undivided 1/16 interest in mines and minerals, or in one or more minerals, in order that no person shall own less than an undivided 1/16 interest therein;

but where an interest under The Registry Act is less than an undivided 1/16 interest at the time it is brought under this Act, pursuant to subsection 47(4) of The Registry Act, the district registrar shall issue title for that interest.

S.M. 1995, c. 27, s. 9.

O. I. C. deemed a transfer

87          A certified copy of any order of the Governor in Council or of the Lieutenant Governor in Council or any document executed by or on behalf of either of them purporting to transfer, convey, grant, vest or assign the interest of the Crown, in any land that is under this Act to the Government of Canada or of Manitoba or to any municipality, shall be deemed to be a transfer of land under this Act and shall be so registered.

Owner may transfer to self and other

88(1)       An owner of land registered under this Act may make a valid transfer to himself jointly with any other person; and owners may make a valid transfer to one of their number either solely or jointly with some other person.

Executor may transfer to self

88(2)       An executor or administrator may make a valid transfer to himself individually.

Instrument from receiver

89          A district registrar shall not accept for registration a transmission application, transfer or mortgage or any dealing therewith executed by a receiver or receiver manager, whose appointment has been set out in a mortgage, debenture or encumbrance, unless the appointment of the receiver or receiver manager and the registration of the instrument have first been approved by the court.

Words of limitation not necessary

90          No words of limitation are necessary in a transfer of land in order to convey all or any title therein; but every transfer, when registered, operates as an absolute transfer of all such right and title as the transferor had therein at the time of its execution, unless a contrary intention is expressed in the transfer or instrument; but nothing in this section precludes a transfer from operating by way of estoppel.

LEASES

Form of lease

91(1)       Where land under the new system is intended to be leased or demised for a life or lives, or for a term of years, the owner may execute a lease in the form prescribed by the regulations, setting forth therein all mortgages, encumbrances, and liens, to which the land is subject, which lease may be registered and a certificate of title for a leasehold estate may issue to the lessee.

Surrender of lease

91(2)       A lease of land may be terminated by the registration of a surrender of lease in the form prescribed by the regulations executed by the registered owner of the lease.

Renewals of leases

91(3)       Where a certificate of title has been issued for a leasehold estate in land and

(a) the lease has been renewed in accordance with a provision of the lease respecting the renewal thereof; or

(b) the term of the lease has been amended or extended by an agreement that does not vary the terms of the lease except in respect of the term thereof and the rent payable thereunder;

the agreement renewing the lease or amending or extending the term of the lease, as the case may be, if it is in the prescribed form, may be registered and the district registrar shall record the entry of the renewal, amendment or extension, as the case may be, upon both the certificate of title for the leasehold estate and the certificate of title for the reversionary interest in the land.

Amendment of term of life lease

91(4)       For greater certainty, for the purposes of this Act, on the assignment of a lease the term of which is for the life of the lessee, an amendment of the lease to provide that the term is for a fixed number of years or for the life of the assignee does not result in a new lease.

S.M. 1998, c. 42, s. 53.

Implied covenants

92          In the memorandum of lease, unless a contrary intention appears therein, there shall be implied the following covenants by the lessee, that is to say,

(a) that he will pay the rent thereby reserved at the times therein mentioned; and

(b) that he will at all times during the continuance of the lease keep, and at the termination thereof yield up, the demised property in good and tenantable repair, accidents and damage to buildings from fire, lightning, storm, and tempest, and reasonable wear and tear, excepted.

Implied powers in lessor

93          In the memorandum of lease, unless a contrary intention appears therein, there shall also be implied the following powers in the lessor, that is to say,

(a) that he may, by himself or his agents, enter upon the demised property and view the state of repair thereof, and may serve upon the lessee, or leave at his last or usual place of abode or upon the demised property, a notice in writing of any defect, requiring him within a reasonable time, to be therein mentioned, to repair it;

(b) that in case the rent or any part thereof is in arrear, or in case default is made in the fulfilment of any covenant, whether expressed or implied in the lease, on the part of the lessee, and the default is continued for the space of two calendar months, or in case the repairs required by the notice have not been completed within the time therein specified, the lessor may enter upon and take possession of the the demised property.

Notation of re-entry by lessor

94          A district registrar, upon proof to his or her satisfaction of lawful re-entry and recovery of possession of land by a lessor,

(a) shall note it by entry in the register; and

(b) may cancel any leasehold title issued in respect of the land and dispense with the production of the duplicate certificate of title or duplicate title, if issued, for the leasehold estate;

and the estate of the lessee in the land thereupon determines, but without releasing the lessee from his or her liability in respect of the breach of any covenant in the lease expressed or implied.

S.M. 1997, c. 10, s. 2.

Consent of mortgagee to lease required

95          No lease of mortgaged or encumbered land is valid and binding as against a mortgagee or encumbrancer, unless he has consented to the lease prior to the registration thereof; and no surrender of a registered lease shall be registered without the consent in writing of mortgagees or encumbrancers of the land.

MORTGAGES AND ENCUMBRANCES

New system mortgage or encumbrance

96(1)       Where any land, mortgage, or encumbrance, under the new system is to be charged or made security in favour of a mortgagee, the owner shall execute a memorandum of mortgage in the form prescribed by the regulations; and, where land is to be charged with or made security for the payment of an annuity, rent charge, or sum of money in favour of an encumbrancer, the owner shall execute a memorandum of encumbrance in the form prescribed by the regulations, and every mortgage or encumbrance shall contain an accurate statement of all prior mortgages, encumbrances, or other registered instruments, affecting the land.

Execution before land under this Act

96(2)       A mortgage or encumbrance on land executed by a person in a form provided by this section before the land is brought under this Act, may be registered after the person has become the registered owner under this Act.

Fractional interests

96(3)       A district registrar may refuse to accept for registration a mortgage or transfer of mortgage in which the mortgagee is described as the owner of a fractional or undivided interest in the mortgage; but he may accept for registration a mortgage or transfer of mortgage in which there is set out

(a) the share or fractional interest of the mortgage moneys contributed by each of two or more mortgagees; or

(b) any agreement between two or more mortgagees for sharing the proceeds of the mortgage; or

(c) both the shares or fractional interest mentioned in clause (a) and an agreement as mentioned in clause (b).

Registration of standard terms

96(4)       A person may, with the consent of the Registrar General, register a deposit at the land titles office, for the District of Winnipeg, of a set of standard charge mortgage terms.

Serial number of standard terms

96(5)       Where a set of standard charge mortgage terms is registered under subsection (4), the district registrar of the Winnipeg Land Titles Office shall

(a) assign a name and serial number of registration to the set; and

(b) ensure that copies of the set, identified by its name and serial number of registration, are provided to each of the district land titles offices for deposit at those offices.

96(6)       Repealed, S.M. 1993, c. 7, s. 8.

Mortgage to include standard terms

96(7)       A mortgage shall be deemed to include a set of standard charge mortgage terms registered under subsection (4) if the set is referred to in the mortgage by its serial number of registration as assigned at the Winnipeg Land Titles Office.

No liability for incorrect reference

96(7.1)     The assurance fund and the district registrar are not liable to pay compensation to any person for loss occasioned by the registration of a mortgage that refers or purports to refer to a set of standard charge mortgage terms where

(a) the reference differs from the name or serial number of registration assigned to the set of terms under subsection (5); or

(b) no set of terms has been registered under this section.

Term may be varied or amended

96(8)       A term deemed to be included in a mortgage by subsection (7), may, in a schedule to the mortgage, be expressly excluded or may be varied by setting out the term appropriately amended, and where varied or amended, the varied or amended terms prevails.

Mortgage to refer to only one set

96(9)       Only one set of standard charge mortgage terms may be referred to in a mortgage.

Express term to prevail

96(10)      Where there is a conflict between an express term in a mortgage and a term deemed to be included in the mortgage, by subsection (7), the express term prevails.

Limitation on registration of set

96(11)      A mortgage that refers to a set of standard charge mortgage terms registered under subsection (4) by the name and serial number of registration of the set shall not be registered before a copy of the set is available in the land titles office district where the mortgage is to be registered.

Mortgagee to provide copy

96(12)      A person named as mortgagee in a mortgage containing standard charge mortgage terms that have been registered under subsection (4), shall provide the mortgagor or mortgagor's solicitor with a copy of the standard charge mortgage terms.

Reg. Gen. authorization required

96(13)      Where the Registrar General is satisfied that a mortgage presented for registration contains terms that should be registered under subsection (4) because of the frequency of their use in mortgages in favour of the mortgagee, the Registrar General may give the mortgagee notice that on and after a certain specified date, no mortgage in favour of the mortgagee that sets the terms out expressly shall be registered without the Registrar General's authorization.

S.M. 1993, c. 7, s. 8; S.M. 1995, c. 27, s. 10; S.M. 1997, c. 10, s. 3.

Mortgages to secure future liability

97          A mortgage to secure a future or contingent liability shall set forth the nature and extent of the liability and the conditions or contingencies on which it is to accrue.

Mortgage does not transfer any estate

98          A mortgage or an encumbrance under the new system has effect as security but does not operate as a transfer of the land charged.

Registration in application

99          During the time an application is pending to bring land under this Act, a mortgage or encumbrance affecting the land in the form herein prescribed may be filed with the district registrar, who, upon the issue of the certificate of title, may present the mortgage or encumbrance for registration; and, if more than one mortgage or encumbrance is filed, they are entitled to priority in the order of filing.

Production and destruction of duplicate title

100(1)      When land is made subject to a mortgage or encumbrance, the duplicate certificate of title, if issued, shall be deposited with the district registrar, who may then destroy it.

Request for certificate of charge

100(2)      The district registrar shall furnish to the owner of a mortgage or encumbrance only upon registration thereof, a certificate of charge specifying all registered mortgages, encumbrances or instruments filed in the general register in which the name of the debtor is identical to that of the registered owner of the lands which have priority over the mortgage or encumbrance for which the certificate of charge is given.

S.M. 2001, c. 8, s. 6.

Transfer of mortgage

101(1)      A mortgage or encumbrance may be transferred by a transfer executed in the form prescribed by the regulations, and registered in the same manner as an instrument of a similar nature under this Act.

Registration to pass rights

101(2)      Upon the registration of a transfer of a mortgage, encumbrance, or lease, the mortgage or encumbrance or the estate or interest of the lessee, as set forth in the transfer, with all rights, powers, and privileges, thereto belonging or appertaining, passes to the transferee; and the transferee thereupon becomes mortgagee, encumbrancer, or lessee, and is subject to the same requirements, and liable for the same liabilities, as he would have been subject to and liable for, if so named in the original instrument.

Right of transferee to sue on mortgage

101(3)      By virtue of a transfer of a mortgage, encumbrance, or lease, the right to sue thereupon and to recover any debt, sum of money, annuity, or damages thereunder, notwithstanding it may be held to constitute a chose in action, and all interest at the time of the transfer, in the debt, sum of money, annuity, or damages, are transferred, so as to vest them in the transferee; but nothing in this section prevents the court from giving effect to any trusts affecting the debt, sum of money, annuity, or damages, in case the transferee holds it as trustee for any other person.

Mortgage of mortgage deemed a transfer

101(4)      A mortgagee of a mortgage or encumbrance shall, for the purposes of this section but subject to redemption, be deemed a transferee of the mortgage or encumbrance.

Discharge by mortgagee of a mortgage

101(5)      A mortgagee of a mortgage or encumbrance may discharge the original mortgage upon payment of the balance owing thereon, notwithstanding that the amount paid to him exceeds the amount owing to him under the mortgage of mortgage; but in such a case he shall account for the surplus to the mortgagee under the original mortgage.

Prohibition

101(6)      A mortgagee who has mortgaged his mortgage, shall not again mortgage the mortgage unless the first mortgage of mortgage has been discharged or a discharge thereof has been registered in series with the new mortgage of mortgage; but he may transfer the original mortgage subject to the mortgage thereof.

Assignment of mortgage

102         An assignment or mortgage of a mortgage or encumbrance, to which land was subject when it was brought under this Act, whether the assignment or mortgage of a mortgage is made before or after the land was brought under this Act, may be made according to the forms in use under the old system and may be registered under the new system in the same manner as other instruments of a like nature.

Discharge of mortgage

103(1)      Upon the production of a discharge of a mortgage or encumbrance, duly executed, discharging the whole or part of the mortgage or encumbrance or the whole or part of the land comprised in the mortgage or encumbrance from the moneys thereby secured, the district registrar shall make an entry in the register, to the effect that the mortgage or encumbrance is discharged wholly or partially or that part of the land is discharged and, upon the entry being made, the mortgage or encumbrance is released to the extent stated in the discharge.

Effect of partial discharge

103(2)      Where a mortgagee or encumbrancer has, by registration of one or more partial discharges, discharged all the land subject to his mortgage or encumbrance, the partial discharge which released all or the balance of the land mortgaged or encumbered shall, in so far as the records of the Land Titles Office are concerned, be deemed to be a final discharge of the mortgage or encumbrance; but nothing in this subsection affects any right of the mortgagee or encumbrancer to take action upon, or enforce, any covenant to pay moneys owing to him and secured by the mortgage or encumbrance.

Meanings

103(3)      In this section the expressions "discharge" and "partial discharge" include any tax sale or other proceeding whereby title to the lands or part of the lands included in a mortgage or encumbrance is issued clear of, and unaffected by, the mortgage or encumbrance.

Discharge of encumbrance

104         Upon proof of the death of the annuitant, or of the occurrence of the event or circumstance upon which, in accordance with the provisions of a memorandum of encumbrance, the annuity or sum of money thereby secured is to cease to be payable, and upon proof that all arrears of the annuity and interest or money have been paid, satisfied, or discharged, the district registrar shall make an entry in the register to the effect that the annuity or sum of money is satisfied and discharged; and, upon the entry being made, the land ceases to be subject to, or liable for, the annuity or sum of money.

Repayment of mortgage moneys

105(1)      Where a mortgagor is entitled to redeem the mortgage by payment of the moneys due thereunder

(a) if he is unable to find the mortgagee or any person entitled to receive the moneys and discharge the mortgage, after having made all due and reasonable inquiries and searches for the purpose; or

(b) there would be unreasonable delay in obtaining a discharge of mortgage from the mortgagee; or

(c) if the mortgagee, having been paid or tendered, whether in accordance with the terms of the mortgage or in accordance with any law relating to the right to pay or tender moneys the payment of which is secured under a mortgage, the amount claimed by the mortgagor to be due under the mortgage or the payment of which is claimed by the mortgagor to be secured under the mortgage, neglects to furnish a discharge of mortgage or refuses to do so on the ground that an amount greater than that paid or tendered by the mortgagor is owing, due, or secured, or on any other ground;

the mortgagor may apply to the court for an order discharging the mortgage or determining the balance owing; and the costs of the application, including the taking of accounts, are in the discretion of the court.

Payment into court

105(2)      Where an application is made under subsection (1), the court may order that the amount found to be due under the mortgage, if it has not already been paid to the mortgagee or a person entitled to receive it and discharge the mortgage, or any balance of that amount not so paid, shall be paid into court as a condition of making an order discharging the mortgage.

Disposal of moneys paid in

105(3)      Where moneys are paid into court under subsection (2), the person entitled thereto may apply to the court for payment of the moneys to him; and the court, if satisfied that the applicant is entitled to the moneys, may make the order; and if no such application is made within twelve years from the date of the payment into court, or if any application made within that period is dismissed, the moneys are thereupon forfeited to the Crown and The Escheats Act thereupon applies thereto.

Statute barred mortgage

106(1)      Where a limitation imposed by The Limitation of Actions Act in regard to a mortgage or encumbrance made under this Act, comes into effect, a mortgagor under the mortgage or a person whose land is charged with the encumbrance may apply to the court for a declaration and order extinguishing the mortgage or encumbrance.

Court to grant order

106(2)      Where, on an application made under subsection (1) the court is satisfied that the applicant is entitled to the declaration and order for which the application is made, the court shall declare that the mortgage or encumbrance is statute barred and thereby extinguished and shall, by order, direct the district registrar to note upon every certificate of title which was subject to the mortgage or encumbrance that the mortgage or encumbrance is statute barred and thereby extinguished and thereafter to treat the mortgage or encumbrance as if it had been wholly discharged by the person entitled by law to discharge it.

Reg.-Gen. may order discharge

107         The Registrar-General, upon proof being made to his satisfaction that all moneys due and owing upon the mortgage have been fully satisfied, and that the mortgage should be discharged, may order the district registrar to cause an entry to be made in the register discharging the mortgage, and the entry is a valid discharge of the mortgage.

Notice of builders' lien

108         On the filing of a builders' lien, the district registrar shall forthwith notify the owner of the land, mortgage, encumbrance, or lease, affected thereby of the filing by ordinary mail.

S.M. 1990-91, c. 12, s. 16.

Registration of postponement

109(1)      Any person appearing on the register to be entitled to the benefit of

(a) a mortgage or encumbrance; or

(b) a builders' lien under The Builders' Liens Act; or

(c) a judgment, lien or other instrument which has been registered and which claims or purports to claim an interest in or a charge on the lands of a debtor; or

(d) a lease; or

(e) a caveat; or

(f) an instrument granting a right under section 111 or section 112; or

(g) a lien or charge created by, or arising under an Act of the Legislature in favour of the Government of Manitoba, or in favour of a municipality; or

(h) a notice filed under The Personal Property Security Act;

(hereinafter in this section called "the instrument affected") that has been registered or filed against any land, may postpone his rights thereunder by execution and registration of a postponement in the form prescribed by regulations.

Execution of postponement

109(1.1)    A postponement under subsection (1) may be executed by an agent where that agent also executed the instrument affected.

Effect of reg'n. of postponement

109(2)      Where the person executing such a postponement registers it as provided in subsection (1), the registration thereof postpones his rights under the instrument affected respecting the land described in the postponement to those arising out of the subsequent mortgage or other instrument to which it is expressed to be postponed in the same manner and to the same extent as if the instrument affected had been registered or filed immediately after the registration or filing of the mortgage or other instrument to which it is so expressed to be postponed.

S.M. 1989-90, c. 90, s. 38.

Variation of mortgage or encumbrance

110(1)      Where an agreement

(a) amends a registered mortgage to

(i) extend the period for repayment of the unpaid balance owing under the mortgage upon revised terms,

(ii) vary the description of the mortgaged land to add land to the lands already affected by the mortgage,

(iii) vary any other term of the mortgage, other than the description of the mortgaged land to remove land from the lands already affected by the mortgage,

(iv) add the name of a person as a covenantor under the mortgage, or

(v) correct an error made before the execution of the mortgage or in an amendment previously registered under this section; or

(b) amends a registered encumbrance to

(i) vary the description of the encumbered land to add land to the lands already affected by the encumbrance,

(ii) vary any other term of the encumbrance, other than the description of the encumbered land to remove land from the lands already affected by the encumbrance, or

(iii) correct an error made before the execution of the encumbrance or in an amendment previously registered under this section;

a memorandum of agreement in the form prescribed by regulation may be registered.

Consent of all affected persons

110(2)      An agreement registered under subsection (1), other than an agreement that only adds a covenantor under a mortgage, must have endorsed on it or annexed to it the consent of all persons appearing on the register to have a claim or interest subsequent in priority to the mortgage or encumbrance, other than persons having a claim or interest described in section 141.  Each consent must be accompanied by an affidavit of execution of a subscribing witness.

Effect of agreement

110(3)      Upon the registration of an agreement under subsection (1), the terms of the agreement have the same force and effect as if embodied in and forming part of the mortgage or encumbrance, and have the same priority as the mortgage or encumbrance.

Meaning of "encumbrance"

110(4)      Despite section 1, in this section "encumbrance" means an instrument described in subsection 109(1), other than a mortgage.

S.M. 1997, c. 10, s. 4; S.M. 1999, c. 18, s. 23; S.M. 2005, c. 5, s. 2.

Rights analogous to easements

111(1)      A right for

(a) the conveyance of water; or

(a.1) the inundation or storage of water; or

(b) drainage; or

(c) the disposal of sewage; or

(d) carrying or laying pipes or wires; or

(e) carrying, laying, erecting, or building conduits, cables, wires, poles, wind turbines or transmission lines; or

(f) the erection or maintenance of a public work as defined in The Public Works Act; or

(g) constructing, maintaining and operating a railway;

or any right of a like nature, over, upon, across, along, or under land, granted by an instrument in writing executed by the owner of the land, and by any person entitled to be registered as owner of the land, whether the land is under the old system or the new system, and, if the land has been sold by agreement for sale, by both the vendor and the purchaser under the agreement, or by his or their respective personal representatives or assigns in favour of

(h) the Crown, MTS NetCom Inc., The Manitoba Hydro Electric Board, a municipality, a local government district, an industrial townsite, or the owner of a public utility; or

(i) any corporation or person supplying water, power, light, telephone, telegraph, cable television, telecommunications, railway, fire protection, drainage, or sewage services;

is enforceable notwithstanding that the benefit of the right is not, or may not be, appurtenant or annexed to any land of the grantee; and the instrument may be registered in the land titles office of the district in which the land is situated or, if the land is under the new system, the grantee may file a caveat, having attached thereto a copy of the instrument.

Title not to issue

111(2)      A certificate of title shall not issue under this Act for any right, estate, or interest in land granted by an instrument to which this section applies; but where the instrument is registered under the new system the district registrar shall make an entry of the instrument upon the existing certificate of title to the land affected thereby.

Grantee's right to use the land

111(3)      On, from, and after, the registration of an instrument or the filing of a caveat to which subsection (1) applies, the grantee has the right to use the land therein described in accordance with the terms of the instrument creating the right; and all the terms, conditions, and covenants, expressed in the instrument are binding upon, and enure to the benefit of, the grantee, his successors, personal representatives, and assigns, except in so far as a contrary intention appears in the instrument creating the right.

Liability of grantor limited

111(4)      No person who executes an instrument whereby such a right as is mentioned in this section is granted is liable for breach of a covenant contained in the instrument committed after he has ceased to be the owner of the land therein mentioned, or has ceased to hold the interest in the land by virtue of which he executed the instrument.

Registration of instrument

111(5)      An instrument purporting to assign, mortgage, encumber, or charge, any right granted by an instrument to which this section applies may, if executed by or on behalf of the grantee, be registered under the old system or the new system, as the case may be; and, notwithstanding any provision of this Act, the district registrar is not required, in respect of any such registration, to record on the duplicate certificate of title or duplicate title, if issued, of the land the entry of the registration, and he may dispense with the production of the duplicate certificate of title or duplicate title, if issued, therefor.

Discharge of instrument

111(6)      Where an instrument granting a right under this section has been registered, and the grantee desires to surrender the right, or any part of it, he may execute a surrender thereof in such form as may be approved by the Registrar-General; and, on registration of the surrender in the proper land titles office, all rights of the grantee under the instrument cease to the extent so surrendered, and the district registrar shall make an entry in the register to the effect that the instrument is discharged and cancelled to that extent.

S.M. 1995, c. 16, s. 5; S.M. 1996, c. 64, s. 13; S.M. 1996, c. 79, s. 37; S.M. 2004, c. 42, s. 47.

112(1)       and (1.1) Repealed, S.M. 1995, c. 27, s. 12.

Registered easement to run with land

112(2)      Any registered easement agreement for the supply of utility services or caveat for the same purpose shall be deemed to run with the land whether or not referred to in the schedule of prior charges contained in any instrument.

Issue of pipeline or wind turbine title

112(3)      A pipeline easement, a right for carrying, laying, erecting or building wind turbines, a grant of right of user or a right of a like nature, for the construction, maintenance and operation of a pipeline or wind turbine, or any other easement or grant, relating to the operation of a pipeline or wind turbine may be registered and an entry of the instrument shall be made on the title of the grantor; and a title for the interest shall issue to the grantee clear of easements or caveats filed by MTS NetCom Inc. or the Manitoba Hydro Electric Board.

Entries on title

112(4)      The title issued under subsection (3) shall issue clear of any prior registered interests which affect the pipeline easement or right for carrying, laying, erecting or building wind turbines, other than encumbrances created by the owner of the pipeline easement or of the right in relation to wind turbines.

Enforceability of pipeline or wind turbine title

112(5)      A pipeline easement, right for carrying, laying, erecting or building wind turbines, grant of user or right of like nature, is enforceable notwithstanding that the benefit of the right is not or may not be appurtenant or annexed to any land of the grantee.

Certified M.L.S. plan

112(6)      A title shall issue for the registration of a pipeline easement or pipeline agreement set out in subsection (3) only

(a) when a plan certified by a Manitoba Land Surveyor and approved by the Examiner of Surveys, has accompanied or preceded the pipeline easement or pipeline agreement; or

(b) in the case of an expropriation subject to The Gas Pipe Line Act, when a plan of survey defining the lands covered by the expropriation has been previously registered.

Mortgage to be entered on title

112(7)      A mortgage, encumbrance, lien or other interest that charges or affects

(a) a pipeline agreement or right in relation to wind turbines referred to in subsection (3); or

(b) an expropriation referred to in subsection (6);

shall be entered only on the title issued relating to that agreement or expropriation.

Discharge

112(8)      A pipeline easement agreement, a right in relation to wind turbines, or expropriation, that is registered under subsection (3) or (6) may with the consent of those parties having registered encumbrances against the title thereto, be discharged, and the pipeline or wind turbine title shall be cancelled.

Non-application of subsection 111(2)

112(9)      For greater certainty, subsection 111(2) (title not to issue) does not apply to the issue of a title under this section.

S.M. 1992, c. 5, s. 9; S.M. 1993, c. 7, s. 9; S.M. 1993, c. 4, s. 236; S.M. 1995, c. 27, s. 12; S.M. 1996, c. 79, s. 37; S.M. 2007, c. 8, s. 3.

Mortgagee's rights

113         A first mortgagee, for the time being, of land under this Act, has, during the currency of his mortgage, the same rights and remedies at law and in equity as he would have had, had the legal estate in the land or term mortgaged been vested in him, with a right in the owner of the land of quiet enjoyment thereof until default in the payment of money secured thereby, or in the performance of a covenant expressed or implied therein.

Right to lease land

114(1)      In case default under a mortgage or encumbrance continues for the space of one month, or for such longer period of time as is therein for that purpose expressly limited, the mortgagee or encumbrancer may enter into possession of the land and receive and take the rents, issues, and profits thereof, and whether in or out of possession may make such lease of the land or of any part of it as he sees fit.

Effect of lease by mortgagee

114(2)      A lease by the mortgagee or encumbrancer to a person other than the mortgagor or owner of land subject to an encumbrance is not binding upon the mortgagor or owner of land subject to an encumbrance after three years from the date of its commencement.

When acceleration clause not binding

115         Where default occurs in making a payment due under a mortgage or in the observance of a covenant contained therein, and, under the terms of the mortgage, by reason of such a default, the whole principal and interest secured thereby has become due and payable, the mortgagor may, notwithstanding a provision in the mortgage to the contrary, and at any time prior to sale or foreclosure, perform the covenant or pay the arrears, together with costs to be taxed by the district registrar; and he is thereupon relieved from the consequences of non-payment of so much of the mortgage money as has not become payable by reason of lapse of time.

Interpretation of encumbrances

116         Notwithstanding the terms actually used in an encumbrance to describe the parties thereto, regard shall be given to the context thereof, and the person entitled to the benefit of an encumbrance or to require payment or discharge thereof has, and is subject to, the rights, remedies, and liabilities, conferred or imposed upon an encumbrancer as that term is defined in this Act, and the owner of the land encumbered, whether or not he is described as the encumbrancer, has, and is subject to, the rights, remedies, and liabilities, conferred or imposed by this Act upon the person who owns the land so encumbered.

PLANS

Plans of subdivision

117(1)      Where a person subdivides land, the plan of subdivision shall not be registered unless it is approved by the Registrar-General and in accordance with the provisions of The Planning Act.

Application of subsection (1)

117(2)      Subsection (1) does not apply to land situated within The City of Winnipeg.

Approval required for registration

117(3)      No plan of subdivision to which The City of Winnipeg Charter applies, shall be registered unless approval is given to the plan under that Act and unless approval is given by the Registrar-General under this Act.

Form of approval

117(4)      The approval of The City of Winnipeg shall be authenticated, for the purpose of registration, by the signature of the person or persons appointed by by-law of the council for the purpose and the approval of The Municipal Board shall be by order.

Requirements of Registrar-General

117(5)      Before approving a plan of subdivision, the Registrar-General may require

(a) the cancellation under The Municipal Board Act of any existing plans or portions thereof affecting the land in the plan of subdivision; or

(b) the inclusion in the plan of subdivision of any adjacent parcels of land which are not defined on any registered plan, and of any public streets or lanes;

or both.

Nature of plan

117(6)      The plan presented to the district registrar for registration shall be in accordance with the following provisions:

(a) All roads, streets, lanes, passages, thoroughfares, squares, or reserves, appropriated or set apart for public use shall be shown as such, and distinctly delineated on the plan and have their measurements marked thereon.

(b) All allotments into which the land is divided shall be marked with distinct numbers or letters on the plan.

(c) Subject to subsection (7), each angle of each allotment shall be defined on the ground by the surveyor by a post or monument of a durable character, and the manner by which each angle is so defined shall be shown on the plan.

(d) The plan shall show distinctly a sufficient number of angular and lineal measurements, from which can be deduced the dimensions and bearing of each boundary of each and all the allotments into which the land is divided.

(e) Subject to subsection (8), the original section or parish lot lines, according to the survey thereof by the Dominion or provincial government, or a sufficient number of them to show the location and connection of the subdivision therewith, shall be shown on the plan.

(f) Where the plan is a subdivision of a lot or lots on a previously registered plan, it may be required that there be shown, in a distinct manner on the plan, the numbers or other distinguishing marks of the lot or lots subdivided, and the boundary lines thereof.

(g) Subject to subsection (9), unless the municipal board otherwise orders, a plan upon which there is indicated a portion which is vested in the Crown or municipality as provided in section 119, shall be signed by each owner and caveator or his authorized agent.

(h) Subject to subsection (9), a plan upon which there is no indication of a portion which is vested in the Crown or a municipality as provided in section 119, shall be signed by the registered owner of the land.

Authority as to survey of subdivisions

117(7)      The Registrar-General may, subject to such conditions as he imposes, allow a subdivision to be made and evidenced in the following manner:

Instead of requiring a post or monument at each angle of each allotment, there shall be erected at intervals monuments of a permanent character; and the monuments, with the information on the plan showing their location, are the evidence of the block outlines of the survey, and the registered plan of the subdivision is the evidence of the manner in which each block of land is subdivided into allotments.

Clause (6)(e) dispensed with

117(8)      When a connection with the original survey lines has been sufficiently shown on a previously registered plan, the provision set out in clause (6)(e) may be dispensed with.

Signature in respect of parcel

117(9)      Where the Registrar-General has required under clause (5)(b) the inclusion in a plan of any adjacent parcel, the signature of an owner or caveator of the parcel is not required on the plan in respect of the parcel.

District registrar to deliver one of the plans

117(10)     Forthwith after registration, the district registrar shall forward to the Registrar-General, and to the clerk of the municipality in which the land is situated, one of the plans, on each of which he shall endorse a certificate of the date, number, and other particulars of the registration.

Registered within 60 days

117(11)     No plan shall be registered after the expiration of 60 days from the time the Registrar-General gives his approval thereto.

Delegation of authority

117(12)     The Registrar General may delegate to any member of the staff of the Land Titles Office the authority to approve plans of subdivision under this section.

S.M. 1991-92, c. 15, s. 25; S.M. 2002, c. 39, s. 535.

Consents

118         If a consent to the registration or filing of an instrument has been granted under The City of Winnipeg Charter, a certificate of the consent signed by an employee of The City of Winnipeg who is designated by the city council for that purpose may accompany the instrument when it is registered or filed in a land titles office.

S.M. 2002, c. 39, s. 533.

Plans dedicating streets

119(1)      The indication upon a plan of subdivision filed or registered in a land titles office or registry office of a portion of the land covered by the plan as a street, lane, avenue, footpath, walkway, road, highway, park, public square or other means of communication not designated thereon to be of a private nature, or as a public reserve, shall be deemed a dedication of that portion of the land to the public.

Title to streets

119(2)      Upon the registration or filing of a plan,

(a) the title to any portion of the land covered by the plan indicated on the plan as a street, lane, avenue, footpath, walkway, road, highway, public square or other means of communication, is vested in the Crown free from all encumbrances other than a pipeline easement, grant of right of user, or a right of a like nature relating to the operation of a pipeline registered under section 112, subject however to the right of the municipality to the possession thereof;

(b) the title to any portion of the land covered by the plan indicated on the plan as Crown reserve is vested in the Crown free from all encumbrances other than a pipeline easement, grant of right of user, or a right of a like nature relating to the operation of a pipeline registered under section 112; and

(c) the title to any portion of the land covered by the plan indicated on the plan as public reserve is vested free from all encumbrances other than a pipeline easement, grant of right of user, or a right of a like nature relating to the operation of a pipeline registered under section 112

(i) where the land is situated in a municipality, in that municipality, and

(ii) where the land is not situated in a municipality, in the Crown.

Certain sales may be rescinded

120         Where a person sells or conveys, or agrees to sell or convey, a lot or parcel of land, by number or letter according to a plan of subdivision, whether under the operation of this Act or not, before the plan has been registered, the purchaser of the lot or parcel, without knowledge of the non-registration of the plan, or of the necessity therefor, or a person claiming under him, may, at his option, on acquiring the knowledge, rescind the contract of purchase, and recover back all money paid thereunder, with interest, and taxes paid or expenses incurred in consequence of the purchase; and he has a lien on the lot or parcel for all such money to the extent of the vendor's interest in the lot or parcel; but the vendor is, nevertheless, bound by the contract, deed, or conveyance, if the purchaser does not rescind it.

Plans for simplifying descriptions

121(1)      The Registrar-General may direct that a plan compiled from documents and plans registered in a land titles office, hereinafter in this section referred to as a "special plot", be prepared by the Examiner of Surveys for the purpose of simplifying the description of the land of each owner in the area covered by the plan.

Correction of errors for special plot

121(2)      Where, in the opinion of the Registrar-General, a boundary to be dealt with under a special plot has become ambiguous or in error, he may correct the boundary with the written consent of the owners affected thereby, or he may have the matter dealt with under the provisions of The Special Surveys Act.

Approval of special plot

121(3)      After completion of a special plot, the Registrar-General may approve it, and thereafter the plan may be registered in the proper land titles office without payment of any fees for registration or entries.

Effect of registration of special plot

121(4)      Upon the registration thereof, the special plot shall become the official plan of the land affected thereby subject to any surveyed boundaries delineated upon any registered plans affecting the land, and, where he deems it desirable to do so, the district registrar may cancel the existing certificates of title and issue new certificates of title to the owners of the lots shown on the special plot.

Conveyance of portion of special plot

121(5)      The owner of a lot shown on a special plot who intends to convey a portion thereof shall have a plan prepared under the provisions of this Act by a Manitoba land surveyor of

(a) the portion of the lot he intends to convey; and

(b) the balance of the lot;

and the registration of the conveyance shall be accompanied by a request to issue a new certificate of title for the balance of the lot according to the plan.

Alternative to plans

121(6)      Where, in the opinion of the district registrar, the cost of preparing a plan as required under subsection (5) would be unduly burdensome in relation to the intended use and value of the land and other relevant circumstances, he may

(a) in the case of a conveyance, accept a plan prepared by a Manitoba land surveyor on the basis of the special plot certified by the surveyor in the form prescribed by the regulations; or

(b) in the case of an encumbrance, accept a document containing a description of part of the lot under the special plot.

Correction of registered plan

122         Where in a plan registered, filed, or deposited, there is an omission, clerical error, or other defect, the Registrar-General may have it corrected in such manner as to him seems best; and he shall thereupon enter upon the plan an order stating in what respect it stands amended, and thereafter the plan shall, for all purposes, be deemed to have been so amended or corrected from the time of its registration, and the description of land in any instrument shall thereafter be construed as if it referred to the plan as corrected.

Registrar-General may certify copies

123         The Registrar-General may cause a copy of a plan registered, filed, or deposited, in a registry office or land titles office, to be made under the direction of the examiner of surveys, who, together with the Registrar-General, shall certify thereon that it is a true copy of the original; and the copy, so made and certified, has all the force and effect of the original plan so registered, filed, or deposited.

Plan for opening roads and drains

124(1)      Where a by-law or plan for the opening up of a highway or drain is presented for registration or deposit to the district registrar under The Municipal Act, The Expropriation Act, or a city charter, the plan shall be in accordance with the following provisions:

(a) The plan shall exhibit, distinctly delineated, the width and direction of each course of the highway or drain.

(b) The manner by which the highway or drain is defined on the ground by the surveyor shall be shown on the plan.

(c) The original section or parish lot lines according to the survey thereof by the Dominion or provincial government shall be shown on the plan, and there shall also be shown a sufficient number of angular and lineal measurements to show the location and connection of the highway or drain with each original section or lot affected thereby; but when a connection with the original survey lines has been sufficiently shown on a previously registered plan, this provision may be dispensed with.

Plans forwarded Registrar-General

124(2)      Forthwith after the deposit, the district registrar shall forward to the Registrar-General one of the plans, on which shall be endorsed by the district registrar a certificate of the date, number, and other particulars, of the deposit.

Reg'n. to affect both systems

124(3)      Where part of the land registered in a land titles office, and affected by the by-law or plan, is under the old system and part under the new system, the by-law or plan shall be registered against the land under both systems.

Lot from which lane taken

124(4)      Where a portion of a lot in a plan of subdivision has been taken and vested in a municipality or the Crown for a lane, the remaining portion of the lot shall be held to be properly described in an instrument presented for registration by giving its number on the plan without specifically excepting therefrom the part so taken for a lane, and the instrument shall be read as if the lane were specifically excepted.

Plans of right-of-way

125(1)      All plans of land taken for a right-of-way for any purpose, presented for filing, deposit, or registration, with the district registrar, shall state the purpose for which the land is required and be in accordance with the following provisions:

(a) The area taken from each quarter section or parish lot shall be shown on the plan.

(b) The original section or parish lot lines according to the survey thereof by the Government of Canada or the Government of Manitoba shall be shown, and a sufficient number of angular and lineal measurements to define the limits of the land taken for the right-of-way, and to show their connection with each original section or parish lot through which the right-of-way passes.

(c) Where the location of the right-of-way is through land which has been surveyed into allotments, and shown on a registered plan, the plan shall show distinctly, as to all allotments taken in whole or in part for the right-of-way, the lines of each allotment according to the plan of its survey, and a sufficient number of angular and lineal measurements to show the location and connection of the right-of-way with each registered allotment.

(d) The land so taken or required shall be defined on the ground by durable posts placed at all points designated or required by the Registrar-General, and the plan shall show the location of those posts.

One of the plans to be forwarded

125(2)      Forthwith after the deposit, the district registrar shall forward to the Registrar-General one of the plans on which shall be endorsed by the district registrar a certificate of the date, number, and other particulars, of the deposit.

Railway lands

126         Where, by virtue of any statute of Canada or of the province, land, or an estate or interest in land, has become vested in a railway corporation by reason of the deposit of a plan in a land titles office, a certificate or certificates of title for the land, estate, or interest, shall forthwith issue to the corporation, free from encumbrances; but this does not in any way prejudice the claim to compensation of any person entitled thereto by reason of the taking of the land, estate, or interest.

Requirement for plan of survey

127(1)      The district registrar of a land titles district may require an owner of land, or a supplier of utility services wishing to file a caveat or an assignment of a caveat against land respecting a utility easement or a right of a like nature granted by an instrument executed by an owner in favor of the supplier, to file a plan of survey where in the opinion of the district registrar the location of the land or utility easement is not sufficiently defined on any registered plan, and if the owner or supplier does not comply with the requirement the district registrar may

(a) in respect of an owner of land, refuse to accept for registration any instrument relating to the land; and

(b) in respect of a caveat, refuse to accept the caveat or assignment of caveat for filing or any instrument relating to the caveat for registration.

Notice of intention that plan required

127(2)      A district registrar may give notice of intention that a plan of survey is required by making an entry on the certificate of title to that effect.

Approval of local authority

127(3)      A plan shall not be filed by an owner of land referred to in subsection (1) unless

(a) where the land is situated in the City of Winnipeg, the plan has been approved under Part 6 of The City of Winnipeg Charter or consent has been granted under Part 6 of that Act to the registration or filing of the plan;

(b) where the land is situated in northern Manitoba as that expression is defined in The Northern Affairs Act, by the member of The Executive Council charged with the administration of that Act or a person authorized by him to approve the plan on his behalf; and

(c) subject to subsection (5), where the land is not situated in the City of Winnipeg or in northern Manitoba as that expression is defined in The Northern Affairs Act, the plan is approved in accordance with the provisions of The Planning Act and a certificate of the approval is endorsed on the plan.

Accompanying documents

127(4)      Where a plan is filed by an owner of land referred to in subsection (1), unless the provisions of this subsection are waived by the district registrar, the plan shall be accompanied by documents to be registered which deal with or request a certificate of title for all parcels on the plan.

Approval under Planning Act

127(5)      Approval in accordance with the provisions of The Planning Act and the certificate of the approval mentioned in clause (3)(c) are not required where each of the parcels shown on the plan comprises all or the balance of the land contained in a certificate of title or deed.

S.M. 1991-92, c. 15, s. 25; S.M. 1995, c. 27, s. 13; S.M. 2002, c. 39, s. 533.

Plans to be satisfactory

128(1)      All plans affecting land boundaries shall be certified as accurate by a Manitoba land surveyor under oath in the form prescribed by the regulations, and shall be made in all respects satisfactory to the Examiner of Surveys.

Bearings to be astronomic

128(2)      All bearings shown on a plan of survey deposited for registration shall be astronomic and shall be obtained by observation.

Evidence for unsurveyed boundaries

128(3)      If in the opinion of the Examiner of Surveys it is not necessary that all or any boundaries be surveyed to determine the position of land to be dealt with, he may approve a plan upon such other evidence as he may require.

Plan based on land titles records

128(4)      Where, in the opinion of the Examiner of Surveys, a survey of land on a plan is unnecessary, he may approve a plan prepared by a Manitoba land surveyor based on records in the land titles office in the district in which the land to be dealt with is situated without an actual survey and the plan shall be certified by the surveyor in the form prescribed by the regulations.

Verification of survey

129         Before any plan is registered, filed, or deposited, in any land titles office, the Examiner of Surveys may require the survey to be verified on the ground by an officer of the land titles office or by an authorized land surveyor to be designated by the Examiner of Surveys.

Waiving requirements on Crown land

130         The Registrar-General may waive any or all requirements of this Act with respect to plans of survey of land belonging to the Crown.

Copies of plans

131         Each plan presented for registration or filing in a land titles office shall be accompanied by such number of copies thereof as may be prescribed from time to time by the Registrar-General.

Use of International System

132         The Registrar General may require that any measurement or area on a plan or in an instrument presented for registration of filing be expressed in units of the International System of Units (SI).

Interpretation

133(1)      In this section "air space parcel" means a volumetric parcel, whether or not occupied in whole or in part by a building or other structure, shown as such in an air space plan.

Creation of air space parcels

133(2)      The registered owner may, with the consent of all persons appearing on the register and general register to have a charge, claim or interest in the land, create air space parcels separated by surfaces and obtain title to them by the registration of an air space plan.

Requirements of the plan

133(3)      An air space plan shall not be registered unless

(a) the title to the land of which the air space parcels are part is registered under this Act;

(b) the land of which the air space parcels are part is at least a whole lot or parcel shown on a subdivision or explanatory plan registered under this Act;

(c) the plan contains the certificate of a land surveyor that he was present at and personally superintended the survey represented by the plan and that the survey and plan are correct; and

(d) the plan has been approved by the Examiner of Surveys.

Parcel may be subdivided

133(4)      An air space parcel created by the plan constitutes land and may be transferred, leased, mortgaged, charged or otherwise dealt with in the same manner as other land registered under this Act and may be subdivided in accordance with The Condominium Act.

PROCEEDINGS IN LAND TITLES OFFICES MORTGAGE SALE AND FORECLOSURE PROCEEDINGS

Notice of sale on default

134(1)      Where default is made in the payment of the principal sum, interest, annuity, or rent charge, or any part thereof, secured by a mortgage or encumbrance registered under this Act, or in the observance of any covenant expressed or implied in the mortgage or encumbrance, if the default is continued for the space of one month, or for such longer period of time as is therein for the purpose expressly limited, the mortgagee or encumbrancer may forthwith give a written notice, a copy of which shall be filed in the land titles office, to the mortgagor or owner of land subject to an encumbrance, and to every other person appearing at the time of filing the notice to have any mortgage, encumbrance, or lien upon, or estate, right, or interest in, the lands subsequent to his mortgage or encumbrance requiring the mortgagor or owner of land subject to an encumbrance and the other persons to be served with the notice to pay, within a time to be specified therein, the money then due or owing on the mortgage or encumbrance or to observe the covenants therein expressed or implied, and stating that in case default is made in so doing, all remedies provided in this Act will be resorted to, to remedy the default.

Breach to be declared by judge

134(2)      Where a notice is given under subsection (1), and it is alleged therein that the mortgagor has failed to observe a covenant in the mortgage other than a covenant to pay principal, interest, taxes, or insurance premiums, and he is required in the notice to observe that covenant, if the mortgagee desires to make an application under section 135 based in whole or in part on that alleged breach of covenant, he shall, before he may proceed further with his application, apply to a judge for, and obtain from him, an order declaring that the mortgagee may proceed with the application under section 135.

Effect of pending litigation order

134(3)      Except as provided in subsection (4), a pending litigation order registered in the land titles office subsequent to the registration of a mortgage shall not affect the right of the mortgagee to proceed under the mortgage with mortgage sale and foreclosure proceedings, and any title issued to a purchaser, or to the mortgagee, pursuant to such proceedings, shall issue clear of, and unaffected by the pending litigation order.

Status of plaintiff

134(4)      The plaintiff as shown in a pending litigation order registered in a land titles office shall be deemed to be a person interested in the land to the same extent, and in the same manner, as though he had given notice of his claim by filing a caveat; and, where the pending litigation order discloses that the mortgagee is a party to the action, or where the district registrar has been served with written notice by the plaintiff as shown in the pending litigation order that the mortgage, or the right of the mortgagee to proceed, is called into question in the action, the district registrar shall not make an order authorizing a sale or a final order of foreclosure, until the claim has been resolved, or the pending litigation order is disposed of by order of the court.

S.M. 1992, c. 5, s. 10.

Application for order to sell

135(1)      Where the default in payment or in the observance of any covenant continues for the space of one month from the date of service of the notice, the mortgagee or encumbrancer may make application in writing to the district registrar for an order permitting him to sell the land, or a part thereof, and all the estate or interest therein of the mortgagor or owner of land subject to an encumbrance, and of the other persons entitled to be served with the notice.

Proof of matters stated

135(2)      The application shall be accompanied by such proof of the matters stated by the applicant and by such other evidence as the district registrar requires.

District registrar may make order for sale

135(3)      The district registrar may thereupon make an order authorizing and empowering the applicant to sell the land in such manner as he directs, and either altogether or in parcels by public auction or by private contract, or by both modes of sale, and subject to such conditions as he imposes.

Conveyances by mortgagee after sale

136(1)      The mortgagee and encumbrancer may execute all such instruments as are necessary to complete the sale or for the enjoyment by the purchaser of the land; and all sales, contracts, matters, and things, hereby authorized are as valid and effectual as if the mortgagor or owner of land subject to an encumbrance and other persons entitled to be served with the notice had made, done, or executed them; and the receipt in writing of the mortgagee or encumbrancer is a sufficient discharge to the purchaser of the land, estate, or interest, or of any portion thereof, for so much of his purchase money as is thereby expressed to have been received.

Purchaser not to see to application

136(2)      No purchaser is answerable for the loss, misapplication, or non-application, or is obliged to see to the application, of the purchase money paid by him, nor is he obliged to inquire as to the fact of any default or required notice having been made or given, nor how the purchase money to arise from the sale of any of the land, estate, or interest, is to be applied.

Application thereof

136(3)      Subject to sections 94, 101, 102, 104 to 107 and 117 and subsection 103(2) of The Employment Standards Code and section 33 of The Life Leases Act and subsection 36(4) of The Contaminated Sites Remediation Act, the purchase money shall be applied, firstly, in payment of the expenses occasioned by the sale; secondly, in payment of the moneys then due or owing to the mortgagee or encumbrancer; thirdly, in payment of subsequent mortgages, encumbrances, or liens, if any, in the order of their priority; and, fourthly, the surplus, if any, shall be paid to the owner or other person entitled thereto.

S.M. 1996, c. 40, s. 69; S.M. 1998, c. 29, s. 159; S.M. 1998, c. 42, s. 54.

Vesting of title in purchaser

137         Subject to section 141, upon the registration of an instrument executed by a mortgagee or encumbrancer, for the purpose of the sale, or by a mortgagee selling under the power of sale in a mortgage that affected the land when the first certificate of title issued therefor, the estate or interest of the owner of the land mortgaged or encumbered passes to, and vests in, the purchaser, freed and discharged from all liability on account of the mortgage or encumbrance and from any mortgage, lien, charge, or encumbrance created by an instrument registered subsequent thereto, and the purchaser, upon transmission, is entitled to a certificate of title for the land.

S.M. 1998, c. 10, s. 2.

Foreclosure of mortgage or encumbrance

138(1)      Where the mortgagor or encumbrancee has made default as set out in subsections 134(1) and (2) and the default continues for six months where the mortgage or encumbrance is under the new system, and for one year in other cases, after the time for payment mentioned in the mortgage or encumbrance, the mortgagee or encumbrancer may make application in writing to the district registrar for an order of foreclosure.

Application for foreclosure

138(2)      The application shall state that default has been made and has continued for the required period, and that the land mortgaged or encumbered has been offered for sale at public auction after a notice of sale served as provided by this Act or by the terms of the mortgage, and that the amount of the highest bid at the sale was not sufficient to satisfy the moneys secured by the mortgage or encumbrance, together with the expenses occasioned by the sale, or that there was no bid at the sale, as the facts are; and the application shall be accompanied by such proof of the matters stated by the applicant and by such other evidence as the district registrar requires.

Notice to redeem

138(3)      The district registrar shall thereupon cause to be served on the mortgagor or owner of land subject to an encumbrance, and every other person appearing at the time of the filing of the application to have any mortgage, encumbrance, or lien upon, or estate, right, or interest in or to, the lands subsequent to the first named mortgage or encumbrance, a notice requiring them, within the time limited thereby, to redeem the land from the mortgage or encumbrance, which time shall not be less than one month from the date of service of the notice.

When foreclosure notice not required

138(4)      In any mortgage sale or foreclosure proceedings it is not necessary to serve the notice on a person whose mortgage, encumbrance, or lien, upon the lands has been discharged, or whose right, title, or interest, in the lands has been determined prior to the application for an order for sale or the issue of the order of foreclosure.

Extending time for redemption

138(5)      Upon the application of a person appearing to be interested in the land, and upon sufficient cause being shown, the district registrar may extend the time for redemption.

Service of notice

138(6)      Unless the district registrar otherwise orders, the notice of intention to sell under a new system mortgage or of foreclosure proceedings under either an old or new system mortgage, and the notice requiring redemption, shall be served personally on the mortgagor and owner of land subject to an encumbrance and other persons entitled to be served therewith; but in case a person to be served cannot after due diligence be found, the district registrar may direct that the notice be served on him by leaving it on the mortgaged land, or sending it through the post office by a registered letter directed to him at his last known address, or in such other manner as the district registrar directs.

Land must be under Act

138(7)      Before the foreclosure proceedings apply, the land affected must be under this Act; and in addition to the persons heretofore mentioned as entitled to make an application to bring land under this Act, the application may, in the discretion of the district registrar, be made by the mortgagee or encumbrancer.

District registrar may publish notice

139(1)      Upon the foreclosure application, the district registrar may, if he considers it proper, cause notice to be published in such newspaper or newspapers as he directs, offering the land for private sale.

Order of foreclosure

139(2)      After the expiration of the time appointed in the foreclosure notice, and after the time for sale mentioned in the advertisement, the district registrar may issue to the applicant an order of foreclosure, unless, in the interval, a sufficient amount has been obtained by the sale of the land, or paid by or on behalf of the mortgagor, owner of land subject to an encumbrance, or other person served with the foreclosure notice, to satisfy the principal and interest and other moneys secured, and all expenses occasioned by the sale and proceedings.

Registration of foreclosure order

139(3)      Every order of foreclosure, when registered, has the effect of vesting in the mortgagee or encumbrancer the land mentioned therein, free from all right and equity of redemption on the part of the mortgagor, owner of land subject to an encumbrance, person served with the foreclosure notice, or of a person claiming through or under him subsequently to the mortgage or encumbrance; and the mortgagee or encumbrancer shall thereupon be deemed a transferee of the land, and becomes the owner thereof, and, upon transmission, is entitled to receive a certificate of title therefor.

Notice of sale proceedings

140         The district registrar, examiner of titles, and other officers of the land titles office, shall not have notice of, or be bound by any proceedings taken by a mortgagee or encumbrancer under his mortgage or encumbrance for the purpose of selling, foreclosing, or otherwise realizing upon, his mortgage or encumbrance, unless the mortgagee or encumbrancer has filed a pending litigation order, or, in case of proceedings under power of sale, a notice of the proceedings, in the land titles office for the district in which the land is registered under the new system.

S.M. 1992, c. 5, s. 11.

Land subject to encumbrances

141         Where land is sold pursuant to an order for sale made by the district registrar, or vests in a mortgagee by an order of foreclosure issued by the district registrar, it shall be deemed to have been sold or vested subject to those instruments set out in subsection 111(1), utility and pipeline easements and any rights for carrying, laying, erecting or building wind turbines as set out in section 112, building restriction covenants, easement agreements, including party wall and right of way agreements, declarations under subsection 76(2), caveats relating to zoning, subdivision or development agreements, caveats or agreements filed relating to an expropriation, any notice filed under subsection 7(1) of The Contaminated Sites Remediation Act and any lien described in subsection 36(4) of that Act, and any order, notice or cancellation of a notice filed in a land titles office under section 17 of The Water Resources Administration Act.

S.M. 1996, c. 40, s. 69; S.M. 1997, c. 10, s. 5; S.M. 2007, c. 8, s. 4.

Statutory declaration

142(1)      Every application for an order for sale or an order for foreclosure shall be accompanied by a statutory declaration of the applicant, or of a person acting on behalf of the applicant, stating

(a) that the land in respect of which the application is made is or is not farmland within the meaning of The Family Farm Protection Act; and

(b) that the granting of the order applied for will not contravene the provisions of The Family Farm Protection Act.

Who may make statutory declaration

142(2)      A statutory declaration accompanying an application for an order for sale or an order for foreclosure shall be made only by a person having personal knowledge of the facts deposed to therein, and may not be made on the basis of information obtained by the person and the person's belief therein.

Court order re farmland

142(3)      Where a statutory declaration referred to in subsection (1) states that the land in respect of which the order applied for is farmland, the district registrar shall not issue the order applied for until a certified copy of an order of the court granting leave to the applicant to apply to the district registrar for the order has been received by the district registrar.

District registrar may refuse to issue order

142(4)      If the district registrar is not satisfied that the land in respect of which an application for an order for sale or an order for foreclosure is made is not farmland within the meaning of The Family Farm Protection Act, the district registrar may refuse to issue the order.

Reliance on statutory declaration

142(5)      Where information has been provided by a statutory declaration set forth in subsection (1) no person acquiring any right, title or interest in land pursuant to an order for sale or final order of foreclosure made by a district registrar, and no district registrar, is bound to make enquiry as to the truth of any of the matters set forth in the statutory declaration;  and no such order is invalid, except as against any person who, at the time when such person acquired any alleged right, title or interest in the lands involved had actual knowledge of the truth of any such matters, or unless the transaction was tainted with fraud in which the person participated or colluded.

Regulations

142(6)      The Lieutenant Governor in Council may make regulations exempting

(a) a class of land; or

(b) land or an area of land in any specified part of Manitoba;

from the operation of this section.

Family Farm Protection Act

142(7)      The issuance of an order for sale or an order for foreclosure by the district registrar does not relieve any mortgagee or encumbrancer of the obligation to comply with The Family Farm Protection Act.

Taxation of costs

143(1)      A mortgagee's or encumbrancer's costs of, and incidental to, the exercise of his power of sale or application for a final order of foreclosure may, at the instance of a person interested therein, be taxed by the district registrar for the land titles district in which the land is situated.

Tariff

143(2)      The district registrar shall, upon the taxation, be guided by the tariff of costs settled by the Registrar-General.

Appeal to Registrar-General

143(3)      Any person who could have requested a taxation under subsection (1) may appeal the district registrar's decision to the Registrar-General by delivering a written notice to the Registrar-General's office, in a form satisfactory to the Registrar-General, within 30 days after the date that the decision is registered at the land titles office.

Decision of Registrar-General final

143(4)      The decision of the Registrar-General in an appeal under subsection (3) is final.

S.M. 2005, c. 5, s. 3.

Rules

144         The proceedings leading up to and including a sale or foreclosure under this Act shall be conducted in accordance with such rules as the Registrar-General prescribes.

CAVEATS ON APPLICATION TO BRING LAND UNDER NEW SYSTEM

Who may file caveat

145         A person claiming an estate or interest in land described in an application to bring the land under this Act may, at any time before the issue of a certificate of title therefor, file a caveat, in the form prescribed by the regulations, forbidding the bringing of the land under the Act.

Duty of district registrar

146         The district registrar, after the filing of the caveat, shall not bring the land under this Act until the caveat has been disposed of.

Lapse of caveat

147(1)      A caveat filed under section 145 lapses upon the expiration of 14 days after notice given, by the district registrar to the caveator requiring him to take proceedings in court to establish his title to the land or his right as set out in the caveat, unless within that time he files with the district registrar proof satisfactory to the district registrar that he has taken such proceedings.

Service of notice

147(2)      Notwithstanding section 167.1, a notice given under subsection (1) shall be served by registered mail addressed to the caveator at the address of the caveator set forth in the caveat; but if the district registrar is of opinion that such service will not be effective, the district registrar shall direct that the notice be served in the manner prescribed for service of notices under subsection 138(6).

S.M. 1992, c. 5, s. 12.

CAVEATS AFTER LAND IS BROUGHT UNDER NEW SYSTEM

Caveat after title under new system

148(1)      A person claiming an estate or interest in land or in a mortgage, encumbrance, or lease, under the new system, may file a caveat in the form prescribed by the regulations, forbidding the registration of any person as transferee or owner of, or of any instrument affecting the estate or interest, unless the instrument is expressed to be subject to the claim of the caveator.

Exception

148(2)      Despite subsection (1), no person shall present for filing any caveat based on an agreement, mortgage, encumbrance or lease

(a) that contravenes subsection 121(1) of The Planning Act; or

(b) that, because of section 263 of The City of Winnipeg Charter, the district registrar must not accept for filing.

Right of caveator continues

148(3)      Where on August 19, 1987, a person had filed a caveat founded on a certificate of judgment or other claim registered in the general register, the right of the caveator to a charge on the land described in the caveat continues in force as if the caveator had registered the instrument with the specific land description in accordance with section 75 with priority as of the date of the filing of the caveat.

S.M. 1991-92, c. 15, s. 25; S.M. 2002, c. 39, s. 533; S.M. 2005, c. 30, s. 215.

Caveats under the Bank Act

149(1)      Each district registrar may accept for filing or registration, upon payment of the proper fee therefor, and subject to the conditions hereinafter mentioned, caveats or notices of security based on documents in the form set out in Schedule G to the Bank Act (Canada).

Form of caveat

149(2)      Any such caveat or notice of security shall be in such form as the Registrar-General may require; and, subject to subsection (3), shall have attached thereto a copy of the document upon which the caveat or notice of security is based.

Legal description required

149(3)      The document upon which such a caveat or notice of security is based, and that caveat or notice of security, shall each contain the legal description of the land affected thereby or to which it relates.

Priority of taxes

149(4)      The taxes and rates imposed by a municipality, a local government district, or a school district in unorganized territory, accrued on or in respect of land or personal property either prior or subsequent to the registration by a bank of a caveat or notice of security, are a lien on the land or personal property having preference or priority over the claim, lien, privilege, or encumbrance, of the bank.

Remedies of municipality not affected

149(5)      The claim or lien of the municipality, local government district, or school district, for taxes or rates does not require registration to preserve it, and the registration of a caveat or notice of security by a bank under subsection (1) does not interfere with the rights or remedies of a municipality, a local government district, or a school district, in respect of any lien or claim for taxes on the land or personal property described in the caveat or notice of security.

Notice to proceed

150(1)      Except in the case of a caveat filed by the district registrar, every caveat filed against any land, mortgage, encumbrance, or lease, may be disposed of by the district registrar as lapsed, upon the expiration of 30 days after notice given by the district registrar to the caveator to take proceedings in the court on his caveat,

(a) unless, before the expiration of that period, the caveator appears before the court on motion in chambers or otherwise, and gives such undertaking or security, or lodges such sum in court, as the court considers sufficient to indemnify every person against damage that may be sustained by reason of a disposition of the property being delayed, and to answer the costs of the caveatee in the proceedings; or

(b) unless he has within that time filed with the district registrar evidence to the satisfaction of the district registrar of proceedings taken under his caveat as permitted by this Act.

Vacating caveat without notice

150(1.1)    Notwithstanding subsection (1), the district registrar may vacate a caveat filed against any land, mortgage, encumbrance or lease without notice, where he or she is satisfied from the face of the record that the interest claimed in the caveat has expired or been extinguished.

Service of notice

150(2)      A notice given under subsection (1) shall be served in the manner prescribed for the service of notices under subsection 147(2).

Stay of dealing with land ordered

150(3)      Upon the giving of the security the court may, by order, direct the district registrar to delay registering any dealing with the land, mortgage, encumbrance, or lease, for a further period to be specified in the order, or may direct the caveator to proceed upon his caveat or may make such other order as it deems just.

S.M. 1992, c. 5, s. 13.

Extension of time

151         At any time before the expiration of the time limited for proceeding upon a caveat,

(a) upon application made by, or on behalf of, the caveator; and

(b) after reasonable notice of the application has been given to the caveatee;

the court, for sufficient cause shown, and subject to such conditions as it may impose, may order that the time for proceeding under the caveat be extended for such further period as is stated in the order; and the order shall forthwith be filed in the land titles office.

Effect of caveat

152         So long as a caveat remains in force, the district registrar shall not register an instrument purporting to transfer, mortgage, or encumber, the land, mortgage, encumbrance, or lease, unless the instrument is expressed to be subject to the claim of the caveator.

CAVEATS GENERALLY

Notice to caveatee

153         On the filing of a caveat, the district registrar shall forthwith notify the owner of the land, mortgage, encumbrance, or lease, affected thereby of the filing by ordinary mail.

S.M. 1990-91, c. 12, s. 16.

Contents of caveat

154(1)      Except in the case of a caveat filed by a district registrar, every caveat shall state the name and address of the owner and of the person by whom, or on whose behalf, it is filed and, shall be signed by the caveator, his attorney or agent, and shall state an address or place within Canada at which notices and proceedings relating to the caveat or the subject matter thereof may be served and the nature and particulars of the title, estate, interest, or lien, under which the claim is made.

Caveat to show both tenancies

154(2)      Where a caveat is registered to protect an interest that creates or purports to create an easement, right of way, other than an instrument registered under subsection 111(1) or section 112, or right in the nature of an easement or right of way, it shall set forth the legal description of the servient tenement and dominant tenement.

Affidavit in support

154(3)      Every such caveat shall be supported by a statement stating that, in the belief of the deponent or declarant, the caveator has a good and valid claim upon the land, mortgage, encumbrance, or lease, intended to be affected thereby, and that the caveat is not filed for the purpose of delaying or embarrassing the applicant for title or the owner, as the case requires, or any person claiming through him.

Rejection of imperfect caveat

154(4)      The district registrar may refuse to file a caveat that does not fully meet all the requirements of this section.

S.M. 1992, c. 5, s. 14; S.M. 1993, c. 7, s. 10.

Priority secured by caveat

155          The filing of a caveat by the district registrar or by a caveator gives the same effect, as to priority, to the instrument or subject matter on which the caveat is based, as the registration of an instrument under this Act.

Assignment of caveats

156(1)      All the interests, claims and rights of a caveator with respect to all of the land affected by his caveat may be assigned by the caveator by an assignment in the form prescribed by regulations.

Effect of filing of assignment

156(2)      Upon the filing of an assignment of the interests, claims and rights of a caveator in the form prescribed by regulations, all the interests, claims and rights of the caveator with respect to the land affected by the caveat pass to the assignee who

(a) thereupon becomes vested with the same interests, claims and rights and subject to the same liabilities as if named as caveator in the original caveat; and

(b) thereafter shall, for all purposes, be treated as if named as caveator in the original caveat.

Address for mailing

156(3)      Every assignment of the interests, claims and rights of a caveator presented for filing shall have endorsed thereon or attached thereto a memorandum stating an address or place within Canada at which notices and proceedings relating to the caveat or the subject matter thereof may be served on the assignee.

Old system mineral lease

156(4)      For the purpose of this section a caveat shall be deemed to include an old system mineral lease brought forward by an application to bring the land under the operation of The Real Property Act.

S.M. 2005, c. 5, s. 4.

Discharge of caveat

157(1)      The caveator may, by notice in writing to the district registrar, discharge his caveat at any time; but the discharge does not prejudice the power of the court to make an order as to payment by the caveator of the costs and damages of the caveatee incurred prior to the receipt by the caveatee of notice in writing of the discharge of the caveat.

Discharge by attorney or agent

157(2)      Where a caveat has been filed by a person who is the attorney or agent of the caveator, that person shall be deemed to be the attorney or agent of the caveator for the purpose of discharging the caveat.

Building restriction caveats

157(3)      Subsection (1) does not apply to the discharge of a building restriction caveat unless the owners of all lands affected by the building restriction approve the discharge in such manner as is satisfactory to the district registrar.

Discharge by subsequent owners

157(4)      Where a caveat is filed to protect a right or interest that is appurtenant to the land of the caveator and the right or interest passes to, or enures to the benefit of, a subsequent owner of the land, that subsequent owner may, subject to the approval of the district registrar, discharge the caveat.

Vacating of caveat

157(5)      Where a building restriction agreement that is registered under The Registry Act or is attached to a caveat filed for the sole purpose of giving notice of the agreement, contains a provision that the agreement terminates upon a specified date, the district registrar may discharge the agreement and vacate any such caveat, as to all or part of the lands affected, at any time after the date of termination.

Lapsing of caveats for specific terms

158         Where a caveat filed under this Act in a land titles district is based on an estate or interest in land that expires on a date, or after a period of time, specified in the caveat or in any document filed with the caveat in support thereof, the district registrar of the land titles district may lapse the caveat after that date or after the end of that period, as the case may be.

Lapsing of building restriction caveats

159         The district registrar shall vacate all building restriction caveats after the expiry of 50 years from the date of the filing thereof; and when so vacated those caveats and any agreement on which they were founded or of which they give notice, shall cease to have any effect.

Liability for wrongful caveat

160         A claimant under a caveat is liable to any person who sustains loss because of the initial registration or its continuance unless

(a) the court finds that the initial registration or its continuance was reasonable under the circumstances; or

(b) the registration was made by the district registrar under clause 22(1)(a).

S.M. 1993, c. 7, s. 11.

Proceedings before lapse of

161         A caveator may take proceedings under his caveat at any time after the expiration of the time limited by the preceding sections for so doing, if he does so and furnishes evidence thereof to the district registrar before the district registrar has disposed of the caveat as lapsed.

Proceedings on caveat

162(1)      A caveator may take proceedings in court by originating notice to establish his claim under his caveat.

Statement of claim

162(2)      A person claiming an estate or interest in land, or in a mortgage or encumbrance subject to, or under, the new system, may, in lieu of or after filing a caveat, proceed by way of statement of claim, and may file with the district registrar a pending litigation order or other proper evidence of the proceedings.

S.M. 1992, c. 5, s. 15.

Application to discharge caveat

163(1)      Except in the case of a caveat filed by the district registrar, the applicant or owner may, at any time before the caveator has taken proceedings thereunder, apply to the court calling upon the caveator to show cause why the caveat should not be discharged.

Disposal of certain caveats

163(2)      In case of a caveat filed by the district registrar, if the district registrar, upon application for the purpose being made, refuses to withdraw the caveat, the applicant or owner may apply to the court, after having served written notice of the application upon the person on whose behalf the caveat was filed, and upon the district registrar, for an order that the caveat be withdrawn or discharged.

Hearing and order

163(3)      Upon the hearing of the application, the court may make such an order, either, dismissing the application, discharging or withdrawing the caveat or directing any of the parties to commence proceedings, as seems just and proper.

Proceeding after disposal of caveat

164         Where a caveat has been disposed of, the district registrar may at once proceed as if no caveat had been filed, unless in the meantime he is served with an order of the court staying the proceedings.

Filing after withdrawal

165(1)      After a caveat has lapsed or been discharged, except as in this section mentioned, neither the same person nor anyone on his behalf shall

(a) file a further caveat in relation to the same matter, unless the district registrar gives his approval thereto; or

(b) file a pending litigation order in respect of any proceedings in court in relation to the same matter, unless the court approves the issue and filing thereof.

Dist. reg. may file a caveat

165(2)      Nothing herein prejudices the right of the district registrar to file a caveat; and the court may, upon application and upon such terms as to costs or otherwise as is deemed just, order that a new caveat be filed, in which case it shall fix a time within which the caveator shall proceed upon the caveat.

S.M. 1992, c. 5, s. 16.

SERVICE OF NOTICES AND PROCEEDINGS

Service as in suits

166         Notices and proceedings under this Act affecting land may be served in the same manner and upon the same persons, officers, and functionaries, as court processes and notices in actions and proceedings in the court.

Corporations or partnerships

167         Notices and proceedings under this Act, affecting or intended to affect a person, firm, or corporation, whose chief place of business or head office is without the province, may be effectually served upon a person who, within the province, transacts or carries on business as the general agent of the person, firm, or corporation, or in the case of a corporation upon its attorney appointed under The Corporations Act, or in the case of an insurer licensed under The Insurance Act upon the Superintendent of Insurance.

Notice by mail

167.1       Where under this or any other Act of the Legislature notice of a registration or filing in a land titles office is required to be given by the district registrar to any person by registered or certified mail, the notice may be given by ordinary mail.

S.M. 1990-91, c. 12, s. 16.

Where person has died

168(1)      Where there is no legal personal representative in the province of the estate of a deceased person and a notice is required to be served under this Act on the estate, the notice may be effectually served in case of intestacy, upon the person entitled to the estate of the deceased under The Intestate Succession Act, or in case of testacy, upon the person entitled to or interested in the land by virtue of any devise in the will.

Method of service

168(2)      Service under this section may be made in the manner directed or subsequently approved by the district registrar.

S.M. 1989-90, c. 43, s. 16.

169         Repealed.

S.M. 1995, c. 27, s. 15.

PROCEEDINGS GENERALLY

Informality

170         No proceeding under this Act is invalid by reason of any informality or technical irregularity therein or of any mistake not affecting the substance of the proceeding.

Proceedings not to abate by death

171         Proceedings under this Act do not abate and are not suspended by death or transmission or change of interest; but, in such an event, the district registrar may, upon the application of a person interested, make such order for carrying on, discontinuing, or suspending, the proceedings as, under the circumstances, he deems just, and may for that purpose issue a certificate of title to a deceased person.

Guardian, committee or substitute decision maker may act

172(1)      An application, consent, proceeding or act required or permitted to be done under this Act may be made, given, taken or done

(a) on behalf of an infant, by the infant's guardian;

(b) on behalf of a person of unsound mind, by

(i) the person's committee of the estate, or

(ii) the person's substitute decision maker for property appointed under The Vulnerable Persons Living with a Mental Disability Act, if the substitute decision maker has the power to act with respect to matters falling within the scope of this Act.

Appointment of guardian ad litem

172(2)      Where the infant has no guardian, or the person of unsound mind has no committee of his estate and no substitute decision maker for property with power to act, or where persons yet unborn are interested, the Public Trustee or some other person appointed for the purpose by the district registrar may act with like power for the infant, person of unsound mind or person yet unborn; and notices or proceedings required by the district registrar to be served on a person under such a disability may be effectually served on the Public Trustee or person so appointed.

S.M. 1993, c. 29, s. 201.

JURISDICTION OF COURT BY WAY OF APPEAL

Appeal from decision of dist. reg.

173(1)      Where a person is dissatisfied with an act, omission, refusal, decision, direction, or order, of the district registrar, he may require the district registrar to, and the district registrar, with the approval of the Registrar-General, shall, set forth in writing under his hand the grounds of the act, omission, refusal, direction, decision, or order, and the person so dissatisfied may then appeal to a judge in chambers, by notice of motion, setting forth the particulars and grounds of his dissatisfaction; and thereupon all parties interested, including the district registrar, the Registrar-General, and the minister, shall be served with the notice, which shall state the time and place for the hearing thereof.

Disposition of appeal

173(2)      At the time and place stated, all parties interested, whether served with the notice or not, may appear and be heard, and the court shall hear the motion and may make such order disposing thereof, and of the costs of all parties as the circumstances require; but the court may, without making any order disposing thereof, refer the motion to The Court of Appeal, and that court shall have jurisdiction to dispose thereof.

S.M. 1993, c. 48, s. 94.

Reference by Reg. Gen.

174         Wherever a question arises

(a) with respect to the performance of a duty or the exercise of a function imposed or conferred upon a district registrar; or

(b) as to the true construction or validity or effect of an instrument or statute; or

(c) as to the person entitled to the estate, right or interest; or

(d) as to the power or authority of any person or class of persons; or

(e) as to any doubtful or uncertain right or interest stated or claimed, to be dealt with by a district registrar;

the Registrar General may refer the same to a judge who may appoint a date and time for a hearing of the reference and direct notice be served by mail on any person whom the judge deems interested to appear and show cause either personally, or by counsel, in relation thereto, and the judge, having regard to the persons appearing before him, shall decide the question or direct proceedings to be instituted for that purpose, and make a decision as under the circumstances appear to be just.

Witnesses may be summoned

175(1)      Upon the hearing of a matter arising under this Act, the court may summon a person to appear either to give evidence or to be made a party to the proceedings; and the Attorney-General as well as any person interested may appear and be heard before the court, or before any court to which the proceedings are taken by way of appeal.

Appeal

175(2)      All parties to the proceedings and the Attorney-General have the right to appeal.

IN ACTIONS GENERALLY

Orders by judge

176(1)      In a proceeding respecting land, or in respect of a transaction or contract relating thereto, or in respect of an instrument, caveat, memorial, or other entry affecting land, the court may, by order, direct the district registrar to cancel, correct, substitute, or issue, a certificate of title, or make an endorsement or entry on any instrument, or to do or refrain from doing any act, or make or refrain from making any entry necessary to give effect to the judgment, or order of the court.

Title to be safe-holding

176(2)      The district registrar shall not issue a certificate of title by order of the court unless the title of the person to whom the certificate is directed to issue has been found upon investigation to be a good safe-holding title.

Mortgage partly secured on personalty

177(1)      Nothing in this Act takes away or affects the jurisdiction of the court over and in respect of a mortgage, the whole or part of the indebtedness under which is also secured upon personal property; but the court may entertain an action for the enforcement of any or all rights and remedies thereunder, including sale or foreclosure or for the redemption thereof.

Trusts, mortgages and debentures

177(2)      The court has jurisdiction over, and in respect of

(a) a mortgage or trust deed executed by a person to a trustee; and

(b) a corporate debenture whether executed by a person in favour of a trustee or in favour of any other person;

registered either before or after the coming into force of this Act, for securing payment of moneys by that person, or payment of bonds, debentures, debenture stock, or any similar obligation of that person, or for securing a floating charge, whether the mortgage, deed or debenture affects land under the new system, or partly under the new system and partly under the old system, and may enforce the payment of the moneys, bonds, debentures, debenture stock, or other obligations secured thereby, or entertain an action for the sale of the land, or for the foreclosure of an estate, interest, or claim therein, or for the redemption or discharge of land or other property from the mortgage, deed or debenture.

Owner to allow use of name

178(1)      The owner of land or of a mortgage, encumbrance, or lease shall, on the application of a beneficiary or person interested therein, allow his name to be used by that beneficiary or person in an action or proceeding, if the action or proceeding is a necessary or proper one to be brought or instituted in the name of the owner and is for the protection or benefit of the title to the land, mortgage, encumbrance, or lease, or of the interest of that beneficiary or person therein.

Indemnity of owner

178(2)      The owner shall be indemnified against damages and costs, in like manner as, if he were a trustee, he would be entitled to be indemnified against the similar use of his name in an action or proceeding by his cestui que trust.

Documents as evidence in actions

179         In an action or proceeding affecting any land, mortgage, encumbrance, or lease, under the new system, or an estate or interest therein, a person who is a party to the action or proceeding may give in evidence any transfer, mortgage, encumbrance, lease, or other instrument affecting the title to the land, estate, or interest in dispute, although it is not referred to in the certificate of title, or has been cancelled by the district registrar.

Instrument admissible

180(1)      Every instrument or document filed or registered in a land titles office or any copy thereof produced from the records of that office is admissible in evidence in any court.

Custody of district registrar

180(2)      Where a district registrar

(a) is unable to produce a satisfactory copy, and accordingly produces; or

(b) is required by any court to produce, and does produce;

the original or duplicate certificate of title, or other instrument, it shall be deemed to be, and to remain, in the custody of the district registrar unless otherwise directed by the judge or presiding officer of the court.

Register to be returned

180(3)      Where the district registrar is required to produce a register, it at all times remains in the custody of the district registrar and shall be returned to the land titles office when the court is adjourned or recessed, subject to production, from time to time, by order of the judge or presiding officer of the court until a final disposition of the case is made.

S.M. 2001, c. 8, s. 7.

ASSURANCE FUND

Fees payable to assurance fund

181(1)      Except as provided in section 28, upon the bringing of land under this Act, all fees received shall be paid to the assurance fund.

Paid to Minister of Finance

181(2)      All sums of money so received shall be paid to the Minister of Finance.

Investment of assurance fund

181(3)      The fund shall be held by the Minister of Finance as trust moneys and may be invested in the same securities as other trust funds of the Government, or may be utilized by direction of the Lieutenant Governor in Council for the erection of buildings to be used as land titles offices.

Rate of interest

181(4)      The Minister of Finance shall credit the fund in each year with interest at such rate as the Lieutenant Governor in Council directs.

Application of fund

181(5)      When the fund reaches the sum of $75,000. any sums in excess of that amount may, by direction of the Lieutenant Governor in Council, be transferred to, and form part of, the Consolidated Fund.

S.M. 1996, c. 59, s. 105.

ACTIONS AGAINST DISTRICT REGISTRARS

Person damaged

182(1)      A person, who sustains loss or damage through an omission, mistake, or misfeasance, of the district registrar in the execution of his duties under this Act, may bring action against the district registrar therefor.

Person deprived of land

182(2)      A person, deprived of any land, mortgage, or encumbrance, or of any estate or interest therein, through the bringing of the land under this Act, or by the registration of any other person as owner of the land, mortgage, encumbrance, estate, or interest, or by an error, omission, or misdescription, in a certificate of title, and who by this Act is precluded from bringing an action for the recovery of the land, mortgage, or encumbrance, or the estate or interest therein, may bring an action against the district registrar of the district in which the land is situated for the recovery of the damage suffered thereby.

Joint liability

182(3)      Where the action is brought for loss or damage arising from the fraud or wrongful act of some person other than the district registrar, or arising through the fraud or wrongful act of such other person and the omission, mistake, or misfeasance, of the district registrar, the action shall be brought against both the district registrar and the other person.

Final judgment not to be entered

182(4)      Where damages are recovered in the action and there is a defendant other than the district registrar, if the court finds that the other defendant ought to pay for the loss, final judgment shall not be entered against the district registrar until the court makes an order declaring that the judgment cannot be satisfied in whole or in part out of the property of the other defendant.

Acts of officials

182(5)      The act, omission, mistake, or misfeasance, of the Registrar-General when performing the duties of, or of a deputy, official, or clerk, in the office of, a district registrar shall, for the purposes of this section, be deemed to be the act, omission, mistake, or misfeasance, of a district registrar.

Contributory negligence

182(6)      Sections 4, 5 and 6 of The Tortfeasors and Contributory Negligence Act apply to actions brought under this section.

Actions sand and gravel

182(7)      A person who sustains loss or damage through the issue of a certificate of title that specifically refers to sand and gravel and that was issued on the basis of a transfer, deed or conveyance that was not executed by a person who, under The Sand and Gravel Act, had title to the sand and gravel may bring an action against the district registrar therefor.

No liability for incorrect name

183         Neither the assurance fund nor the district registrar is liable to pay compensation to any claimant for loss occasioned by the registration of any instrument in which the name of any person described therein differs from the name by which the debtor is described in any instrument registered in the General Register.

Title on register to prevail

184         The owner's right to the land mentioned in a certificate of title rests on the register, and neither the assurance fund nor the district registrar is liable to pay compensation to any claimant for loss occasioned by the reliance of the claimant on the duplicate certificate of title.

S.M. 2001, c. 8, s. 8.

Limit re mines and minerals

185         In an action against a district registrar for loss or damage sustained by reason of any omission, mistake, or misfeasance, of the district registrar respecting an interest in the mines and minerals, or any of them, in, under, or upon, any parcel of land, or respecting the title thereto, the plaintiff may, if found entitled thereto, recover as liquidated damages the moneys actually paid out by him for that interest and a further sum, not exceeding $5,000. for the present or prospective loss of profit, if any, sustained by him in his dealings or attempted dealings with that interest, by reason of the omission, mistake, or misfeasance.

Notice of action

186         No action shall be brought against a district registrar unless notice of the action and of the cause thereof is served upon him and upon the Registrar-General and the minister at least 60 days before the commencement of the action.

S.M. 1993, c. 48, s. 94.

Minister of Finance to pay judgment

187(1)      The Minister of Finance shall pay the amount of any judgment recovered against a district registrar out of the assurance fund; and, if there are not sufficient funds at the credit of the assurance fund to satisfy the judgment, then the amount thereof shall be satisfied out of the public funds of the government.

Judgment assigned to Minister of Finance

187(2)      Upon payment of the amount of the judgment the Minister of Finance is entitled to an assignment thereof as against any defendant other than the district registrar so liable.

Action by name of office

188         Actions against a district registrar shall be brought against him by his name of office, and do not abate, and are not in any way affected, by a vacancy occurring in the office or by a change of officer.

Limitation of action

189(1)      No action for recovery of damages under this Act lies against a district registrar, or against the person by whose fraud, error, omission, misrepresentation, misdescription, or wrongful act, a person has been deprived of land or an estate or interest therein or of a mortgage or encumbrance, unless the action is commenced within the period of six years from the date of the deprivation.

Limitation re. subsec. 182(2)

189(2)      No action for recovery of damages under this Act lies against a district registrar under subsection 182(1) in respect of a matter to which subsection 182(2) does not apply unless the action is begun within a period of six years from the date on which the cause of action arises.

Trusts and corporate actions

190         A district registrar is not liable for compensation for any loss, damage, or deprivation, occasioned by

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

(b) the improper execution of an instrument on behalf of a corporation or a municipality, as defined in The Municipal Act, or the lack of capacity in a corporation or municipality to deal with the estate or interest involved or to execute or take the benefit of a registered instrument; or

(c) a breach of trust by or act of misfeasance of an executor, administrator or trustee.

S.M. 1996, c. 58, s. 470.

When damage may be paid without action

191         Where it appears that a district registrar is liable, or may be liable, for loss or damage to a person under this Act, and that the claim therefor is a fair and reasonable one, the Minister of Finance may, without an action being brought, pay the amount of the claim out of the assurance fund; but no such claim shall be paid, unless the Minister of Finance is authorized to do so by the reports, advising payment, of the minister, the Registrar-General, and the district registrar.

S.M. 1993, c. 48, s. 94.

Notice or knowledge bars a claim

192         Any notice issued by the district registrar, or given pursuant to section 79 is a bar to the bringing of an action against a district registrar where the plaintiff in the action, or the person through or under whom he claims, was served with notice or, not being served with notice, had knowledge, that the district registrar was about to bring the land in respect of which the action is brought under this Act, or was about to commit the act through which the plaintiff claims to have been damnified.

MISCELLANEOUS

Penalties

193         A person who

(a) wilfully makes a false statement or declaration in a dealing in land under this Act; or

(b) wilfully suppresses or conceals or assists, or joins in, or is privy to, the suppressing, withholding, or concealing, from the district registrar of a material document, fact, or matter of information; or

(c) fraudulently procures, or is privy to the fraudulent procurement of, a certificate of title or instrument or of an entry in the register, or of an erasure or alteration of an entry in the register; or

(d) refuses, or wilfully neglects, to produce an instrument, or to allow it to be inspected upon requisition made by the district registrar; or

(e) refuses, or wilfully neglects, to give any information or explanation that he is by this Act required to give; or

(f) knowingly misleads or deceives a person authorized by this Act to require an explanation or information in respect to land, or the title to land, in respect to which a dealing or transmission is proposed to be registered; or

(g) is a party to, or privy to, any fraudulent act whatever in any matter connected with the working of this Act;

is guilty of an offence and is liable for each offence, to a fine of not less than $50. and not more than $500., and, in default of payment, to imprisonment for not less than one month and not more than six months.

Effect of statement

194         Any statement set out in a document, the form of which is prescribed by the regulations, and signed by the party making the statement has the same effect and validity as an oath, affidavit, affirmation, or statutory declaration, administered, sworn, affirmed or made under The Manitoba Evidence Act.

Regulations

195         Subject to the approval of the Lieutenant Governor in Council, the Registrar General may make regulations

(a) prescribing forms for use under this Act;

(b) prescribing fees payable under this Act or any other Act;

(c) respecting such other matters as are ancillary to the provisions of this Act;

(d) prescribing the form and content of the statutory declaration as to the ownership of farm land.

S.M. 1996, c. 68, s. 10.

Coming into force of subsec. 45(5) and sec. 141

196         The words in subsection 45(5) and section 141 that follow "expropriation" in each case, come into force on May 1, 1990.

S.M. 1989-90, c. 91, s. 14; S.M. 1990-91, c. 4, s. 6.