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The Law of Property Act
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This version is current as of June 22, 2016.
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C.C.S.M. c. L90

The Law of Property Act

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

Definition

1           In this Act, "common-law partner" of a person means

(a) another person who, with the person, registered a common-law relationship under section 13.1 of The Vital Statistics Act, and who is cohabiting with the person, or

(b) another person who, not being married to the person, is cohabiting with him or her in a conjugal relationship and has so cohabited

(i) for a period of at least three years, or

(ii) for a period of at least one year and they are together the parents of a child.

S.M. 2002, c. 48, s. 14.

Aliens to have the same powers as to real estate as subjects of Her Majesty

1.1         On and from February 28, 1874, every alien shall be deemed to have had, and shall thereafter have the same capacity to take by gift, conveyance, descent, devise or otherwise, and to hold, possess, enjoy, claim, recover, convey, devise, impart and transmit real property in Manitoba as a natural born or naturalized subject of Her Majesty.

S.M. 2002, c. 48, s. 14.

Descent of real estate of aliens

2           The real property in Manitoba of an alien dying intestate shall descend and be transmitted as if it had been the real property of a natural born or naturalized subject of Her Majesty.

Foreign governments right to own land

3           With the approval of the Lieutenant Governor in Council, the government of a foreign country may own land for the purpose of a consulate or a residence for a member of its diplomatic or consular staff, and may mortgage, sell, convey or otherwise deal with the same, but, where the land is under The Real Property Act, the district registrar may require the approval of the court to the execution of any instrument that affects or deals with the land and that has been submitted for registration.

Effect of conveyance

4           No words of limitation are necessary in any grant of Crown lands or in any conveyance of any land, in order to convey all or any title therein; but every grant, deed or instrument conveying land operates as an absolute conveyance of all such right and title as the Crown or grantor has therein at the time of its execution, unless a contrary intention is expressed in the conveyance; but nothing herein precludes any conveyance from operating by way of estoppel.

Extent of section 4

5           Section 4 was intended to extend, and that section shall be held to have extended, from and after July 1, 1885, and thereafter extends, to all land in the province, and to every estate and interest therein.

Deeds to include all houses and the reversion and all the estate, etc.

6           Every deed, unless an exception is specially made therein, shall be held and construed to include, and to have always included, all houses, outhouses, edifices, barns, stables, yards, gardens, orchards, commons, trees, woods, underwoods, mounds, fences, hedges, ditches, ways, waters, watercourses, lights, liberties, privileges, easements, profits, commodities, emoluments, hereditaments and appurtenances whatsoever to the lands therein comprised belonging or in anywise appertaining, or with the same demise, held, used, occupied or enjoyed, or taken or known as part or parcel thereof, and, if the deed purports to convey an estate in fee, also the reversion or reversions, remainder or remainders, yearly and other rents, issues and profits of the same lands, and of every part and parcel thereof, and all the estate, right, title, interest, inheritance, use, trust, property, profit, possession, claim and demand whatsoever, both at law and in equity, or by statute, of the grantor, in, to, out of or upon the same lands, and every part and parcel thereof, with their and every of their appurtenances.

Prohibition on covenants and development schemes

7(1)        Every covenant or development scheme which, but for this section, would be annexed to and run with land and which restricts the sale, ownership, occupation or use of land because of the race, nationality, religion, colour, sex, sexual orientation, age, marital status, family status, physical or mental handicap, ethnic or national origin, source of income or political belief of any person is void.

Exception re elderly persons

7(2)        Nothing in subsection (1) prohibits a covenant or development scheme which restricts the sale, ownership, occupation or use of land in a manner consistent with the maintenance of the land primarily or exclusively for elderly persons.

S.M. 2002, c. 24, s. 35; S.M. 2011, c. 33, s. 48.

Validity of certain appointments

8(1)        No appointment made in exercise of any power or authority, to appoint any property, real or personal, amongst several objects, is invalid or shall be impeached on the ground that an unsubstantial, illusory or nominal share only is thereby appointed to, or left unappointed to devolve upon, any one or more of the objects of the power, or upon the ground that any object of the power has been altogether excluded; but every such appointment is valid and effectual, notwithstanding that any one or more of the objects shall thereunder, or in default of the appointment, not take more than an unsubstantial, illusory or nominal share of the property subject to the power or take no share thereof.

Saving of positive requirements in instrument creating power

8(2)        Nothing in this section prejudices or affects any provision in any deed, will, or other instrument creating any such power, which declares the amount of the share or shares from which no object of the power shall be excluded, or that some one or more object or objects of the power shall not be excluded or gives any validity, force or effect to any appointment, other than the appointment would have had if a substantial share of the property affected by the power had been thereby appointed to, or left unappointed, to devolve upon any object of the power.

Abolition of dower

9           Except as provided in The Homesteads Act, no widow whose husband died on or after July 1, 1885, or hereafter dies, is entitled to dower in the land of her deceased husband; but she has the same right in that land as if it were personal property.

S.M. 1992, c. 46, s. 58.

Husband's interest in deceased wife's lands

10          Subject to The Homesteads Act, no husband is entitled to a tenancy by the courtesy in his wife's estate; but a husband whose wife died on or after July 1, 1885, or hereafter dies, took and shall take such interest in the land of his wife as a wife has in the estate of her deceased husband.

S.M. 1992, c. 46, s. 58.

Covenants to act as an estoppel

11          Covenants for title in a deed of conveyance, deed of mortgage or deed of lease, whether pursuant to The Short Forms Act or otherwise, made since March 14, 1875, operate as an estoppel against the covenantor, and all persons claiming title under him.

Equitable waste

12          An estate for life without impeachment of waste does not confer and shall not be deemed to confer on the tenant for life a legal right to commit waste of the description known as equitable waste unless an intention to confer the right expressly appears in the instrument creating the estate.

S.M. 1992, c. 32, s. 8.

Waste by tenants

13(1)       Subject to the express terms of a lease, or of a covenant, agreement or stipulation affecting a tenancy,

(a) every tenant for years and every tenant for life is liable to the landlord, to a trustee of a trust under which such a tenancy subsists, and to a person for the time being having a reversionary interest in the premises, for voluntary waste and for permissive waste in respect of the premises to the extent by which the interest of the landlord, the trustee and the person is detrimentally affected thereby; and

(b) every tenant at will is liable to the landlord and to a person having a reversionary interest in the leased premises for voluntary waste in respect of the premises to the extent by which the interest of the landlord and the person in the premises is detrimentally affected by the voluntary waste.

Damages and injunction

13(2)       Every landlord, trustee and other person having a reversionary interest in leased premises is entitled, in respect of waste by a tenant on the premises, in an action brought in a court of competent jurisdiction to obtain damages or an injunction, or both.

Ameliorating waste

13(3)       Nothing is this section abrogates, diminishes or affects the jurisdiction of a court with respect to ameliorating waste.

S.M. 1992, c. 32, s. 8.

Merger

14          There is no merger by operation of law only of any estate the beneficial interest in which would not be deemed to be merged or extinguished in equity.

Land granted to two or more persons held as tenants in common

15          Where, by any letters patent, conveyance, assurance, will or other instrument executed after July 7, 1883, land is granted, conveyed or devised to, or where any certificate of title under The Real Property Act stands in the name of, two or more persons, other than executors or trustees, in fee simple or for any other estate, legal or equitable or statutory, it shall be considered that such persons take or hold as tenants in common and not as joint tenants, unless an intention sufficiently appears on the face of the letters patent, conveyance, assurance, will, certificate of title or other instrument that they take or hold as joint tenants.

A body corporate may be a joint tenant

16(1)       A body corporate is capable of acquiring and holding any real or personal property in joint tenancy in the same manner as if it were an individual; and, where a body corporate and an individual, or two or more bodies corporate, become entitled to any property under circumstances, or by virtue of any instrument, which would, if the body corporate had been an individual, have created a joint tenancy, they are entitled to the property as joint tenants; but the acquisition and holding of property by a body corporate in joint tenancy is subject to the like conditions and restrictions as attach to the acquisition and holding of property by a body corporate in severalty.

Devolution of property on dissolution of body corporate

16(2)       Where a body corporate is joint tenant of any property, then on its dissolution the property devolves on the other joint tenant.

Conveyance to himself jointly with another

17          Freehold land or chattels real may be conveyed by a person to himself jointly with another person by the like means by which it or they may be conveyed by him to another person.

Liabilities of estate of an intestate

17.1        When a person dies intestate, either the real or the personal estate of the deceased, or both, except in so far as either or both may be excepted by any law or enactment, are chargeable with all legal debts, liabilities and funeral expenses.

S.M. 1989-90, c. 43, s. 14.

Definition of "land"

17.2        In sections 17.3 to 17.9, "land" includes lands, messuages, tenements and hereditaments, corporeal and incorporeal, of every kind and description, whatever the estate or interest therein may be, and whether legal or equitable, together with all paths, passages, ways, watercourses, liberties, privileges, easements, mines, minerals and quarries appertaining thereto, and all trees and timber, theron and thereunder lying or being, unless any of them are specially excepted.

S.M. 1989-90, c. 43, s. 14.

Descent of land after July 1, 1885

17.3(1)     From and after July 1, 1885, land in the province vested in a person without a right in any other person to take by survivorship, went and hereafter goes, notwithstanding any testamentary disposition, to the personal representative of the deceased owner in the same manner as personal estate goes.

Application of section

17.3(2)     This section applies to any land over which a person executes, by will, a general power of appointment as if it were land vested in the person.

Personal representative to hold land as trustee

17.3(3)     Subject to the powers, rights, duties, and liabilities hereinafter mentioned, the personal representative of a deceased person shall hold the land as trustee for the persons by law beneficially entitled to the land, and those persons have the same powers of requiring a transfer of land as persons beneficially entitled to personal estate have of requiring a transfer of the personal estate.

Land to be dealt with in the same way as chattels real

17.3(4)     Subject to section 36 of The Wills Act, all enactments and rules of law relating to the effect of probate or letters of administration respecting chattels real, respecting the dealing with chattels real before probate or administration, and respecting the payment of costs of administration and other matters in relation to the administration of personal estate, and the powers, rights, duties, and liabilities of the personal representative in respect of personal estate, apply to land, so far as they are applicable, as if the land were a chattel real vesting in the personal representative, except that some or one only of several joint personal representatives shall not sell or transfer land without the approval of a judge of the Court of Queen's Bench.

Land to be administered in the same way as personal estate

17.3(5)     Subject to section 36 of The Wills Act, in the administration of the assets of a deceased person, the person's land shall be administered in the same manner, subject to the same liabilities for debts, costs, and expenses, and with the same incidents, as if it were personal estate, but nothing in this subsection alters or affects the order in which real and personal assets, respectively, are now applicable in or towards the payment of funeral or testamentary expenses, debts, or legacies, or the liability of land to be charged with the payment of legacies.

Direction to personal representatives to convey, or sell

17.3(6)     At any time after the expiration of one year from the date of letters probate or administration, if the personal representative has failed, on the request of the person entitled to a conveyance of land under the terms of the will of the testator, to convey the land to the person or persons so entitled, or where the land is not specifically devised or in the case of administration, the personal representative has not within the same time sold the land, then on the request of the person or persons so entitled to a conveyance or of the majority of the persons of adult age beneficially interested in the proceeds of the sale of the land, the judge of the court from which the letters probate or of administration issued,

(a) may, after 14 days written notice, in such form as the judge may direct, to the personal representative and to all persons beneficially interested, order that a conveyance of the land specifically devised be made by the personal representative to the person or persons entitled thereto, within a time stated in the order; and

(b) in the case of land not specifically devised and of land vested in an administrator, may order that the land be sold on such terms, and within such time, as is stated in the order.

Service of notice on minors

17.3(7)     In the case of minors, a notice issued under subsection (6) shall be served on the Public Guardian and Trustee in the Public Guardian and Trustee's capacity as official guardian.

Issue of vesting order

17.3(8)     In default of compliance by a personal representative with an order made under clause (6)(a), the judge may issue a vesting order vesting the title to the land in the person or persons entitled as fully and completely as might have been done by a conveyance from the personal representative.

Direction for sale by master of the court

17.3(9)     In the event of the personal representative failing to carry out and execute an order under clause (6)(b) within such time as the judge considers reasonable, an order may be obtained by any person beneficially interested in the land referring the matter to the master and directing a sale of the land, and the sale so far as practicable shall be conducted, and the proceeds dealt with, according to the provisions of this Act respecting partition, and the rules of the Court of Queen's Bench, and on such terms of cash or credit or part cash and part credit as the judge may order.

S.M. 1989-90, c. 43, s. 14; S.M. 2013, c. 46, s. 46.

Meaning of "heirs and assigns"

17.4        In the case of a person dying on or after July 1, 1885, in the interpretation of any Act of the Legislature, or in the construction of any instrument to which the deceased was a party or was interested, the expression "heirs" or "heirs and assigns" or "heirs, executors, administrators or assigns", or any expression of similar import, shall be construed to mean the person's personal representative, unless a contrary intention clearly appears.

S.M. 1989-90, c. 43, s. 14.

Transactions of heirs protected in certain cases

17.5        Notwithstanding anything in this Act, all conveyances and leases made by the heir or heirs of a deceased owner of land, or of an estate or interest in land, and all proceedings taken by way of foreclosure or sale or notice of sale under mortgage, or by way of administration or partition in equity, by or against heirs of any such deceased owner, before September 4, 1885, shall be deemed to have been good and valid, and to have been as effectual to pass the title to the land as if the conveyances and releases had been executed or the proceedings taken by or against the personal representative of the deceased owner.

S.M. 1989-90, c. 43, s. 14.

Service of notice where mortgagor dead

17.6        Where by or under a mortgage, whether under the new or old system as defined in The Real Property Act, and whenever made, a notice is stipulated to be given to the mortgagor or the mortgagor's heirs or assigns, the notice may be given, in cases where the mortgagor or the mortgagor's assign is dead, to the executor or administrator of the deceased person, and the notice is as effectual as if given in conformity with the stipulation.

S.M. 1989-90, c. 43, s. 14.

Powers of personal representative to sell land

17.7(1)     Subject to subsection (2), a personal representative in whom land is vested under this Act may sell and convey the land.

Limitation on power of personal representative

17.7(2)     Where

(a) minors or mentally incompetent persons are beneficially interested in land as heirs or devisees;

(b) there are contingent interests or interests not yet vested under a will;

(c) the heirs or persons beneficially interested are not yet determined; or

(d) adult heirs or adult devisees do not concur in the sale;

and there are no debts, no sale made under subsection (1) is valid unless the sale is made with the approval of a judge of the Court of Queen's Bench, upon such terms as the judge may prescribe.

Order to personal representative to sell

17.7(3)     At any time after the expiration of one year from the date of letters probate or administration, if the personal representative has failed to sell and dispose of land vested in the personal representative under this Act, an heir or person beneficially interested in the land may apply to a judge of the Court of Queen's Bench for an order compelling the personal representative to offer the land or any portion of it for sale on such terms and conditions as the judge may prescribe.

Notice of application to be served

17.7(4)     No order shall be made under subjection (3) unless notice of the application has first been served on the personal representative.

Opposing granting of order

17.7(5)     An heir or person beneficially interested in land mentioned in this section may attend on any application made under this section and oppose the granting of an order.

S.M. 1989-90, c. 43, s. 14; S.M. 1993, c. 29, s. 188.

Powers of personal representative to lease minerals

17.8(1)     Subject to subsection (2), a personal representative in whom the mines and minerals in, on or under land are vested under this Act may grant or join in or consent to grants of, rights and licences to search for, mine for, drill for, take, win or gain and remove, the minerals or any specified mineral by an instrument commonly called a "lease", or otherwise.

Limitation on powers of personal representative

17.8(2)     Where

(a) minors or mentally incompetent persons are beneficially interested in the mines and minerals as heirs or devisees;

(b) there are contingent interests not yet vested under a will;

(c) the heirs or persons beneficially interested are not yet determined; or

(d) adult heirs or adult devisees do not concur in the grant, consent or instrument;

no such grant or consent is valid unless it is made with the approval of a judge of the Court of Queen's Bench in which the land lies, upon such terms as the judge may prescribe.

Opposition to order

17.8(3)     An heir or person beneficially interested in the mines and minerals mentioned in this section may attend on an application made under this section and oppose the granting of an order.

No restriction on trustee

17.8(4)     Nothing in this section requires the consent of any person or the approval of a judge to a grant of a mining lease by a personal representative which the personal representative is empowered, under The Trustee Act, to grant without such consent or approval.

S.M. 1989-90, c. 43, s. 14; S.M. 1993, c. 29, s. 188.

Confirmation of past sales

17.9        In the case of a sale of land by an executor or administrator without having had the sale approved by the proper person appointed for that purpose by an Act of the Legislature, where that approval is necessary, a judge of the Court of Queen's Bench may, if the judge thinks it proper to do so, confirm the sale upon such terms as the judge may order, and the sale, when confirmed, shall be as fully valid as if it had been approved by the proper person at the time the sale was made, and all sales previously approved by the Registrar-General are confirmed and declared valid.

S.M. 1989-90, c. 43, s. 14.

Effect of secs. 17.3 and 17.7

17.10       The provisions of sections 17.3 and 17.7 which are not merely declaratory of what the law was prior to March 16, 1906 are not retroactive so as to affect any rights conferred before that date.

S.M. 1989-90, c. 43, s. 14.

Rule in Shelley's Case abolished

17.11(1)    The rule of law known as the Rule in Shelley's case is abolished in so far as it is part of the law of Manitoba.

Application

17.11(2)    This section applies to any interest in real property created before, on or after the day on which this section comes into force, but does not apply where, before this section comes into force, an action is taken or a document or instrument is prepared in reliance on the Rule in Shelley's case.

S.M. 1992, c. 32, s. 8.

Definitions

18          In sections 19 to 26

"action" means a civil proceeding commenced by a statement of claim or in such other manner as is prescribed by the rules of the court; (« action »)

"court" means the Court of Queen's Bench; (« tribunal »)

"land" includes lands, tenements and hereditaments and all estates and interest therein. (« bien-fonds »)

Who may be compelled to make partition or sale

19(1)       All joint tenants, tenants in common, mortgagees and other creditors having any lien or charge on, and all persons interested in, to, or out of any land in Manitoba, may be compelled to make or suffer partition or sale of the land or any part thereof.

Partition or sale without Homesteads Act consents

19(2)       Where a person to whom subsection (1) applies is a married person or a person who is a common-law partner, an action for partition or sale of the land may be brought by or against him or her; and

(a) partition; or

(b) where in the opinion of the court, the land cannot reasonably be partitioned, sale thereof in lieu of partition;

may be ordered by the court without the consent of any party to the action, and without the consent of his or her spouse or common-law partner having been obtained as provided in The Homesteads Act.

S.M. 1992, c. 46, s. 58; S.M. 2002, c. 48, s. 14.

Who may take proceedings for partition

20(1)       Any person interested in land in Manitoba, or the guardian of the estate of an infant entitled to the immediate possession of any estate therein, may bring action for the partition of the land or for the sale thereof under the directions of the court if the sale is considered by the court to be more advantageous to the parties interested.

When proceedings may be commenced

20(2)       Where the land is held in joint tenancy or tenancy in common by reason of a devise or an intestacy, no action shall be commenced until one year after the decease of the testator or person dying intestate in whom the land was vested.

Appointment of guardian to estate of person unheard of for three years

21(1)       Where any person interested in the land has not been heard of for three years or upwards, and it is uncertain whether that person is living or dead, the court upon the application of any one interested in the land, and whether an action for the partition or sale of the land has been commenced or not, may appoint a guardian to take charge of the interest of that person and of those who, in the event of his being dead, are entitled to his share or interest in the land.

Powers of such guardian

21(2)       The guardian shall, in the action, represent the absent person and those who, should he be dead, are entitled to his share or interest in the land, and whether they or any of them are infants or otherwise under disability, and his acts in relation to that share or interest are binding on the absent person and all others claiming or entitled to claim under or through him, and are as valid as if done by him or them.

Power of the court to deal with estate

21(3)       The court upon such proof of the absence of the person as affords reasonable ground for believing him to be dead, upon the application of the guardian, or any one interested in the estate represented by the guardian, may deal with the estate or interest of the person, or the proceeds thereof, and may order payment of the proceeds, or the income or produce thereof, to the person who, in the event of the absent person being dead, appears to be entitled thereto.

Order for execution of conveyance or transfer

22(1)       Where partition or sale is ordered, the court may order the execution of a conveyance, transfer or other document by all the proper parties thereto to give effect to the sale or partition of the land.

Execution where party under disability

22(2)       Where a party is an infant, a person of unsound mind or a mentally incompetent person, the court may order that the conveyance, transfer or other document be executed by his or her guardian, committee, administrator, or substitute decision maker for property appointed under The Vulnerable Persons Living with a Mental Disability Act.

Execution where section 21 applies

22(3)       Where a party is a person or guardian mentioned in section 21, the court may order that the conveyance, transfer or other document be executed by the guardian.

S.M. 1993, c. 29, s. 188.

Sales, including estates for life

23(1)       In an action for partition or administration, or in an action in which a sale of land in lieu of partition is ordered, and in which the estate of any tenant for life is established, if the person entitled to the estate is a party, the court shall determine whether the estate ought to be exempted from the sale or whether it should be sold; and in making the determination regard shall be had to the interests of all the parties.

What to pass to purchaser

23(2)       Where a sale is ordered including such an estate, all the estate and interest of the tenant passes thereby, and no conveyance or release to the purchaser is required from the tenant, and the purchaser holds the premises freed and discharged from all claims by virtue of the estate or interest of the tenant, whether it is to an undivided share or to the whole or any part of the premises sold.

Compensation to owners of particular estates

23(3)       The court may direct the payment of such sum in gross out of the purchase money to the person entitled to the estate for life, as may be deemed, upon the principles applicable to life annuities, a reasonable satisfaction for the estate; or may direct the payment to the person entitled of an annual sum or of the income or interest to be derived from the purchase money or any part thereof, as may seem just, and for that purpose may make such order for the investment or other disposition of the purchase money or any part thereof as may be necessary.

Value of inchoate homestead right and payment thereof

24          Where a person is a party to the action, the court shall, in case of sale, determine the value of any rights under The Homesteads Act of his or her spouse or common-law partner according to the principles applicable to deferred annuities and survivorships, and shall order the amount of that value to be paid out of the share of the purchase money to which the person is entitled, or shall order the payment to the spouse or common-law partner of the person out of the share of the purchase money to which the person is entitled, of an annual sum, or of such income or interest as is provided in section 23; and the payment shall be a bar to any right or claim under The Homesteads Act.

S.M. 1992, c. 46, s. 58; S.M. 2002, c. 48, s. 14 .

Effect upon persons under a disability

25          A partition or sale made by the court is as effectual for the apportioning or conveying away of the estate or interest of any infant, person of unsound mind, or mentally incompetent person, party to the action by which the sale or partition is made or declared, as of a person competent to act for himself.

Power of court to allow any of the parties interested to bid at the sale

26          On any sale under this Act, the court may, if it thinks fit, allow any of the parties interested in the land to bid at the sale, on such terms as to non-payment of deposit, or as to setting-off or accounting for the purchase money or any part thereof, instead of paying it, or as to any other matters, as to the court seems reasonable.

Relief of persons making improvements under mistake of title

27          Where a person makes lasting improvements on land under the belief that the land is his own, he is or his assigns are entitled to a lien upon the land to the extent of the amount by which the value of the land is enhanced by the improvements, or is or are entitled, or may be required, to retain the land if the Court of Queen's Bench is of opinion or requires that that should be done, according as may, under all the circumstances of the case, be most just, making compensation for the land if retained, as the court may direct.

Encroachments on adjoining land

28          Where, upon the survey of a parcel of land being made, it is found that a building thereon encroaches upon adjoining land, the Court of Queen's Bench may, in its discretion,

(a) declare that the owner of the building has an easement upon the land so encroached upon during the life of the building upon making such compensation therefor as the court may determine; or

(b) vest title to the land so encroached upon in the owner of the building upon payment of the value thereof as determined by the court; or

(c) order the owner of the building to remove the encroachment.

Access and use of light

29          No person acquires a right, by prescription, to the access and use of light to any building, structure or work.

Registration substituted for enrolment

30(1)       In every case in which by chapter 74 of 4 William IV, intituled "An Act for Abolition of Fines and Recoveries and for the Substitution of More Simple Modes of Assurance", it was provided that a deed, assurance or other instrument should be enrolled in the High Court of Chancery, registration in the land titles office for the land titles district within which the land thereby affected or intended so to be is situated shall after July 7, 1883, be substituted for such enrolment; and in case of lands situated within different land titles districts, as to those parcels or tracts of lands, registration in the proper land titles offices respectively is necessary and sufficient in like manner as is or would be the enrolment under that Act.

Married woman not required to give further proof of execution of deed than a feme sole

30(2)       It is not necessary, in order to establish the validity of any deed or assurance under that Act, executed by any married woman, that it shall be produced or acknowledged by her before any judge, master, commissioner, or other officer, or that she be examined apart from her husband or otherwise, or that her husband shall concur therein; but every such deed and assurance may be executed by a married woman in the same manner, and with the same effect, as if she were a feme sole, and no further or other proof of the execution shall be required to be given or made, nor is any other registration or filing of any proof necessary, than would be required or necessary if she were a feme sole.

Other parts of Act in force if applicable

30(3)       All other provisions of that Act shall be deemed in force in the province so far as they can be made applicable thereto.

No estates tail

30(4)       No estate in fee simple shall be changed into any limited fee or fee tail, but whatever form of words is used in any instrument, the land shall be and remain an estate in fee simple in the owner; and any limitation that would have created an estate tail shall transfer the estate in fee simple or absolute ownership that the transferor has in the land.

S.M. 2008, c. 42, s. 54.

Debts and choses in action arising out of contract assignable at law

31(1)       Every debt and any chose in action is assignable at law by any form of writing that contains apt words in that behalf, but subject to such conditions or restrictions in respect of the right of transfer as may appertain to the original debt or as may be connected with or be contained in the original contract; and the assignee thereof may bring an action thereon in his own name, as the party might to whom the debt was originally owing, or in whom the right of action originally arose; or he may proceed in respect thereof as though this Act had not been passed.

Assignments subject to defence and set-offs existing as between debtor and assignor

31(2)       Every assignment of a debt or chose in action arising out of contract, and not assignable by delivery, is subject to any defence or set-off, in respect of the whole or any part of the debt or chose in action, existing at the time of the notice of assignment to the debtor or person sought to be made liable, in the same manner and to the same extent as the defence or set-off would be effectual in case there had been no assignment thereof; and every such defence or set-off applies as between the debtor and any assignee of the debt or chose in action.

Assignee to hold free from claims arising subsequent to notice

31(3)       Where an assignment is made in conformity with the provisions hereof, and notice thereof is given to the debtor or person liable in respect of the subject of the assignment, the assignee shall have, hold, and enjoy it, free from any claims, defences or equities, that may have arisen subsequent to the notice by any act of the assignor or otherwise.

Meaning of "assignee"

31(4)       In subsections (1), (2), and (3) the expression "assignee" means any person who on or after June 1, 1970 is entitled, by any first or any subsequent assignment or transfer or any derivative or other title, to a debt or chose in action, and possessing at the time the action or suit is brought the right to receive the subject matter or proceeds thereof and give an effectual discharge thereof.

Interpleader in cases of assignment of debt

31(5)       Where the debtor, trustee, or other person liable in respect of a debt or chose in action has had notice that any assignment thereof is disputed by the assignor or any person claiming under him, or of any other opposing or conflicting claims of such debt or chose in action, he is entitled, if he thinks fit, to call upon the several persons making claim thereto to interplead concerning it.

Certain bonds and debentures transferable by delivery

31(6)       The bonds or debentures of corporations made payable to bearer, or to any person named therein or bearer, may be transferred by delivery alone; and the transfer vests the property in the bonds or debentures in the transferee or in the holder thereof; and any such holder may bring any action or suit on or in respect of any such bonds or debentures in his own name.

Subsections (1) to (6) not to apply to negotiable instruments

31(7)       Subsections (1) to (6) do not apply to bills of exchange or promissory notes, or to instruments that, apart from those subsections are negotiable, or in respect of which the property therein passes by mere delivery.

Assignments of moneys due by Government of Manitoba

31(8)       No order or assignment of any moneys due or accruing due or to be payable to any person or corporation by the Government of Manitoba is valid or binding upon the government, or as against any person or corporation garnishing the government, unless and until accepted in writing by the Minister of Finance; and the Minister of Finance shall not accept any such order or assignment unless it is in writing and filed with him.

Certain assignments of wages or salary not valid unless accepted

32(1)       In the case of an assignment of wages to be earned in the future, given in consideration of a present loan, advance or payment, unless it is accepted in writing by the employer, the assignment is not valid against the employer of the person making it.

Where subsection (1) not to apply

32(2)       Subsection (1) does not apply to an assignment of wages given to secure a past indebtedness for necessaries, or to secure an account for necessaries to be thereafter supplied, or partly for each of these purposes.

Written consent of spouse or common-law partner

32(3)       In the case of cohabiting spouses or common-law partners, no assignment made by either spouse or common-law partner of wages to be earned by that spouse or common-law partner in the future is valid unless the written consent of the other spouse or common-law partner to the making of the assignment is attached thereto or endorsed thereon.

Definition for subsection (3)

32(4)       In subsection (3), "cohabiting spouses" means two persons who are married to each other and are cohabiting.

Amount of loan or payment must exceed 95 per cent of amount assigned

32(5)       Unless the amount of money lent or advanced thereon, or paid therefor, exceeds 95% of the amount of wages assigned, no assignment of wages to be earned in the future, given in consideration of a present loan, advance or payment of money is valid.

Limitation on assignment of wages

32(6)       Unless otherwise ordered by a judge of the Court of Queen's Bench, any provision in a contract made on, from, or after the coming into force of this subsection that provides for the assignment by an employee of a greater portion of the wages of that employee than is liable to seizure or attachment under The Garnishment Act is invalid and of no effect in so far as the amount of exemption under The Garnishment Act is concerned; but this subsection shall not affect the validity of an assignment of the portion of the wages of an employee which is in excess of the exemption under The Garnishment Act or the validity of any other provisions in a contract.

Definitions

32(7)       In this section "assignment" or "assignment of" includes "order" or "order for", and "wages" includes "salary" and periodic payments in respect of loss of future income or loss of earning capacity ordered or adjudged payable under Part XIV.1 of The Court of Queen's Bench Act.

S.M. 1993, c. 19, s. 8; S.M. 2002, c. 24, s. 35; S.M. 2002, c. 48, s. 14; S.M. 2008, c. 42, s. 54.

Summary application to court in respect of requisitions, objections or compensations

33(1)       A vendor or purchaser of real or leasehold estate, or his representative, or any person claiming through or under him or to have a lien or charge on the land under a registered certificate of judgment, may, at any time and from time to time, apply by motion to the Court of Queen's Bench in respect of any requisition or objection, or any claim for compensation, or any other question arising out of or connected with the contract, including a question affecting the bona fides, existence, or validity, of the contract; and the court may make such declaration or order upon the application as appears just and refer any question to the master or a local master for inquiry and report, and shall order how and by whom all or any of the costs of and incidental to the application shall be borne and paid.

Notice to third person

33(2)       Where, upon such an application, it appears that a third person is or may be interested in the question raised, the court or judge may require notice to be given to the person so that the question may be determined so as to bind the third person.

Exercise of powers by court

33(3)       The powers conferred upon the court by this section may be exercised by a judge or local judge in court or sitting in chambers.

Definition of "vendor" and "purchaser"

33(4)       Where used in this section, "vendor" includes the grantor of an option to purchase and "purchaser" includes the grantee of an option to purchase.

Terms of agreement of sale and purchase

34          Every contract for the sale and purchase of land shall, unless otherwise stipulated, be deemed to provide that taxes, local improvement rates, insurance premiums, rents and interest shall be adjusted as of the date of closing.

Declarations as to fixtures in agreements of sale and mortgages

35          Notwithstanding anything in any agreement for sale of land or in any mortgage of land whenever made or given, or in any agreement renewing or extending it, or in any agreement collateral thereto, or any other agreement, no erection, machinery, plant, building, improvement or other chattel erected, placed or put upon farm land sold or mortgaged shall, by reason only of a declaration, agreement or covenant in the agreement of sale or mortgage or in any agreement collateral thereto or any other agreement, become or be deemed to be a part of the realty.

Application of fire insurance moneys

36(1)       Notwithstanding anything in any other Act or in any agreement for sale of land or in any mortgage of land made or given whenever, or in any agreement renewing, or extending it, in the event of damage to, or destruction of, buildings on the land by fire the purchaser or mortgagor may, after giving the notice required by subsection (2), apply to the Court of Queen's Bench for an order governing the application of any moneys received or receivable under any insurance policy, in respect of the damage or destruction; and upon the application the court may make an order directing the application of the moneys on the mortgage or agreement for sale or in or towards rebuilding, restoring, or repairing the buildings damaged or destroyed, or partly in the one way and partly in the other.

Time for making application

36(2)       No application shall be made under subsection (1) unless within 60 days after the amount of the loss is adjusted and unless 10 days' notice of intention to make it has been given to the vendor or mortgagee.

Giving of notice

36(3)       The notice shall be given by registered mail, postage prepaid, and shall be deemed to have been given on the date upon which the envelope containing the notice is deposited with the postmaster.

Hail insurance premiums

37          Notwithstanding anything in any lease, agreement for sale, or mortgage of land, whenever entered into, made or given, or in any agreement renewing or extending it, where the lessor, vendor, or mortgagee insures the crops grown on the land against loss by hail, the cost of the insurance is not chargeable against the lessee, purchaser, or mortgagor unless with his written consent given in the year in which the insurance is effected; and any agreement, stipulation or covenant to the contrary is void.

Application of money to debts secured by mortgage

38(1)       Where a mortgage is held as security for one or more debts and money is paid by the mortgagor or is realized by the mortgagee under the terms of the mortgage, the money shall be applied immediately to the debts secured by the mortgage, subject to any direction the mortgagor has given in the exercise of a right under the mortgage respecting the application of such money, and the mortgagee shall immediately notify the mortgagor of the debts to which the money has been applied.

Application of money to debts secured by security agreement

38(2)       Where a security agreement, as defined in The Personal Property Security Act, is held as security for one or more debts and money is paid by the debtor or is realized by the secured party under the terms of the security agreement, the money shall be applied immediately to the debts secured by the security agreement, subject to any direction the debtor has given in the exercise of a right under the security agreement respecting the application of such money, and the secured party shall immediately notify the debtor of the debts to which the money has been applied.

Agreement contrary to section is void

38(3)       Any agreement, stipulation or covenant contrary to this section is void.

S.M. 1993, c. 14, s. 84.

Application to court for right to enter

39(1)       Where the boundary line separating adjacent properties that are owned by different owners is so close to a dwelling house erected and maintained by one of the owners (herein referred to as the "aggrieved owner") that the aggrieved owner cannot carry out or effect any repairs or works to the side of his house that is adjacent to the property of the other owner, without entering upon the property of that owner and that owner refuses to grant permission to the aggrieved owner to enter for the purpose of carrying out or effecting those repairs or works, the aggrieved owner may make an application to a judge of the Court of Queen's Bench for an order granting the necessary permission.

Contents of order

39(2)       Where a judge grants an order under subsection (1), the order shall state

(a) the duration for which the permission is granted;

(b) the purpose for which the permission is granted; and

(c) that the aggrieved owner pay the owner who refused permission, for any damage caused to the property of that owner by the aggrieved owner, in such amount as the court considers reasonable and equitable in the circumstances.

Authority to pay solicitor

40(1)       Where a solicitor produces or delivers a document that contains in the body thereof, or that has endorsed thereon or attached thereto, a receipt for consideration money or other consideration and the document has been executed or the endorsed or attached receipt has been signed by the person entitled to give a receipt for the consideration, the document is sufficient authority to the person liable to pay or give the consideration for his paying or giving the consideration to the solicitor without the solicitor producing any separate or other direction or authority in respect of the consideration from the person who executed or signed the document or receipt.

Meaning of "solicitor"

40(2)       In this section "solicitor" means a person who is entitled to practise as a solicitor within the province.