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The Real Property Act
This is an unofficial archived version of The Real Property Act
as enacted by SM 1988-89, c. 1 on October 19, 1988.

R.S.M. 1988, 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")

"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")

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.

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.

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.

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.

ORGANIZATION OF SYSTEM LAND TITLES 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.

Office hours.

11(1)

Subject to subsections (3) and (4), every land titles office shall be kept open on such days and during such hours as the Lieutenant Governor in Council may prescribe.

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;

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 Attorney-General 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.

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.

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 peal 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.

Free services for government.

17(2)

No fees shall be charged to, or paid by, the government for services rendered by a district registrar for any department or branch of the executive government on behalf of that department or branch.

Fees on tax sale applications.

18(1)

Subject to subsection (2), where a municipality makes an application for title to any land under a tax sale, the fees payable by the municipality in respect of the application shall be based on the tariff of fees then applicable to proceedings under this Act, but shall be modified as follows:

(a) If the fees in respect of the application payable under the tariff are less than $5., they shall be paid in full.

(b) If the fees in respect of the application payable under the tariff are $5. or more but do not exceed $10., the sum of $5. shall be paid.

(c) If the fees in respect of the application payable under the tariff are more than $10. , one-half of of those fees shall be paid.

Limitation.

18(2)

If the value of the land described in the application does not exceed $100. the fees payable in respect of the application shall not exceed $2.50.

Fees where certificate assigned.

18(3)

Where, after the making of an application as provided in subsection (1), the municipality assigns the tax sale certificate and the proceedings in the land titles office based thereon, or the land mentioned in the application is redeemed from the tax sale, the assignee or the person redeeming the land shall pay forthwith to the district registrar the full fees payable under the tariff of fees applicable to proceedings under this Act, reduced by any amount already paid by the municipality in respect of the application.

Meaning of "municipality".

18(4)

For the purposes of this section the word "municipality" includes a school district in unorganized territory formed under The Public Schools Act and also a local government district.

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 him of a copy of the certificate of title or document, certified by him to be a true copy of the original of which it purports to be a copy.

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.

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) issue in substitution of a destroyed duplicate certificate of title, a printout of the title where the certificate of the title has been converted to a title, or issue in substitution, the new duplicate certificate of title where issued as a result of the registration of a plan.

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.

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.

Dist. reg. 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.

Production dispensed.

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 and upon completion of the registration, he shall make an entry in the register that no entry of the registration has been made on the duplicate certificate and the registration is thereupon a valid and effectual registration.

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; and the district registrar shall give at least 14 days' notice of intention to dispense with its production in a newspaper, the number of insertions in the newspaper, and the form of the notice, to be settled by the district registrar.

Notice dispensed with.

26(3)

Where

(a) the value of the land described in a lost duplicate certificate of title, as shown

(i) by the latest revised assessment roll of the municipality in which the land is situated; or

(ii) in the case of land that is not in a municipality, by the latest assessment roll of the local government district in which the land is situated;

is not more than $2,000.; or

(b) the district registrar is satisfied that a duplicate certificate of title or other instrument has been lost or improperly destroyed while in his custody; or

(c) the title to land described in a lost duplicate certificate of title stands in the name of

(i) Her Majesty in right of Canada or in right of Manitoba; or

(ii) any agency of Her Majesty in right of Canada or in right of Manitoba; or

(iii) any municipality in the province or Metropolitan Winnipeg, or any local government district, school district, school division, or school area in the province; or

(iv) any corporation in the province effective control over the administration of which is exercised by the government or by a municipality or Metropolitan Winnipeg;

and the district registrar is satisfied that the duplicate certificate of title has not been deposited by way of lien or as security for a loan, or otherwise as a mortgage of, or charge on, the land therein described;

the district registrar may dispense with the giving of notice.

Provisional cert, of title.

26(4)

The district registrar may, upon complying with subsections (2) and (3), issue a provisional duplicate certificate of title of the land, which shall be a duplicate, as nearly as possible, of the certificate of title in the register, and of all entries or memorials and endorsements thereon, and shall contain a statement as to why it is issued; and the district registrar shall, at the same time, enter in the register notice of the issuing of the provisional certificate, and the date thereof, and why it was issued; and the provisional certificate shall be available for all purposes for which the duplicate certificate of title so lost or destroyed would have been available, and is as valid as the lost duplicate.

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.

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 cert, of title.

28

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

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.

Dist. reg. vacating claim.

30(5)

The district registrar may vacate the registration of a claim, reservation or interest referred to in subsection (3) upon the expiration of 30 days after notice which the district registrar may, where it appears that the claim, reservation or interest is not valid or enforceable or has expired, give to the person entitled to benefit by the maintenance of the claim, reservation or interest to take proceedings in the court on his claim, reservation or interest.

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.

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.

Appl. by parent or committee.

34(1)

Either parent of an infant, or the committee of the estate of a person of unsound mind, may apply on behalf of the infant or person of unsound mind to bring land under this Act.

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.

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 Dower Act

35(3)

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

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 $2,000. the district registrar shall not take notice of any irregularity in, or inquire into the regularity of, the tax sale proceedings or any proceedings prior to, or having relation to, the assessment of the land; but

(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 certificate of lis pendens 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.

Appl. 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 $2,000.

Power of dist. reg.

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 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 and any order, notice or cancellation of a notice 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.

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 certificate of lis pendens 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 lis pendens.

51(7)

If the certificate of lis pendens 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.

CERTIFICATES OF TITLE ISSUING OF CERTIFICATES

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.

When duplicate title to issue.

52(2)

A duplicate certificate of title signed by the district registrar shall only be issued

(a) at the discretion of the district registrar; or

(b) upon the request of a registered owner where the land is not subject to a mortgage or encumbrance;

and the district registrar shall make an entry to that effect in the register setting forth the date of issuance; and a second duplicate certificate of title shall not be issued until the first one has been presented to the district registrar and destroyed or accounted for under section 26.

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) where a title, the entry has been given accepted status by the district registrar.

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.

All entries to be made.

53

Where the district registrar is required to make an entry in the register, he shall

(a) in the case of a certificate of title, make a like entry on the duplicate certificate of title if issued, unless production thereof is dispensed with; or

(b) in the case of an electronic title, upon production of the duplicate title, destroy the old duplicate title and render a new reproduction in substitution therefor, unless the production thereof has been dispensed with, or no duplicate title has been issued.

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.

Dist reg. 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 certificate of lis pendens 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) any planning scheme or 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.

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.

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 REGISTRATION OF 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 deemed registered.

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 this 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.

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.

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 or Northwest Territories, 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.

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) by reason that the instrument or record is not a copy of the authentic instrument or record that it purports to be.

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 Dower 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 registered owner or person entitled to be the registered owner is witnessed by a barrister, solicitor or notary public exercising the function of a notary public or having jurisdiction or authority as a notary public in Canada, (hereinafter referred to as an officer) that 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.

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 17, 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 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 17, 1989.

Notice to claimants.

75(4)

Where an instrument is registered in the general register, the district registrar shall, not later than February 17, 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 the Attorney General;

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 at any time prior to February 17, 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 at any time prior to August 17, 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.

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 judgment debtor and one or more persons.

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 certified 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.

Certain party wall agreements.

76(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.

Effect of declaration.

76(2)

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 and general register to have a claim or interest prior to the date of the declaration, consent to the registration thereof.

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 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, 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.

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, 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 any of the covenants therein contained or, under this Act, implied on the part of the transferor.

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 of the person claiming the interest, or of a person acting on behalf of the person claiming the interest, stating

(a) the name and mailing address of the person claiming the interest in farm land, and whether the person is or is not a Canadian citizen or permanent resident (within the meaning of the Citizenship Act (Canada)), and that the person is either

(i) a resident,

(ii) a family farm corporation,

(iii) a non-resident, or

(iv) a corporation other than a family farm corporation;

(b) in the case of a non-resident or a corporation other than a family farm corporation, the aggregate amount of farm land in Manitoba, other than the farm land referred to in the farm instrument, in which that person, directly or indirectly, holds an interest;

(c) in the case of a non-resident or a corporation other than a family farm corporation, whether the interest is being claimed

(i) by right of survivorship, devise or intestacy arising on the death of a resident, a retired farmer, or the spouse of a retired farmer,

(ii) pursuant to a court order,

(iii) by that person as an executor, administrator or as a trustee in bankruptcy,

(iv) pursuant to a conveyance by a retired farmer, the spouse of a retired farmer, a person or the spouse of a person who has been a farmer for at least 10 years, by the spouse, child, grandchild, brother, sister, nephew or niece of the person conveying the interest, or

(v) in accordance with the provisions of subsection 3(2) of The Farm Lands Ownership Act;

(d) in the case of a non-resident or corporation, other than a family farm corporation, the name and mailing address of the person, if any, granting the interest in farm land;

(e) in the case of a non-resident or a corporation, other than a family farm corporation, whether the interest is a bona fide debt obligation together with particulars thereof, or attaching a copy thereof;

(f) the legal description, the amount of the total acreage, consideration (if applicable) and the value of the farm land referred to in the farm instrument together with all buildings and other improvements thereon;

(g) where the person is a family farm corporation

(i) the mailing address of its registered office,

(ii) the mailing address of its principal office in Manitoba,

(iii) the names and mailing addresses of and class and number of shares held by, each of the shareholders thereof, and whether or not each such shareholder is a farmer, the resident spouse of a farmer, or the resident child of a farmer;

(h) the name and mailing address of any other person who, in connection with, in relation to, or as a consequence of, the interest in the farm land in respect of which the farm instrument is being registered, is taking, receiving, acquiring or holding an interest in farm land;

(i) that the farm instrument and its registration do not contravene the provisions of The Farm Lands Ownership Act.

Refusal of registration.

85(4)

The district registrar shall not register any farm instrument referred to in subsection (3) unless

(a) the declaration states that the person claiming the interest is a resident or a family farm corporation; or

(b) the declaration states, where the person claiming the interest is a non-resident or a corporation other than a family farm corporation, that the amount of farm land referred to in the farm instrument, together with the amount of the other farm land in Manitoba in which the person named in the farm instrument, directly or indirectly, holds an interest, does not exceed in the aggregate 10 acres; or

(c) the declaration states that the interest referred to in the farm instrument

(i) is taken by way of right of survivorship, devise or intestacy arising on the death of a resident, a retired farmer or the spouse of a retired farmer,

(ii) is taken pursuant to a court order,

(iii) is a bona fide debt obligation or an interest in land by virtue of a bona fide debt obligation,

(iv) is being taken by the person as an executor, administrator or as a trustee in bankruptcy,

(v) is taken in connection with the enforcement of a mortgage or other encumbrance,

(vi) is being taken pursuant to a conveyance by a retired farmer, the spouse of a retired farmer, a person or the spouse of a person who had been a farmer for at least 10 years, by the spouse, child, grandchild, brother, sister, nephew or niece of the person conveying the interest, or

(vii) is taken in accordance with the provisions of subsection 3(2) of The Farm Lands Ownership Act; or

(d) the farm instrument is accompanied by a certified copy of an order of the Farm Lands Ownership Board approving the taking, receiving, acquiring or holding of the interest in farm land as referred to in the farm instrument.

Dist. reg. 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.

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.

Declaration not part of instrument.

85(8)

A copy of the statutory declaration required by this section

(a) shall not be physically part of or physically annexed to the instrument and shall not be registered as though it formed part of the instrument; and

(b) shall be forwarded by the district registrar to the board.

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.

Meaning of certain expressions.

85(10)

For the purpose of this section the expressions "agency of government", "board", "debt obligation", "family farm corporation", "farmer", "farm land", "indirectly", "interest in farm land", "resident" or "retired farmer" have the respective meanings given to them in The Farm Lands Ownership Act.

Meaning of "non-resident".

85(11)

For the purposes of this section the expression "non-resident" means a natural person who is not a resident.

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.

Exceptions.

85(13)

Subsections (3) to (12) do not apply to

(a) any farm instrument presented for registration on behalf of an agency of government, a municipality or local government district; or

(b) any person exempted from the provisions of those subsections by regulation or by order of the board; or

(c) any mortgage, encumbrance or caveat claiming an interest in land pursuant to a loan, presented for registration on behalf of a bank or credit union.

Restrictions or 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.

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 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 extending the term of the lease, as the case may be, if it is in a form satisfactory to the district registrar, may be registered and the district registrar shall record the entry of the renewal 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.

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 satisfaction of lawful re-entry and recovery of possession of land by a lessor,

(a) shall note it by entry in the register and upon the lease; 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 liability in respect of the breach of any covenant in the lease expressed or implied.

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, are provided to each of the district land titles offices for deposit at those offices.

Entry in charge book.

96(6)

The Registrar General shall enter all sets of standard charge mortgage terms registered under subsection (4) during each calendar year in a charge book and shall as soon as possible after the end of the calendar year provide copies of the charge book to each of the district land titles offices.

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 name and serial number of registration as assigned at the Winnipeg Land Titles Office.

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 registration number 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.

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.

Certificate of title in L.T.O.

100(1)

Where land is subject to a mortgage or encumbrance, the duplicate certificate of title or duplicate title, if issued, shall be deposited with the district registrar, who shall retain it on behalf of all persons interested in the land mentioned in the certificate.

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.

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 registered or certified mail.

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.

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.

Variation in mortgage.

110(1)

Where the mortgagee and mortgagor under a registered mortgage have agreed to extend the period for repayment of the unpaid balance owing under the mortgage upon revised terms, or have agreed to amend the terms of the mortgage to vary any provision thereof other than the principal amount secured thereby and the land which is described therein or to add the name of covenantor, or to correct an error made prior to execution thereof other than an error in principal amount, a memorandum of agreement in the form prescribed by regulations may be registered.

Consent of all affected persons.

110(2)

An agreement registered under subsection (1) shall have endorsed thereon or annexed thereto the consent of all persons appearing on the register or general register to have or claim an interest subsequent to the date of registration of the mortgage, and the consent shall be accompanied by the usual affidavit of a subscribing witness.

Effect of agreement.

110(3)

From and after the registration of an agreement under subsection (1), the terms of the agreement shall have the same force and effect as if embodied in and forming part of the mortgage, and shall have priority from the date of registration of the mortgage in respect of the balance of principal and interest that is unpaid at the date of the agreement and that is repayable according to the revised terms.

Rights analogous to easements.

111(1)

A right for

(a) the conveyance 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, 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, The Manitoba Telephone System, 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, 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.

Plan of survey required.

112(1)

Where a utility easement, or right of like nature granted by an instrument in writing executed by an owner in favour of a supplier of utility services is registered, it shall be registered together with a plan of survey describing the land required for the easement certified by a Manitoba Land Surveyor and approved by the Examiner of Surveys.

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 title.

112(3)

A pipeline easement, grant of right of user or a right of a like nature, for the construction, maintenance and operation of a pipeline, or any other easement or grant, relating to the operation of a pipeline may be registered and an entry of the instrument shall be made on the certificate of title of the grantor; and a certificate of title for the interest shall issue to the grantee clear of easements or caveats filed by the Manitoba Telephone System or the Manitoba Hydro Electric Board.

Certificate of title may issue.

112(4)

The certificate of title shall also issue clear of any prior registered interests which affect the pipeline easement other than encumbrances created by the owner of the pipeline easement.

Enforceability of pipeline title.

112(5)

A pipeline easement, 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 certificate of title shall issue for the registration of a pipeline easement or agreement set out in subsection (3), only when a plan certified by a Manitoba Land Surveyor and approved by the Examiner of Surveys, has accompanied or preceded the pipeline easement or agreement, or in the case of an expropriation subject to the provisions of The Gas Pipe Line Act and The 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)

Any mortgage, encumbrance, lien or other interest that charges or affects the pipeline agreement or expropriation shall be entered only on the certificate of title issued under subsection (6) relating to that agreement or expropriation.

Discharge of easement agreement.

112(8)

A pipeline easement agreement or expropriation that is registered under subsections (3) and (6) may with the consent of those parties having registered encumbrances against the title thereto, be discharged, and the pipeline title shall be cancelled.

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 or within the additional zone as that expression is defined in The City of Winnipeg Act unless the additional zone forms part of a planning district within the meaning of The Planning Act.

Approval required for registration.

117(3)

No plan of subdivision to which The City of Winnipeg Act 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 and the committee on environment 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 Reg.-Gen.

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.

Cl. (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.

Dist. reg. 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.

Certificate of consent.

118

A certificate that consent has been granted when signed by the commissioner of environment pursuant to section 637 of The City of Winnipeg Act may accompany an instrument registered in the land titles office.

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 nonregistration 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 explanatory plans.

127(1)

The district registrar may require the owner of land within his district desiring to deal with all or part of the land before it is subdivided, when in the opinion of the district registrar, the location thereof is not sufficiently defined on any existing registered plan, or who desires to deal with one or more portions of a defined parcel of land, to file an explanatory plan of the land satisfactory to the district registrar with as many counterparts as may be required; and, if the owner neglects or refuses to comply with the requirement, the district registrar may refuse to proceed with any registration with respect to the land.

Notice of intention that plan required.

127(2)

A district registrar may give notice of intention that an explanatory plan 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 under this section unless

(a) where the land is situated in the City of Winnipeg, or the additional zone as that expression is defined in The City of Winnipeg Act, the plan has been approved by the Director of Environmental Planning for the City of Winnipeg;

(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) where the land is not situated in the City of Winnipeg or in the additional zone as that expression is defined in The City of Winnipeg Act 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 under this section, 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.

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 lis pendens.

134(3)

Except as provided in subsection (4), a certificate of lis pendens 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 certificate of lis pendens.

Status of plaintiff.

134(4)

The plaintiff as shown in a certificate of lis pendens 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 certificate of lis pendens 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 certificate of lis pendens 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 lis pendens disposed of by order of the court.

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 section 7 of The Payment of Wages 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.

Vesting of title in purchaser.

137

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.

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.

Dist. reg. 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.

Reg'n. 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 certificate of lis pendens, 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.

Land sold following foreclosure.

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 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 and any order, notice or cancellation of a notice filed in a land titles office under section 17 of The Water Resources Administration Act.

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.

Dist. reg. 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 stat dec.

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.

143(3)

An appeal from the taxation lies to the Registrar-General, whose decision is final.

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 dist. reg.

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)

A notice given under subsection (1) shall be served at the place set forth in the caveat; but if the district registrar is of opinion that such service will not be effective, he shall direct that the notice be served in the manner prescribed for service of notices under subsection 138(6).

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)

Notwithstanding subsection (1), no person shall present for filing any caveat based upon an agreement, mortgage, encumbrance or lease that contravenes subsection 637(1) of The City of Winnipeg Act or subsection 60(1) of The Planning Act.

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.

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 mun. 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.

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.

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 registered or certified mail.

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 the province 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 descriptions of both the servient tenancy and the dominant tenancy.

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.

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 giving the address or place within the province 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.

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.

Compensation.

160(1)

A person, not being the district registrar, filing or continuing a caveat wrongfully and without reasonable cause is liable to make compensation to any person who sustains damage thereby; and the compensation may be recovered by action, if the caveator has withdrawn the caveat, and no proceedings have been taken by the caveatee, but if proceedings have been taken by the caveatee, then the compensation shall be decided in the proceedings.

Joint liability.

160(2)

Where a caveat is filed by the attorney or agent of a caveator, that attorney or agent and the caveator are jointly and severally liable as provided in subsection (1).

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 certificate of lis pendens or other proper evidence of the proceedings.

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 certificate of lis pendens 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.

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.

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 Devolution of Estates 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.

Publication of notices.

169

A notice under this Act, directed by the district registrar to be published in a newspaper, shall also be published in one issue of The Manitoba Gazette.

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 or committee.

172(1)

Where a person who, if not under disability, might have made an application, given a consent, done an act, accepted service of a notice or other document, or been a party to a proceeding under this Act, is an infant or a person who is mentally disordered within the meaning of The Mental Health Act, the guardian of the infant or committee of the estate of the mentally disordered person may make the application, give the consent, do the act, accept the service, or be a party to the proceedings as the infant or mentally disordered person might, if free from disability, have done, and shall otherwise represent the infant or mentally disordered person for the purposes of this Act.

Appointment of guardian ad litem.

172(2)

Where the infant has no guardian, or the person of unsound mind no committee of his estate, or 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.

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 Attorney-General, 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.

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 dist. reg..

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 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.

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 Min. of Fin.

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 revenue division of the Consolidated Fund.

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 the assurance fund or the district registrar is not liable to pay compensation to any claimant for loss occasioned by the reliance of the claimant on the duplicate certificate of title.

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 Attorney-General at least 60 days before the commencement of the action.

Min. of Fin. 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 Min. of Fin.

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 the want of capacity in a corporation to deal with the estate or interest involved or to execute or take the benefit of a registered instrument; or

(c) a breach of trust by or act of misfeasance of an executor, administrator or trustee.

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 Attorney-General, the Registrar-General, and the district registrar.

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.