Registry and Land Titles
There are two separate and distinct land registration systems in Ontario: Registry and Land Titles.
The Registry system is the older of the two and traces its origins to the Statute of Enrolments of 1535 in England.
The transfer of property prior to that time had largely been through the transfer of possession. There was a simple procedure to be followed. A piece of dirt was given by the Owner to the Buyer as a symbol of the transfer of ownership. This transfer took place in the presence of witnesses who could later attest to the transfer in Court should there later be a dispute.
The actual ceremony was called “livery of seisin”. Livery was the short form for “delivery”, and seisin referred to possession or occupation of the land. Truly, only the King owned the lands, so everyone else was simply a tenant or had some lesser interest in the property.
As you can appreciate this system was not the best. What if something happened to your witnesses as time went by? This could be problematic. In 1535, Parliament passed the Statute of Uses. It allowed properties to be conveyed by a written Deed, and made provision for those Deeds to be registered. This would avoid arguments and disputes in the future.
Parliament also passed the Statute of Enrolments. A public official would take custody of the Deed and that was “proof of the transfer of possession” of the property. In effect, this Statute was the first registry Act. The two systems of transfer of properties continued until the “livery of seisin” ceremony was abolished in 1925.
In Ontario and the Atlantic Provinces the Registry system started right away. The first Registry Act in Ontario was passed in 1795.
It is important to note that the registry system is simply a depository of Deeds and other documents. There is a geographical index so you can locate relevant documents but you are left to draw your own conclusions about their meaning. You are merely provided with the evidence, not the conclusions. You are left to your own devices to figure things out.
In 16th Century England, it was necessary to prove chain of possession for a period of 60 years. That was two lifetimes. Life was short, then! In Ontario, the period has been shortened to 40 years. That’s the same forty year search of title that exists today.
In terms of searching title, a conveyancer or title searcher will be hired by a solicitor for the purpose of examining and making a record of the relevant Deeds and other documents. The report is called an “Abstract of Title”. It is simply a set of notes because all of the documents remain at the Registry Office. The conveyance collects the “evidence” which is produced and reviewed by the solicitor who then draws a conclusion and expresses a “title opinion”.
Now, we have to go back to the late 19th Century in England. There was a major problem with land fraud and mortgage fraud in Australia, one of the territories at that time. Land was owned by the King and occupied by others with some sort of lesser title. You needed to show possession to go along with your Deed. If you took a trip to Australia and bought some property, the moment you got back on the boat someone would steal your property. This legal organized theft of property was permitted under the laws of “adverse possession “ which applied under the common law.
However, as you might think: this was indeed a crazy law. But, it had been going on for hundreds of years. In order to get rid of adverse possession (the legalized theft of real estate) they decided to come up with a new system. This was the Torrens system based upon “boat law” or the system of formal admiralty registration of large ocean going vessels. They may be manufactured in the shipyards in England but once they left the harbor you might never, ever see them again. The system of ownership allowed the Master (Official Government position) to sign a record of ownership, pledges, leases, mortgages and the like all concerning the vessel. No one ever saw the boat again. The record was all that was needed.
So, Parliament borrowed the concept and came up with the Torrens Land Registration system. Quickly, it was applied to the Western Provinces and Northern Ontario. It was too late for Toronto, but for some brand new subdivisions, it was used as early as 1885. You will find it in some parts of Lawrence Park, the northern edge of development at the time.
The primary purpose of the Land Titles system is to:
1) Eliminate the organized legal theft of real estate,
2) Abolish adverse possession, and
3) Abolish prescriptive rights.
This is important, since many people still think that adverse possession and prescriptive rights apply all across Ontario. That’s not true. They only apply in the Registry system. They never appeared in the Land Titles system.
The Land Titles system is like the “boat book”. It is “everything! It is the sole source of all information about a property.
There are three underlying principles: 1) Mirror Principle, 2) Curtain Principle, and 3) Insurance Principle.
1) Mirror Principle
The book will be a mirror of the ownership and possession of the property. The Deeds will be registered. The Master of Titles will keep track of everything including the current owner. The same will apply with respect to mortgages and other encumbrances. It is the up to date source.
2) Curtain Principle
You don’t have to look elsewhere. The index is it. The information is up to date and accurate. Once it is signed off by the Master of Titles, you can rely upon the information. It is the sole source.
3) Insurance Principle
Let’s assume that there’s an error. The Province has an insurance scheme which will protect you. If there is a mistake, you will be compensated. Good title is guaranteed. Insurance backs up that statement. It is a reliable source.
Under the Registry system, the conveyance collected the evidence and the solicitor drew conclusions and expressed a title opinion. In Land Titles, it is the Master of Titles who collects and maintains the evidence, as well as expresses the opinion. And, to take it one step further “guarantees” the title opinion.
The fundamental difference between the two systems is that Registry is a depository of evidence and Land Titles records guaranteed conclusions.
Brian Madigan LL.B., Broker