Second Session, 46th General Assembly
58 Elizabeth II, 2009
AN ACT RESPECTING THE REGISTRATION
Received and Read the First Time...................................................................
HONOURABLE KEVIN O'BRIEN
Minister of Government Services
Ordered to be printed by the Honourable House of Assembly
This Bill would repeal and replace the Registration of Deeds Act to revise and consolidate the law with respect to the registration of deeds and other documents.
AN ACT RESPECTING THE REGISTRATION OF DEEDS
1. Short title
4. Registrar of Deeds
5. Deputy registrar
6. Protection of registrar
8. Mortgage document
9. Electronic registration
10. Registrar may refuse to register
11. Notice of registration
13. Registration under power of attorney
14. Proof for registration
15. Documents executed in the province
16. Documents executed out of province
18. Proof where witnesses and parties dead etc.
19. Compelling witnesses
21. Proof of judgments
22. Information in registry
23. Effective time of registration
24. Documents to be confirmed
25. Registration of plans
26. Requirement to provide release of mortgage
27. Release of mortgage to include reference
28. Partial releases
29. Licensed user
32. Maintenance of books and records
33. Change of name
34. Affidavit of value
35. Interest not affected
36. Certified copies
37. Effect of registration
42. SNL2001 cE-5.2 Amdt.
43. RSNL1990 cR-10 Rep.
Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:
1. This Act may be cited as the Registration of Deeds Act, 2009.
2. In this Act
(a) "deed" means a written document by which a person transfers ownership of real property to another;
(b) "instrument" includes every document by which title to land is changed or affected;
(c) "licensed users" means those persons approved by the registrar to conduct unlimited online searching and viewing of instruments registered at the registry and available online;
(d) "minister" means the minister appointed under the Executive Council Act to administer this Act;
(e) "oath" includes a declaration and an affirmation;
(f) "prescribed category of persons" means those persons or category of persons approved by the registrar to file instruments electronically;
(g) "registrar" means the Registrar of Deeds appointed under section 4; and
(h) "registry" means the Registry of Deeds created under section 3.
3. (1) There shall be a Registry of Deeds for the registration of deeds and other instruments for the province.
(2) The registry shall contain fireproof safes or vaults for the preservation of records, books, papers, microfilm, microfiche, tapes, negatives, computer software and computer hardware belonging to the registry, and of all deeds and other instruments situated and deposited there for registration.
(3) The reference to "province" in
subsection (1) includes the offshore area as defined in the Hibernia Development Project Act (
Registrar of Deeds
4. (1) The minister shall appoint a Registrar of Deeds to carry out the duties imposed under this Act.
(2) The registrar shall
(a) supervise and direct the operation of the registry;
(b) supervise and direct the persons employed in the registry in the performance of their duties and exercise of their powers under this Act;
(c) inspect the records of the registry; and
(d) perform those other duties and exercise the powers conferred by this Act.
(3) Those officers and employees that are necessary for the proper conduct of the work of the registry shall be appointed or employed in the manner authorized by law.
(4) The registrar may assign those officers and employees appointed or employed under subsection (3) to perform those duties or exercise those powers imposed upon the registrar under this Act.
5. The minister may appoint a deputy registrar who shall, when the registrar is absent or unable to act, when the registrar considers it necessary to delegate his or her authority, or when the office of the registrar is vacant, perform the functions of and have all the powers and authority of the registrar.
Protection of registrar
6. The registrar or the deputy registrar appointed under section 5 is not, nor is a person acting under his or her authority, personally liable in an action or proceeding for or in respect of an act or matter done or omitted by him or her in good faith in the exercise or purported exercise of the powers conferred upon the registrar or in the performance of his or her duties under this Act or a regulation made under this Act, or for costs in connection with an action or proceeding.
7. (1) The registrar shall register in paper format or electronically,
(a) deeds, leases, assignments of leases, assignments of rents, priority agreements and other instruments by which title to land is changed or affected;
(b) powers of attorney under which documents referred to in paragraph (a) are executed;
(d) judgments of foreclosure and other judgments affecting an interest in or title to land;
(e) notices of pending lawsuits, notices of mortgages, notices of transfer of mortgage, notices of release of mortgage and other notices in relation to a charge or encumbrance on land, in the form and manner and containing the information that may be prescribed by regulation; and
(f) notices of security interest or discharge within the meaning of the Personal Property Security Act that relate to personal property that has been incorporated into or permanently affixed to land, in the form required by the registrar.
(2) The registrar may register other instruments that the registrar has reasonable grounds to believe meet the requirements of this Act.
(3) For the purpose of paragraph 7(1)(e), only a notice of mortgage in a form acceptable to the registrar shall be accepted for registration of a mortgage however the registrar may register a full mortgage document in those circumstances where he or she considers it necessary.
(4) Registration of the documents referred to in this section in relation to the offshore area shall be effected in accordance with this Act.
(5) In this section, "offshore area"
means offshore area as defined in the Hibernia
Development Project Act (
8. Where a notice of mortgage has been filed under paragraph 7(1)(e), the mortgagor may request from the mortgagee a full copy of the mortgage document and the mortgagee shall provide that document within 30 days of receipt of the request.
9. (1) Except where provided by this Act or the regulations, an instrument submitted for registration electronically in accordance with this Act and as prescribed by the regulations shall have the same effect as an instrument submitted for registration in paper format.
(2) A person, other than the registrar or a person who is a member of a prescribed category of persons, may not electronically register an instrument.
(3) The registrar may approve a person or category of persons to file an instrument electronically where that person or category of persons meet the requirements prescribed by the regulations.
(4) A person who is a member of the prescribed category of persons may electronically register an instrument referred to in section 7 by complying with this Act and the regulations.
(5) Where a person fails to comply with the requirements of this Act and the regulations the registrar may remove the person from the prescribed category of persons.
(6) A person submitting an instrument for registration electronically under subsection (4) is responsible for the accuracy of the instrument.
(7) When a person submits an instrument for registration electronically under subsection (4) that person is certifying that he or she has seen the original instrument with the original signatures and that the instrument being submitted is a true copy of the original instrument.
(8) An instrument may be submitted electronically at any time and shall be reviewed for compliance in a manner that may be prescribed during the operating hours of the registry.
Registrar may refuse to register
10. The registrar may refuse to register an instrument where
(a) a legible written description of the property is not attached;
(b) the instrument does not comply with this Act or the regulations;
(c) the instrument is contrary to law;
(d) the registrar has reasonable grounds to believe that the registration might result in a registration that is not in accordance with law;
(e) the instrument is wholly or partially illegible;
(f) the instrument contains or has attached to it material that does not affect or relate to the land; or
(g) the registrar has other reasonable grounds to do so.
Notice of registration
11. (1) The registration of an instrument under this Act shall constitute notice of the instrument to a person claiming an interest in the land after the registration, notwithstanding a defect in the proof for registration.
(2) Notwithstanding subsection (1), the registrar shall not register an instrument unless the instrument has been proved in accordance with this Act and unless all other requirements of the Act have been met.
12. A mortgage shall not have priority by reason of being held by or vested in the same person with another of earlier date and registry.
Registration under power of attorney
13. The registration of an instrument executed under a power of attorney is not valid unless
(a) the power of attorney is registered before the registration of the instrument or within 6 months after the registration; or
(b) an instrument subsequently confirming the execution of the first instrument is registered within 6 months after the registration of that first instrument.
Proof for registration
14. (1) Before an instrument is registered the execution of the instrument shall be proved in accordance with this Act.
(2) Where an instrument is executed by more than one person, the execution by each person shall be proved.
Documents executed in the province
15. An instrument executed in the province may be proven in the presence of
(a) the registrar;
(b) a judge of the Trial Division, Court of Appeal
(c) the deputy registrar appointed under this Act;
(d) a commissioner of the Supreme Court of
(e) a justice of the peace;
(f) the mayor of a city or town in the province;
(g) an officer of the Royal Newfoundland Constabulary;
(h) a member of the Royal Canadian Mounted Police;
(i) a notary public under his or her official seal; or
(j) a commissioner for oaths in and for the province.
Documents executed out of province
16. An instrument executed outside the province may be proved in the presence of
(a) a judge of a court of record;
(b) the mayor of a city or town;
(c) a notary public, under his or her official seal;
(d) an officer of a provincial or municipal police force;
(e) a member of the Royal Canadian Mounted Police;
(f) a Canadian consul or vice-consul;
(g) a commissioner of the Supreme Court of
(h) a commissioner for oaths outside the province,
and it shall be unnecessary to prove or certify the seal or signature of a person referred to in paragraphs (a) to (h), attached, appended or subscribed to the acknowledgment, oath or affidavit.
17. (1) An instrument shall be considered to be validly proven where executed in the presence of a person referred to in section 15 or 16, as applicable,
(a) where the person signs the instrument and sets out immediately after his or her signature as witness the capacity in which the person signs and, where required by section 15 or 16, as applicable, attaches his or her seal under the signature; or
(b) where the person signs a certificate attached to the instrument that the instrument was executed in his or her presence and sets out immediately after the signature to the certificate the capacity in which he or she signs and, when required, attaches his or her seal near the signature.
(2) An instrument shall also be considered to be validly proven if executed in the presence of a person who is not a person listed in section 15 or 16 if the person in whose presence it was executed signs an affidavit stating that he or she was present and did witness the signature of the party and the affidavit is witnessed by a person listed in section 15 or 16, as applicable, and that person sets out immediately after his or her signature the capacity in which that person signs and where required attaches his or her seal near the signature.
Proof where witnesses and parties dead etc.
18. Where the witness to the execution of an instrument and the parties to it are dead or mentally incompetent, whether so found on an inquiry or not, or are incapable of proving the instrument, or where the place of residence of the witnesses and parties is unknown, the registrar shall register the instrument upon receiving satisfactory proof upon oath
(a) of the death, mental incompetence, or incapacity, or of the fact that the place of residence is unknown; and
(b) of the handwriting of the signing witness to the execution of the instrument or of the parties to it.
(a) a witness to an instrument, or a party executing the instrument, after tender of those fees that are paid to a witness attending a trial, refuses to attend for the purpose of proving the execution of it before a person before whom proof may be given; or
(b) a person having possession of an instrument required to be registered refuses to produce it in order that it may be registered,
a person claiming to be interested in having the instrument registered may make an application to the Trial Division, for an order directing the attendance of the witness, or the party or the production of the instrument.
20. Where the registrar refuses to register an instrument the person effected may appeal the registrar's decision to the Trial Division within 30 days of the refusal.
Proof of judgments
21. A judgment shall be proved by a copy certified by the Registrar of the Trial Division, under the seal of the court.
Information in registry
22. (1) The registrar shall keep in the registry information with respect to every deed and other instrument deposited for registration and the registrar shall record,
(a) the time and date of registration;
(b) the location of the property;
(c) the type of instrument;
(d) the date of the instrument;
(e) the parties named in the instrument;.
(f) the consideration stated in the instrument; and
(g) other information that the registrar considers necessary.
(2) Information recorded by the registrar under subsection (1) may be recorded in electronic format.
Effective time of registration
23. (1) An instrument submitted for registration shall be considered to have been registered when it is delivered, either personally, by mail or in electronic form if it is determined by the registrar to be in compliance with the requirements of this Act.
(2) The instrument shall
(a) be executed by all persons from whom an interest passes;
(b) have attached to it the proper proof;
(c) be accompanied by the proper fee for registration of that instrument;
(d) be accompanied by a registration application form;
(e) be accompanied by a legible written description of the property conveyed; and
(f) meet the other requirements that may be established by the registrar.
(3) Where an instrument is submitted for registration under subsection (1) and it is determined by the registrar that it is not in compliance with the requirements of this Act, it shall not be considered to have been registered and shall be returned and may be resubmitted for registration under subsection (1) when the required corrections have been made.
(4) Where an instrument is registered under this section, a person shall not alter that instrument.
(5) A deed of rectification may be registered to correct an error in an instrument that has been registered under this section.
Documents to be confirmed
24. (1) Where an instrument is submitted for registration under subsection 23(1) and has been determined by the registrar to be in compliance with the requirements of this Act, that instrument shall receive confirmation of registration, which shall include
(a) the time and date of registration of the instrument;
(b) the registration number at which the instrument may be found on the computer storage and retrieval system;
(c) the parties to the instrument;
(d) the property location, where applicable;
(e) the document type;
(f) the registrar's signature and title;
(g) the date of the confirmation;
(h) the receipt number; and
(i) other confirmation information that may be prescribed.
(2) Confirmation information provided in accordance with subsection (1) is receivable as evidence of proof of registration and of the time of registration.
Registration of plans
25. (1) A person who wishes to register an instrument with a plan attached to that instrument shall provide a copy of that plan and that plan shall be registered as a part of that instrument.
(2) Where an instrument has a master plan attached, that master plan shall be filed in paper format in the registry.
Requirement to provide release of mortgage
26. (1) When a mortgage is fully paid, the mortgagee shall, within 60 days after that, register in the registry
(a) a release of the mortgage;
(b) where there is an assignment of rents registered in relation to the property, a release of the assignment of rents; and
(c) other instrument required to enable the mortgage to be released,
and the instruments required under paragraphs (a) to (c) shall be in a form and contain the information satisfactory to the registrar.
(2) When the mortgagee receives the registered release of mortgage or registered assignment of rents or both from the registry the mortgagee shall provide a copy to the mortgagor.
(3) A mortgagee who fails to comply with subsection (1) or (2) is guilty of an offence and liable on summary conviction to a fine not exceeding $10,000.
Release of mortgage to include reference
27. Where a property which has been subject to a mortgage is released from that mortgage there shall be included in the release of mortgage a reference to the original mortgage that is being released.
28. A partial release of mortgage shall include a clear description of the property that is being released.
29. (1) A person who is approved as a licensed user may conduct unlimited online searching and viewing of instruments registered at the registry and available online.
(2) The registrar may approve a person to conduct unlimited online searching and viewing of instruments registered at the registry and available online where that person meets the requirements prescribed by the regulations.
(3) A licensed user shall comply with the prescribed rules for the online searching and viewing of instruments and failure to comply with those rules may result in the cancellation of the license of the licensed user.
30. (1) A person may have access to the online registry system at any time except during scheduled or unscheduled outages, however a person may only have access to the books, documents and the computer storage and retrieval system in the registry during the regular office hours of the registry.
(2) A person shall not remove books, documents or the computer software or computer hardware belonging to the registry from the registry.
(3) The registrar may prohibit a person
(a) who has not exercised or who is not exercising due care in the handling of books and indexes of the registry while making a search;
(b) who does not replace books which the person has removed from the shelves of the registry back in their proper places on the shelves when finished his or her examination of the books; or
(c) who otherwise fails to comply with the reasonable requirements of the registrar,
from searching in the registry for a period of time that the registrar may determine, but the person may have the prohibition removed where he or she undertakes, in writing, to comply with the terms and conditions set by the registrar.
31. The registrar shall keep an index of all instruments registered in the registry.
Maintenance of books and records
32. (1) Where a book, record, plan, document or instrument kept in paper form, is from age or use, becoming obliterated, unfit for further use or is in need of repair, the registrar shall ensure the book, record, plan, document or instrument is copied or repaired in a manner that he or she thinks necessary.
(2) Where the registrar is required to copy a document, the copy shall be, as far as can be deciphered by examination, a true and complete copy of the original and the registrar shall insert or subscribe an oath to the effect that the original so copied is a true copy of the original which purports to be a copy.
(3) A copy created for the purpose of subsection (1) and in accordance with subsection (2) shall be acknowledged and received as the original, and is considered to be a true copy of the original.
(4) Notwithstanding section 30, a book, record, plan or document requiring replacement or repair may be removed from the registry for that purpose.
Change of name
33. (1) Where a person's name is changed and at the time of the name change that person has an interest in property evidenced by an instrument filed or registered under this Act, the change of name may be recorded by
(a) reciting the change of name in a subsequent conveyance of that property interest; or
(b) filing or registering a certificate of a change of name issued under the Change of Name Act, 2009 or a marriage certificate if the change of name was as a result of a marriage or dissolution of a marriage.
(2) Upon receipt of a conveyance or certificate required under subsection (1) the registrar shall record and index it as a conveyance from the former name of the person concerned to the new name.
Affidavit of value
34. (1) For the purpose of this section, "affidavit of value" means proof made on oath of the value of the property to which the instrument relates.
(2) An affidavit of value shall be registered
(a) for a deed of gift;
(b) for a deed of confirmation where no prior registrations in relation to that transfer have been filed; and
(c) where the registrar considers it advisable.
(3) The proof required for an affidavit of value may be made before a person before whom a deed may be proved under sections 15 and 16.
(4) In determining the value of a property, the value of buildings attached to the land shall be included and the value of the property shall be calculated at the time the property is conveyed or transferred unless otherwise exempted by the regulations.
(5) Where the registrar is not satisfied with the affidavit of value submitted with an instrument under subsection (2), the registrar may require the person submitting the instrument for registration to produce a copy of the municipal property assessment or a report of a qualified appraiser supporting the valuation, however, if neither is available the registrar may accept a market value estimate provided by an experienced realtor carrying on business in the area where the property is located.
Interest not affected
35. (1) Subject to section 50 of the Personal Property Security Act, a person contracting or dealing with or taking or proposing to take a transfer of or an interest in land is not affected by a registration under the Personal Property Security Act, whether or not the person has notice of knowledge of the registration.
(2) The fact that a person referred to in subsection (1) has knowledge of a registration under the Personal Property Security Act, or that the person could have obtained that knowledge is not evidence of fraud for the purpose of section 37.
36. The registrar shall, when requested, provide certified copies of instruments that shall be signed by the registrar.
Effect of registration
37. An instrument that has not been proved and registered shall be judged fraudulent and void both at law and in equity, as against a subsequent purchaser or mortgagee for valuable consideration who first registers the instrument, or against a trustee of an insolvent estate or an assignee or trustee under a conveyance for the benefit of the creditors.
38. The minister may make regulations
(a) prescribing the manner in which instruments may be electronically filed or registered;
(b) prescribing the manner in which electronically filed or registered instruments may be reviewed for compliance;
(c) prescribing the persons or category of persons that may be approved to be licensed users;
(d) prescribing the rules governing licensed users;
(e) prescribing the circumstances which can result in the cancellation of the licence of a licensed user;
(f) prescribing the persons or category of persons that may be approved to file instruments electronically;
(g) prescribing the rules governing those approved to file instruments electronically;
(h) prescribing the circumstances which can result in the cancellation of an approval of a person to file electronically;
(i) prescribing information that may be required under section 24 for confirmation of registration;
(j) prescribing the information required and the form and manner in which notices of mortgages and other notices required by the registrar or this Act may be registered or filed;
(k) respecting a matter necessary to accommodate changes in technology relating to the registration of instruments;
(l) respecting the exemption of property from the requirements of subsection 34(4);
(m) defining a term used, but not defined, in this Act; and
(n) generally to give effect to the purpose of this Act.
39. (1) The minister may set fees to be collected by the registrar for the purpose of this Act.
(2) A fee is not payable on the registration of a deed or other instrument by or on behalf of the Crown.
40. Forms approved by the registrar may be used for the purpose of this Act.
41. A deed or other instrument validly registered under the Registration of Deeds Act is considered to be validly registered under this Act.
42. (1) Paragraph 4(1)(d) of the Electronic Commerce Act is repealed.
(2) Subsection 27(2) of the Interpretation Act is amended by adding immediately after item 25 the following:
RSNL1990 cR-10 Rep.
43. The Registration of Deeds Act is repealed.
44. This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council.
ŠEarl G. Tucker, Queen's Printer