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Bulletin information:

Issue Date: December 14, 1990
Legislation: Easement Statute Law Amendment Act, Statutes of Ontario, 1990, chapter.4., The Land Titles Act and The Registry Act

Bulletin content:

The Easement Statute Law Amendment Act, 1990 became law on June 21. In it are many changes, most of which deal with altering the forty-year rule in the case of Municipal Easements. The following is an outline of the background and substance of The Act.

The Registry Act provides for a system in which interests in land are protected by the registration of documents and plans. The system protects interests by providing notice of them to other persons.

Prior to 1981, registered easements could be preserved beyond the forty-year search period contain in The Registry Act by either registered a notice of claim or by referencing the easement in other instruments.

In 1981, Registry Amendment Act, 1981 eliminated the second option of referencing easement in other instruments in order to facilitate the automation of land records. Therefore, an interest in land, including a municipal or the Ministry of Government and Services easement, could not be preserved by its mention in an unrelated instrument. Easements older than forty years could still be protected by a Notice of Claim.

Since the 1981 elimination of the referencing option for maintaining interests, many municipalities were unable to register notices of claims because they were not certain of the location or extent of many of their easements. The uncertainty was due to a number of reasons, such as the amalgamation of smaller towns where records were not complete. Therefore, the Ministry proposed The Easement Statute Law Amendment Act, 1990, based on a proposal from the Association of District, Metropolitan and Regional Solicitors which and been adopted by the Association of Municipalities of Ontario. Both the Ministries of Municipal Affairs and Government Services were involved in the development of the Acts.

The Act exempts municipal and the Ministry of Government and Services easements from the requirement of registering a notice of claim until December 31, 1999 and retroactively preserves/recreates these easements expiring since 1981. It is expected that the Act will protect these interests for a time sufficient for the municipalities and the Ministry of Government and Services to locate and register their easements. Compensation will be provided as most owners know the locations of these easements on their properties.

Attached are a copy of The Act and a list of its highlights. It is important to note that there are no changes to registration procedures caused by these amendments.

Highlights: Easement Statute Law Amendment Act, 1990

Section I

  • Amendment to subsection 106(7) of The Registry Act. The registration of a notice of claim does not extend a claim that has expired for some reason other than the expiry of the notice period in The Registry Act.
  • Adds section 106a to The Registry Act and relates to public utility easements of municipalities and easements of the Ministry of Government Services. Easements that existed on July 31, 1981 continue until December 31, 1999, notwithstanding that they were not protected by the filing of a notice of claim prior to this Act coming into force.
  • Persons who are prejudiced by the continuation of these easements are eligible to receive compensation, unless the easement is abandoned.
  • Easements can be protected beyond December 31, 1999, by the registration of a notice of claim.

Section II

  • Adds section 195a to The Municipal Act and related to municipal public utilities. The law is changed so that a municipal public utility easement is no longer required to be attached to any particular parcel of land to be valid.
  • Municipal public utilities constructed on land with the consent of the owner are exempted from Part III of The Registry Act, which deals with the investigation of titles and the expiry of certain claims. Therefore, the forty-year search rule does not apply when there has been consent of the owner.
  • Interference with municipal public utilities that are not protected by easements is prohibited, unless there is a court order or municipal consent.
  • Municipalities are granted the right to enter lands fro the purpose of repairing their utilities.
  • Where a municipality has located a public utility on what was mistakenly believed to be a road allowance, the municipality is deemed to have an easement and the owner is entitled to compensation to be determined in accordance with The Expropriation Act.

Section III

  • Section 9a is added to The Ministry of Government Services Act and related to the public utilities of that Ministry. It provides the same scheme for the Ministry of Government and Services as the amendment in section 2 provides for municipalities.
  • A spouse’s right to possession of a matrimonial home under section 189 of The Family Law Act, 1986, is not an interest in land and can therefore not be protected by registration of a caution. Land registrars should not accept for registration a caution that is based on this right.

Original signed by:

Carol D. Kirsh, Director of Land Registration
Katherine M. Murray, Director of Titles

View original attachment(s) in PDF.
Contact the Director of Titles for accessible versions of additional PDF attachments.