Law Times

Law Times • January 17, 2011 FOCUS PAGE 13 POLARIS automation proves convenient But provincial government's electronic land database still has its flaws BY DARYL-LYNN CARLSON For Law Times mation System enables lawyers to search ownership data for properties from their comput- ers, there are glitches that can present problems. All of the information in the W POLARIS database comes from the actual land registry office documents. "It eliminates the need for us to go to the land titles office, and we can access the system from our own office until the evening," says Cheryl Cruickshanks, a real estate law- yer with Heydary Samuel PC in Mississauga, Ont. "It also lets our clerks do a search if we don't have time." The POLARIS registry con- tains updated land title infor- mation to indicate the current and legal owner, and "the gov- ernment now guarantees the title so we don't have to look to see who the past owner was," Cruickshanks explains. Lawyers can access PO- LARIS land title documents through Teraview software. Despite the convenience of searching land title ownership online, there are a few glitches lawyers can encounter that need to be checked or can re- quire additional work to ensure the property on the database is indeed what it purports to be. For instance, Cruickshanks says while it's not imperative to commission a land survey, "I find it's helpful in order to assure the client the property as outlined on the database is in fact what they are getting." She notes a land survey can be helpful for a property with a neighbouring fence, for ex- ample. "A client who is buy- ing a property that has a fence might want at very least to go to the property with their real estate agent and take mea- surements and make sure the fence is on the current prop- erty line if they don't want to pay for a survey," Cruick- shanks says. "Title insurance will cover most defects but not if a fence is not on the lot line." Under the old registry sys- tem, a lawyer would have to search to see if there was an overlap of owners and, if so, find out who owns the part of the property in question and whether they have clear title. "This system provides much more of a guarantee of owner- ship and clarity, but there are still things that lawyers have to check," Cruickshanks points out. Besides fences and surveys, the registry won't show any mortgage debt information or fraud, so lawyers must clear those issues separately from the land title search. Yet because the electronic conversion process didn't require hile the Province of Ontario Land Registration Infor- an application by the owner and therefore doesn't include a cur- rent survey, if there is a conflict of information there could be a need to serve a notice of applica- tion upon interested parties or a hearing process that would iden- tify and resolve any title dispute arising from differing informa- tion. On its web site, Heydary Samuel PC has posted an ar- ticle explaining some of the complexities that can arise should there be a discrepancy over the POLARIS land title document found on a search. It says that in the event of a conflict, a lawyer needs to un- dertake three steps: 1. Preparation and service of a notice of application and a copy of the draft reference plan on all adjoining land- owners and other interested parties. 2. The landowner must then wait 30 days for any objections to be raised be- fore proceeding with the application to the land reg- istrar. 3. If any objections are raised that cannot be resolved be- tween the landowner and the objector, the file may then be referred for review and, if necessary, a full hearing may be held by the director of titles. "Once all of these steps have been completed, the ap- plication is ready for submis- sion to the land registrar," the article concludes. "Once the land registrar is satisfied with the application, it will remove the qualifiers and enter the ap- plicant as the owner with an absolute title." As well, there could be com- TitlePlus_LT_Nov3_08.qxd 10/27/08 11:11 AM Page 1 plexities raised through the Construction Lien Act, which has not been fully updated to conform to the POLARIS sys- tem, says Brendan Bowles, a real estate lawyer with Glaholt LLP in Toronto. "You can, as a builder, reg- ister a lien on a title to land, although in certain ways, the act and the Teraview system do not jive," says Bowles. As a result, he and a num- ber of other lawyers have met with the province in a bid to resolve the problems caused by construction liens and the requisite affidavits that must accompany them. "The new statute that has been passed but has not been proclaimed will address these issues," says Bowles. "Most im- portantly, verification of an af- fidavit is no longer needed." In a paper he presented at a continuing education session, he noted the elimination of the affidavit requirement for a construction lien will facilitate simpler electronic registry of all land and real estate property documents. LT The Construction Lien Act and Teraview don't jive in some ways, says Brendan Bowles. Built just for you Together we have all the tools The TitlePLUS® Program works with you to help protect your clients from title risks.1 assist you, through our legal services coverage2 result of an error or omission in your real estate transactions. To ensure your clients get the most comprehensive coverage in one policy, take a look at the TitlePLUS Program, your Bar-related® real estate partner! With the right tools we , by reducing the inconvenience of dealing with a loss as the PROTECTION AS GOOD AS IT GETS 1-800-410-1013 2 Excluding OwnerEXPRESS® policies and Québec policies. ®TitlePLUS, the TitlePLUS logo, OwnerEXPRESS and LAWPRO are registered trademarks of Lawyers' Professional Indemnity Company. ®BAR-RELATED Mark is a registered Mark of North American Bar Related Title Insurers used by LAWPRO under License. titleplus.ca 1 Please refer to the policy for full details, including actual terms and conditions. The TitlePLUS policy is underwritten by Lawyers' Professional Indemnity Company (LAWPRO®). Contact LAWPRO for brokers in Saskatchewan, Manitoba, Alberta and Québec. www.lawtimesnews.com

• Cover
• Duelling Lawyers
• Feminized Justice
• Focus On Real Estate Law