 Torrens
System of Land Registration
Diane Kelly.
The Torrens System of
Land Registration used by Alberta since 1887 stipulates that a
government office has custody of all original land titles and all
original documents registered against them. This system is also used
by Saskatchewan, Manitoba, British Columbia, Northwest Territories and
some areas of Ontario. The Torrens System originates from the shipping
registry. "Torrens was an Australian who observed that the title
registration and the title history of ocean-going vessels was orderly,
accurate and complete, while real estate titles and ownership
histories were in chaos. Very simply, Torrens adapted the shipping
registry methods to land registry. In the system Torrens introduced,
no claim of title or claim against a title is valid unless written and
duly registered."*
Government staff in the
Land Titles Offices in Calgary and Edmonton examine and register the
documents and issue the titles. The government then guarantees the
accuracy of the title and as a result, anyone who suffers a loss due
to an error on the title or even as a result of a fraudulent
transaction is entitled to compensation from the government. The
liability associated with this potential compensation is funded
through the collection of assurance fees.
The principles of the
Torrens system are as follows:
The Mirror Principle
- This refers to the "register" or certificate of title,
which supposedly reflects accurately and completely the current facts
about a person's title. It does not provide for facts or changes that
could be registered but which are not. In other words, a title is free
of adverse claims or burdens unless they are mentioned on the title.
In practice, this mirror principle cannot be absolutely reliable, as
there are certain public rights and burdens which do affect a person's
title even though they are not reflected in the title. Public rights
and burdens include the right of expropriation by certain authorities,
unpaid taxes, a title or right gained by fraud and certain rights or
burdens granted by legislation even though no notice appears on the
title.
The Curtain Principle
- This means that the current certificate of title contains all the
information about the title. Therefore, a historical search to verify
that the title is good is unnecessary. Here again, this principle is
not always applied and historical or "chain" searches are
made in certain circumstances.
The Insurance Principle
- This provides compensation for loss of rights. The principle is that
the register must reflect the absolutely correct status of the land.
If, through human error, a flaw appears and anyone suffers a loss, it
is made right so far as money is able to compensate.
*H. Hugh Harper, College
Business Mathematics, McGraw-Hill Ryerson Limited, Toronto,
Ontario, 1986.
Surface Rights and
Minerals Rights
The word land is
usually used to refer to the surface of the earth. In a legal sense,
however, it refers to that which extends from the centre of the earth
to the outer edge of the atmosphere. This is commonly referred to as
the "heaven to hell" concept.
Surface Rights and Minerals Rights
Someone who owns
surface rights to land owns not only the surface but also the air
space above it (subject to the rights of others, such as airlines) and
any sand, gravel, peat, clay or marl which can be excavated by surface
operations. However, surface rights do not include ownership of
minerals. Someone who owns mineral rights to land may own one specific
mineral, several specified minerals or all of the minerals (except
gold and silver, which, with few exceptions, are the property of the
Crown). If the land described on a certificate of title is surface
only, the legal description will be followed by a "mineral
reservation", a phrase such as "excepting thereout all mines
and minerals". If the title includes both surface and minerals,
it will not have a mineral reservation. If the title is for minerals
only, they will be named in a phrase like "all coal, petroleum
and natural gas" or "all mines and minerals".
As minerals represent a
great deal of the wealth of this province, it is very important that
their ownership be clearly defined. For this reason, the Land Titles
Offices are required to issue Mineral Certificates before registering
any dispositions (transfers, mortgages or leases of mineral
interests). A Mineral
Certificate certifies precisely what minerals are owned in a
specific parcel of land and by whom, on a specific date, and what
mines and minerals are shown in the disposition.
Most titles which
previously included both surface and minerals have now been separated
into "surface only" titles and "minerals only"
titles.
Copyright © TALKCalgary
2000 - 2010
Photography, &
copy
writing by Steve Kelly or as credited.
Calgary Real Estate consultant Diane Kelly, Discover Real Estate Ltd,
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