Can I record an easement on a piece of land in Nova Scotia that has already been migrated to the Land Registration System?

In Nova Scotia, once a property has been migrated to the Land Registration System, the rules under the Land Registration Act take over. 

Easements by Grant

In theory, all granted easements should have been recorded on both parcels at the time of migration, however, from time to time, things are missed. It is also the case that when the land registration system came into place it was not a requirement for the ‘flip-side’ burden to be recorded, so sometimes those are missing. If you find yourself in that circumstance, all that is required is for the Land Registration Office to be notified of the error (by way of a prescribed form submitted by a lawyer certified to make changes to the land registration system).

Prescriptive Easements under the Land Registration Act

The Act says that no new prescriptive easements can be created after the date of migration, so if you don’t have the required number of years (usually 20) of use in prior to migration you are out of options. If the easement has ‘Crystalized’ then you can record it on a migrated parcel. However, keep in mind you are obligated to record both the benefit of the easement on your parcel and the burden of the easement on the other parcel. Once you do that, you are obligated to give the other party formal notice that you have done so. They then have the option of disagreeing that the easement is valid and requiring you to have the court confirm the easement is valid. If you fail to do so, the burdened property owner can remove the easement from the registry.

10 Year Time Limit post migration

Because one of the goals of the Land Registration system is to provide some certainty, you only have 10 years post migration to record a non-granted easement. If you want to record an easement 10 years post migration, then you unfortunately require a court order.

s.73 Presently Used and Enjoyed Exception

The only exception to the 10 year limitation is for certain easements that can be classified as presently used and enjoyed. The Registrar General’s position is that this exception is only valid for easements created by grant or necessity, and specifically not by prescription. This position has not been tested by the court to my knowledge at the time of writing this blog. However, based on their position, the Registrar will not accept an easement by prescription for registration without a court order.

By: Dianna Rievaj - Founding Lawyer

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