Drafting minutes of settlement in mediations involving claims to land

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Mediations often involve claims by the parties to interests in land, whether by ownership, adverse possession, prescriptive rights, mortgages or easements.  Often the minutes of settlement will involve a consent to an order declaring such rights and requiring that such rights be recorded on registered title.

Arbitrators and mediators need to be aware that the Land Registry Office will honour all court orders, provided that the land registry staff are in a position to clearly understand and implement the court order.

For example, in order for the Land Registry Office staff to understand and implement the court order, the order itself cannot refer to the pleadings – the Land Registry Office staff will not review the pleadings.

The order must refer to the property by the PIN (Property Identifier Number).

To the extent that the order addresses a specific instrument on title, it must refer to the instrument by registration number.

The order should read like instructions on how to amend the PIN – expressly set forth the specific fields of each PIN that need to be amended and then specify exactly how.

It is important to specify what happens with other encumbrances shown on the PIN, especially when vesting title.  The order must direct what to do with existing instruments existing on the PIN (e.g. “delete the charge given by SMITH, JOHN to ABC BANK OF CANADA registered as Instrument No. xxxxx).  If the ORDER does not specify that an encumbrance is to be deleted, then it will remain an encumbrance on the PIN.

When the order deals with only part of a PIN (e.g. an easement over a part of the property in favour of a neighbour), then the part must itself bear a registrable legal description.  A sketch or a non-legal description will not be accepted for registration.

It is always prudent to have the land registry office pre-approve any order dealing with a change to the title to ensure that they will act on it.  Otherwise, the order may have to be amended after the fact so that the land registry office will act on it.   A knowledgeable experienced real estate mediator or arbitrator can always assist in the finalization of minutes of settlement and draft orders.

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