LET'S MAKE A DEAL
By Fred C. Hutchinson, BA, NSLS, CLS

 

Have you ever thought of why you sign an agreement of purchase and sale when buying or selling property?

Well, once upon a time, 1066 A.D. to be more precise, William the Conqueror paid a visit to "Merry Old England" with about 1500 Barons and their supporting armies. Following the English defeat at the Battle of Hastings, William declared himself King of England and claimed ownership of all the lands. He then granted large areas of land or estates to his Barons as a reward for their loyalty. Absolute ownership, however, still remained with the King while the "feudal lords" had the right to manage and tax the people who lived on their estates. The Lord of the Manor even had the say in who could marry whom.

During the next several hundred years, the feudal system eroded to the extent that many commoners were favored by the Crown and allowed to possess property. Eventually the power of the Lords was reduced and the Crown allowed title to be inherited and transferred by the general public. Even today the buying and selling of land is an everyday occurrence but ultimate title is still vested with the Crown, thus the ability to expropriate. Illiteracy was very common during the Middle Ages and, more often than not, property would be sold by a verbal agreement with only witnesses and no written record. With a high mortality rate and the lack of documentation, the climate for title problems was ideal.

In 1677 A.D., the Statute of Frauds was passed by the English Government. The new Law stated that all transactions dealing with land must be in writing. Now, at least, a purchaser had a dated document to support his land claim and hopefully the person selling the property was the legal owner.

Nova Scotia was a British colony and was bound to adopt the historical laws of England. Even the laws of the United States of America are rooted in British history. Today the Nova Scotia Statute of Frauds states that in order for an agreement to buy or sell property to be recognized by the courts, it must be in writing. You can still make a verbal agreement if you wish, but if either party changes their mind your contract is not binding. The transfer of land, under section 3 of the Act , must be in writing just as in 1677.

Now you have a deed! Do you hide it away in a closet so your neighbors and the "taxman" don't know what you own, or do you record it in the registry office? The Registry Act of Nova Scotia does not compel you to record your deed. The Act, however , does state that the first person to record the deed of a particular parcel of land is the legal owner.

In other words, if I sell Tom a piece of land and then fraudulently sell Bill the same piece of land the next day, who owns the land? Why, Tom of course! But wait a minute, Bill didn't know that his deed was invalid and assumed he owned the property. He then proceeded to the Registrar of Deeds and recorded his document. Under the Registry Act and in the "eyes of the court", Bill is now the legal owner of the land. Tom will probably commence legal action against me for damages claiming breach of contract and fraud.

So the next time you are involved in a land transfer or are thinking of buying your first home, realize that an agreement of purchase and sale is standard practice, supported by the courts and usually involving a deposit. Filing your deed in the Registry of Deeds office is for your own protection and allows any future owner to check the quality of your title.

 

Fred Hutchinson has been the Executive Director of the Association of Nova Scotia Land Surveyors
since 1999 and also is a Past President of the Association.  Mr. Hutchinson was licensed in 1971,
employed by municipal government for nearly six years and spent over twenty-two years in private practice.