A look at squatter’s rights and Newfoundland and Labrador’s Lands Act

ST. JOHN’S, N.L. — The land you might be standing on, that’s been in your loved ones for a few years, presumably generations, that you just’ve been paying taxes on, constructed on, farmed — do you personal it?

Perhaps not, in response to the provincial authorities.

The CBC reported final week on the story of Catalina couple Pauline and Randy Diamond, who had lived of their residence because the early Nineteen Eighties, and paid all their taxes.

Once they determined to promote the property, the federal government stepped in and mentioned the house is on Crown land.

It’s a scenario attorneys within the province come throughout with shoppers time and time once more, and it may be pricey to kind all of it out. Legal professionals have been asking the provincial authorities for years to repair the Lands Act.

Clarenville lawyer Greg French is passionate in regards to the concern.

French mentioned there are two programs of land tenure in Canada, of recording land possession: the registry system and the land title system.

“Underneath the registry system there’s only a authorities depository of paperwork, and every thing goes in there. … Each file of something to do with land goes into this registry,” he mentioned. “It’s as much as attorneys when land is purchased and offered to sift by way of the registry and discover any associated deeds. Our registry goes again to 1820, however historical past goes again a lot farther than that. By the point we had a registry, a authorities and a court docket system, folks had been right here for 200 years (claiming land) with out interference. That’s the old school system.

“Underneath the land title system, each parcel of land in a province is mapped. You go in, lookup a parcel of land and see who owns it in all about 10 seconds. You get a title assured by the federal government saying John Smith owns 35 Major Avenue and right here’s a survey of that a part of Major Avenue. That’s a way more steady and easy system during which the federal government is aware of with certainty what’s or isn’t Crown land. Each parcel of land is mapped and managed.”

Newfoundland and Labrador and Prince Edward Island (P.E.I.) are the one provinces nonetheless utilizing the registry system, though P.E.I. handed a legislation within the Nineteen Seventies to make adjustments, however appears to haven’t proceeded with it.

“Newfoundland and Labrador is the one place in Canada that hasn’t even checked out it,” French mentioned.

Root of chaos

Principally, all land in Newfoundland and Labrador is Crown land till confirmed in any other case.

French says there are two methods to get land from the Crown. One is by shopping for it and the opposite is by getting the rights to it by way of occupation of it, which is called squatter’s rights.

“A major quantity of land on this province is held by squatter’s rights,” French mentioned.

“Folks constructed on land and occupied it for hundreds of years with out formal title. This technique developed as a result of Newfoundland and Labrador didn’t have its personal authorities till the 1830s, regardless of being settled within the 1500s, and there was no means for the unique settlers to get title.

“Aside from a couple of efforts to encourage formal settlement at Ferryland and Cupids, settlement was formally prohibited by the British Crown. They didn’t need settlers beating British fishing fleets to the Grand Banks. By the point it was attainable to get formal title from the federal government within the nineteenth century, households had settled on land for hundreds of years, and communities had their very own understandings about who owned what land.”

With rural components of the province being poor and fishermen being paid in inventory and commerce by retailers, folks didn’t have cash to purchase land or homes.

“Land was a free-for-all,” French mentioned. “Discover an empty spot and construct your own home and develop your meals. That’s how issues went in Newfoundland up till 1976, when the federal government abolished squatter’s rights towards the Crown. However when the legislation was modified, the federal government didn’t take account of what land was occupied. They reduce off squatter’s rights, however by no means discovered what land was claimed by folks. As a substitute, it fell to folks to individually kind out their land claims, one parcel at a time.”

Certifying land titles

Underneath the registry system, with out authorities certifying land title, attorneys need to become involved and take measures to certify the title to potential patrons and to the banks.

“In the remainder of Canada, every province retains a register of possession of land, and ensures title to the individual named on the register,” French mentioned. “Newfoundland and Labrador’s system is extra like a submitting cupboard of unfastened paperwork, the place attorneys have to go looking, deed by deed, to determine who owns land. We don’t do title searches primarily based on the parcel of land. We’ve to go looking out the identify of the one who says they personal it, and search again the place they bought it from, then the place that individual bought it from, and so forth., again to the origin of title, to determine how they personal it. Authorities isn’t concerned within the title course of. Legal professionals need to make that willpower on their very own on each single transaction.

“As a result of a lot land originated with squatter’s rights, we regularly don’t discover any ‘root of title’ — how the land got here to be acquired from the Crown. We repair that by establishing squatter’s rights by getting affidavits from folks (locally) who can swear to the historic occupation.”

The present legislation in Newfoundland and Labrador cuts off squatter’s rights towards the Crown as of Jan. 1, 1977, with the one exception being that individuals can preserve land they occupied for the 20 years earlier than the legislation modified.

French mentioned courts have dominated that it’s solely the interval proper earlier than the legislation modified, from Dec. 31, 1956 to Dec. 31, 1976.

“So, first we’ve bought the issue of discovering folks in the present day, in 2022, who’re sufficiently old to recollect again to 1956, who’ve lived in the identical group since 1956, who’re nonetheless able to signing affidavits,” French mentioned.

Wanting legislation modified

Legal professionals all through the province have been pushing the provincial authorities for years to repair this legislation.

The issue is the legislation, and never the people who find themselves implementing it, French says. The Home of Meeting must make adjustments, he mentioned.

In 2021, the Newfoundland and Labrador department of the Canadian Bar Affiliation ready a report recommending a lot of adjustments to the legislation.

“The issues with this legislation have an effect on many individuals in Newfoundland and Labrador, who don’t understand it, and gained’t understand it till they go to promote their houses and the purchaser raises a title concern,” French mentioned. “The price and timeline to repair points with Crown lands claims prices 1000’s and takes a very long time.

“This impacts individuals who actually consider they personal their land as a result of it’s been of their household for generations, or as a result of they legitimately purchased it.”

Within the fall of 2015, the then-Progressive Conservative authorities introduced it was going to implement suggestions primarily based on a evaluate of the Lands Act. That work stopped, nonetheless, with the change of presidency in late November of that yr after a provincial election.

Final week, Craig Pardy, PC MHA for Bonavista, learn a petition within the Home of Meeting calling upon members to “urge the Authorities of Newfoundland and Labrador to make legislative modification to permit for a mechanism to resolve current personal land claims on Crown land and revisit the 1976 laws to abolish squatter’s rights towards the Crown.”