Court of Appeal

Judge:

The Honourable Justice Peter M.S. Bryson

Appeal Heard:

April 9, 2018, in Halifax, Nova Scotia

Subject:

Real Property. Land Registration Act. Easements. Overriding Interests. Correction of Registry.

Summary:

All parties own properties in a subdivision created in 1983 bordering on Caribou Lake, Lunenburg County, Nova Scotia.  In 2010, the appellant, Mr. Penney, purchased a lot and migrated it to the registry under the Land Registration Act.  The respondents claimed a right-of-way to the lake over a portion of Mr. Penney’s property, granted in 1983.  No such right-of-way was noted in Mr. Penney’s migration, and he denied that the respondents enjoyed the claimed right-of-way.  The respondents successfully applied for a declaration and correction to the registry.  Mr. Penney appealed.

Issues:

(1)         Did the respondents’ deeds grant the claimed right-of-way?

(2)         If so, was it necessary for the judge to consider the equitable factors in s. 35(6) of the Act regarding whether to correct the registry?

(3)         If so, did the judge err by deciding to correct the registry?

Result:

Appeal dismissed.  The respondents were granted rights-of-way which were overriding interests enforceable against Mr. Penney, even if not recorded or registered (s. 73(1)(e) of the Act).  The equitable factors in s. 35(6) of the Act, applied to confirming, not correcting, a registration.  In any event, the respondents were entitled to record their rights-of-way under s. 47(4) of the Act, precluding any exercise of discretion under s. 35(6).