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Torrens Land RegistrationTorrens System of Land Registration
Diane Kelly. 

The Torrens System of Land Registration used by Alberta since 1887 stipulates that a government office has custody of all original land titles and all original documents registered against them. This system is also used by Saskatchewan, Manitoba, British Columbia, Northwest Territories and some areas of Ontario. The Torrens System originates from the shipping registry. "Torrens was an Australian who observed that the title registration and the title history of ocean-going vessels was orderly, accurate and complete, while real estate titles and ownership histories were in chaos. Very simply, Torrens adapted the shipping registry methods to land registry. In the system Torrens introduced, no claim of title or claim against a title is valid unless written and duly registered."*

Government staff in the Land Titles Offices in Calgary and Edmonton examine and register the documents and issue the titles. The government then guarantees the accuracy of the title and as a result, anyone who suffers a loss due to an error on the title or even as a result of a fraudulent transaction is entitled to compensation from the government. The liability associated with this potential compensation is funded through the collection of assurance fees.

The principles of the Torrens system are as follows:

The Mirror Principle - This refers to the "register" or certificate of title, which supposedly reflects accurately and completely the current facts about a person's title. It does not provide for facts or changes that could be registered but which are not. In other words, a title is free of adverse claims or burdens unless they are mentioned on the title. In practice, this mirror principle cannot be absolutely reliable, as there are certain public rights and burdens which do affect a person's title even though they are not reflected in the title. Public rights and burdens include the right of expropriation by certain authorities, unpaid taxes, a title or right gained by fraud and certain rights or burdens granted by legislation even though no notice appears on the title.

The Curtain Principle - This means that the current certificate of title contains all the information about the title. Therefore, a historical search to verify that the title is good is unnecessary. Here again, this principle is not always applied and historical or "chain" searches are made in certain circumstances.

The Insurance Principle - This provides compensation for loss of rights. The principle is that the register must reflect the absolutely correct status of the land. If, through human error, a flaw appears and anyone suffers a loss, it is made right so far as money is able to compensate.

*H. Hugh Harper, College Business Mathematics, McGraw-Hill Ryerson Limited, Toronto, Ontario, 1986.

Surface Rights and Minerals Rights

The word land is usually used to refer to the surface of the earth. In a legal sense, however, it refers to that which extends from the centre of the earth to the outer edge of the atmosphere. This is commonly referred to as the "heaven to hell" concept.

 

Surface Rights and Minerals Rights

Someone who owns surface rights to land owns not only the surface but also the air space above it (subject to the rights of others, such as airlines) and any sand, gravel, peat, clay or marl which can be excavated by surface operations. However, surface rights do not include ownership of minerals. Someone who owns mineral rights to land may own one specific mineral, several specified minerals or all of the minerals (except gold and silver, which, with few exceptions, are the property of the Crown). If the land described on a certificate of title is surface only, the legal description will be followed by a "mineral reservation", a phrase such as "excepting thereout all mines and minerals". If the title includes both surface and minerals, it will not have a mineral reservation. If the title is for minerals only, they will be named in a phrase like "all coal, petroleum and natural gas" or "all mines and minerals".

As minerals represent a great deal of the wealth of this province, it is very important that their ownership be clearly defined. For this reason, the Land Titles Offices are required to issue Mineral Certificates before registering any dispositions (transfers, mortgages or leases of mineral interests). A Mineral Certificate certifies precisely what minerals are owned in a specific parcel of land and by whom, on a specific date, and what mines and minerals are shown in the disposition.

Most titles which previously included both surface and minerals have now been separated into "surface only" titles and "minerals only" titles.

 

Copyright TALKCalgary  2000 -  2010 
Photography, &  copy writing by Steve Kelly or as credited.
Calgary Real Estate consultant Diane Kelly, Discover Real Estate Ltd,
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