Transferring Title

Information about real property is recorded on the title to the property. It is very important to search the title when buying real estate. The Information Services Corporation of Saskatchewan (ISC) maintains the land titles registry. If a lawyer is acting for the buyer, the lawyer will search the title. Individuals can also do their own search online through ISC. A search of the title shows:

• the name of the current owner of the property
• the legal description of the property
• whether there interests or claims registered against the property

Other interests may not be registered on the title but could still affect the property. This could include interests like court judgments, including child or spousal support orders. Municipal tax records should be checked to determine the amount of property taxes and whether the seller's payments are up to date.

An interest registered on a title is a warning that someone has a claim against or a right in the property. As a buyer, it is important to know about these interests. For example, someone may have put an interest on title because the property owner owes them money. This could affect the property after you buy it and the title is in your name. A lawyer often can arrange to have interests removed from the title before title is transferred.

Most buyers want clear title to the property they are purchasing. Clear title means that no one else has any rights to the property. To get clear title, it is necessary to have all other interests removed before title is transferred to the new owner.

Any mortgages registered against the property should be paid out when property is transferred to a new owner, unless the new owner is going to take over that mortgage.

Mortgages relating to a property will be registered as an interest on its title. Mortgages registered against the property need to be paid out when property is transferred to a new owner. The exception to this is if the new owner is going to take over the mortgage.

If the buyer has a mortgage, it will be registered against the title as soon as the title is transferred to their name. If the seller finances the purchase of the property through an agreement for sale, the seller retains title to the property. In this case, the buyer can register the agreement for sale on the title by way of an interest.

A lien is a type of interest that can be registered against property. This happens when the property owner owes someone money. A common type of lien is a builder’s lien. The Builders' Lien Act gives tradespeople who have worked on a property the right to register a lien against the property. The lien stays on title until they are paid for their work or a court orders that it be removed. A lawyer may be able to arrange to have liens against the property paid out by the seller and removed from the title. It is important that appropriate steps be taken to avoid the buyer being stuck with the seller's obligations.

If a person is sued, a court may order that they pay a judgment. This judgment can then be registered as an interest against that person’s property. The seller needs to pay out these debts before the property is transferred to the new owner. If not, the property could be seized and sold to pay the judgment.

An easement is a right that someone other than the owner of the property has to use the property in a particular way. Easements usually continue to be registered as interests on title even when property is transferred to a new owner. There is often little that can be done to remove an easement from the title. Easements are common, but it is important for buyers to know about any easements. Examples of easements are:

• the right of a neighbour whose land has no street-front access to use a strip of your property to reach the street
• the right of a utility company to access and maintain their infrastructure on the property

One of the last steps in purchasing a home is taking title. Once title is in your name, you are the owner of the property. This transfer takes place through the ISC’s land title registry and can be done online. The transfer consists of:

• the current owner’s authorization to transfer title
• an affidavit proving their authorization
• an affidavit setting out the value of the property
• the name or names of who title is being transferred to

A buyer may have to decide whether to have title in one name or to share ownership. There are two types of shared ownership: joint tenancy and tenancy in common. There is a significant difference between the two, so legal advice should be considered.

Joint tenancy means that multiple people are each the owner of the whole property. All the joint owners of the property must consent to any sale or mortgage of the property. Unless otherwise stated, joint tenants have a right of survivorship. This means that the survivors become the sole owners of the property when one of the joint tenants dies. For example, if there are two owners and one dies, the other becomes the sole owner.

Tenancy in common means that there is more than one owner and that each owns an individual share of the property. Each owner has access to and use of the entire property but owns only a portion of it. The shares can be equal or unequal. Each owner gets a separate title that shows the percentage of the property that they own.

For example, two people could contribute different amounts to the purchase of a property and set up ownership based on how much they each paid. One could own 70% of the property and the other 30%. If they sold the property, the net proceeds would be divided accordingly between the two owners. If one of them died, their share would form part of their estate and be distributed according to their Will. This is because a tenancy in common has no right of survivorship.