N.L. real estate agents, lawyers say they're facing a 'tsunami' of Crown Lands disputes
Darrell Roberts | CBC News | Posted: December 1, 2022 9:30 AM | Last Updated: December 1, 2022
Minister says Lands Act review will aim to streamline process
A Catalina couple fighting to gain title to the land where they lived for 40 years aren't alone in their plight, according to real estate experts who say more people in Newfoundland and Labrador could soon have similar difficulties.
Chris O'Dea, owner of O'Dea's Realty and Auction Room, said a "tsunami" of people will soon discover they don't have clear title to their land.
"The legislation clearly has to change, and that — in my opinion — is the only way to fix this problem," he said.
In 1984, Pauline and Randy Diamond built their house on a parcel of land passed down to Pauline by her father. After Pauline was diagnosed with terminal cancer, the couple decided to sell their home and move into an accessible apartment — that's when they began having problems.
The Crown Lands division is contesting the Diamonds' claim to the land, meaning they can't sell the property unless they prove they own the land — or buy it from the Crown at market price.
O'Dea said the Diamonds' battle is a familiar one.
He had his first brush with the Crown Lands division about five years ago, when a client spent three years fighting to prove they owned the land they wanted to sell. The client's title insurance provider ended up buying the land from the Crown for $40,000, said O'Dea.
Now O'Dea is in his own battle over a piece of land in the outport community of Trinity. He has documents showing ownership back to 1832.
Despite the documentation, O'Dea still has to apply for title because no one was physically occupying the land from 1956 to 1976.
"I'm willing to bet I'll be two or three years waiting to get an answer on that," he said.
A can of worms
Newfoundland and Labrador abolished squatter's rights in 1976, meaning property owners must have a Crown grant. Alternatively, property owners can obtain two affidavits from community members who can swear the land was occupied for the 20 years prior to 1977.
According to Greg French, a real estate lawyer in Clarenville, a person must be at least 77 years old to sign the affidavit — old enough to remember who occupied the land in 1956.
But age isn't the only criterion.
The person must have lived in the community during the 20 years the landowner claims the property was occupied, have no relation to the landowner and not be afflicted with any diseases that impact memory.
Sharyl Rowsell, a St. John's lawyer who works in real estate, said clients who can't obtain satisfactory affidavits can opt to apply for a Crown grant or go through the expensive court process known as quieting of titles.
"You don't want to open that can of worms unless you have to," she said.
Rowsell said her clients' biggest complaint about the Crown grant application process is how long it takes.
One of her clients has been waiting nearly 3½ years for a response to a Crown grant application. Another client waited three years and seven months, only to have their application rejected.
"If they could look at it more quickly, then we could get some … finality. As yes or a no — even if it's a no, people need to know," she said.
Rowsell said if the application is rejected, a client can ask for a judicial review of the application, begin a quieting of titles, or buy the land from the crown.
Province initiating Lands Act review
Fisheries, Forestry and Agriculture Minister Derrick Bragg — the official responsible for the Crown Lands division — said he's heard the complaints loud and clear.
"The tsunami is happening," he said.
He said his department is planning a review of the Lands Act, which encompasses the current rules regarding Crown Lands and squatter's rights, and is hoping to streamline the current process.
He said it's too early to say if the review will result in legislative changes, so anyone currently going through the process of proving title to their land should continue. Bragg said he advises anyone unsure of the status of their land to get clear title.
"We need to know clear ownership before we would give up a piece of Crown property," he said.
The provincial government previously reviewed the Lands Act in 2015, but made no substantial changes to the Crown Lands process.
While the review is happening, Bragg said, he won't direct the Crown Lands division to go against the current policies.
An 'onerous' burden
The associations representing lawyers and real estate agents in Newfoundland and Labrador agree the current rules are problematic — and want to see changes.
Joe Thorne, president of the Newfoundland and Labrador chapter of the Canadian Bar Association, said the need to prove continuous possession from 1956-1977 is "onerous."
"A number of our members are interested in changes to the Lands Act that would alleviate the burden on property owners in establishing title, including providing certainty of title and reducing the time and considerable expense of confirming title," said Thorne in a statement.
Bill Stirling, president of the Newfoundland and Labrador Association of Realtors, said he's heard from real estate agents across the province who believe the current process is "antiquated."
"It's frustrating for sellers, it's frustrating for buyers," he said. "It's disheartening because, in some cases, it's put a damper on sales completely."