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Survey Certificate will confirm you own your backyard
Author: 
Philippe Richer
February 18, 2020
A graphic of a man looking through a survey machine

Why pay for a Survey Certificate? Before I can answer that question, I need to explain the concept of title. We perform real estate transactions, if not daily, at least several times a week. At last count, we ask clients to sign at least a dozen documents in simple transactions. Double or triple if you need bridge financing or if you obtain your mortgage through a mortgage broker. Most of those documents are relatively easy to explain. People understand mortgage payments, privacy releases, and orders to pay. But the concept of title is less clear. Most understand that a title exists, and it has something to do with ownership. You have likely heard of people who own their title free and clear.

But What Does That Mean, Really?

In Manitoba, the province adopted the Torrens title system. The province maintains Property Registry Offices throughout the province, with the main office located on Portage Ave, in Winnipeg. These offices house the province's titles, and each title corresponds to a piece of land in Manitoba. The title contains the name of the owner and the legal description of the property. Manitoba Hydro or Bell-MTS and other utilities may have registered an easement on title. This means they can access certain parts of your land without your permission to access their equipment (or install equipment if necessary). Your bank will also register your mortgage or home line of credit there. The law states that if your name appears on title, that is indefeasible proof that you own that property. So if someone asks you to prove you are the owner of your house or land, you must show them a copy of your title.

Role of a Survey Certificate

But how do you connect the title to your land? Your title shows your name and the legal description of the land. It does not contain a civic address. How do you know that "Lot 1 Plan 23765 WLTO, in the parish of St-Boniface" corresponds to your home? It may come as a surprise to some, but lawyers cannot make that connection. We have no idea if the legal description corresponds to your new house. This is why lawyers ALWAYS recommend that you obtain a Building Location Certificate (Survey Certificate) prepared by a qualified land surveyor. A Survey Certificate is a sketch showing the property's limits and where the buildings are located on the property. The Certificate will also show if any of your buildings encroach on your neighbour's yards or vice-versa. The Survey Certificate "connects" the land to the legal description of the property. Surveyors start with the legal description and work from there. If buildings were located improperly, the surveyor would know right away.

Title Insurance

Most people in Manitoba however don't hire a surveyor to prepare a certificate. For this to be effective, you must obtain the certificate PRIOR to possession. If you obtain one after possession, you won't have any recourse due the the principle of Caveat Emptor. Instead of paying for a Buliding Location Certificate, most purchasers obtain title insurance prior to possession through their lawyer. Title insurance will normally cover defects that a Building Location Certificate will uncover. But remember: This is an insurance product. If an exclusion or exception applies, the insurance company won't cover the loss. It's important to understand what those limitations are in your circumstances.

Man Did Not Own His Own Backyard

But "come on," you say. How can this happen, especially in the city? Well, it doesn't happen often. Most buildings are built within the allowable limits. But it does happen. Just this past week, the CBC in Nova Scotia reported a man who bought a home in Truro did not purchase the backyard. It turns out the home was built on a lot with one of its borders along the home's back. The deck, backyard and outbuildings were located on a different lot. After purchasing the home, the backyard owner knocked on his door and offered to sell him the lot. You can read the full story here. In Manitoba, a church and cemetery were neighbouring on a residential lot. Mistaken about the cemetery boundaries, the church started burying people in the home's backyard. This problem was eventually remedied by exchanging pieces of land. Aside from a Building Location Certificate, as another option, you can purchase title insurance. The insurance will cover you if a Building Location Certificate has discovered the problem. Title insurance also covers you for a few other risks, but insurance is not as reliable as a Building Location Certificate.

Disclaimer - Legalese

This article is presented for informational purposes only. The content does not constitute legal advice or solicitation and does not create a solicitor-client relationship (this means that I am not your lawyer until we both agree that I am). If you are seeking advice on specific matters, please contact one of our lawyers at 204.925.1900. We cannot consider any unsolicited information sent to the author as solicitor-client privileged (this means confidential).