When is a Court Order Required to Rectify Title?

Paula Puddy, HBA LLB MBA

Solicitors tell me that it is relatively uncommon to draft motion materials to obtain a court order to rectify title.

Here are some examples of when a court order may be required: the parties on title are long deceased, a historic/undischarged mortgage is present, or a vesting order is required.

Regardless of what kind of order the DoT needs to rectify title, Casey Hayward walks you through Rule 38 of the Rules of Civil Procedure.

Casey’s 9 step process is as follows:

1. Identifying if a court order is required, or if there are alternatives;
2. If yes, how do you proceed? Where can you find the jurisdiction for your order?
3. Interview the Applicant and other parties to establish a clear fact pattern for your Affidavits;
4. Draft the Application;
5. Prepare a Factum. This may be overkill, but it is likely very helpful to the Judge unfamiliar with real estate matters
6. Service or Proceeding Ex Parte;
7. Serving the Respondent;
8. Prepare for motions court (don’t forget to gown) & bring a draft order;
9. Register the Order & fulfill any undertakings.

In his materials, Casey provides a chart outlining the steps in more detail than described above including references to the forms required, the applicable legislation and the goal of each step.

Good luck obtaining your court order!

Watch the video

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Do you farm out this type of litigation, or do you undertake it yourself? Do you have difficulties with any of these steps? Feel free to reply to contact me and share your opinion or knowledge.

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