How to Process a Land Transfer

Step 1: A Request to Transfer Land is Made

A request to transfer land is made, by sale or gift. Refer to the Lands File Note.

Step 2:  First Nation to Begin Lands Research

Verify:

• CP Holder information, provided at initial meeting, recorded in Land File Note & notify of any discrepancies

• If a section 10 band, confirm band membership for the party receiving the land

• Confirm lawful possession via parcel An area of reserve land regardless of dimension. abstract

• Review Parcel Abstract for encumbrances (e.g. mortgages, etc.)

• Verify Access The way or means to approach, to enter and to leave a privately owned tract of land from a public way without trespassing on other privately owned property

• Review Reserve General Abstract The Reserve General Abstract contains particulars which relate to the establishment of a reserve, transactions such as a surrender or designation of reserve land and other transactions that affect the reserve as a whole. Report to check for any additional encumbrances, i.e. blanket permits, etc. 

• Legal Land Description A description by which property can be definitely located by a reference to surveys or approved recorded plans within a system set up by law or approved by law. as specified on the Survey Plan (for more information about survey requirements, please see Surveys)

• Whether this falls within the parameters of your First Nation Land Use Plan or applicable Bylaws

Step 3:  How to Prepare the Land Transfer

• Obtain your transfer form

• Ensure Land Transfer The process which allows a lawful possessory (locatee) to give his or her lawful possession of reserve land to another member of the First Nation, or Band, under section 24 of the Indian Act. information from the Lands File Note/research is correctly transposed into Land Transfer Form

• Ensure the Transfer of Land is dated

• Ensure the transfer is signed by a witness (who must be over the age of 18)

• Ensure that a monetary value is identified

• Ensure that the Affidavit of Execution A written statement, sworn before a person having authority to administer an oath, by a person having witnessed a document testifying to the document having been signed by the parties thereof. is signed by a Commissioner of Oaths or Notary Public

Witness and commissioner cannot be the same person.

If two or more individuals are receiving the land, it is encouraged the use of joint tenancy or tenancy in common agreement forms, so that the parties understand how they hold the interest.

Step 4:  Matrimonial Real Property Requirements

Under the Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA) the Provisional Federal Rules will apply:

A locatee must obtain their spouse’s or common-law partner’s consent if the transfer will dispose of or encumber the family home. the following forms may be applicable:

• Assessment of Matrimonial Real Property and Statutory Declaration

• Statutory Declaration of Spouse or Common-Law Partner Form

• Ensure that the applicable forms are signed by a Commissioner of Oaths or Notary Public

If the transferee/applicant has a spouse and is separated, and also has a common law spouse, both would be required to execute this form. 

Each situation is unique, please contact the Lands Officer at your Regional Lands Office to determine which forms are applicable in specific scenarios.  You may also refer to resources on the www.coemrp.ca website.

If your Band has enacted their own Matrimonial Real Property Law under the Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA), please refer to your law to clarify specific processes required for a transfer of land.

Step 5:  Register with the Indian Land Registry office.

Send finished original package to your Regional Office.

Step 6:  Distribution

• Once you receive a Certificate of Possession, issue the one original copy to the locatee(s). (Inform the CP Holder that only one original copy is issued.)

• Ensure you keep a duplicate copy of the certificate of possession along with a copy of the application package in your local First Nations lands file.

Completed lands registry documents are classified as Protected B documents, please ensure you are protecting the information of your clients by securing these documents in a responsible manner - for more information on the Federal Privacy Act & the Personal Information Protection and Electronic Documents Act (PIPEDA). PIPEDA is the federal privacy law for private-sector organizations. It sets out the ground rules for how businesses must handle personal information in the course of their commercial activity. For more information visit https://laws-lois.justice.gc.ca/ENG/ACTS/P-8.6/index.html.