Civil Procedure Rules of Nova Scotia  
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Part 15 - Other Kinds of Proceedings

Rule 74 - Other Sales by the Court

Scope of Rule 74
74.01 (1) This Rule provides for sale of property as a final remedy and for setting terms for the conduct of a sale by interlocutory order under Rule 42.09, of Rule 42 - Preservation Order.
  (2) A party may seek an order for sale or other disposition of property, in accordance with this Rule.
       
Order for sale or possession
74.02 (1) In a proceeding relating to property, a judge may order that the property, or part of it, be sold, mortgaged, exchanged, or partitioned.
  (2) A judge who makes an order for the sale, mortgage, exchange, or partition of property may order a party to deliver possession of the property or rents and profits of the property to a purchaser, mortgagee, or other person.
       
Conveying interest of party
74.03 (1) A judge may order a party who has an interest in property ordered to be sold to execute and deliver an instrument transferring the interest.
  (2) A judge may order that an interest of a party in property ordered to be sold is transferred as if the party had executed and delivered an instrument, and the interest transfers as the order provides.
       
Method of sale
74.04 (1) A judge who orders a sale may order that the sale be conducted by whatever method the judge is satisfied is likely to produce the greatest proceeds.
  (2) The following are examples of methods of sale that may be considered:
   
(a)
marketing by a qualified person with power to conclude an agreement subject to approval by a judge;
   
(b)
marketing by a qualified person with power to conclude an agreement without further approval;
   
(c)
public auction conducted by the sheriff or another qualified person;
   
(d)
tender conducted by the sheriff or another qualified person.
       
Other terms for conduct of sale
74.05   A judge who orders a sale must appoint the person to conduct the sale and give necessary directions to that person, which may include directions on any of the following subjects:
   
(a)
marketing the property, such as advertising or a real estate listing;
   
(b)
entering into, and closing, a proposed agreement without marketing;
   
(c)
paying the person conducting the sale;
   
(d)
authorizing, or requiring, the person to retain a lawyer;
   
(e)
fixing a reserve or minimum bid, or a list price;
   
(f)
establishing terms required in an agreement, terms for tender, or terms binding on a party who bids at an auction.
       
Expenses of sale
74.06 (1) A judge who orders a sale must provide terms for payment of the expenses of the sale, including remuneration of the person conducting the sale.
  (2) A judge may order that some or all of the costs of the proceeding are included in the expenses of the sale, including, if necessary, a valuation and a title opinion.
  (3) The judge may order that the expenses form a charge on the property and the proceeds of sale in priority to the interest of a party.
       
Variation
74.07 (1) A judge may vary a term under which property is offered for sale, change instructions for the conduct of a sale, or substitute a method of sale before an agreement for sale of the property is made.
  (2) After an agreement for sale is made, a judge may vary a term or condition of the agreement with the consent of the purchaser.
       
Report
74.08   The person having conduct of a sale must file a report on the sale as soon as possible after the sale is concluded.
       
Approval and discharge
74.09   The person who conducts a sale must make a motion for an order approving the conduct of the sale and discharging the person from duties under the order for sale, unless the order for the sale provides or a judge permits otherwise.
       
Duty to disclose defects
74.10   A person who seeks an order for sale of property and who knows of a defect in title to the property, or any other defect that may not be apparent to a purchaser, must do both of the following:
   
(a)
disclose the defect to the judge who hears the motion for the order;
   
(b)
take reasonable steps to ensure that a potential purchaser is made aware of the defect.
       
No assurances of title
74.11 (1) A sale by the court is without assurances to the purchaser, except for an express assurance in the conveyancing instrument given by the person who sells on behalf of the court.
  (2) A person who determines whether to purchase property being sold by the court must rely on the person’s own inquiries about the property, and the following are examples of measures the person may need to take:
   
(a)
a lawyer’s investigation and opinion on title, or restrictions on land use;
   
(b)
a surveyor’s investigation and opinion on boundary locations;
   
(c)
a thorough physical inspection by the potential purchaser or an expert;
   
(d)
an engineer’s, builder’s or mechanic’s inspection and opinion on compliance with environmental requirements or standards;
   
(e)
a builder’s or mechanic’s inspection and opinion on structural or mechanical defects.
       

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