The common law related to real property has been thoroughly summarized in Duhaime's Canadian Real Estate Law Centre.

British Columbia does have some legislation, not to mention a land title system, that makes it unique. The following is a summary some of those laws.

Law And Equity Act

This is one of BC's most significant laws as it sets the principle that rules of equity, where conflicting with the common law, prevails. The Law and Equity Act touches upon many areas of the law. Of most concern to real estate law is the section that says that "a contract respecting land or a disposition of land is not enforceable unless there is, in a writing signed by the party to be charged or by his agent, both an indication that it has been made and a reasonable indication of the subject matter or the party to be charged has done an act ... that indicates that a contract or disposition not inconsistent with that alleged has been made." The Act goes on to say that "a writing can be sufficient ... even though a term is left out or is wrongly stated."

The Law and Equity Act also sets out most of the rules which govern foreclosures and redemption.

Property Law Act

house aka real estateThis law ( at http://www.qp.gov.bc.ca/statreg/stat/P/96377_01.htm) requires that the vendor of land must deliver a registrable title; i.e., an instrument that can be registered under the Land Title Act. The same rule applies to leases of a period greater than three years, unless the contrary is agreed upon.

This law also sets a legal presumption that where land is sold to 2 or more people, "they are tenants in common unless a contrary intention appears in the instrument." This includes purchases by a husband and wife team.

The law also does away with the ancient English law requirement of a seal on land transfer documents. Another interesting and vital aspect of the Property Law Act is the clarification that a person can transfer land to himself or herself. This may sound like an oxymoron but it is a very useful tool in severing a joint tenancy. The Act extends this rule to assert that an owner can allow, to himself, an easement or a restrictive covenant over his land. Thus, if the land is sold the easement goes with it. Accordingly, "common ownership and possession of the dominant tenement and servient tenements does not extinguish an easement."

The Property Law Act covers the transfer of the responsibilities under an existing mortgage from the seller to a buyer. In most situations, the seller will use the proceeds to pay off the mortgage and thus give title to the purchaser free of any mortgage. The purchaser will then allow his or her own mortgage to be registered against the property. The Act is for those situations where the seller's mortgage survives the sale. The rules are long and complicated and escape simplification here. Readers are invited to consult the Act for more information. The first general point is that the purchaser of mortgaged land is liable for the mortgage. The original mortgagor can be fully relieved of the responsibility for the mortgage by asking the lender to accept the new owner in lieu. The lender "shall not unreasonably refuse" and may require money to pay for credit checks on the new owner.

The Property Law Act requires all mortgagees (i.e. banks etc.) to provide, on request from their mortgagor, and free of charge, a financial statement which provides detail on the status of the mortgage including the amount payable and details on principal or interest due.

A final note on this potpourri legislation is the fix-it remedy where a fence or building is surveyed and found to encroach on another's land. Then, application can be made to the Supreme Court to order compensation or removal of the encroachment.

Finally, the Property Law Act makes it clear that Canadian citizenship is not required to buy or sell land in British Columbia. This may be different, however, where the purchaser is a company. The Company Act says that an unregistered extraprovincial company is not allowed to buy or acquire land in BC. Note also that the Land Titles Act requires that a statement of citizenship be filed for every purchaser, identifying themselves as citizens, landed immigrants or foreigners.

Land Title Act

This is the patriarch (matriarch?) of BC land legislation. The Land Title Act is the technical document which sets out how the land titles offices work, who the registrar is and what powers they have, how to register an interest in and, and a host of other things material to the proper administration of BC's land title system.

BC has a land title system developed by Robert Torrens in Australia in the last century. Hence, it is known as the "Torrens System." Torrens thought that every piece of property should be have a registry in which every transaction should be recorded. This was the way ships were registered and Torrens was impressed with the certitude the registry system provided to those inquiring on the status of ownership.

British Columbia is divided into seven land title districts (Kamloops, Nelson, New Westminster, Prince George, Prince Rupert, Vancouver and Victoria), each district having a registrar. The registrar must be either a lawyer or have at least 12 years standing as an employee of a land title office. The land title office has a special seal and the law says that the offices are open on regular business days from 9 to 3. Registrars and land office staff are exempted, by law, from error or omission liability. They are also entitled to ignore a subpoena which requires them or the official records, to be transported out of the land title office. Instead, they must be examined at their office and if records must be examined for the purposes of a court proceeding, this must occur at the Land Titles Office. Land titles are stored in a vault in each office and nobody, not even lawyers, have access to the original documents (an exception is made for senior officers of certain search firms).CPL

A Land Title Office certificate describing the state of the title is conclusive evidence against all persons and for that reason, security surrounding the Land Titles Office vault can be understood. Under the Land Titles Act, "except as against the person making it, no instrument purporting to transfer, charge, deal with or affect land ... or interest in it is operative ... either at law or in equity ... unless the instrument is registered in compliance with this Act." A notable exception to this is the lease for 3 years or less, where there is actual occupation. Other exceptions include fraud, easements, Crown rights, caveats and builders liens.

The date of registration is the key date when conflicts arise; not the date on the documents themselves which affect the land. The date of registration is actually the time of application. The registrar stamps all documents he accepts with a stamp which indicates the date and time of the application. The registrar does have the authority to reject application and for a variety of reasons. Some examples are use of the wrong form, application is not in writing, the boundaries of the land are unclear, or some other instruments prevents registration (eg. caveats or a certificate of pending litigation):

  • Caveats allege an interest in the land and requests the registrar to suspend the registration of any other instrument against the land for a period of 60 days. A caveat expires after 60 days. The caveat must convince the registrar that an interest may exist. Title is frozen by caveats.
  • Certificate of pending litigation can also be registered against title and also have the effect of freezing title. These certificates state that a legal action has been commenced in which title to the land is at issue. The Land Transfer Act does allow a transfer in spite of a certificate of pending litigation if the transfer is made subject to the legal proceedings. The Act also allows the registration of some charges even where a certificate of pending litigation has been registered. These include caveats, subleases, judgments, certificate of builders lien or another certificate of pending litigation.

Fraudulent Conveyance

Under the Fraudulent Conveyance Act, any conveyance of property (including real property) made to hinder or defraud creditors is void and of no effect against those creditors unless the transfer was made for good consideration and done in good faith "to a person not having, at the time of the transfer, any notice or knowledge of collusion or fraud."

BC also has a Fraudulent Preference Act which covers the acts of persons who are insolvent done with the intent to hide assets with the intent to defeat or hinder creditors. As with the Fraudulent Conveyance Act, this law also exempts the "good faith" sales of assets in the ordinary course of business but adds the extra requirement that the "property disposed of bears a fair and reasonable relative value to the consideration." The Fraudulent Preference Act allows creditors to follow the assets where they were fraudulently purchased. The creditor can then seize any proceeds realized by the purchaser. Another option is to go to the Supreme Court of British Columbia and apply to have the fraudulent sale set aside.