141 Subdivision Of Land Into Air Space Parcels

PRACTICE

Section 141 enables a fee simple owner to subdivide land in two different manners. The owner may:

1. create one or more air space parcels by the deposit of an air space plan in accordance with ss. 143 and 144 of the Act; or
2. subdivide such an air space parcel in accordance with the Strata Property Act, S.B.C. 1998, c. 43.

Subdivision of Remainder following Registration of Air Space Plan

Once a remainder is created on the deposit of an air space plan, it comprises a separate legal title. The result is that the owner of a remainder may subdivide it in compliance with the Act, and upon satisfying the registrar that the requirements of ss. 143, 144, and 169 have been met (see the commentary under s. 169 of the Act in chapter 12 (Land Title Act Part 11 (ss. 169 to 184)—Registration in Fee Simple)).

In circumstances shown in Figures 1 through 6 below, the owner of a remainder may:

1. create one or more additional air space parcels from the remainder, by the deposit of a subsequent air space plan pursuant to s. 141(1);
2. subdivide the remainder by depositing a subdivision plan pursuant to Part 7 of the Act;
3. dedicate part of the remainder pursuant to s. 107 of the Act, e.g., as road, park, or return to Crown; and
4. subdivide the remainder by depositing a strata plan under Part 14 of the Strata Property Act.

The requirements of s. 169(1) will have been satisfied in connection with either a subdivision or a subsequent air space plan subdivision of a remainder, provided there is no overlap vertically (i.e., no lying above or below) as a result of the adjacency of the boundaries of the newly subdivided parcel or air space parcel and the boundaries of the initial air space parcel (see example diagrams below), and the plan subdividing the remainder contains a notation and certification to that effect from the land surveyor preparing the plan.

In the below examples, the subdivision of the remainder creates new parcels that are sufficiently defined for the purposes of s. 169(1) by filing either a subdivision plan or an air space plan, provided that the requirements of Part 7 and s. 144, respectively, are satisfied.

The new remainder may again be subdivided by filing either a subdivision plan or a further air space plan, on the same basis, as long as there is no overlap vertically as a result of the boundary adjacency with the previously created air space parcels.

Dedications Permitted Pursuant to Section 107 of the Act

Dedications on a remainder are acceptable as long as there is no overlap vertically as a result of the adjacency of the boundaries between the lands being dedicated with the boundaries of the previously created air space parcels.

Strata Plan Permitted

The remainder may be subdivided by depositing a strata plan under Part 14 of the Strata Property Act. A strata plan is acceptable in these circumstances; i.e., where an air space parcel has been previously subdivided out of the remainder, without requiring a reference plan under s. 240(a) of the Strata Property Act.

Phased Strata Plans Not Permitted

There is an exception to the permissibility of a remainder being subdivided by depositing a strata plan under Part 14 of the Strata Property Act. A phased strata plan of the remainder is not acceptable because of the possibility that if a subsequent phase does not proceed, an election not to proceed application would also not be registrable, as s. 235(1)(b) of the Strata Property Act requires this application to be accompanied by a reference plan pursuant to s. 100(1)(a) of the Land Title Act; as noted below under “Subdivisions Not Permitted”, a reference plan pursuant to s. 100(1)(a) of the Act will not be permitted on a remainder if an air space parcel has been previously excepted from the remainder.

Subdivisions Not Permitted

Other than as set out above, the remainder may not be subdivided by either a subdivision or by an air space plan or by a dedication pursuant to s. 107 of the Act in a manner that involves any overlap vertically with the boundaries of a previously created air space parcel. Specifically, no portion of the new subdivision parcel or air space parcel may be above or below the initial air space parcel(s).

Limiting subdivisions of the remainder following the registration of an initial air space plan to the circumstances described will provide greater certainty as to what the registrar will find acceptable and in compliance with the requirements of the Act, and in particular the requirements of Part 9 and s. 169(1).

A reference plan pursuant to s. 100(1)(a) of the Act will not be permitted on a remainder if an air space parcel has been previously excepted from the remainder.

Requirements for a Plan of the Subdivision of a Remainder

In an effort to ensure there is no overlap and that the s. 169(1) of the Act requirements are met, LTSA staff will confirm that the following requirements (as noted in Electronic Land Title Plan and Plan Application Requirements, available at https://ltsa.ca/wp-content/uploads/2020/10/Electronic_Land_Title_Plan_and_Plan_Application_Requirements.pdf) are provided on a plan of the subdivision of a remainder:

• the following notation, amended as applicable, on the plan:

  No portion of the parcels or dedications created on this plan overlap vertically, that is, lie above or below, any portion of the Air Space Parcels on Air Space Plan ______

• the following form of certificate contained in the electronic Survey Plan Certification form:

  I am a British Columbia land surveyor and certify that no portion of the parcels or dedications created on this plan overlap vertically, that is, lie above or below, any portion of the Air Space Parcels on Air Space Plan ______

  This form of certificate is accessed by selecting the “Remainder Parcel (Airspace)” in item 3 of the electronic Survey Plan Certification (“SPC”) form.

• Where all or a portion of an existing air space parcel is being shown on a new plan that alters a remainder, the labelled numbers or letters of the existing air space parcel corners shall be repeated on the new plan to provide a clear cross reference to the previously filed air space plan, and a clear distinction between the existing air space corner labels and the new air space parcel corner labels shown on the new plan.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

For air space plans, see Part 14 of the Strata Property Act, including s. 240 (Title requirements for deposit of strata plan).

CASE LAW

The petitioner owned a strata lot that included an outdoor patio. The upper boundary of the patio was defined in the strata plan as the height level with the indoor ceiling of the petitioner’s suite. A large cedar tree was allowed to grow on the patio and blocked views from the suites above. In accordance with its bylaws, the strata corporation ordered the petitioner to cut the tree so that it did not extend beyond the boundaries of the strata lot. In upholding the bylaw, the court found that the air space above the patio was common property belonging to the strata corporation and that the strata corporation was entitled to enforce the bylaw limiting the height of the petitioner’s tree (Chan v. Strata Plan VR-151, 2010 BCSC 1725).