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In This Volume

  • 169 (1) If an application is made for the registration of indefeasible title to land, the registrar must register the title claimed by the applicant, if the registrar is satisfied that
  • (a) the boundaries of the land are sufficiently defined by the description or plan on record in the land title office or provided by the applicant, and
  • (b) a good safe holding and marketable title in fee simple has been established by the applicant.
  • (2) If the registrar considers it advisable, the registrar may, before registration under subsection (1), direct that a person named by the registrar be served with notice of the registrar’s intention to register the title of the applicant at the expiration of a period set in the notice unless within that period the person served lodges a caveat or registers a certificate of pending litigation contesting the applicant’s right to registration.
  • (3) If a caveat is lodged or a certificate of pending litigation is registered under subsection (2), the registrar must defer consideration of the application until the caveat expires or is withdrawn or the adverse claim is disposed of.

1979-219-166; 1982-60-38, proclaimed effective August 1, 1983; 1992-55-1, 2, effective October 1, 1994 (B.C. Reg. 300/94); 2004-66-76, effective January 20, 2005 (B.C. Reg. 16/2005).

PRACTICE

First Time Registrations

This section applies only to issuance of the first indefeasible title.

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 the remainder in compliance with the Act, and upon satisfying the registrar that the requirements of ss. 143, 144, and 169 have been met.

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, S.B.C. 1998, c. 43. 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.

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) 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 “Subdivision of Remainder” field in 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

See Di Castri, Registration of Title to Land, vol. 3, para. 663.

CASE LAW

Good Safe Holding and Marketable Title

In Smith v. Graham, 2009 BCCA 192, the court adopted the registrar’s description of a good safe holding and marketable title as a title where (1) the possession of the person on title is safe from attack and the person cannot be displaced (safe holding) and (2), so far as its antecedents are concerned, the title may at all times and under all circumstances be forced upon an unwilling purchaser (marketable). In this respect, a person’s title is doubtful if there is an issue that would lead a reasonable purchaser to question the title and thus refuse to complete a transaction. For a further annotation of this case in relation to alter ego trusts, see s. 180 of the Act.