189 Dealings With Duplicate Indefeasible Title On Transfer

PRACTICE

Where a transfer covers only a portion of the land included in the duplicate indefeasible title, or an undivided interest in the land less than the whole interest, the registrar must cancel both the duplicate indefeasible title and the indefeasible title and register a new indefeasible title covering the remainder. When registering a “balance title” under this section, the registrar refers to s. 189 in the heading to the title.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Surrender of Duplicate Indefeasible Title on Registration of Charge

See s. 195(1) of the Act, which provides:

• 195 (1) On an application to register a charge by way of mortgage or agreement for sale, the duplicate indefeasible title, if any, must be surrendered to the registrar for cancellation.

Cancellation of Duplicate Indefeasible Title

See s. 176(6) of the Act, which provides that unless the registrar otherwise directs, a duplicate indefeasible title that is returned to the land title office is cancelled, whether or not a note of cancellation is made on it.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 1, paras. 54, 255, 258, and 300.

CASE LAW

Use of Duplicate Certificate of Title as Security

In British Columbia, when an owner deposits a duplicate indefeasible title with a bank, the deposit is generally for one of three purposes: for safekeeping; as security for an undertaking not to sell or mortgage the land until the discharge or release of an obligation to the bank; or to charge the land in favour of the bank, by way of equitable mortgage, as security for the performance of an obligation to the bank. In the case of the second or third purpose, ss. 187, 189, and 195 of the Act assist the bank in protecting its security. There is, however, no presumption under the Act that the deposit of title deeds with a financial institution creates an equitable mortgage (Royal Bank v. Mesa Estates Ltd., 1985 CanLII 336 (BC CA)).

Failure to Produce Duplicate Certificate of Title

The failure of a party who has executed and delivered a conveyance to deliver the duplicate indefeasible title to the registrar as required by s. 189(1) of the Act does not place that party in a position to complain of the registrar’s conduct in registering the conveyance without requiring production of the duplicate indefeasible title as required under s. 187. The registrar’s conduct was only a procedural error and did not affect title. A court, and not the registrar acting under s. 383, should consider proof of further facts and determine consequential issues (Heller v. Registrar, Vancouver Land Registration District and Heller, 1960 CanLII 292 (BC CA), affirmed 1963 CanLII 39 (SCC); see also the annotation for this decision under s. 383 of the Act).