197 Registration Of Charges

FORMS

Mortgage Forms

The use of Form B, in either electronic or hardcopy form, is compulsory. Hardcopy submissions are only accepted under the exemptions set out in E-filing Directions v. 1.9, available at https://ltsa.ca/wp-content/uploads/2020/10/E-filing-Directions.pdf.

Submissions

The director has approved the use of the electronic Form B. This form is available in Web Filing using a myLTSA Enterprise account, and the Form B is also reproduced at chapter 33 (Land Title Forms).

General Instrument Forms

The use of Form C, in either electronic or hardcopy form, is compulsory. Hardcopy submissions are only accepted under the exemptions set out in the E-filing Directions v. 1.9, available at https://ltsa.ca/wp-content/uploads/2020/10/E-filing-Directions.pdf.

Submissions

The director has approved the use of the electronic Form C Charge. This form is available in Web Filing using a myLTSA Enterprise account.

PRACTICE

Registration of Charges

Effect of Registration of Charges

Under s. 26 (Registration of a charge) and s. 197, registration of a charge constitutes a rebuttable presumption that the registered owner is entitled to the estate, interest, or claim created by the instrument in respect of which the charge is registered. Both these sections reflect the principle in Credit Foncier Franco-Canadien v. Bennett, 1964 CanLII 449 (BC CA), that registration of an invalid interest in a land title office does not validate the interest or render it enforceable. Nor does registration constitute a determination by the registrar on validity. Thus, it is open to an interested party to determine whether or not an interest registered as a charge is a valid and enforceable interest.

Dubious Instruments

Where an instrument does not, in the registrar’s opinion, operate to create an interest in land, or creates an interest that is not recognized or permitted under the Land Title Act, the registrar refuses registration under s. 197(2).

Agreements for Sale

Agreement for Sale Gives a Right to Conveyance

An agreement for sale is a means of financing the purchase of land. The vendor and purchaser enter into a contract which usually specifies that the purchaser will make instalment payments to the vendor on the purchase price and that the vendor will convey title to the land to the purchaser only when the purchaser makes the final payment. In the meantime, the purchaser has possession of the property and the vendor retains legal title as security.

Registration of Agreement as a Charge

An agreement for sale can be registered as a charge using Form C, with the agreement attached as Part 2.

Easement Granted by Purchaser under Agreement for Sale

As a general principle, an easement must be created by the express grant of the owner of the servient tenement. A grant of an easement by a purchaser under an agreement for sale only operates to create an equitable interest that is registrable as a right to acquire an easement. When the purchaser registers the transfer, the equitable easement is enlarged to a legal easement.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

“Charge” and “Encumbrance”

See the definitions of “charge” and “encumbrance” under s. 1 of the Act.

Application for Registration of a Charge

See Part 10 of the Act (ss. 147 to 168) regarding applications for registration and evidence in support, and in particular ss. 155 (Application for registration of charge) and 157 (Forms).

Effect of Registration of a Charge

See s. 26 of the Act regarding the effect of registration of a charge.

Effect of Certificates of Pending Litigation

See s. 31 of the Act and Division 3 of this Part (ss. 215 to 217) regarding the priority and effect of certificates of pending litigation on the registration of charges.

Restrictive Covenants and Easements

See s. 182 of the Act, including the Appendix entitled “Summary of the Law of Easements”, which follows immediately after s. 182, as well as Division 4 of this Part.

Floating Charges

See ss. 203 and 239 of the Act regarding floating charges on land.

Mortgage by Owner Who Has Granted Option or Right to Purchase

See s. 29 of the Property Law Act, R.S.B.C. 1996, c. 377, which provides as follows:

• 29 A registered owner in fee simple whose title is subject to a registered right or option to purchase, or a registered owner of a right to purchase who has created or given a subright to purchase that is registered, unless otherwise expressly agreed in the instruments creating the right, option or subright, may mortgage the registered owner’s interest in the land, subject to the prior registered interests.

Agreements for Sale

Vendor to Deliver Registrable Instrument

Section 4 of the Property Law Act provides that:

• 4 A person making an agreement, or assignment of an agreement, for sale of land, if the purchase price is payable by instalments or at a future time, must deliver to the person buying the land an instrument in a form, executed by the parties, that allows the title of the purchaser under the instrument to be registrable under the Land Title Act.

Vendor to Register His or Her Own Title

Section 6(1) of the Property Law Act provides that:

6 (1) A person who transfers land, or who makes an agreement, or assignment of an agreement, for the sale of land by which the purchase price is payable by instalments or at a future time, must register the person’s own title in order that a person to whom all or part of the land is transferred and a person claiming under the agreement or assignment can register their instrument under the Land Title Act.

Effect of Mortgage of Purchaser’s Interest

Section 30 of the Property Law Act provides that:

30 Until it is discharged, a mortgage by a purchaser or subpurchaser of the purchaser’s or subpurchaser’s interest under an agreement for sale of land or subagreement for sale of land charges the present and future interest in land acquired by the purchaser or subpurchaser under the agreement or subagreement, unless otherwise expressly provided in the mortgage.

Assignment of Agreement for Sale with Mortgage Back

See s. 206 of the Act regarding registration of an assignment of an agreement for sale with a mortgage back.

Implied Covenant in a Mortgage or Agreement for Sale

See ss. 20 to 24 of the Property Law Act regarding the liabilities of parties where an estate in fee simple subject to a mortgage or a purchaser’s interest in an agreement for sale is transferred.

Charges and Forms of Endorsement

See chapter 67 (Registration of Instruments) for a summary of other statutes that include specific provisions authorizing the registration of a charge against the title to land.

See chapter 68 (Government Liens, Charges, and Administrative Penalties) for a summary of other statutes that include specific provisions authorizing the registration of liens and charges in favour of federal, provincial, or local governments.

See chapter 69 (Legal Notations and Charges) for examples of the most common forms of charges that may be registered against title.

Secondary Sources

See “Options and Rights of First Refusal” in Real Estate—1997 Update (CLEBC, 1997).

See Di Castri, Registration of Title to Land, vol. 1, para. 45, and vol. 2, paras. 369, 375, 424, 429, and 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.

Registrable Charges

Notes on Case Law: See the additional cases annotated under s. 1 of the Act in relation to the definition of “charge” and “encumbrance”.

Easement and Indemnity of Rights

A vendor appealed the registrar’s refusal to register an easement and indemnity of rights created in its favour under the terms of a conveyance. The conveyance included an agreement by the purchasers that they would not require support for the property purchased from the vendor’s adjoining lands, a release of the vendor from all liability in relation to such support, an agreement that the purchasers would take all steps necessary to prevent obstruction upon the vendor’s adjoining land caused by falling material from the purchased property, and an agreement that the vendor could enter upon the purchased property to remedy any default of the purchasers with respect to falling material and that the cost of any such remedy should be paid by the purchasers and should be a charge upon the lands until paid. The court found that the vendor’s rights represented an interest in land, and therefore a charge, and directed registration of them (Re Harrie; Vancouver v. Registrar of Titles, 1945 CanLII 278 (BC CA)).

Covenants and Right to Enter

The owners owned land immediately adjoining a city street and entered into several covenants with the city, in return for which the latter rezoned the area. One covenant was that the owners would not build on a 40-foot strip. Another was that, if the owners failed to abide by their covenants to landscape their land, the city would have the right to enter on the owners’ land, do the work, remedy the default, and recover the expenses incurred by reason of the default, with the expenses forming a charge on the owners’ land. The purpose of the building restriction was to secure for the city, the owner of the dominant land, what might be called “pleasure of prospect”. The covenant created an equitable interest in the servient land enforceable against a subsequent purchaser having notice. The right to enter was in the nature of either an irrevocable licence or an easement. In either case, it was an interest in land and registrable as a charge. For the reasons stated in Re Harrie, the charge for payment of money was also registrable (Re Land Registry Act; In Re McKillop and City of Vancouver, 1954 CanLII 460 (BC SC)).

Development Permit

A development permit fits within the definition of charge in s. 1 of the Act and is registrable under s. 219. However, in this case, the registrar was entitled to refuse registration of a development permit under s. 197 where a lis pendens was registered against title (Re Qualicum Beach, 1982 CanLII 263 (BC SC)).

Mortgage against Land Subject to an Agreement for Sale

Where a vendor reserves the right under an agreement for sale to “assign or transfer” the vendor’s entire interest in the land without the purchaser’s consent, that right includes the lesser right to assign that interest by way of mortgage. In such a case, the vendor is entitled to have the mortgage registered without the purchaser’s consent (Re Land Registry Act; Re Clary and Hassell Developments Ltd.’s Registration Application (1963), 45 W.W.R. 389 (B.C.S.C.)).

Aboriginal Title Not Estate or Interest in Land

An Indian Band appealed from two decisions of the registrar refusing to register a certificate of pending litigation and a caveat. The lands in question were privately owned in fee simple and had been registered under the Land Title Act for several decades. The Band alleged that development of the lands would interfere with its claim to Aboriginal title. Section 197(2) of the Act allows the registrar to refuse to register a charge if the registrar is of the opinion that the applicant has failed to establish a good, safeholding, and marketable title, or if the charge claimed is not an estate or interest in land that is registrable under the Act. Aboriginal title can be distinguished from fee simple title in that Aboriginal title is inalienable, it is held communally, it arises from the occupation or possession of land before the assertion of Crown sovereignty, and it has an inherent limit in that land so held must be used in a manner that is reconcilable with the claimant’s attachment to the land. Because Aboriginal title is inalienable, it is not marketable, and it cannot be sold, mortgaged, or otherwise alienated to third parties. Furthermore, the Aboriginal title the Band claimed in the certificate of pending litigation is not an estate or interest in land that is registrable under the Act. Aboriginal title simply does not fit into the current land registration scheme because it does not provide for the registration of controls on the use of lands emanating from sources other than fee simple ownership (Skeetchestn Indian Band v. British Columbia (Registrar of Land Titles), 2000 BCSC 118, affirmed 2000 BCCA 525; see also the annotations for this decision under ss. 1, 23(2)(a), and 282 of the Act).