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215 Registration Of Certificate Of Pending Litigation In Same Manner As Charge

In This Volume

  • 215 (1) A person who has commenced or is a party to a proceeding, and who is
  • (a) claiming an estate or interest in land, or
  • (b) given by another enactment a right of action in respect of land,
  • may register a certificate of pending litigation against the land in the same manner as a charge is registered, and the registrar of the court in which the proceeding is commenced must attach to the certificate a copy of the pleading or petition by which the proceeding was commenced, or, in the case of a certificate of pending litigation under Part 5 of the Court Order Enforcement Act, a copy of the notice of application or other document by which the claim is made.
  • (2) The land affected by the certificate of pending litigation must be described in a manner satisfactory to the registrar.
  • (3) On registration of a certificate of pending litigation, the registrar must forthwith mail a copy to the owner against whose title the certificate has been registered.
  • (4) If, after registration of a certificate of pending litigation, a change of parties occurs, the registrar,
  • (a) on receiving a certificate of pending litigation showing the new party, and
  • (b) on compliance with this Act,
  • must register the certificate of change in the same manner as a modification of a charge.
  • (5) Despite subsection (1), if a person entitled to enforce a restrictive covenant or building scheme has commenced an action to enforce it, the person may register under this section a certificate of pending litigation in the form approved by the director against land in respect of which a breach is alleged to have occurred.
  • (6) A party to a proceeding for an order under the Family Law Act respecting the division of property may register under this section a certificate of pending litigation in the form approved by the director in respect of any estate or interest in land the title to which could change as an outcome of the proceeding.
  • (7) Despite subsection (1), a person who has commenced an action under the Wills, Estates and Succession Act may register a certificate of pending litigation in the form approved by the director against the land affected.
  • (8) A judgment creditor who
  • (a) applies under section 9 of the Fraudulent Preference Act, and
  • (b) in the application, claims to be entitled to register the judgment against the land in respect of which the application was made, or against the judgment debtor’s or another person’s interest in the land,
  • may register a certificate of pending litigation in the form approved by the director against the land.

1979-219-213; 1982-60-57, proclaimed effective August 1, 1983; 1992-55-1, 2, 18, 19, effective October 1, 1994 (B.C. Reg. 300/94); 2004-66-104, effective January 20, 2005 (B.C. Reg. 16/2005); 2010-6-64, effective July 1, 2010; 2011-25-394, effective March 18, 2013 (B.C. Reg. 131/2012; 2009-13-227, effective March 31, 2014 (B.C. Reg. 148/2013).

FORMS

Approved Forms 31, 32, 33, and 34

The director has approved the use of Forms 31, 32, 33, and 34.

Submissions

On the Form 17 Charge, Notation or Filing, select Nature of Interest, Certificate of Pending Litigation, and attach an image of the original Form 31, 32, 33, or 34 and the applicable originating process (for example, a petition, notice of civil claim, counterclaim or notice of application).

The Certificate of Pending Litigation receives preliminary examination prior to receiving an application number, date, and time.

Registering Certificate of Pending Litigation in Family Matters, Form 33

The director has approved two versions of Form 33 for registering a certificate of pending litigation in family matters. Proceedings commenced after the coming into force of the Family Law Act, S.B.C. 2011, c. 25 must use Form 33 (Family Law Act). Proceedings to enforce, set aside, or replace an agreement respecting a property division made before March 18, 2013 and proceedings respecting a property division started under the Family Relations Act, R.S.B.C. 1996, c. 128 (repealed March 18, 2013 by B.C. Reg. 131/2012) must use Form 33 (Family Relations Act). See the transitional provisions in s. 252 of the Family Law Act at chapter 41 (Family Matters) of volume 2 of this Manual.

Form 33 has been amended to refer to Supreme Court Family Rule 22-8 and, consistent with the terms used in the Notice of Family Claim, refers to the parties as “Claimant” and “Respondent”.

Registering Certificate of Pending Litigation in Variation of Wills, Form 34

The director has approved two versions of Form 34 for registering a certificate of pending litigation in proceedings to vary a will. The Wills Variation Act, R.S.B.C. 1996, c. 490 was repealed on March 31, 2014 by B.C. Reg. 148/2013, and replaced by corresponding provisions in Part 4, Division 6 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13. The Wills Variation Act applies to deaths occurring before March 31, 2014, and the Wills, Estates and Succession Act applies to deaths occurring on or after March 31, 2014. Proceedings to vary a will in relation to a death that occurred before March 31, 2014 must use Form 34 (Wills Variation Act); proceedings to vary a will in relation to a death that occurred on or after March 31, 2014 must use Form 34 (Wills, Estates and Succession Act). See the provisions and commentary for the Wills, Estates and Succession Act at chapter 62 (Trustees, Personal Representatives, and Trustees in Bankruptcy) of volume 3 of this Manual.

PRACTICE

Originating Process Must Claim Interest in Land

The originating process appended to an application under s. 215(1) (for example, a petition, notice of civil claim, counterclaim, or notice of application) must claim an interest in land. Claims for debt for the price of an automobile or for a real estate commission are examples of claims that do not claim an interest in land.

Statute under Which a Right of Action Is Given

As contemplated by s. 215(1), the registrar may require a statement from:

  1. the claimant stating, in the claim document, that a specific statute gives the claimant a cause of action; or
  2. a solicitor certifying that a specific statute gives the claimant a cause of action.

Modification of Certificate of Pending Litigation

To apply to modify a certificate of pending litigation under s. 215(4) given a change of parties, an applicant must file:

  1. a Form 17 application; and
  2. a certificate of pending litigation showing the new parties.

Notice of Security Interest under Personal Property Security Act

The registrar rejects an application to register a certificate of pending litigation based on a notice of a security interest under the Personal Property Security Act on the grounds that, should the applicant succeed in the action, the applicant is not entitled to an interest in land that is registrable under the Land Title Act.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Certificate of Pending Litigation to Be Examined Immediately

See s. 168(4) of the Act which provides as follows:

  • 168 (4) Every application received must be examined without delay and, except for an application to register a certificate of pending litigation or to lodge a caveat, must be given consideration in order of its receipt.

Detachment of Originating Process for Section 215(6) Applications

See s. 25.1 of the Land Title Act Regulation, B.C. Reg. 334/79, which authorizes the detachment of an originating process presented for filing with a certificate of pending litigation under s. 215(6) of the Act. A document detached under the regulation is not part of the record.

Effect of Certificate of Pending Litigation

On registration, a certificate of pending litigation effectively freezes the register against all further registrations unless a further registration is effected:

  1. in accordance with the exceptions set out in s. 216 of the Act; or
  2. in accordance with the “Rudland rule” set out in s. 217 of the Act.

Priority of Certificate of Pending Litigation

See ss. 30 and 31 of the Act regarding a plaintiff’s entitlement to claim priority based on the registration of a certificate of pending litigation.

Cancellation of Certificate of Pending Litigation

See ss. 252 to 258 of the Act and s. 25 of the Land Title Act Regulation, B.C. Reg. 334/79, regarding cancellation of a certificate of pending litigation.

Filing of Certificate of Pending Litigation Authorized under Other Statutes

Fraudulent Conveyance Act

Section 215(8) deals specifically with a certificate of pending litigation under the Fraudulent Preference Act, R.S.B.C. 1996, c. 164. The section makes no reference to the Fraudulent Conveyance Act, R.S.B.C. 1996, c. 163. However, a certificate of pending litigation under the Fraudulent Conveyance Act is covered by s. 215(1)(b) of the Act as a proceeding in which a person is given, by an enactment, a right of action in respect of land. Under the Fraudulent Conveyance Act, creditors are given a right of action for a declaration and, as such, a certificate of pending litigation is registrable in respect of an action under that Act. These Acts are reproduced at chapter 42 (Fraudulent Conveyance and Fraudulent Preference Acts) in this Manual.

Action to Vary a Will

Section 61(5) of the Wills, Estates and Succession Act provides statutory authority for filing a certificate of pending litigation in an action to vary a will.

  • Time limit and service
  • 61
  • (1) A proceeding commenced by a person claiming the benefit of this Division must not be heard by the court unless
  • (a) the proceeding is commenced within 180 days from the date the representation grant is issued in British Columbia,
  • (b) a copy of the initiating pleading has been served on the executor of the will no later than 30 days after the expiry of the 180 day period referred to in paragraph (a) unless the court, before or after the expiration of the 30 days, extends the time for service, and
  • (c) if there are minor children of the will-maker, or if the spouse or a child of the will-maker is mentally incapable, a copy of the initiating pleading has been served on the Public Guardian and Trustee.
  • (2) A proceeding in respect of the will of a Nisga’a citizen or a treaty first nation member must not be heard by the court at the instance of a party claiming the benefit of this Division unless a copy of the initiating pleading has been served on the Nisga’a Lisims Government or the treaty first nation, as applicable.
  • (3) If the Public Guardian and Trustee is served with a copy of the initiating pleading under subsection (1), the Public Guardian and Trustee is entitled to appear, to be heard and to any costs that the court orders.
  • (4) If a proceeding has been commenced on behalf of a person under this Division, it may be treated by the court as, and so far as regards the question of limitation is conclusively deemed to be, a proceeding on behalf of all persons who might apply.
  • (5) Within 10 days from the date of the issue of the initiating pleading, a plaintiff in a proceeding under this Division may register, in the land title office in which the title to land sought to be affected is registered, a certificate of pending litigation against the land in a form approved under the Land Title Act.

2009-13-61, effective March 31, 2014 (B.C. Reg. 148/2013); 2011-6-23 and 25; 2019-4-5.

Other Statutes

See also chapter 66 (Registration of Instruments) in this Manual for a summary of other statutory provisions that authorize the filing of certificates of pending litigation or other instruments having similar effect.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 1, paras. 117 and 319, and vol. 2, paras. 651 to 664.

CASE LAW

Notes on Case Law: The cases annotated generally fall into one of two categories:

  1. cases outlining general principles regarding the registration and effect of certificates of pending litigation; and
  2. cases examining whether a registered certificate of pending litigation is properly founded on a claim for an estate or interest in land.

The annotations included with respect to paragraph 2 represent only a small sample of cases that address the merits of the certificate of pending litigation. Additional annotations can be found under s. 257 of the Act (Power of the court to order cancellation). While a relatively thorough review has been conducted of the extensive case law dealing with both ss. 215 and 257, the case coverage is not exhaustive.

Note that legislative amendments brought into force on October 1, 1994, changed the name of a “lis pendens” or “certificate of lis pendens” to “certificate of pending litigation”. Accordingly, the cases annotated below that were decided before that date all refer to the former terms. Annotations for cases decided after that date typically use the language adopted by the court in each case.

CONTENTS

Form of Certificate of Pending Litigation

Nature of Certificate of Pending Litigation

Estate or Interest Must Be Registrable

Registration Must Be against Entire Parcel of Land

Foundations for Claiming an Estate or Interest in Land

  • Nuisance
  • Negligence
  • Breach of Contract
  • Use of Confidential Information
  • Purchaser’s Lien
  • Vendor’s Lien
  • Real Estate Commissions
  • Fraud or Breach of Trust
  • Collateral or Improper Purpose
  • Partnership Interests
  • Unjust Enrichment
  • Tenant’s or Occupant’s Interest in Strata Property

Claims in Family Matters

Claims under the Fraudulent Conveyance Act

Effect of Determination of Originating Process

Appeals

  • Leave to Appeal
  • Appeal Not “Proceeding” for s. 215 Purposes

Form of Certificate of Pending Litigation

The claimant issued a writ of summons claiming a builders lien and incorrectly filed a Form 34, Certificate of Lis Pendens, under s. 215(7) which certified that an action had been commenced under the Wills Variation Act. The applicant was not entitled to have the lis pendens set aside. Section 33 of the Builders Lien Act, S.B.C. 1997, c. 45 does not specify which form of lis pendens a claimant is to file. This case fell within s. 28(1) of the Interpretation Act, R.S.B.C. 1996, c. 238 as the incorrect form did not mislead. There was substantial compliance (Thorcon Enterprises Ltd. v. Guest (1986), 4 B.C.L.R. (2d) 54 (Co. Ct.)).

Nature of Certificate of Pending Litigation

A lis pendens does not create “an estate or interest” but is simply a notice that the party bringing the action claims an estate or interest (Robinson v. Holmes, 1914 CanLII 378 (BC SC)).

A person who seeks judgment against a third party and who has no interest in the third party’s land is not entitled to file a certificate of pending litigation against the third party’s land until that person has obtained judgment and commenced enforcement proceedings under the Court Order Enforcement Act. A judgment must be renewed if it is to continue to form a lien or charge on the third party’s land. A certificate of pending litigation does not keep a lien or charge alive if the judgment is not renewed. Once the judgment expires, the interest in land ceases to exist and there is no longer any right to maintain the certificate of pending litigation (McFarlane Travel Service Ltd. v. Godlonton, 2006 BCSC 286). See also s. 91 of chapter 37 (Court Order Enforcement Act, R.S.B.C. 1996, c. 78) in volume 2 of this Manual.

The conditions described under s. 215(1)(a) or (b) are preconditions to the right to register a certificate of pending litigation. At the time the plaintiff commenced its action, the claim was for money and not land. A subsequent amendment to the statement of claim reveals a sustainable basis for a certificate. However, the original certificate must be discharged and a new one filed (RCG Forex Service Corp. v. Lin, 1997 CanLII 3482 (BC SC)). In subsequent related proceedings, the Court of Appeal upheld the new certificate of pending litigation on the basis of the amended statement of claim (RCG Forex Service Corp. v. Lin, 1999 BCCA 644).

A certificate of pending litigation must be based on a proprietary claim against land, not merely a claim for damages even if related to a proprietary interest. In earlier proceedings, the court found that lease agreements between the parties were void and unenforceable under s. 73 of the Act. Because the respondent’s pleadings raised no other claim to an estate or interest in land, the respondent’s claim for damages no longer had any proprietary connection to the land sufficient to support a certificate of pending litigation or a caveat (Layton Bryson Outfitting and Trailriding Ltd. v. R & R Ginseng Enterprises Ltd., 1998 CanLII 5895 (BC SC)). For a discussion of the earlier proceedings, see the annotation for R & R Ginseng Enterprises Ltd. v. Layton Bryson Outfitting & Trailriding Ltd., 1997 CanLII 3824 (BC SC), under s. 73 of this Act.

The defendant Millstream, a corporation, owned 10 properties that were offered for sale to a third party. The plaintiff and the co-defendants, C and W, were the directors of Millstream. The plaintiff owned 50% of Millstream’s shares while the co-defendants owned 25% each. The plaintiff filed a certificate of pending litigation against the properties and commenced an action to set aside the proposed sale on the grounds that the sale was not properly authorized and that the actions of the co-defendants, as directors of Millstream, were oppressive. In applying s. 215 of the Act, the court found that the plaintiff had no claim to an estate or interest in land and no right of action in respect of the land under any other enactment. The plaintiff’s claim was based on oppression. None of the requested remedies concerned an estate or interest in land. The plaintiff made no claim for specific performance, an equitable lien, or a constructive trust as is usually seen when a plaintiff claims a direct or indirect interest in land. The oppression provisions in s. 227 of the Business Corporations Act, S.B.C. 2002, c. 57 did not give rise to any claim respecting an interest in land. Although the plaintiff was a shareholder in Millstream, a shareholder has no estate or interest in assets held by the corporation. As the plaintiff failed to meet the threshold tests in s. 215 of the Act, the certificates of pending litigation were not properly based and the court ordered their cancellation against each of the 10 properties (Seville Properties Ltd. v. Coutre, 2005 BCSC 1105).

See also the annotation for Tymira Holdings Ltd. v. Whittaker, 2004 BCSC 905 under s. 257 of this Act.

The plaintiff obtained a judgment for unpaid legal fees in a U.S. court and commenced an action in British Columbia to enforce the U.S. court order. The U.S. court order enjoined the defendant from disposing of any interest in land. The plaintiff filed a certificate of pending litigation against title to a property in British Columbia owned by the defendant. On this application, the defendant sought an order cancelling the certificate. The court found that the plaintiff had no claim to any proprietary or ownership interest in the defendant’s land and that, even if the plaintiff were successful in its action to enforce the U.S. court order, the plaintiff could not force the defendant to divest himself of any interest in the land. Therefore, the court ordered cancellation of the certificate (Rissman v. Chen, 2012 BCSC 715).

The applicant and the respondent entered into a memorandum of understanding (MOU) whereby the applicant agreed to purchase a residential property and the respondent agreed to provide the general contracting services necessary to renovate the existing house. The MOU also contemplated that the property would be sold and that the profits, if any, would be shared equally between the parties. In this proceeding, the respondent sought specific performance of the profit share agreement but did not seek a declaration that he was entitled to an interest in the land. The court distinguished Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd., 2014 BCCA 388 (see the commentary to “249 Power of court to order cancellation of charge” in this Manual) where a claim for specific performance of an agreement for sale of property by a putative purchaser created an entitlement to file a certificate of pending litigation. In the present case, the entitlement did not arise because the respondent sought specific performance of an agreement to sell property in the market place and claimed a portion of the resulting profit (RodRozen Designs Inc. v. 0977168 B.C. Ltd., 2016 BCSC 834).

Estate or Interest Must Be Registrable

The argument that the estate or interest in land for which a lis pendens can be registered under s. 215(1) need not be registrable fails (Uukw v. British Columbia, 1987 CanLII 2630 (BC CA), reversing 1986 CanLII 935 (BC SC)).

The appeals concerned the appellant’s efforts to unwind an order issued for the sale of his former matrimonial home. The order for sale had been later overturned on appeal, but not before the property had vested in arm’s length purchasers. The registrar refused the appellant’s several attempts to register a certificate of pending litigation after the property vested in the purchasers. The appellant’s various attempts to challenge the registrar’s refusals were unsuccessful. The court dismissed the appeals from the registrar’s decisions as moot. A certificate of pending litigation cannot affect an interest transferred under a vesting order that is made in favour of independent third parties, and not stayed, before the certificate of pending litigation is registered (Berthin v. British Columbia (Registrar of Land Titles), 2017 BCCA 181).

See also the annotation for Skeetchestn Indian Band v. British Columbia (Registrar of Land Titles), 2000 BCSC 118, affirmed 2000 BCCA 525, under ss. 1, 23(2)(a), 197, and 282 of the Act.

Registration Must Be against Entire Parcel of Land

The plaintiffs paid the purchase price for a lot in a subdivision that was not yet registered. Subsequently, they registered a certificate of pending litigation against all of the land comprising the proposed subdivision. A reference to “land” in s. 215 of the Act is the land as registered in the land title office. Even though the plaintiffs’ claim is the right to purchase only a portion of the registered land, it is not possible to register a certificate against only a portion of that land. Therefore, it is appropriate and proper to register the certificate against the entire parcel because to hold otherwise would deprive the plaintiffs of the protection that s. 215 is intended to provide (Chen v. Inland Log Brokerage Ltd., 1996 CanLII 3599 (BC SC); see also the annotation for this decision under s. 257 of this Act).

Foundations for Claiming an Estate or Interest in Land

Nuisance

Land owners who bring a claim in, among other things, nuisance against another land owner do not claim “an estate or interest in land”. Furthermore, the common law action of nuisance is not “given” by an enactment (Zukowski v. Thyer, [1981] B.C.J. No. 69 (QL) (S.C.)).

Negligence

Neither the Strata Property Act, S.B.C. 1998, c. 43 nor the Condominium Act, R.S.B.C. 1996, c. 64 grants a strata corporation a proprietary interest in, or a right of action in respect of, the owner developer’s unsold strata lots. The following case, decided under the Condominium Act, illustrates this point.

In an action by a strata corporation for damages for negligence or breach of contract against the condominium developer, the strata corporation was not entitled to register a lis pendens against unsold strata lots held by the developer. The strata corporation did not claim a proprietary interest in the unsold lots, nor did the Condominium Act give the strata corporation a right of action in respect of the lots (Strata Plan VR 741 v. Fore Development Corp., 1982 CanLII 711 (BC SC)).

Breach of Contract

Where a party does not assert a proprietary claim with respect to a mortgage, but rather claims a right of setoff of money owing under a mortgage, the party does not claim “an estate or interest in land” and is not entitled to register a lis pendens (Capital Builders Ltd. v. Woodbine Management, 1983 CanLII 596 (BC SC)).

A vendor sold property to a developer. The vendor claimed that the developer agreed that it would not transfer the property until it had completed construction, that it would construct a highrise itself, and that it would give the vendor a free suite. Following application by a third party for registration of its transfer of the property from the developer, the vendor launched an action against the developer, claiming rescission and, alternatively, damages, and filed a lis pendens against the property. In the third party’s application to obtain cancellation of the lis pendens, the vendor made (for the first time) a claim for specific performance. However, because the statement of claim disclosed no such plea for specific performance, and because the validity of the filing of a lis pendens must be determined on claims disclosed in the pleadings in the underlying action, the vendor could not then advance such a claim to validate the lis pendens. The vendor’s claims against the developer were of a personal nature, being for breach of contract only, and did not support continuation of the filing of the lis pendens. Even if an agreement creates an enforceable restraint on alienation, a general restriction on alienation is void as a condition on the absolute sale of land and cannot create a charge on land. The vendor based her claim to entitlement to a free suite on an oral collateral agreement. The written agreement was silent on this point. Thus, under s. 59 of the Law and Equity Act, the oral agreement was unenforceable. Evidence of it was also likely inadmissible under the parole evidence rule. Accordingly, the claim for a free suite was not one that established an arguable case or triable issue so as to support a lis pendens. The vendor’s claim that the developer would construct a highrise was either a personal covenant or a restriction on use forming a negative covenant. But because the restriction did not meet the requirements for a negative covenant, the vendor was not entitled to a lis pendens on that basis either (No. 393 Dynamic Endeavours Inc. v. Lee, [1989] B.C.J. No. 115 (QL) (S.C.)).

Use of Confidential Information

The plaintiffs wanted to purchase certain land for the construction of condominiums. Architect’s plans for the development were in existence. Not having sufficient money to do this purchase themselves, the plaintiffs approached the defendants and proposed that they purchase the land and provide all the money to construct the buildings on the basis that the plaintiffs undertake construction for a fee and take 50% of the proceeds on sale of the property. The defendants were not interested in the plaintiffs’ deal, but bought the property and proceeded to develop it themselves. The plaintiffs were not entitled to claim “an interest in land” and obtain a lis pendens on the basis that the defendants used “confidential” information (Buksa v. Giant Bay Resources Ltd., [1989] B.C.J. No. 265 (QL) (S.C.)).

Purchaser’s Lien

A claim to an equitable mortgage of land in respect of a deposit paid under a contract of sale and purchase of land is effectively a claim of purchaser’s lien and is therefore a claim to an “estate or interest in land” sufficient to support a lis pendens (Capital Plaza Developments Ltd. v. Counterpoint Enterprises Ltd., [1985] B.C.J. No. 321 (QL) (S.C.)).

A purchaser who claims a purchaser’s lien arising from a deposit paid to a vendor for a purchase of property that did not complete on account of the vendor has a consequent claim to an estate or interest in land and may file a lis pendens (Rogowski v. Griffin Development Co. Ltd., [1990] B.C.J. No. 1763 (QL) (S.C. Master), following Capital Plaza Developments Ltd. v. Counterpoint Enterprises Ltd., [1985] B.C.J. No. 321 (QL) (S.C.)).

Vendor’s Lien

An option agreement required the purchaser to pursue a rezoning application, in the vendor’s name, with due diligence, and provided that the vendor would receive a higher purchase price if the purchaser obtained rezoning by a certain date. The purchaser did not obtain rezoning. It exercised the option and obtained the property at the lower price contemplated. The vendor commenced an action, claiming a vendor’s lien for the difference between the minimum and maximum prices, and filed a lis pendens. The vendor alleged lack of due diligence. The purchaser’s promise to use due diligence was part of the consideration and supported the vendor’s lien claim and a lis pendens (Indevco Properties Ltd. v. J.B. Franks Management Co., 1989 CanLII 5188 (BC CA)).

Real Estate Commissions

A real estate agent negotiated a contract for the sale of the vendor’s land. The proposed purchaser paid a non-refundable deposit to the agent, who in turn released it to the vendor, but the transaction did not complete. The agent alleged that the transaction did not complete because the vendor and purchaser altered contract terms, and thus caused the collapse of the purchaser’s financing. The agent claimed that he was entitled to either a 3% commission or an interest in the land amounting to 3% of its value. The court found that there was a triable issue with respect to the agent’s claim to have an interest in land properly the subject of a lis pendens and accordingly dismissed the vendor’s application to have the lis pendens dismissed except on payment into court of the value of the commission (A.E. LePage Real Estate Services Ltd. v. Goodland Developments Ltd., [1984] B.C.J. No. 1114 (QL) (S.C.)).

Fraud or Breach of Trust

A solicitor committed a breach of trust by misappropriating his clients’ investment funds. The clients were entitled to trace these funds to mortgages his company obtained. The clients had an equitable charge against the mortgages and were therefore entitled to a lis pendens (Lament v. Constantini, 1985 CanLII 267 (BC SC)).

The plaintiff obtained default judgment against two defendants for fraudulent operation of their stock trading account. The plaintiff also filed a lis pendens against the property of a third defendant who received substantial amounts of money from the stock trading account and used the money to make payments on a mortgage against her property. The master ordered the lis pendens cancelled upon posting of security. The property was sold and the proceeds were used to post the security and to discharge the mortgage. The third defendant unsuccessfully applied for an order releasing the security. The right to register a lis pendens arises when a person who has commenced a proceeding is “claiming an estate or interest in land”. The test of a proprietary interest is not to be narrowly construed; it embraces an equitable as well as a legal interest (Wood Gundy Inc. v. Saleem, 1993 CanLII 2805 (BC SC)).

The petitioner invested a sum of money in a company owned by the defendants. Part of the investment was diverted to make mortgage payments on a residence belonging to one of the defendants. The court found that the petitioner was justified in filing a certificate of pending litigation against the residence and that the petitioner was entitled to a share in the proceeds of sale equal to the amount of the mortgage payments (Lin v. Hsieh, 2002 BCSC 1187).

The defendant applied to cancel a certificate of pending litigation filed against the defendant’s property by the plaintiff in an action for breach of fiduciary duty, conspiracy to defraud, and fraudulent misrepresentation. The plaintiff alleged that the defendant had used funds misappropriated through the sale of shares in the plaintiff to acquire the property in question. The court accepted the plaintiff’s position that there was an arguable case for a remedial constructive trust either in the property itself or in the misappropriated funds that might be traced to the property. In either case, the plaintiff’s evidence was sufficient to establish a claim for an interest in the defendant’s land within the meaning of s. 215(1) of the Land Title Act. Furthermore, as the defendant failed to establish hardship and inconvenience, the court dismissed the defendant’s application for cancellation of the certificate (Drucker, Inc. v. Hong, 2011 BCSC 905).

Collateral or Improper Purpose

The plaintiffs and defendants owned adjacent properties that they were attempting to subdivide. The parties entered into negotiations with the municipality with respect to road access. Although negotiations were unsuccessful and the plaintiffs refused to dedicate land necessary for the road, the plaintiffs’ subdivision application was approved. The defendants filed a petition against the municipality and the plaintiffs, and they registered a certificate of pending litigation against all of the plaintiffs’ lots. The court ordered that the certificate be discharged on the grounds that the defendants’ claim had absolutely no merit and no chance of success. The plaintiffs then sought damages. The certificate was designed solely to tie up the plaintiffs’ lands and prevent a sale of any properties. By registering the certificate, the defendants attempted to force the municipality’s hand concerning the proposed road alignment. This attempt amounted to a collateral or improper purpose and constituted evidence of malice. Accordingly, the wrongful filing of the certificate of pending litigation established a cause of action, and the defendants were liable to pay damages in an amount to be assessed (Viva Developments Inc. v. Icarus Properties Ltd., 1999 CanLII 5933 (BC SC)).

The insureds’ mobile home was destroyed by fire. At their direction, the insurer paid the claim to the insureds’ mortgagee who gave a discharge of mortgage to the insureds. When the insurer learned that an arsonist had set fire to the mobile home, it commenced an action against the insureds for fraud. Assuming the insureds had obtained the insurance money by fraud, the insurer would have an “estate or interest in land” entitling it to a lis pendens when the insureds got their discharge of mortgage. They got an estate or interest in land as a “substitute replacing the money” paid to the mortgagee by the insurer. That estate or interest therefore was beneficially owned by the insurer and remained in its beneficial ownership at the time when it obtained the lis pendens (Co-operators General Insurance v. Porteous, 1986 CanLII 846 (BC SC)).

Partnership Interests

A partnership was dissolved by the death of one of the partners. The estate of the deceased partner filed a lis pendens against lands held by the remaining partner. The estate was entitled to file a lis pendens because, on dissolution of a partnership, a partner has an equitable lien against all the partnership’s assets. Alternatively, the deceased’s claim that the surviving party holds the property in trust for the deceased entitled his estate to the lis pendens (Re Vancouver Lot 1, Except that Part Included in Plans 12713 and 13050, Block 19, District Lot 302, Plan 12150, 1985 CanLII 450 (BC SC)).

The appellant filed a certificate of pending litigation and a caveat against lands owned by a bare trustee for the benefit of a partnership in which the appellant claimed a beneficial interest. On an appeal from an order under Rule 18A (now Rule 9-7, Supreme Court Civil Rules) cancelling the certificate and the caveat, the Court of Appeal found that the trial judge erred in failing to consider whether the various agreements between the parties supported the appellant’s claim for an interest in the lands. The appellant’s relationship to the other parties was at the root of his claim to an interest in the lands owned by the bare trustee. Without evidence on this issue, the trial judge had to make assumptions of fact and law, and draw conclusions that were premature and potentially prejudicial to the appellant and to other parties. In finding that the affidavit evidence was lacking in context and detail, the Court of Appeal set aside the order of the trial judge, striking out the certificate and the caveat (Ferguson v. 569244 British Columbia Ltd., 2002 BCCA 193, reversing 2001 BCSC 1298 (Chambers)).

Shareholders’ Interests

A shareholder dispute arose and the plaintiffs commenced an action against the defendants for oppression. The plaintiffs then filed certificates of pending litigation against 23 development properties. The defendants applied for an order cancelling the certificates of pending litigation, claiming the plaintiffs had failed to plead a reasonable claim to an interest in land and that the true claims were for a share of profits or money damages and not an interest in land. The court concluded that, while a shareholder has no proprietary interest in the assets of the corporation, an oppressed shareholder may file a certificate of pending litigation on behalf of the corporation. The court was unable to conclude that there was no triable issue to support the claims for an interest in land. While the defendants established significant hardship and inconvenience, those were matters that could be addressed other than by cancellation of the certificates of pending litigation. The court ordered that the plaintiffs enter into an undertaking with respect to damages in the event they were unsuccessful and to post security in the amount of $5 million (0832643 B.C. Ltd. v. Mitchell Group Investments Inc., 2018 BCSC 628).

Unjust Enrichment

A party who alleges unjust enrichment regarding free labour on a farm and claims an interest in the farm is entitled to register a lis pendens. A court may relieve against unjust enrichment by either an in personam or an in rem remedy. Accordingly, the party claims an interest in land (Degroot v. Kotowick, [1989] B.C.J. No. 61 (QL) (S.C.)).

The plaintiff filed a certificate of pending litigation against the defendant’s property in an action for unjust enrichment arising from the plaintiff’s loan of monies to enable the defendant to purchase property. The chambers judge cancelled the certificate of pending litigation, finding that the action sounded in debt, that the unjust enrichment claim was without foundation, and that for purposes of s. 215(1), the plaintiff was unable to assert an interest in land based on a constructive trust. The judge also imposed a stay of proceedings. The Court of Appeal affirmed the chambers judge’s ruling that the plaintiff’s pleading in support of the certificate of pending litigation did not disclose a claim to an interest in land. However, the chambers judge erred in imposing a stay of proceedings. Where a certificate of pending litigation is cancelled, a party is entitled to refile a certificate of pending litigation based on an amended notice of civil claim (Bilin v. Sidhu, 2017 BCCA 429).

Tenant’s or Occupant’s Interest in Strata Property

The following case, decided under s. 46 of the Condominium Act, is relevant to the attornment of a tenant to a strata corporation. See also s. 146 of the Strata Property Act in this Manual.

To establish a tenancy enforceable against a strata corporation, an occupant of a strata lot must “attorn” to the strata corporation in accordance with s. 46 of the Condominium Act. Where an occupant has failed to attorn to the strata corporation, there is an insufficient tenancy to provide the occupant with an interest or estate in land to support registration of a certificate of lis pendens against title to the occupied strata lot. Accordingly, a lis pendens filed against a strata lot by its occupant to prevent the strata corporation from proceeding with a court-approved sale of the lot was ordered cancelled in this case (Strata Plan VR 149 v. Berezowsky [1986 CanLII 952 (BC CA)]).

Claims in Family Matters

Notes on Case Law: The following cases were decided under the Family Relations Act (repealed March 18, 2013 by B.C. Reg. 131/2012). See the transitional provisions in s. 252 of the Family Law Act at chapter 41 (Family Matters) of volume 2 of this Manual to determine whether the Family Relations Act or the Family Law Act applies in specific circumstances.

The word “share” in s. 58(3)(a)(i) of the Family Relations Act refers to a share in a corporation as envisaged by Part 3 of the Company Act (now Part 3 of the Business Corporations Act) and does not include assets of a corporation in which a spouse holds shares. Therefore, a spouse claiming a share of another spouse’s assets cannot file a lis pendens against lands owned by a company in which that spouse holds shares (Davidson v. Davidson, [1983] B.C.J. No. 646 (QL) (C.A.), reversing 1983 CanLII 443 (BC SC); see also Webber v. Webber, 1989 CanLII 2939 (BC SC)).

A wife filed a lis pendens under s. 215(6) of the Act against her husband’s interest in land which was held jointly by them and subsequently obtained an order against her husband for maintenance, compensation for family assets, and costs. Before she registered the judgment against her husband’s interest in the land, a judgment creditor of the husband registered a judgment against the husband’s interest. The wife was not able to claim priority for the amount of her judgment based on the prior filing of the lis pendens under s. 215(6). The type of order under the Family Relations Act to which s. 215(6) is directed is one that changes the title to the land in question. The orders the wife obtained did not effect a “change” of title to land as that term is used in s. 215(6). The maintenance provisions of the order did, however, have priority under s. 64(1) of the Family Relations Act, R.S.B.C. 1979, c. 121 because the judgment creditor, the husband’s solicitor, was privy to them before he took his judgment (Misic v. Misic, 1989 CanLII 2784 (BC CA)).

The petitioner in matrimonial proceedings applied to cancel a lis pendens registered against his property by the respondent under s. 215(6) of the Act. Family assets had already been divided by the parties under the terms of a separation agreement, but the respondent claimed that the agreement was unfair for inadequate disclosure of assets by the petitioner. Although the respondent submitted that the court had discretion under s. 65 of the Family Relations Act to reapportion family assets, she did not mention the section in her pleadings and had not referred to the subject property. The court ordered the lis pendens cancelled. Without reference to the specific property or to s. 65 of the Family Relations Act, the registrar does not have any basis upon which to accept a lis pendens (Hrad v. Hrad, 1993 CanLII 1851 (BC SC) (Chambers)).

See also the annotations for Berthin v. Berthin, 2018 BCCA 57 and related proceedings under s. 310 of the Act.

Claims under the Fraudulent Conveyance Act

An applicant was not entitled to an order cancelling a certificate of lis pendens issued by the registrar to a party seeking a declaration under the Fraudulent Conveyance Act. In trying to obtain a declaration under that Act, a party seeks to have title revert to its original or predisposition status and thereby attempts to establish a proprietary or other interest in property (Cressey Development Corporation v. Western Canada Hydraulic Laboratories Ltd., [1984] B.C.J. No. 1230 (QL) (S.C.)).

Effect of Determination of Originating Process

The defendant succeeded on a Rule 18A (now Rule 9-7, Supreme Court Civil Rules) application in having the plaintiff’s claims for specific performance and return of deposit monies with respect to a real estate transaction dismissed. In the result, the court concluded that the plaintiff’s certificate of pending litigation, filed against the property which was the subject of the transaction, should be cancelled. Even assuming that an equitable charge, or purchaser’s lien, could have arisen for the amount paid by the plaintiff as a deposit, it could not continue to exist in the circumstances once the plaintiff’s contractual rights had been determined by trial (Arbutus Garden Homes Ltd. v. Arbutus Garden Apartments Corp., 1996 CanLII 2294 (BC SC)).

Appeals

Leave to Appeal

If a court struck out a lis pendens because there was no a claim in the statement of claim for an interest in land, the order would probably be interlocutory. On the other hand, if the court struck out a lis pendens because there was no entitlement to an interest in land, then the order would probably be final. The decisions indicate that the test is whether the order finally disposes of the rights of the parties. In this case, involving an application under Rules 18 and 18A, the court held that the plaintiff was not entitled to an interest in land and therefore not entitled to a lis pendens. The court’s order was not interlocutory and therefore did not require leave to appeal (W.C.D.C. Information Services Ltd. v. Brechert, [1987] B.C.J. No. 538 (QL) (C.A.)). Note that Rules 18 and 18A have been repealed and replaced by Rule 9-6 (Summary Judgment) and Rule 9-7 (Summary Trial). See the Supreme Court Civil Rules, B.C. Reg. 168/2009, effective July 1, 2010.

Appeal Not “Proceeding” for Section 215 Purposes

The registrar allowed an appellant to register a lis pendens based on the appeal of an order obtained by the respondent under s. 257 of the Act for cancellation of an earlier lis pendens registered by the appellant. The Court of Appeal held that the registrar had no authority to register the second lis pendens because the word “proceeding” in s. 215(1) refers to the trial level and not the appeal level. A party appealing an order for cancellation of a lis pendens under s. 257 can prevent the other party from dealing with the property only by obtaining an order staying the proceeding pending determination of the appeal. The court ordered that the second lis pendens be set aside and cancelled (H.K. Floors Limited v. Canam Western Ventures Ltd., 1984 CanLII 784 (BC CA); applied in Richards v. Ricard, 1985 CanLII 582 (BC CA)).

The respondent in foreclosure proceedings applied to set aside an order absolute of foreclosure. The application was dismissed and the respondent appealed, claiming entitlement to a lis pendens in the notice of appeal. The respondent then obtained a certificate of lis pendens against the property at issue. The petitioner applied for cancellation of the certificate and the Court of Appeal held that a party cannot create a lis pendens by merely filing a notice of appeal claiming an entitlement to the lis pendens. The word “proceeding” in s. 215(1) refers to the trial level and not the appeal level. Accordingly, the Supreme Court had no power to issue a certificate of lis pendens in the circumstances. The lis pendens was ordered cancelled. The proper remedy in cases of this kind is to apply to the Court of Appeal for a stay of proceedings (Richards v. Ricard).

The respondents applied for an order discharging a second certificate of pending litigation filed by the appellants in conjunction with their appeal from a trial court decision dismissing the appellants’ claim for an interest in the respondents’ property and ordering the removal of their initial certificate of pending litigation. The trial court expressly ordered the discharge of the initial certificate and the discharge occurred without challenge. In opposing the respondents’ application, the appellants argued that the court’s decision in H.K. Floors Limited v. Canam Western Ventures Ltd. was no longer binding because recent amendments to the Court of Appeal Rules incorporated a definition of “proceeding” which should now be imported into the Land Title Act. The Court of Appeal declared the second certificate of pending litigation a nullity and held that, while provisions in one statute may be used as an aid in interpreting provisions in another statute, the same influence is not exerted by a regulation under one statute on a provision in another statute. Consequently, a new definition in the Court of Appeal Rules (which have the character of regulations) has little impact on the meaning of a term in the Land Title Act that has long existed and that has been the subject of judicial interpretation. Section 1 of the Supreme Court Act [at the time of this case] defined a proceeding to include an “action, suit, cause, matter, appeal or originating application”. The reference to “appeal” in that definition has been interpreted to mean an appeal to the Supreme Court. It does not refer to any process other than a process in the Supreme Court. The Supreme Court Rules [at the time of this case] defined “originating process” as a document that commences a proceeding (former Rule 1(8)). Section 215 of the Land Title Act required that the registrar attach a copy of the originating process to a certificate of pending litigation. Accordingly, an appeal to the Court of Appeal was not a “proceeding” as defined in the Supreme Court Act and the notice of appeal is not an “originating process” within the meaning of s. 215 of the Land Title Act. The second certificate of pending litigation was therefore a nullity and must be cancelled (Ravnyshyn v. Drys, 2006 BCCA 20). Note that the Supreme Court Rules have been repealed and replaced by the Supreme Court Civil Rules, B.C. Reg. 168/2009, effective July 1, 2010. Rule 1-1(1) defines an “originating pleading” as a notice of civil claim, counterclaim, third party notice or any document, other than a petition, that starts a proceeding.