218 Statutory Right Of Way

PRACTICE

Right of Way over Portion of Land Only

Where an instrument grants a right of way over a portion of land only, the registrar makes an endorsement against the portion and not against all of the land.

Right of Way over Portion of Land and Access Rights over all the Land

Where an instrument grants a statutory right of way over a specific portion of land, together with access rights over the land, the registrar registers the statutory right of way against the whole property unless the applicant makes application for two rights of way.

Designation under Section 218(1)(d)

The minister has designated the Surveyor General for the purposes of s. 218(1)(d) and enquiries about a proposed statutory right of way or related issues under this section should be directed to that office.

Reciprocal or Contiguous Easements

A designation under s. 218(1)(d) provides an alternative where the configuration or layout of a proposed subdivision requires multiple reciprocal or contiguous easements, for example, where a network of pipes must be joined together to connect a private sewage treatment facility within the proposed subdivision. Unless the pipes are located within a public road allowance, the most remote lot in the development would require an easement over all lots between that lot and the treatment plant and the next most remote lot would require a similar easement over all lots except the most remote. The lot closest to the treatment plant would have as many easements registered against it as there are lots in the development serviced by the treatment plant. However, a designation under s. 218(1)(d) would permit all required rights of way to be registered in a single statutory right of way document, thus eliminating the need for multiple easement documents, each with their own respective dominant and servient tenements.

Right of Way over Land within the Agricultural Land Reserve

Effective September 30, 2020, s. 18.1(3) of the Agricultural Land Commission Act, S.B.C. 2002, c. 36 requires the registrar to confirm that a Form C Charge application for a Statutory Right of Way that charges lands within the agricultural land reserve is accompanied by the prescribed form of notice referred to in s. 18.1(3) as proof that notice has been given as required under s. 18.1(2). The prescribed form referred to in s. 18.1(3) must be appended to the Form C Charge application for a Statutory Right of Way with a Declaration form. Applicants should contact the Provincial Agricultural Land Commission for the form of notice.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Statutory Rights of Way under Other Statutes

See chapter 68 (Registration of Instruments) for a summary of other statutory provisions that authorize the granting or reservation of statutory rights of way.

Statutory Right of Way Plans

See ss. 113 to 119 of the Act regarding the requirements for statutory right of way plans.

Power of Corporation to Grant or Reserve Statutory Right of Way

See s. 18 of the Property Law Act regarding the power of a corporation referred to in s. 218 of the Land Title Act to grant or reserve a statutory right of way to itself.

Power of Supreme Court to Cancel or Modify Statutory Right of Way

See s. 35 of the Property Law Act regarding the power of the Supreme Court to cancel or modify a statutory right of way.

Secondary Sources

See “Easements and Statutory Rights of Way” in Real Estate—1997 Update (CLEBC, 1997).

See Di Castri, Registration of Title to Land, vol. 1, §4:5, §6:32, and §8:44, vol. 2, §14:8 and §14:26, and vol. 3, §18:64.

CASE LAW

Maintenance and Repair Obligations

The plaintiff, as grantor in a right of way agreement, sought to recover from the defendant grantee the cost of repairs to water pipes on the right of way under a clause in the agreement. Although the plaintiff’s title was also subject to a restrictive covenant entered into for the benefit of the grantee, the right of way predated the covenant and was registered first; the repair provisions of the covenant were subject to the right of way agreement, which provided that the grantee was obligated to pay for the cost of maintenance and repairs performed by the plaintiff. That obligation was not conditional upon the success of the grantee’s commercial undertaking and was not dependent upon notice from the grantee to the plaintiff. The plaintiff’s duty was to maintain and repair “at all times”, including upon notice from the grantee. The fact that expenses were incurred through work done by the plaintiff off the area of land covered by the right of way did not enable the defendant to escape its obligation to pay for that work because it was a necessary step in the maintenance and repair of the pipes located on the right of way (Central Coast Power Corp. v. British Columbia, 1994 CanLII 1004 (BC SC)).

Breach of Covenants in Statutory Right of Way

The defendant, U, owned property subject to statutory rights of way in favour of Terasen Gas. The rights of way were acquired by Terasen, in 1961 and 1981, to permit construction of two large gas pipelines across U’s property. The covenants included U’s obligations not to do or knowingly permit any act or thing that might, in the opinion of Terasen, interfere with or injure the pipelines. On October 10, 1993, U entered into an agreement for sale of the property to the defendants, A and B. The agreement was in registrable form and could have been registered, but was not. Although the sale never completed, the agreement remained in place. A and B used the property for landfill purposes. The placement of the landfill caused movement of earth in the right of way and consequential displacement of and damage to one of the pipelines. In earlier proceedings between Terasen Gas and the defendants, the Court of Appeal ordered a new trial with respect to the liability of U for damages to the pipeline (2004 BCCA 494). At the new trial, the court held that U was in breach of the covenants in the right of way agreement and liable for the damage to the pipeline (2010 BCSC 90). U appealed and the appeal was allowed in part. Writing for the majority of the Court of Appeal, Newbury J.A. held that once an owner has agreed to sell under an agreement for sale, the owner ceases to have the right to grant or refuse “permission” for the purchaser to do what it wishes on the property. The fact that the vendor has retained title as security for the payment of the purchase price does not affect this basic aspect of alienation, even when the transfer of title is delayed. Nor do the terms of the agreement in this case militate in favour of a different result: the purchasers took on all the obligations a purchaser would normally “inherit”—the obligations to pay all taxes and charges, keep the premises insured and in the event the purchasers sold their interest, to pay the outstanding balance of the purchase price immediately. In return, they became entitled to “occupy and enjoy” the property, subject only to specific covenants. No suggestion was made that the agreement was a sham, or that it had been entered into other than bona fide. It cannot be said that U “permitted” A to do what it did on the property from and after the date of the agreement, October 10, 1993. By agreeing to sell the property to the purchasers, U parted with most of the incidents of ownership, including by implication the right to permit or withhold permission for whatever activities the purchasers or their assigns might carry on. In the result, up to October 10, 1993, U retained sufficient authority over the property that it should be regarded as having “permitted” A to do acts that might have interfered with or injured the pipeline and this constituted a breach of covenant. However, in respect of the period after October 10, 1993, U’s appeal was allowed on the ground that having sold the property under the agreement, U was no longer in a position to “permit” or withhold permission for A’s activities. Once land is sold, it is for the new owner to be responsible for new breaches of the terms of instruments (such as rights of way or restrictive covenants) that are registered against the land. If it were otherwise, vendors would be obliged to obtain covenants from their purchasers repeating the covenants in such instruments, and one of the primary advantages of the Torrens registration system would be lost. In dissent, Garson J.A. agreed with the trial judge that U as registered owner remained responsible for compliance with the covenants in the statutory rights of way agreements. Implicitly the trial judge found that, where the registered title did not accord with the beneficial ownership, it was necessary for U to require the beneficial owner A to enter into a fresh covenant so that U was in compliance with the covenant that continued to bind it. Garson J.A. found no error in this reasoning (Terasen Gas Inc. v. Utzig Holdings (B.C.) Ltd., 2012 BCCA 444).

Mining Operations

A mining company owned a mining property and a townsite constructed to provide accommodation for those who worked at the mine. The company registered a statutory right of way across the townsite for the purpose of providing access to its mine. The company sold the townsite to the defendants, who were interested in developing it for recreational purposes. At the time of the sale, the mine had been closed and the company was in the process of remediating the mining property. Later, the company sold its mineral tenures and the right of way to the plaintiffs who anticipated filing an application to reactivate the mine. The defendants obstructed the plaintiffs’ access to the right of way and the plaintiffs then brought this action for a declaration that the plaintiffs were authorized use the right of way for exploration and mining purposes even though the original mine had been closed. Section 218 of the Land Title Act allows a person to grant a statutory right of way to a mining corporation for “any purpose necessary for the operation and maintenance of the grantee’s undertaking”. As set out in the Mines Act, R.S.B.C. 1996, c. 293, mining activities include exploration, development, production, and reclamation and a mine includes both closed and abandoned mines. On a plain reading of the right of way agreement and the relevant legislation, the court found that the words of the agreement did not restrict the scope of the grant to the mining activities that were taking place at the time of the original grant and that the language of the grant was sufficiently broad as to include exploration, mining, closure, remediation, and re-activation. Accordingly, the court declared that the plaintiffs were entitled to use the right of way and the court also granted an injunction restraining the defendants from blocking the plaintiffs’ access (Avanti Mining Inc. v. Kitsault Resort Ltd., 2010 BCSC 1181, affirmed 2012 BCCA 356).

Purpose Necessary for Operation and Maintenance of Grantee’s Undertaking

The issue of whether a statutory right of way was still necessary for the operation and maintenance of a grantee’s undertaking under s. 218 of the Land Title Act is best approached by considering the related issue of obsolescence under s. 35(2)(a) of the Property Law Act. If a right of way was found to be obsolete under the Property Law Act, then the court concluded that it was no longer necessary for the grantee’s undertaking under s. 218 (Romspen Investment Corp. v. Chemainus Quay and Marina Complex Ltd., 2011 BCSC 768, affirmed 2012 BCCA 356). See the annotation for this decision under s. 35(2)(a) of the Property Law Act.

Positive and Personal Covenants Unenforceable in Statutory Right of Way

The respondent regional district issued an expropriation notice to the petitioner setting out its intention to take two statutory rights of way over the petitioner’s lands. The petitioner asked the respondent Minister of Justice to appoint an inquiry officer. Before the minister made her decision, the regional district filed a vesting notice in the land title office within the 30-day limitation period set out in s. 51 of the Expropriation Act, R.S.B.C. 1996, c. 125. Subsequently, the minister declined to appoint an inquiry officer on the ground that both expropriations were required for linear developments and thus exempt from the inquiry process by s. 10(2) of the Act. The land title office declined to register the vesting notice because the regional district had applied for the wrong nature of interest and had submitted incorrect fees. The petitioner then applied to court for a review of the minister’s decision and for an order setting aside the expropriation notice. After the expiry of the 30-day limitation period, the regional district submitted a corrective declaration to the land title office and the vesting notice package was completed and registered showing the vesting date as the date the notice was originally submitted to the land title office. On the issue of the minister’s decision to decline to appoint an inquiry officer, the court found that the decision was reasonable and defensible in respect of the facts and law. However, on the issue of the validity of the expropriation notice, the court decided in favour of the petitioner. While the original filing date was within the 30-day limitation period, the corrective declaration was not filed until after the 30-day period. As a result of the errors in the regional district’s filing with the land title office, the court held that a degree of ambiguity arose. On these unusual facts, ambiguity arose in the application of the limitation period in s. 51 of the Act and the petitioner’s challenge to the validity of the expropriation was not barred by the operation of s. 51. In setting aside the expropriation notice, the court found that the statutory right of way agreement contained impermissible positive and personal covenants that were not capable of forming an interest in land. These covenants included the obligation of the petitioner to maintain and repair its private road for the benefit of the regional district and the right of the regional district to incur costs for the repair of the road and then charge them back to the petitioner by adding the amounts to the petitioner’s taxes (Atco Lumber Ltd. v. Kootenay Boundary (Regional District), 2014 BCSC 524).