223 Subdivision Of Dominant Tenement

PRACTICE

Application of Section 223

Designation of Lot to Which Benefit Does Not Attach

Where, for example:

1. the dominant tenement of Easement 3333 is District Lot 100;
2. the servient tenement is Lot 4; and
3. the owner of District Lot 100 subdivides Lot 100 into two lots, A and B, by Plan 4000,

Plan 4000 may designate Lot B as a parcel to which the benefit of Easement 3333 does not attach.

Endorsement of Dominant and Servient Titles

Where the instrument creating Easement 3333 does not prohibit parcels subsequently created by subdivision of District Lot 100 from having the benefit of Easement 3333, then the benefit of Easement 3333 remains appurtenant to Lot A and the remainder, if any, of District Lot 100. The various dominant and servient certificates of title appear as follows:

1. Dominant certificates of title: Before the subdivision plan was deposited the indefeasible title to District Lot 100 read: “Hereto is annexed Easement 3333 over Lot 4, Plan 1000.” The registrar makes no change to this notation on the title to the unsubdivided remainder, if any. The registrar carries forward the same note to the title to Lot A issued under s. 98. However, the registrar makes no reference to the easement on the title to Lot B.
2. Servient certificate of title: The certificate of indefeasible title to the servient land (that is, Lot 4), shows the easement as “appurtenant to District Lot 100”. The registrar updates the charge on Lot 4 by adding after the words “appurtenant to District Lot 100” the following words “except Lot B, Plan 4000”.

Notation on Dominant Tenement Titles

Subject to the terms of the easement instrument and any designations made by a subdivider on the plan, the registrar makes the following endorsement on the title of each new lot formed by the subdivision of the dominant tenement:

HERETO IS ANNEXED EASEMENT (doc#) OVER [PART OF] (servient legal description) [SHOWN ON PLAN (plan#)]

Subdivider’s Endorsement on Plan

Where the subdivider designates on a plan that the benefits of an easement do not apply to one or more subdivided parcels, the subdivider uses the following form of endorsement on the plan:

PURSUANT TO S. 223 OF THE LAND TITLE ACT, LOT B OF THIS PLAN IS HEREBY DESIGNATED AS A PARCEL TO WHICH THE BENEFIT OF EASEMENT ________ DOES NOT ATTACH.

Amendment of Endorsement on Servient Tenement

If the benefit of the easement does not attach to all of the new parcels, by reason of either the terms of the easement instrument or a designation made by the subdivider, the registrar modifies the remarks segment of the easement endorsement on the servient title as follows:

EASEMENT H12345 YY-MM-DD HH/MM REMARKS: APPURTENANT TO (legal description of dominant land) [PART IN PLAN #] EXCEPT (legal description of excluded parcels)

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

See Di Castri, Registration of Title to Land, vol. 3, para. 838.

CASE LAW

For an interpretation of an easement agreement that allowed laying of a sewage line in contemplation of a subdivision of a dominant tenement under s. 223, see the annotation for Burke v. Kroeker, 2004 BCSC 27, under s. 182 in chapter 12 (Land Title Act Part 11 (ss. 169 to 184)—Registration in Fee Simple).

A 13-acre rural lot was consolidated with other lots, several times, eventually forming part of a larger 232-acre parcel. An easement registered originally to benefit the 13-acre lot was also attached, through the consolidations, to the title to the 232-acre parcel. The 232-acre parcel was subsequently subdivided and the easement was registered against the title to the newly subdivided lots. In an action by the owners of several of the servient tenements to restrict the use of the easement by the owners of the consolidated parcel, the court found that the consolidation that preceded the subdivision of the 232-acre parcel into several new lots did not constitute a subdivision for the purposes of s. 223(1)(b) of the Land Title Act and therefore, s. 223(1)(b) did not assist the court in determining the scope of the burden of the easement.

Rather the court held that the intention of s. 223(1)(b) was to attach the benefit of an easement to new parcels created upon subdivision of a dominant tenement (Lafontaine v. University of British Columbia, 2012 BCSC 805; see also the related proceedings at 2013 BCSC 1517). See also the annotation for this decision under s. 182 of the Land Title Act and s. 35(2)(b) of the Property Law Act.