23 Vesting And Possession

REGULATIONS AND FORMS

Form 9, Vesting Order

Section 6 of the Expropriation Act General Regulation prescribes the use of Form 9, Vesting Order, which is reproduced at “Form 9, Vesting Notice” in this chapter. The application for filing the notice in the land title office is incorporated into the form.

Vesting Order—Fee Simple

On the Form 17 Fee Simple or the Form 17 Charge, Notation or Filing, where applicable, select Nature of Interest, Expropriation Act—Fee Simple (Provincial), and attach an image of the Form 9, Vesting Order.

Road Dedication

On the Form 17 Fee Simple, select Nature of Interest, Expropriation Act—Road Dedication (Provincial), and attach an image of the Form 9, Vesting Order.

Vesting Interests less than Fee Simple

Covenant

On the Form 17 Charge, Notation or Filing, select Nature of Interest, Expropriation Act—Covenant (Provincial), and attach an image of the Form 9, Vesting Order.

Statutory Right of Way

On the Form 17 Charge, Notation or Filing, select Nature of Interest, Expropriation Act—Statutory Right of Way (Provincial), and attach an image of the Form 9, Vesting Order.

Form 9, Vesting Order, is in the class of supporting documents designated by the director for electronic filing.

This transaction receives preliminary examination prior to receiving an application number, date, and time.

PRACTICE

Partial Taking

In the case of a partial taking, the registrar endorses the transfer out segment of the parent title. Where no indefeasible title to the part transferred out is to be registered, the registrar updates the register to remove the area expropriated from the parent parcel. The registrar then creates a new indefeasible title under s. 189 of the Land Title Act for the remainder of the parent parcel.

Charges Carried Forward under Section 23(2)(c)

The registrar refers to the expropriation notice or order under s. 7(1) to determine whether it specifies other charges to be carried forward in addition to those enumerated in s. 23(2).

Expropriating Authority Requests New Indefeasible Title under Section 23(5)

If an expropriating authority makes a request under s. 23(5) for registration of an indefeasible title, the registrar refers to the expropriation notice or order under s. 7(1) to determine whether it specifies other charges to be carried forward in addition to those enumerated in s. 23(2).

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Advance Payment

Section 20(1) and (6), referred to in s. 23(1), deals with advance payments made by an expropriating authority to an owner. See the comments under the same heading under s. 19 of the Act.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 3, para. 814, 819 and 820.

CASE LAW

Possession

The Minister of Transportation and Highways expropriated the respondents’ land and entered into an agreement stating that the respondents could continue to occupy the residence and part of the lot until they found other accommodation. When the respondents refused, later, to vacate the residence so that the ministry could proceed with its scheduled construction work on the land, the minister applied to the court for an order for possession. The court found that the minister’s right of possession did not arise on the date of filing the vesting order but rather under the terms of the agreement with the respondents to which the right of occupation or vesting was subject. That agreement was a bare licence to occupy the residence and revocable on reasonable notice. As the minister had given notice, the court was entitled to grant possession under s. 23(7)(a) of the Act (British Columbia (Minister of Transportation and Highways) v. Dunn, 1996 CanLII 1806 (BC SC)).

Notice to Owners

The defendant’s common law spouse was the registered owner of property, half of which she held in trust for him. The defendant’s interest was not registered in the land title office although the defendant was an owner within the meaning of the Expropriation Act. The Ministry of Transportation and Highways complied with its obligation to give the defendant notice of its intention to expropriate under s. 23 of the Act because the registered owner was properly notified, the defendant lived with the owner on the property, the defendant was present at the time the ministry was in communication with the owner, and the defendant was fully aware of the ministry’s intentions (British Columbia v. Schneider, 1995 CanLII 3115 (BC SC), appeal dismissed 1996 CanLII 3349 (BC CA)).

Bylaw a Prerequisite for Municipalities

See the annotation for Erickson v. Kamloops (City), 1993 CanLII 1464 (BC SC), under s. 6 of the Act.

Registration and Limitation Periods

For a discussion of the limitation period under the Expropriation Act, see the annotation for Atco Lumber Ltd. v. Kootenay Boundary (Regional District), 2014 BCSC 524 under s. 218 of the Land Title Act.

Comprehensive Scheme for Resolution of Compensation Disputes

In Bowolin v. British Columbia Transportation Financing Authority, 2018 BCCA 411, the appellate court allowed the respondent Transportation Authority’s appeal from an order made on judicial review. The order set aside an expropriation notice, advance payment, and vesting notice, and gave certain directions, in the matter of an expropriation for improvement to the Trans Canada Highway between Sicamous and Revelstoke. This dispute, at its heart, challenges the expropriating authority’s treatment of the gravel-bearing nature of the expropriated property. There is an adequate alternative remedy to judicial review in the Act’s compensation resolution scheme, and judicial review should not have been engaged: Strickland v. Canada (Attorney General), 2015 SCC 37. The judge misapprehended the evidence in saying the advance payment did not include consideration of the gravel-bearing nature of the property and in requiring the expropriating authority to obtain reports additional to the appraisal reports it had. Last, the two notices should not have been set aside. The expropriation notice had not been challenged. As to the vesting order, setting it aside was injurious to the public interest, and that effect should have been considered by the judge in the exercise of his discretion.