235 Election Not To Proceed | Land Title Practice Manual

In This Volume

235 (1) An owner developer who elects not to proceed with the next phase must, before the time set in the Phased Strata Plan Declaration for the election to proceed,

(a) give written notice of the election not to proceed to the strata corporation and the approving officer, and
(b) file with the registrar a notice of the election not to proceed, together with a reference plan, in accordance with section 100(1)(a) of the Land Title Act, of the remainder parcel.

(2) On receipt of the notice of the election not to proceed, the registrar must remove the Phased Strata Plan Declaration notation from the title to the strata lots and from the title to the remainder parcel.
(3) Unless otherwise agreed between the owner developer and the strata corporation, if an owner developer elects not to proceed, the Supreme Court may order, on application of the owner developer or the strata corporation made within 2 years of the receipt of notice under subsection (1)(a), that the owner developer

(a) contribute to the expenses of the strata corporation that are attributable to the common facilities as if the owner developer had elected to proceed, and
(b) pay money, post a bond, provide a letter of credit or provide other security for the owner developer’s share of the expenses of the strata corporation under paragraph (a).

(4) Subsection (3) applies only if

(a) common facilities have been constructed in the existing phases, or
(b) the strata corporation has become contractually obligated to contribute toward the operating costs of common facilities on a separate parcel.

(5) On application by the strata corporation, the Supreme Court may determine whether the owner developer’s election not to proceed is unfair to the strata corporation.
(6) If the court determines that the election is unfair, the court may make one or both of the following orders:

(a) that the owner developer complete whatever common facilities the court considers equitable;
(b) that some or all of the security provided for the common facilities be paid as provided by the court.

(7) An agreement referred to in subsection (3) must be approved by a resolution passed by a 3/4 vote at an annual or special general meeting, and for the purposes of that 3/4 vote, the owner developer is not an eligible voter.

1998-43-235, effective July 1, 2000 (B.C. Reg. 43/2000).

PRACTICE

Notice of Election Not to Proceed

Submissions

On the Strata Property Act Filing form, select Election Not to Proceed, and attach an image of a letter from the owner developer that states the intention not to proceed.

Statement of Notice to Strata Corporation and Approving Officer

The notice of election not to proceed must contain a statement that the owner developer has given written notice to the strata corporation and the approving officer.

Election within Time Limits

The registrar confirms that the time for the election to proceed has not expired. Under s. 231, if the date contained in Form P for making an election to proceed has passed, the owner developer is conclusively deemed to have elected to proceed. In these circumstances, the owner developer must file an amended Form P for an extension of time under s. 232 before the registrar will accept an application to file an election not to proceed.

Release of Form P

The registrar treats the notice of election not to proceed as a release of the Form P. The registrar assigns a serial number to the election and cancels the legal notations regarding Form P on all of the titles in the phased development. A notation regarding the election not to proceed is also made on the first page of the strata plan.

Reference Plan Redefining Remaining Land Required

Under s. 100 of the Land Title Act, the registrar requires owner developers to file a reference plan to redefine the remaining lands when owner developers elect not to proceed. Section 100(4)(a) of the Land Title Act states that a reference plan tendered for deposit under this section must be accompanied by a written application in the form approved by the director and the duplicate indefeasible title, if any.

Transfer of Remainder of Property after Election Not to Proceed

Subject to deposit of the plan under s. 100 of the Land Title Act, owner developers may transfer the remainder of the property after making an election not to proceed.

CASE LAW

The plaintiffs purchased homes in phase one of a bare land residential strata plan. The strata plan was also subject to a statutory building scheme. By letter, the owner developer advised the plaintiffs and the other phase one owners that it no longer intended to proceed with the development of phase four and that it intended, instead, to develop the phase four lands as a residential club with fractional ownership managed by a commercial hotel chain. In dismissing the plaintiffs’ application for declarations and injunctions related to alleged breaches of the building scheme, the court found that the disclosure statement clearly gave notice to purchasers that the development might not necessarily include all four phases, that any phase might be removed, and that the building scheme would contain restrictions applicable to the construction but not to the use of the lands. The court also found nothing in s. 235 of the Act that limited the owner developer’s right to elect not to proceed with the next phase of the development. Once the notice of election was filed with the registrar, the registrar was required to remove the phased strata development plan notation from title to the strata lots and from title to the remainder parcel (Kornfeld v. Intrawest Corp., 2005 BCSC 162). See also the annotation for this decision under s. 220 of the Land Title Act.