241 Endorsement Of Nonoccupancy

REGULATIONS AND FORMS

The Strata Property Regulation, B.C. Reg. 43/2000, is included at chapter 59 (Strata Property Regulations).

“Previously Occupied”

See s. 14.1 of the Strata Property Regulation for the definition of “previously occupied” for the purpose of s. 241 of the Act.

Endorsement of Nonoccupancy, Form S: Section 241(1)

Section 14.5(3) of the Strata Property Regulation states that the endorsement of nonoccupancy required by s. 241(1) of the Act must be in Form S, Endorsement of Nonoccupancy. This certificate is effective for 180 days. Form S is included in chapter 60 (Strata Property Forms).

Submissions

On the Survey Plan Certification form, the endorsement by the British Columbia land surveyor under s. 241(1) of the Strata Property Act and s. 14.5(3) of the Strata Property Regulation must be in Form S. Form S must be contained in the electronic Survey Plan Certification form. The director’s directions are set out in the Electronic Land Title Plan and Plan Application Requirements, available at https://ltsa.ca/wp-content/uploads/2020/10/Electronic_Land_Title_Plan_and_Plan_Application_Requirements.pdf.

PRACTICE

Plan Tendered More Than 180 Days after Surveyor’s Certificate Dated

If an owner developer tenders the plan more than 180 days after the surveyor has certified the plan, the registrar accepts the surveyor’s recertification made either on the plan or in a separate letter. Surveyors cannot recertify a plan if a building on the strata lot has since become occupied. Under the Act, this is a conversion and s. 242 applies.

Submissions

The surveyor’s recertification is made either on the Survey Plan Certification form or by a separate recertification letter. If recertification is done by letter, attach an image of the original letter to a Declaration in support of the Application to Deposit Plan at Land Title Office.

CASE LAW

Endorsement of Nonoccupancy

If a strata plan includes a building that has not been previously occupied, both s. 241 of the Strata Property Act and s. 8 of the Condominium Act require the plan to be endorsed by a British Columbia land surveyor, certifying that the building has not been previously occupied. The following case, decided under the Condominium Act, affirms this requirement. Note that, although s. 8 of the Condominium Act required this certificate to be dated not more than 90 days before the date on which the strata plan is tendered for deposit, s. 241 of the Strata Property Act requires the endorsement to be dated not more than 180 days before the date of deposit.

Stratification under s. 8 of the Condominium Act of a building that has not yet been occupied is a much easier and more certain process than stratification under s. 9 of a building that has been occupied. As a result, it is in the interest of a building developer to obtain a surveyor’s certificate of nonoccupation, and to file it and the strata plan in the land title office within 90 days of the certificate’s date in accordance with the s. 8 requirements. When there is a risk that the 90-day time limit may expire before the filings are accepted, a lawyer retained to carry out the filings has a duty to advise clients of the consequences of proceeding to occupy the building (Marbel Developments Ltd. v. Pirani, 1994 CanLII 652 (BC SC)).