Skip to main content

In This Volume

  • 242 (1) If application has been made to the registrar to register a transfer of land
  • (a) from a registered owner in fee simple, in this section called a “transferor”, to the holder of a registered charge by way of an agreement for sale, in this section called the “purchaser”,
  • (b) from a registered owner in fee simple, in this section called a “transferor”, to the holder of a registered charge by way of an option to purchase, in this section called the “optionee”, or
  • (c) from a registered owner of a charge by way of agreement for sale, in this section called a “transferor”, to the holder of a registered charge by way of a subagreement for sale, in this section called the “subpurchaser”,
  • and there is registered against the title to the land a mortgage created by a transferor referred to in paragraph (a), (b) or (c) and registered after the registration of the agreement for sale, option or subagreement for sale, as the case may be, the registrar may give notice to the mortgagee of the registrar’s intention, on the expiration of the time set by the notice, being not less than 14 days from the service of the notice on the mortgagee, to register the transfer free from the mortgage.
  • (2) If the mortgagee disputes the right of the purchaser, optionee or subpurchaser, as the case may be, to registration free of the mortgage, the mortgagee must file with the registrar a notice of objection in the form approved by the director within the time set by the registrar’s notice.
  • (3) If no notice of objection is filed by the mortgagee, the registrar may effect registration pursuant to the application free from the mortgage and the mortgage no longer forms a charge on the land.
  • (4) If a notice of objection is filed by the mortgagee, the registrar must give notice of a hearing before the registrar to the applicant for registration, the mortgagee and to any other parties who have an interest, and on the hearing, the registrar must determine the issue and give notice in writing of the registrar’s decision, with reasons, within 14 days after the date of the hearing.
  • (5) If no notice of appeal to the Supreme Court of the registrar’s decision is served on the registrar within 14 days after the date of the registrar’s decision, the registrar must effect registration pursuant to the application free from the mortgage, or subject to the mortgage, in accordance with the registrar’s decision.
  • (6) Section 309 applies to an appeal to the court from the registrar’s decision.

1979-219-221; 2004-66-114, effective January 20, 2005 (B.C. Reg. 16/2005).

FORMS

Use the Form 36, Notice of Objection to Registration Free from Mortgage.

PRACTICE

Registrar’s Notice to Mortgagee

Where situations described in s. 242(1)(a), (b), or (c) arise, the registrar notifies the mortgagee. There is no approved form which the registrar uses to give this notice. The registrar also sends the mortgagee a copy of s. 242 of the Act and a Form 36.

Submissions

The request for registration free of mortgage may be added in the Additional Information field on the application or attached in the form of a letter to an electronic Declaration and submitted with the application.

The electronic Declaration is submitted concurrently with the instrument that requests priority.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Service of Notice

See Part 22 of the Act regarding the requirements for service of notice.

Secondary Sources

See Di Castri, The Law of Vendor and Purchaser (3d ed., 1989), vol. 2, paras. 488 to 489, and Di Castri, Registration of Title to Land, vol. 2, para. 544.