246 Cancellation If Charge Determined By Effluxion Of Time

FORMS

Forms of Application for Cancellation of a Charge

Submissions

For cancellation of a charge by effluxion of time or happening of an event, use the Form 17 Cancellation of Charge, Notation or Filing.

For a list of supporting documents approved by the director, see Supporting Documents for Electronic Forms or the Form 17 Help Guide at ltsa.ca.

PRACTICE

Cancellation of Charge Due to Effluxion of Time or the Happening of an Event

The registrar does not act, in the absence of an application, to cancel a charge due to the effluxion of time or on the happening of an event. In the latter instance, the registrar requires a release of some kind.

It should be noted that an application for a Form A Freehold Transfer meets the above noted “application” requirement in the event the title is encumbered by a charge that has expired due to an enactment. For example, if a title is encumbered by a Claim of Builders Lien that has expired due to the provisions of the Builders Lien Act, S.B.C. 1997, c. 45, the registrar does not carry forward the expired Claim of Builders Lien to the new title.

Charges Determined by Effluxion of Time

Some registered charges may expire by their terms or upon the happening of an event. Examples include leases, some options to purchase, some rights of first refusal, and judgments.

Cancellation of Leases and Easements for a Term of Years

An applicant may apply for cancellation on the expiry of the term of any of the following instruments:

1. a lease with or without a right of renewal; or
2. an easement for a term of years.

Cancelling a Lease by Effluxion of Time

Application may be made to cancel the registration of an expired lease by filing the following:

1. a Form 17 that includes a request for a release of the lease; and
2. the lessor’s declaration that the lease has expired and the tenant has gone out of possession of the leased premises.

If application is made to cancel the lease after expiry of the term but prior to the expiry of all renewal options, the evidence must also confirm that the tenant has not exercised its right to renewal in accordance with the lease terms.

Evidence that the tenant is no longer in possession of the leasehold premises, with the consent of the landlord, is required even after the lease term and all renewals have expired so that the registrar can be satisfied that the lease has not continued on an overholding basis.

The evidence may be in the form of a statutory declaration. Under s. 294.6(e) or s. 303(e) of the Act, the registrar serves notice on the lessee and on the holder of any charge derived through the lease.

Where Right of Renewal Has Not Expired

An applicant may apply for cancellation of a lease with a right of renewal before the renewal period has expired by filing the following:

1. a Form 17 that includes a request for a release of the lease; and
2. the lessor’s declaration that the lessee did not renew and went out of possession, with such further evidence as the registrar may require.

The evidence may be in the form of a statutory declaration. Under s. 294.6(e) or s. 303(e) of the Act, the registrar serves notice on the lessee.

Cancellation of Options

An applicant may apply for cancellation of an option by filing the following:

Electronic Submissions

An applicant may file the following:

1. an electronic Form 17 Cancellation of Charge, Notation or Filing, selecting Nature of Interest, Charge by Effluxion of Time; and
2. if the option has expired by effluxion of time and the optionee has not exercised the option, an image of a statutory declaration to that effect; or
3. if the option has not expired, an electronic Form C Release.

Note that in circumstances set out under paragraph (2), the registrar serves notice on the owner in accordance with s. 294.6(e) or s. 303(e) of the Act.

For a list of supporting documents approved by the director, see Supporting Documents for Electronic Forms or the Electronic Form 17 Help Guide at ltsa.ca.

Cancellation of Rights of First Refusal

Submissions

An applicant may apply to cancel a right of first refusal by filing the following:

1. An electronic Form 17 Cancellation of Charge, Notation or Filing, selecting Nature of Interest, Charge by Effluxion of Time; and
2. If the right of first refusal has expired by effluxion of time and the owner did not exercise the right of first refusal,
   1. an image of a statutory declaration to that effect; or
   2. by demonstrating compliance with the terms described in the instrument indicating that the events contemplated by s. 246 of the Act have happened, an image of a statutory declaration to that effect; or
3. If the right of first refusal has not expired, an electronic Form C Release.

Note that in circumstances set out under paragraph (2), the registrar serves notice on the owner in accordance with s. 294.6(e) or s. 303(e) of the Act.

Waiver of Right of First Refusal

Where a title is encumbered by a registered right of first refusal, the registrar must not register a freehold title in the name of a person other than the holder of the right of first refusal unless:

1. the registrar receives a discharge of the right of first refusal; or
2. the holder of the right of first refusal waives the rights under it to the extent necessary to permit registration of the new freehold title in the name of that other person.

If the holder of the right of first refusal gives a waiver in the manner described in (2) above, the registrar carries forward the right of first refusal to the new title together with an endorsement of the waiver. The waiver receives a running number for this purpose.

Form of Waiver of Right of First Refusal

Submissions

1. The electronic Form C Release is the approved form selecting as the Nature of Interest Waiver of Right of First Refusal.
2. Waiver language is included on a Declaration Form.

The Form C must be executed by the holder of the right of first refusal, and may also be executed by the purchaser. Upon submission, the waiver will be noted as a pending Waiver of Right of First Refusal on the title to the lands described within the Form C Release.

Example of Waiver of Right of First Refusal

The following is an example of a waiver of right of first refusal to be included on a Declaration Form.

Form of Endorsement

The endorsement of the waiver shall be in the remarks column of the right of first refusal:

Right of First Refusal to Purchase, Waiver, Land Title Act, ss. 197 and 246, and Property Law Act, s. 9

RIGHT OF FIRST REFUSAL H12345 YY-MM-DD HH/MM REGISTERED OWNER OF CHARGE: JAMES BROWN H12345 REMARKS: WAIVER AS TO TRANSFER J12345 ONLY, SEE (doc # of waiver)

Life Estates

Where a life estate terminates on the death of a life tenant, an applicant must file:

1. a Form 17;
2. the death certificate of the person registered as owner of the life estate; and
3. such other evidence of the identity of the deceased life tenant as the registrar may require.

Submissions

A death certificate from Vital Statistics is in the class of supporting documents designated by the director for electronic filing.

Judgments Against Deceased Joint Tenant

Application may be made pursuant to the s. 246 “happening of an event” provision, to release a judgment that identifies a deceased joint tenant as the debtor, where the applicant on the transmission to surviving joint tenant application neglected to request the judgments be dropped. The Nature of Interest, Charge by Effluxion of Time, on the Form 17 includes charges to be cancelled due to the happening of an event.

See the annotation for Re Young Estate, 1955 CanLII 366 (ON CA) under ss. 177 and 269 of the Act.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Cancellation of Agreements for Sale

See s. 16(6) of the Law and Equity Act, R.S.B.C. 1996, c. 253, which provides as follows:

• 16 (6) Despite any term or provision of an agreement for sale to the contrary, a vendor may only cancel, rescind or otherwise determine an agreement for sale by obtaining an order to that effect in a foreclosure.

Cancellation of Writs Affecting Land

See the “Practice” discussion under s. 205 of the Act regarding the requirements for cancellation of a writ affecting land.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 2, §10:9, §12:33, §12:35, and §13:171.

CASE LAW

Agreements for Sale

The fact that the Act now requires a court order authorizing cancellation of registration of an agreement for sale, while formerly this cancellation could be done by the registrar, does not support the inference that the Legislature wished to alter the established jurisprudence and make an application for a declaration of cancellation of an agreement for sale subject to the full equitable jurisdiction of the court. Rather the wording of s. 246 recognizes the longstanding practice of land title offices of requiring a court order before cancelling the registration of an agreement for sale (Oxford Development Group Ltd. v. Tahsis Estates Ltd., 1984 CanLII 337 (BC SC)). But see s. 16 of the Law and Equity Act.