253 Subdivision Of Common Property

PRACTICE

Subdivided Land Vests in Strata Corporation

A subdivision of common property under s. 253(1) of the Act has the effect of vesting the subdivided land in the strata corporation.

Signatures Required on Plan Subdividing Common Property

The following signatures are required on the strata plan under s. 97 of the Land Title Act:

1. the signatures of the owners and registered charge holders of all of the strata lots in the strata plan;
2. the signatures of all of the registered charge holders of the common property being subdivided unless the registrar determines that the interests of the charge holders are not affected by the deposit of the plan.

Signatures on Accompanying Instrument

Submissions

The director has approved the use of the electronic Application to Deposit Plan at Land Title Office. This form is available at https://ltsa.ca/wp-content/uploads/2021/04/LTO-Application-to-Deposit-Plan_V21.pdf.

The signature blocks that are required normally on a hardcopy plan are available in one of three schedules in the electronic Application to Deposit Plan at Land Title Office. Each signature block is accessed and created by clicking on Add Owner/Charge Signatures, Add Approver Signatures, or Add SG Signatures buttons at the bottom of the form. Selection from the drop-down menu in each of the signature schedules automatically populates the signature or witness field with the appropriate editable text for the schedule selected. For assistance in completing the form, see the Land Title Electronic Plan Application Help Guide at https://ltsa.ca/professionals/land-title-practice/e-filing-user-guides-and-publications/.

The accompanying instrument is in the following form:

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Disposition of Land Held on Behalf of Strata Corporation

After common property is subdivided, it becomes a common asset and may be disposed of by the strata corporation in accordance with s. 79 of the Act.

Dedication and Vesting under Section 107 of the Land Title Act

A subdivision under s. 253(1) of the Strata Property Act may also include the dedication and vesting of a highway, park, or public square under s. 107 of the Land Title Act.

CASE LAW

In June 2017, the registrar of the Victoria Land Title Office made a decision declining to register a plan filed by the Ministry of Transportation and Infrastructure. The plan related to common property transferred by the owners of a strata property to the ministry for a highway stabilization slope. To effect the deposit of the plan, the ministry included in its materials a certificate of the strata corporation evidencing that the owners passed a resolution by 3/4 vote approving the disposition of the common property. The registrar required the signature of all owners holding an interest in the common property on the submitted plan. The plan submitted by the ministry did not contain the signatures. The ministry was of the view that the registrar’s interpretation of the statutory provisions requiring all signatures was unreasonable. The ministry appealed to the Supreme Court pursuant to s. 309 of the Land Title Act, where the parties agreed on the applicability of a reasonableness standard of review to the registrar’s decision. The court dismissed the ministry’s appeal. The interpretative question at the heart of the appeal was whether a highway dedication under s. 107 of the Land Title Act was a “transfer of a freehold estate” under s. 253(1) of the Strata Property Act. The ministry’s position was flawed because it focused on characterizing what the ministry obtained (a dedication) rather than the nature of the disposition. A s. 107 dedication vests title to the highway in the Crown. The Crown’s title to the highway depends on eliminating the strata owners’ freehold title. This requires a transfer of a freehold estate within the meaning of s. 253(1). The registrar’s interpretation of the relevant provisions of the Land Title Act (the registrar’s home statute) and the Strata Property Act fell within the range of reasonable outcomes. The ministry appealed to the Court of Appeal, where it argued that the standard of review applicable to the registrar’s decisions was the more stringent standard of correctness, rather than the standard of reasonableness. The Court of Appeal dismissed the appeal. The standard of review was that of reasonableness, and the registrar’s decision was reasonable. A presumption of deference arises where an administrative decision-maker interprets it home statute or statutes closely connected to its function. Concurrent jurisdiction between the courts and the registrar did not rebut the presumption of deference owed to the registrar in this case. The question before the registrar did not lend itself to a single answer; the question also engaged the registrar’s superior expertise in understanding interests in land, the intricacies of the Land Title Act, and the complex interaction between the Act and other statutes. Though sparse, the registrar’s reasons sufficiently satisfied the standard of transparency and intelligibility; the reasons revealed the path he took in rejecting the plan submitted by the minister (British Columbia (Minister of Transportation and Infrastructure) v. Registrar Victoria Land Title Office, 2018 BCCA 288, affirming 2017 BCSC 1999).

For a discussion of the requirement for signatures and consent to the disposition of the common property in a strata plan, see the annotation for Big White Mountain Mart Ltd. v. British Columbia (Ministry of Forests, Lands and Natural Resource Operations), 2012 BCSC 1258, under s. 97 of the Land Title Act.

For discussion of a case where statutory requirements rendered a parking lease invalid because it constituted a subdivision of common property without compliance with the required application process set out in s. 253(1) of the Strata Property Act, see the annotation for Abstract Projects Inc. v. Strata Plan EPS 6069, 2023 BCSC 42 under “257 Amending strata plan to designate limited common property” in this chapter.