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In This Volume

  • 260 (1) In this section, “dealing” does not include
  • (a) a release by a personal representative of a mortgage of which the will-maker or intestate was the registered owner, or
  • (b) a release by a surviving joint tenant of a mortgage of which the surviving and deceased joint tenants were the registered owners.
  • (2) If an estate in fee simple, or a charge other than a judgment or a claim of lien under the Builders Lien Act, has become the subject of a transmission, the person entitled under it,
  • (a) before registering an instrument dealing with the estate in fee simple, and
  • (b) in the case of a charge,
    • (i) before registering an instrument dealing with the charge, or
    • (ii) before taking or continuing a proceeding to enforce the charge,
  • must apply to the registrar to be registered as the owner of the estate in fee simple or charge.
  • (3) The registrar, on
  • (a) being satisfied that a good safe holding and marketable title has been established by the applicant, and
  • (b) production of the duplicate indefeasible title, if any,
  • may register the title claimed by the applicant.

1979-219-239; 1982-60-65, proclaimed effective August 1, 1983; 2009-13-195, effective March 31, 2014 (B.C. Reg. 148/2013).

PRACTICE

Filings Required before Transmission Consequent on Death

To register the transmission of land or a charge consequent on the death of a will-maker or intestate to a personal representative, an applicant must also file concurrently the documents required under s. 265 or 266 of the Act.

Excluded Dealings under Section 260(1)

For dealings excluded from the application of the section under s. 260(1) of the Act, the applicant submits the usual transmission documents in support of the release, with the exception of the application for transmission to the personal representative. The registrar does not require the personal representative to apply for a transmission as a condition of registering an excluded dealing under this section.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Registration of an Instrument to Its “Full Extent”

See s. 156 of the Act regarding the requirement that transmission deal with all of the interests in land.

Registration in the Name of a Personal Representative

See s. 180 of the Act regarding the registration of title in the name of a personal representative.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 3, para. 933.

CASE LAW

With respect to the court’s refusal to make a declaration vesting title in trust property before an application to register a transmission has been made, see the annotation for Re Estate of Delesalle, 2007 BCSC 1527 under s. 34 of the Land Title Act in this volume of the Manual.

Good Safe Holding and Marketable Title

In Smith v. Graham, 2009 BCCA 192, the court adopted the registrar’s description of a good safe holding and marketable title as a title where (1) the possession of the person on title is safe from attack and the person cannot be displaced (safe holding) and (2), so far as its antecedents are concerned, the title may at all times and under all circumstances be forced upon an unwilling purchaser (marketable). In this respect, a person’s title is doubtful if there is an issue that would lead a reasonable purchaser to question the title and thus refuse to complete a transaction. For a further annotation of this case in relation to alter ego trusts, see s. 180 of the Act.