282 Lodging Caveat | Land Title Practice Manual

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282 (1) A person, in this Act referred to as the “caveator”, claiming

(a) under an unregistered instrument which is incapable of immediate registration,
(b) by operation of law, or
(c) otherwise,

to be entitled to land the title to which is registered under this Act, may by leave of the registrar, granted on terms, if any, the registrar may consider proper, lodge a caveat with the registrar prohibiting registration of a dealing with the land either absolutely or in the manner or to the extent expressed in the caveat.
(2) A committee or the Public Guardian and Trustee acting under the Patients Property Act may lodge a caveat with the registrar if the committee or Public Guardian and Trustee certifies

(a) that the committee or Public Guardian and Trustee has been appointed committee or is the committee under the Patients Property Act, and
(b) that the land of a patient is or may be endangered.

(2.1) An attorney acting under an enduring power of attorney may lodge a caveat with the registrar if the attorney certifies

(a) that the attorney has the authority to act as attorney under Part 2 of the Power of Attorney Act, and
(b) that the land of the person for whom the attorney is acting is or may be endangered.

(3) Section 293 does not apply to a caveat lodged under subsection (2), but the registrar may withdraw the caveat

(a) on receiving a withdrawal notice under section 290, or
(b) on application by any person, if the registrar considers it proper to do so.

1979-219-261; 1996-250-7 and 10(b)(Supp.), effective February 28, 2000 (B.C. Reg. 12/2000); 2007-34-91, effective September 1, 2011 (B.C. Reg. 14/2011); 2023-10-471.

PRACTICE

Forms

The director has approved the use of Form 38, Caveat.

Submissions

On the Form 17 Charge, Notation or Filing, select Nature of Interest, Caveat, and attach an image of the original Form 38.

The Caveat receives preliminary examination prior to receiving an application number, date, and time.

Certification Given by Committee under s. 282(2)

The certification by a committee referred to in s. 282(2) is usually contained in the caveat. However, if a solicitor or agent for the committee signs the caveat, the certification should be in a separate document signed by the committee personally. The registrar may accept a certification in the caveat given by the solicitor or agent signing the caveat “on information and belief”.

Certification Given by Attorney under s. 282(2.1)

The certification by an attorney referred to in s. 282(2.1) is usually contained in the caveat. However, if a solicitor or agent for the attorney signs the caveat, the certification should be in a separate document signed by the attorney personally. The registrar may accept a certification in the caveat given by the solicitor or agent signing the caveat “on information and belief”.

Caveat Lodged against Undersurface Rights

A caveat lodged against undersurface rights does not prevent registration of a mortgage, provided the mortgage does not charge the undersurface rights.

Notice of Security Interest under Personal Property Security Act Not Basis for Caveat

The registrar rejects any application to lodge a caveat based on a notice of security interest under the Personal Property Security Act on the grounds that, should the applicant succeed in their action, the applicant is not entitled to an interest in land that is registrable under the Land Title Act.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Statutes Authorizing the Lodging of Caveats

The following statutes contain provisions that authorize the lodging of a caveat or similar charge against the title to land:

Bankruptcy and Insolvency Act (Canada), s. 74
Infants Act, s. 8

See chapter 67 (Registration of Instruments) for further information on the registration of caveats under these Acts.

Lapse of Caveat

Section 293 of the Act provides that most caveats expire two months after the date of lodging. Note that under s. 282(3), a caveat lodged by a committee or the Public Guardian and Trustee acting under the Patients Property Act does not expire two months after the date of lodging, but the registrar may withdraw the caveat.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 1, para. 117, and vol. 2, paras. 559, 562, 573, 574, 575, 578, 583, 601, and 735.

CASE LAW

Entitlement to Lodge a Caveat

Where a party has a vendor’s lien charging land, that party is entitled to a caveat as a person “interested in the lands and premises” and the words contained in the section “or otherwise” apply to them. Although the vendors in this case claimed a lis pendens in their pleadings, the court was of the view that they were actually seeking a caveat and that a caveat was the proper relief to be sought. The court ordered a caveat subject to the agreement or consent of counsel (Mork v. Bombauer, 1977 CanLII 392 (BC SC)).

Where there is no binding agreement of purchase and sale between a caveatee and caveator, the caveator (the intended purchaser) has no claim to or interest in property entitling the caveator to lodge a caveat (Canada Trustco Mortgage Co. v. 77-11 Properties Inc., [1986] B.C.J. No. 1550 (QL) (S.C.)).

An Indian band appealed from a decision of the registrar refusing to register a certificate of pending litigation and a caveat against privately owned lands over which the band was seeking to assert an aboriginal land claim. To lodge a caveat under s. 282 of the Act, a person must be entitled to the land; that is, the person must be claiming an estate or interest in land that is registrable under the Act. Because aboriginal title is inalienable, a claim based upon aboriginal title is not registrable under the Act and a caveat cannot be lodged (Skeetchestn Indian Band v. British Columbia (Registrar of Land Titles), 2000 BCSC 118, affirmed 2000 BCCA 525; see also the annotations for this decision under ss. 1, 23(2)(a), and 197 of the Act).

See the annotation for Ferguson v. 569244 British Columbia Ltd., 2002 BCCA 193, under s. 215 of the Act.