288 Effect Of Caveat

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Priority of Caveats

See ss. 30 and 31 of the Act regarding the priority established by a caveat.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 2, §14:17, §14:80 to §14:82, and §15:4.

CASE LAW

Court May Remove Caveat where Transfer Filed First Although Registrar Had Declined to Do So

The respondent defendant, SD, was alleged by the respondent co-defendants (her ex-husband, OK, her ex-brother-in-law, MK, and her son, IK) to have been holding residential property in trust for them. The subject property was one of several that were subject to high-conflict litigation between SD and OK. The petitioner had entered into a contract of purchase and sale with SD, and on the completion date, the petitioner’s conveyancing solicitor filed the transfer with the land title office. IK, later that day, filed a caveat against the property, and OK, MK, and IK filed certificates of pending litigation (“CPL”s). The registrar of land titles declined to register the transfer of title to the petitioner, citing Land Title Act ss. 288, 289, and 290 in respect of the caveat and ss. 216(2)(b) and 252 to 258 in respect of the CPL. The petitioner applied for an order pursuant to s. 289 that title to the property vest in him, subject to the CPLs to remain on title. Held, for petitioner. The court found no cogent evidence supporting allegations that the petitioner was not a bona fide third-party purchaser for value and granted the relief sought. The court cited Rudland v. Romilly, 1958 CanLII 577 (BC SC) for the proposition that the filing of a valid application to transfer title by a bona fide purchaser grants the filing party a “clear right to have that interest registered,” which cannot be defeated by a party who files a charge while the application remains pending because of “the delays inevitable in a busy land registry office.” The court also cited 1122792 B.C. Ltd. v. 1230310 B.C. Ltd., 2021 BCSC 715, which set out the relevant legal framework and said s. 31 of the Land Title Act provides that a caveat or CPL has priority only over an instrument for which application for registration has been made after the caveat or CPL has been lodged; where a transfer was filed before a caveat, the caveat could have no effect on whether title should be registered. Here, the respondents argued that the registrar had determined under s. 288(2) that the claim of the caveator, if successful, would destroy the root of title of the person against whose title the caveat was lodged. The court said there was nothing in the legislation from which it could infer that it could only remove a caveat under s. 289 if s. 288(2) were not invoked (Roberts v. Kassam, 2023 BCSC 1111).