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In This Volume

  • 293 (1) A caveat lodged under this Act lapses and ceases to affect the title to land after the expiration of 2 months after the date it was lodged with the registrar, unless within that period the caveator commences an action to establish the caveator’s title to the estate or interest claimed and registers a certificate of pending litigation.
  • (2) Despite subsection (1), if a caveatee, in accordance with the caveat serves, at least 21 days before the expiry of the 2 months referred to in subsection (1), a notice in the form approved by the director on the caveator or the caveator’s solicitor or agent filing the caveat, as the case may be, to withdraw the caveat or take proceedings in court to establish the claim made in the caveat, the caveat lapses and ceases to affect the caveatee’s title to the land after the expiration of 21 days after the date of service, unless within the 21 day period the caveator commences an action to establish the caveator’s title to the estate or interest claimed and registers a certificate of pending litigation.
  • (3) This section does not apply to a caveat lodged by the registrar.

1979-219-272; 1992-55-1, effective October 1, 1994 (B.C. Reg. 300/94); 2004-66-114, effective January 20, 2005 (B.C. Reg. 16/2005).

FORMS

Notice to Caveator

The director has approved the use of Form 40, Withdrawal of Caveat. The use of Form 40 is compulsory.

PRACTICE

Section 293(2)

An owner serves notice in Form 40 on a caveator to withdraw the caveat or to take proceedings to establish the claim set out in the caveat. If the caveator does not take proceedings and file a certificate of pending litigation within 21 days, the caveat lapses and the caveatee may apply to the registrar to cancel the caveat.

If the caveat lapses after the two-month period, the caveatee may apply to the registrar to cancel the caveat by effluxion of time.

No Notice to Caveator That Caveat Has Expired

The registrar does not send notice to the caveator that the caveat has expired.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Service of Notice

See Part 22 of the Act regarding the requirements for service of notice.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 1, para. 261, and vol. 2, paras. 571, 620 to 622, and 639.

CASE LAW

Waiver of Time Limit

A caveator lodged a caveat but took no court action within the time limit specified by the Act. The caveatee, however, waived the time limit by stating a case and applying for and obtaining an order that the caveator state her case. Both steps assumed and proceeded on the assumption of the continued existence of the caveat (Wilson v. McIntosh, [1894] A.C. 129 (P.C.)).

Incorrect Procedure for Removal

The defendants brought an application under ss. 255 and 257 of the Act to have a caveat and certificates of pending litigation removed from lands they had purchased. Although the plaintiff’s claim for an estate or interest in land was not filed within the two-month period required under s. 293 of the Act, the court declined to discharge the caveat because the application was brought incorrectly under s. 257 of the Act rather than under s. 289. The court adjourned the application to allow the defendants time to address that issue (Tymira Holdings Ltd. v. Whittaker, 2004 BCSC 905). With respect to the certificates of pending litigation, see the annotation for this decision under s. 257 of the Act.