294.2 Remedies Of Person Deprived Of Land

• 294.2 (1) A person, in this Part referred to as the “claimant”,

• (a) who is deprived of any estate or interest in land
  • (i) because of the conclusiveness of the register, in circumstances where, if this Act had not been passed, the claimant would have been entitled to recover the land from the present owner, and
  • (ii) in consequence of fraud or a wrongful act in respect of the registration of a person other than the claimant as owner of the land, and
• (b) who is barred by this Act or by any other Act, or otherwise precluded from bringing an action
  • (i) for possession, or any other remedy for the recovery of land, or
  • (ii) for rectification of the register,

• may, subject to subsections (2) and (3), proceed in court for the recovery of damages against the person by whose fraud or wrongful act the claimant has been deprived of the land.

  (2) In a proceeding under subsection (1), the Land Title and Survey Authority must be joined as a nominal party defendant as a condition of recovering damages and costs from the fund, and the Land Title and Survey Authority has the right in the proceedings to all the defences available to the Land Title and Survey Authority or any other person for the purpose of protecting the fund.

  (3) If the person liable for damages is dead, or cannot be found in British Columbia, a claimant may, instead of proceeding against that person, proceed in court for the recovery of damages and costs against the Land Title and Survey Authority as nominal defendant and recovering the amount of the damages and costs from the fund, and the Land Title and Survey Authority has in the proceedings all the rights and defences under subsection (2).

  (4) If

• (a) final judgment has been given against the person liable for damages under subsection (1) in a proceeding in which the Land Title and Survey Authority has been joined as a party defendant, and
• (b) the court, on the application of the plaintiff supported by evidence satisfactory to the court, certifies to the Land Title and Survey Authority that the plaintiff has taken all reasonable steps to recover the amount of damages and costs awarded by the judgment from the person so liable, but the plaintiff has been unable to recover all or part of them,

• on receipt of a certified copy of the judgment and the certificate of the court, the Land Title and Survey Authority must

• (c) pay the amount of the damages and costs so awarded or the unrecovered balance of them, as the case may be, on account of the person liable for the damages or the person’s personal representatives, and
• (d) charge the amount to the fund.

• (5) If the person bringing an action under subsection (3) recovers final judgment against the Land Title and Survey Authority, the registrar of the court must certify to the Land Title and Survey Authority the fact of the judgment and the amount of the damages and costs recovered.
• (6) On receipt of a certificate under subsection (5), the Land Title and Survey Authority must pay the amount of the damages and costs on account of the person liable for the damages or the person’s personal representative, and must charge the amount to the fund.
• (7) A proceeding for the recovery of damages sustained through the deprivation of land may not be brought under this section

• (a) against the Land Title and Survey Authority, or
• (b) against the person by whose fraud or wrongful act the person entitled to the land has been deprived of it,

• unless the proceeding is commenced within 3 years after the deprivation is discovered by the claimant.
• (8) If a person is under a disability, the Limitation Act applies to this section.

2004-66-116, effective January 20, 2005 (B.C. Reg. 16/2005).