298 Fault Of Registrar

PRACTICE

Subsection 298(1), as amended by the Miscellaneous Statutes Amendment Act (No. 2), 2005, S.B.C. 2005, c. 35, provides access to the assurance fund where a person’s actions contributed to a loss caused, in part, by an error of the registrar. Section 303(f) limits the liability of the assurance fund to that portion of the loss caused by the registrar or the registrar’s staff.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

See Di Castri, Registration of Title to Land, vol. 1, §5:30, and vol. 3, §22:15, §22:16, and §22:24.

CASE LAW

Failure to Inquire Whether Joint Tenant Alive

A husband and wife owned property as joint tenants. Without telling her husband, the wife conveyed her interest to her daughter by deed, but the daughter did not register the deed until after her mother’s death. The registrar did not inquire whether the grantor was dead or alive before registering the deed. The husband brought an action for recovery from the assurance fund. Given the state of the register and the fact that the unregistered deed operated to sever the joint tenancy at common law, the court held that the registrar was not obliged to inquire whether the grantor was dead or alive at the time of application for registration of the deed. As there was no suggestion of any other omission, mistake, or misfeasance on the registrar’s part, the husband’s claim against the assurance fund failed (Stonehouse v. British Columbia (Attorney General), 1961 CanLII 48 (SCC)).

Misdescription of Boundaries

In 1910, Lot 15 was created by Plan 2821. In 1920, the city expropriated the north 7 feet of it for road, and, in 1943, expropriated another 10 feet. The plan was amended to show these road reservations, but the title issued in 1946 made no reference to the alterations. (Until amendment of the Land Registry Act in 1949, a reference in a title to a lot and plan number was a sufficient description when portions of a lot had been dedicated for roads.) In 1954, a new title for the lot issued by the registrar erroneously referred to “Lot 15, except the north 10 feet now road … Plan 2821”. When the plaintiff purchased the lot in 1983, his title contained the same misdescription. When he learned that the road dedication was, in fact, 17 feet, he brought an action under s. 298(1) of the Act and claimed against the assurance fund. The registrar committed a mistake or, alternatively, a misfeasance when incorrectly recording the road dedication on title in 1954. However, the plaintiff sustained no damage due to the provisions of s. 23(2)(e) and because the plan, which accurately revealed the boundaries of the lot and was referred to in the title, was incorporated as part of the conveyance to the plaintiff. The plaintiff’s claim was statute barred under s. 298(2) because the alleged loss or damage occurred when the registrar issued the title in 1954, 30 years before issuance of the plaintiff’s writ in 1984. Section 303(b)(ii) also barred the plaintiff’s claim because there had been a misdescription of boundaries (Rieger v. Vancouver (City), [1989] B.C.J. No. 711 (QL) (S.C.)).

Errors in Registered Surveys

The registrar accepted for filing two surveys of land. Some years later, the city surveyor brought it to the registrar’s attention that one plan encroached on the other. After an investigation, the Registrar-General of Title (as he was then called) decided that both maps were properly filed. About a year later, the plaintiff bought the land covered by one of the plans and the registrar issued him a certificate of indefeasible title. In a conflict between the plaintiff and another landowner, the court decided that one of the survey maps had been filed in error. The plaintiff then claimed against the Registrar-General. “The error in the plan and the deficiency of area upon the ground, followed by the issuance of the indefeasible title, was not any ‘omission, mistake or misfeasance of the Registrar’” within the meaning of s. 99 of the Land Registry Act, 1906 (now, s. 298). “It was not a duty incumbent upon the Registrar to determine the question of conflict between the two survey maps. There was no conflict upon the face of the plan and map and the Registrar was entitled to assume that the work of duly-qualified surveyors was rightly done. The risk in the matter was on the purchaser who purchased the lands relying on the plans.” In any case, s. 105 (now, s. 303(d)) constituted a complete bar to recovery (Lee Mong Kow v. Registrar-General of Titles, [1923] 2 W.W.R. 545 (B.C.C.A.)).

Effect of Limitation Period

In 1992, the plaintiffs bought a three-acre parcel of land. Based on their review of the plans in the land title office, they believed the property had road access along its entire frontage. However, the plans the plaintiffs reviewed were not accurate, and the adjoining lands were, in fact, not a road but private property. The plaintiffs brought an application to amend their amended statement of claim from a previous action in order to make a claim against the assurance fund for compensation under s. 298(1) of the Act. The proposed amendment stated that various filed plans contained material errors and that the registrar had made a mistake by accepting and registering those plans knowing that they would be relied on by the public. The court dismissed the plaintiffs’ application, finding that the claim was statute barred. Under s. 298(2) of the Act, an action must be commenced within six years from the time the loss or damage occurred. For limitation purposes, the damages arose when the mistake was made. The legislature did not intend the common law discoverability rule to apply to claims brought under s. 298(1) of the Act. The mistake in this case could be said to have been made at the earliest in 1911 and at the latest in 1971. Therefore, the limitation period for bringing the claim expired no later than 1977. Accordingly, the plaintiffs’ application was dismissed (Kirkpatrick v. Parkinson Estate (Public Trustee of), 2004 BCSC 119).

NOTE: Section 298(2) was amended by S.B.C. 2003, c. 66, s. 47, after the plaintiffs’ action was commenced. Section 298(2) now provides that an action must be commenced “within 3 years after the loss or damage is discovered by the claimant”.