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30 Notice Of Unregistered Interest As Affecting Registered Owner Of Charge

In This Volume

  • 30 (1) In this section, “filing” includes a claim of lien filed under the Builders Lien Act but does not include
  • (a) a notice filed under the Sale of Goods on Condition Act, R.S.B.C. 1979, c. 373, or
  • (b) a filing under the Manufactured Home Act.
  • (2) In subsection (3), “claim” includes a certificate of pending litigation and a caveat, other than a caveat lodged by the registrar.
  • (3) Under this Act,
  • (a) a registered owner of a charge enforcing that owner’s charge by the exercise of the power of sale contained in it, or in an action for foreclosure,
  • (b) a purchaser under the power of sale, or under a sale pursuant to an order of the court in an action for foreclosure,
  • (c) a court in which an action to enforce a charge by foreclosure is pending, and
  • (d) a registrar considering an application founded on a sale under such a power of sale, or on a foreclosure decree, or on a sale pursuant to an order of the court in an action for foreclosure,
  • are not bound by or deemed to have notice of an interest, right or claim, the registration, filing, deposit or lodging of which is not applied for until after
  • (e) a notice of the intended exercise of the power of sale, or
  • (f) a certificate of pending litigation in a foreclosure action
  • has been filed or registered.
  • (4) On the filing of a notice under subsection (3), the registrar must endorse it and its filing number in the register.
  • (5) Subsection (3) applies to a registered owner who is, or who is a successor in title to, a vendor or subvendor and who has registered a certificate of pending litigation in respect of an action for the cancellation of a registered agreement for sale of the land and who obtains an order for cancellation.
  • (6) Nothing in this section affects the right of a person claiming through a mortgagor or mortgagee, or through a vendor or purchaser, while the action is pending, to file a pleading or other document in the action.

1979-219-30; 1990-53-12, effective September 1, 1990 (B.C. Reg. 252/90); 1992-55-1, 2, effective October 1, 1994 (B.C. Reg. 300/94); 2010-6-63, effective July 1, 2010; 2015-41-15.


On application to register an order absolute of foreclosure, immediate order absolute, or vesting order, the applicant must set out the charges to be dropped on the Form 17 application.


Crown Liens Taking Effect after Registration of Certificate of Pending Litigation

Liens created by judgments in favour of certain Crown bodies, namely the Director of Employment Standards, the Workers’ Compensation Board, or the Labour Relations Board, even when registered after a certificate of pending litigation, may have priority, even over mortgages and certain other charges and rights registered before the judgment. See s. 87 of the Employment Standards Act, R.S.B.C. 1996, c. 113, s. 265 of the Workers Compensation Act, R.S.B.C. 2019, c. 1 and s. 135 of the Labour Relations Code, R.S.B.C. 1996, c. 244. When one of these Crown liens may have priority over the claim of the holder of a certificate of pending litigation in a foreclosure action or court ordered sale, and if the lien holder is not joined as a party, such liens will not be released automatically from title. The registrar issues a notice under either s. 294.6(e) or 303(e) of the Land Title Act to the applicable Crown body advising that its lien will be removed from title two weeks after the notification, thus giving the Crown body time within which to assert its priority. If the applicant has joined the Crown body, the registrar does not send a notice.

Exercise of Contractual Power of Sale

Where an applicant makes an application to register pursuant to the exercise of a contractual power of sale, the examiner must refer the application to the registrar. See the annotation for South West Marine Estates Ltd. v. Bank of British Columbia below under the “Case Law” heading.


Person Filing Interest after Certificate of Pending Litigation

When considering s. 30(6), also consider Rule 21-7(4) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, which provides:

Person filing interest after certificate of pending litigation

  • (4) If a petitioner under this rule registers a certificate of pending litigation in respect of the proceeding against the mortgaged property, a person who subsequently registers or files in a land title office an interest, right or claim in or to the mortgaged property
    • (a) need not be served with the petition,
    • (b) is bound by an order made in the proceeding, and
    • (c) may file a response to petition in the proceeding.

B.C. Reg. 168/2009, effective July 1, 2010.

Rule 21-7 applies with the necessary changes in points of detail to a proceeding for the cancellation of an agreement for sale (Rule 21-7(11)).

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 2, para. 434.


Registrations Applied for after Certificate of Pending Litigation

Where a judgment creditor registers a judgment after registration of a lis pendens and confirmation by the court of an order for sale, the judgment creditor has no right to redeem or apply for an order of sale, or to share in the proceeds (Thompson Valley Saving Credit Union v. Jubbal, 1980 CanLII 566 (BC SC)).

Contractual Powers of Sale

The exercise of a mortgagee’s rights under a power of sale contained in a mortgage are subject to the supervision of the court, and the mortgagee’s powers should be no greater under the power of sale than under foreclosure proceedings. Except in special circumstances, if a mortgagee tries to sell under a contractual power of sale, a court will not allow the mortgagee to proceed until the usual six-month redemption period expires (South West Marine Estates Ltd. v. Bank of British Columbia, 1985 CanLII 570 (BC CA)).