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  • 33 An equitable mortgage or lien created by the deposit of a duplicate indefeasible title or other instrument, whether or not accompanied by a memorandum of deposit, is not registrable.

1979-219-33; 1982-60-9, proclaimed effective August 1, 1983.


Deposit of Duplicate Certificate of Title with Lending Institution

A lending institution that takes a deposit of an owner’s duplicate certificate of indefeasible title as security for a loan is not entitled to register this equitable mortgage.


See s. 195 of the Act regarding the requirement that the duplicate indefeasible title be surrendered to the registrar for cancellation before an application may be made to register a charge by way of mortgage or agreement for sale.

Regarding the effect of unregistered instruments, see s. 20 of the Act.

See also Di Castri, Registration of Title to Land, vol. 2, paras. 405 to 409; Megarry and Wade, The Law of Real Property, 8th ed.; and M.A. Waldron, “Unregistered Equitable Mortgages in British Columbia: Lenders Beware” (1987) 45 Advocate 533.


Creation of Equitable Mortgages

In the absence of evidence of a contrary intention, a transaction consisting of (1) an interim agreement and absolute transfer of title to property, (2) a one-year option in favour of the transferor to repurchase the property, and (3) a one-year lease of the property to the transferor does not constitute an equitable mortgage and thus does not give rise to an equitable right to redeem title to the property after the legal right to repurchase has expired. In this case, the question of intent turned on the credibility of the parties at trial, and the transferor’s evidence of his intention to merely transfer his property as security for borrowing was not credible; the transfer was absolute (Blackaby v. Rabson, 1993 CanLII 668 (BC SC), affirming 1994 CanLII 543 (BC CA)).

Liability of Assurance Funds

An assurance fund does not protect a person holding as security a duplicate certificate of indefeasible title from the registrar’s omission to recall the duplicate before registering a subsequent mortgage (Royal Bank of Canada v. British Columbia (Attorney General), 1979 CanLII 464 (BC SC)). See ss. 294.6 and 303 of the Act.