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In This Volume

  • 37 (1) Where the court has authority to order the execution of a deed, conveyance, contract, transfer or assignment of any property or other document or to endorse any negotiable instrument, the court may, by order, vest the property in the person and in the manner and for the estates, as would be done by that deed, conveyance, contract, assignment or transfer if it were executed.
  • (2) An order made under subsection (1) has the same effect as if the legal or other estate or interest in the property had been actually conveyed by deed or otherwise for the same estate or interest to the person in whom it is ordered to be vested or, in the case of a chose in action, as if the chose in action had been actually assigned to that person.

1979-224-34.

PRACTICE

Solicitor’s Certificate as to Sale Money

Where a vesting order does not state its effective date, provides for payment of sale money to a solicitor, and is clearly immediate and unconditional, the registrar does not require a certificate stating that the solicitor holds the sale money. The registrar does require such a certificate if the vesting order states that vesting takes place “upon payment to the solicitor” or uses similar words to indicate that vesting is not, or may not be, immediate and unconditional.

Court Order Containing Vesting Language

An order of the court that contains vesting language operates in the same way as words of transfer in a conveyancing instrument and may be equivalent to a declaration that a good safe holding and marketable title exists. See s. 34 of the Land Title Act with regard to registration of indefeasible titles by court order.

CASE LAW

See the annotation for Hydro Fuels Inc. v. Mid-Pacific Services Inc., 2000 BCCA 608, under s. 29 of the Land Title Act.

A vesting order was made as a result of a family law claim. In accordance with the order, title to the former matrimonial home was registered in the names of third parties not involved in the claim. Subsequently an appellate court overturned the trial judgment and ordered a new trial in the underlying family law claim. The former husband applied to have the vesting order set aside, arguing that it should fall as ancillary to the now overturned trial decision. The Court of Appeal found that when family property has been transferred to arm’s length purchasers, their interests must be considered. Where bona fide purchasers under a court order have performed their side of the bargain, fairness favours upholding the transfer. The third party purchasers were entitled to rely on the vesting order and could not be faulted for doing so (Berthin v. Berthin, 2016 BCCA 425, leave to appeal refused 2017 CanLII 12226 (SCC)). See also the annotations for Berthin v. British Columbia (Registrar of Land Titles), 2017 BCCA 181 under s. 215 of the Land Title Act, and the annotations for Berthin v. Berthin, 2018 BCCA 57 and related proceedings under s. 310 of the Act.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

For registration of indefeasible title by court order, see s. 34 of the Land Title Act in this Manual, in chapter 3 (Land Title Act Part 3 (ss. 20 to 38)—Registration and Its Effect).