37 Vesting Orders

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.

Interpreting a Vesting Order in Context of Overturned Ruling

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.

Court Makes Vesting Order after Finding Indefeasibility Presumption Rebutted, Orders Monetary Judgment for Unjust Enrichment

The plaintiffs, Chris and Naomi, a married couple, alleged that the defendant Janice (Naomi’s mother) held her undivided 1/2 interest (shared with her late husband) in their Surrey house in trust for Chris and Naomi or for Naomi. They sought a declaration to that effect and an order, pursuant to s. 37 of the Law and Equity Act, vesting Janice’s interest in Chris and Naomi and removing Janice from the title.

On the extensive evidence, the court found and declared that Janice held her interest in trust for Naomi, and that Chris and Naomi had rebutted the Land Title Act s. 23(2) presumption that Janice, as the person named in the title as registered owner, beneficially owned that undivided 1/2 interest.

The court found that Chris and Naomi were unjustly enriched, for which a monetary judgment would provide adequate remedy, and set out a procedure to determine its quantum, failing which the court would determine it following a case management conference.

The court ordered that Janice’s interest vest in Naomi and granted leave to the plaintiffs to apply for any further technical orders that might be required by the land title office to give effect to the vesting order (Jesson v. Tanaka, 2023 BCSC 1313).

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

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