5 Power To Restore Land To Legal Or Moral Claimants

PRACTICE

Transfer by Ministerial Order

Under s. 4(1), if a corporation is not restored under s. 4(4) or (5), or if the court order obtained under s. 4(5) does not order that land escheated to the Crown vest in the corporation, the corporation’s land escheats absolutely to the Crown. However, the escheated land may still be restored to the corporation by way of an application under s. 5(a) for a ministerial order.

An application to the Attorney General may also be made for a ministerial order transferring land to a person who has a “legal or moral claim” under s. 5(b) of the Act or to carry into effect a disposition contemplated by the previous owner of escheated land. For example, the owner of a right to purchase from a dissolved corporation may make an application under s. 5(b).

Persons Discovering the Escheat or Forfeiture

In practice, the Attorney General does not grant escheated land to persons who discover the escheat or forfeiture.

Requirements of Attorney General

To obtain a ministerial order for the grant of escheated land, an applicant must present an application to the Escheats Officer of the Legal Services Branch, Ministry of Attorney General, 1001 Douglas Street, Victoria, BC, V8W 9J7. An applicant may contact the Escheats Officer before submitting an application to verify any additional requirements, but generally applications must include the following:

1. a statutory declaration of the directors of the dissolved corporation or other applicant disclosing all facts material to the title, with particular reference to the position of creditors (if any), who has paid the taxes, knowledge of the dissolution and restoration of the corporation (if any), names of the parties to whom the interest should be transferred, and any other facts supporting a legal or moral claim to the exclusion of all third parties. If there are two or more directors of a dissolved corporation, each must provide a statutory declaration;
2. a receipt or letter from the assessment authority acknowledging that all taxes are paid in full;
3. a recent state of title certificate;
4. a certified copy of the order restoring the corporation (if any), or a letter from the Registrar of Companies showing the company as dissolved;
5. a letter from the Chief Gold Commissioner of the Ministry of Energy, Mines and Low Carbon Innovation, consenting to the application, as well as a letter stating that all mineral taxes have been paid in full and by whom (in the case of a claim for under surface or mineral rights);
6. fees in the amount of $300, payable to the Minister of Finance by way of certified cheque, bank draft, money order, or solicitor’s trust cheque;
7. an indemnity agreement executed by the applicant or applicants;
8. any other applicable consents from shareholders or principals, if necessary; and
9. a letter from any mortgagee stating that debts owed to it have been satisfied or that they are in good standing.

The Ministry of Attorney General reviews each application and makes a recommendation to the Attorney General. The Attorney General may grant the land to the claimant by ministerial order.

Registration of Land Granted under s. 5

Submissions

On the Form 17 Fee Simple or the Form 17 Charge, Notation or Filing, where applicable, select Nature of Interest, Escheat, and attach an image of the ministerial order. The application must be accompanied by an electronic Property Transfer Tax form.

Discharge of Mortgage before Dissolution of Company

Where a corporation has received the entire amount of a mortgage before being dissolved, the registrar accepts a statutory declaration to that effect from a former director or officer as no escheat issues arise in these circumstances.

Submissions

On the Form 17 Cancellation of Charge, Notation or Filing, select Nature of Interest, Escheat Act—Cancellation of Mortgage, and attach an image of the statutory declaration signed by the former director or officer of the dissolved company.

Discharge of Mortgage after Dissolution of Company

Where a mortgage has been repaid to a corporation after it has been dissolved, the corporation need not be restored in order to discharge the mortgage. To register a discharge of the mortgage, an applicant must obtain a statutory declaration setting out the particulars of the mortgage and stating that it has been paid in full, either from a director of the dissolved corporation or from the person who has been receiving the mortgage payments. The applicant must forward the statutory declaration, together with the application fee, payable to the Ministry of Finance, to the Ministry of Attorney General, Legal Services Branch, Victoria, which, if satisfied with the statutory declaration, issues a letter of non-objection to the applicant. The applicant must include both the letter and the statutory declaration with the application for registration.

Submissions

On the Form 17 Cancellation of Charge, Notation or Filing, select Nature of Interest, Escheat Act—Cancellation of Mortgage, and attach an image of a statutory declaration signed by the director of the dissolved corporation or by the person who has been receiving the mortgage payments, and a letter of non-objection from the Attorney General.

CASE LAW

Land May Be Sold in Absence of Grant by Ministerial Order

A company was struck from the register and was not restored until five years later. As provided by s. 4 of the Act, if a corporation is not restored to the register within one year, its lands escheat absolutely to the Crown and do not revest if the corporation is later restored to the register. The Lieutenant Governor in Council (now, the Attorney General) may restore the property under s. 5 of the Act, but in the absence of a grant by the Lieutenant Governor in Council (now a ministerial order), a court may order the sale of escheated land after one year as set out in s. 4 (Roberts v. Trianon Holdings Ltd., 1991 CanLII 2324 (BC SC)). Note that the one-year period set out in s. 4 was changed to two years, effective November 27, 1992.