5 Transferor To Deliver Registrable Instrument

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

See Di Castri, Registration of Title to Land, vol. 1, para. 148 and vol. 3, para. 886.

CASE LAW

Preparation of Registrable Transfer

There has grown up a practice of the purchaser’s solicitor preparing the transfer from the vendor to the purchaser. That practice was not so well developed at the time that Stewart v. Friedrichsen, 1960 CanLII 323 (BC CA) (annotated under s. 6 of the Act) was decided. The rules are now as follows. First, where the cost of conveyance is to be borne by the purchaser, it is for the purchaser to prepare the transfer. It is for the vendor to be ready to execute it. Second, the first rule does not apply in any circumstances where title to the lands is not registered in the land title office in the name of the vendor. Where the vendor must first register title in their name, (for example, where there is an agreement for sale), the vendor must prepare the documents. Although the first rule was not the rule at common law, it is a rule perfectly apt to our system of registration of land title and has the virtue of simplicity. Because the vendor must execute the transfer and have their execution attested, the vendor may find themselves having to attend at the time and place fixed for completion. Of course, if the instrument does not provide for the purchaser to bear the costs of the transfer, then the common law rule applies (Shaw Industries Ltd. v. Greenland Enterprises Ltd., 1991 CanLII 3955 (BC CA)).

Section 5(1) of the Property Law Act does not require the vendor to prepare the transfer documents but to deliver to the purchaser a transfer in registrable form under the Land Title Act. The section is concerned with the nature of title to be transferred and the form in which the transfer is to be expressed. In this case, the purchaser was in default by deliberately failing to prepare and tender the transfer documents, thereby depriving the vendors of the ability to satisfy their obligation to execute the documents (Kioussis v. Coil, 1992 CanLII 1762 (BC CA), reversing 1990 CanLII 1409 (BC SC)).

Registrable Leases

Because the Land Registry Act only recognized registrable interests, there was implicit in every contract to lease land for over three years an agreement to give a registrable document so that the tenant had a marketable interest or security of tenure (Me-N-Ed’s Pizza Parlour Ltd. v. Franterra Developments Ltd., 1975 CanLII 907 (BC SC)); note that this case was decided before the enactment of s. 5 of the Property Law Act). See also the annotation under s. 73.1 of the Land Title Act in vol. 1 of this Manual for Idle-O Apartments Inc. v. Charlyn Investments Ltd., 2010 BCSC 132, varied 2014 BCCA 451.