Land Title Practice Manual

94 Reference To Ascertain Land And Settle Priorities

In This Volume

  • 94 (1) If an order is made on an application under section 92, there must be included in the order a reference to a district registrar of the Supreme Court
  • (a) to find what land is liable to be sold under the judgment,
  • (b) to find what is the interest of the judgment debtor in the land and of his or her title to it,
  • (c) to find what judgments form a lien and charge against the land and the priorities between the judgments,
  • (d) to determine how the proceeds of the sale are to be distributed, and
  • (e) to report all the findings to the court.
  • (2) The district registrar must deal with all judgments registered against the land whether registered before or after the judgment on which the proceedings are taken.
  • (3) Unless good reason is found to the contrary, the creditor first taking proceedings is entitled to his or her costs in priority to all claims under the judgment whether before or after his or her own.
  • (4) The district registrar must serve all persons affected by his or her inquiries.
  • (5) The report, when made, requires confirmation by the Supreme Court, and all persons affected by it must have notice of the application for confirmation, and on application the court may confirm all or part of the report, and may alter it or may refer it back to the district registrar.

1979-75-86.

CASE LAW

The applicant and defendant were registered owners in joint tenancy of a house and land. The plaintiff was awarded damages against the defendant. She registered a certificate of judgment against the defendant’s interest in the property, and obtained an ex parte order for sale. The applicant had no notice of any of the proceedings. After the sale, the applicant applied to set aside the registrar’s report under s. 94 of the Act and to seek a new hearing by the registrar to determine the respective interests of the applicant and the defendant in the property. The court found that the applicant was a person affected by the order for sale. As a joint tenant, the sale of the defendant’s undivided interest in the property had the effect of severing the joint tenancy and ending the applicant’s right of survivorship. Therefore, the applicant ought to have had notice of the registrar’s hearing and notice of the application to confirm the registrar’s report under s. 94(4) and (5) of the Act. In granting the application, the court confirmed the applicant was entitled to apply to set aside or vary the order for sale and to set aside the sale (Jansen v. Donaghy, 1999 CanLII 15181 (BC SC)).

The plaintiff registered judgment against a property owned by the respondent. In this action, the plaintiff applied for an immediate order for the sale of the property. The court confirmed the validity of the certificate and determined that the respondent failed to show cause why the property should not be sold. However, the court declined to order an immediate sale because the parties were obliged to comply with procedures under the Court Order Enforcement Act. While the court had inherent jurisdiction to deal with the manner or procedure to be followed on a sale under the Act, it was bound by s. 94 of the Act to require a reference to the registrar after the show cause hearing and before granting an order for sale (Cabaniss v. Cabaniss, 2010 BCSC 1053). The report from the registrar was received and accepted by the court in subsequent proceedings (Cabaniss v. Cabaniss, 2010 BCSC 1352).

The standard of review on an appeal from a registrar’s report under s. 94 is whether the registrar was clearly wrong or erred in principle (M. Dhaliwal Holdings Inc. v. Pacific Blue Farms Ltd., 2014 BCSC 1482).