Skip to main content

In This Volume

  • 97 (1) A subdivision plan must be signed by each owner of the land subdivided.
  • (2) All the signatures to the plan must be witnessed in the same manner as is required by section 72(2).
  • (3) The registrar may accept a plan that has not been signed by all the owners if, in the registrar’s opinion, the interests of the owners who have not signed are not affected by the deposit of the plan.
  • (4) If an owner of a charge, other than a charge by way of mortgage, lease, agreement for sale or subagreement for sale, fails or refuses to sign the plan, the owners in fee simple may apply to the registrar 30 days after serving that owner with notice of an application to be made under subsection (5).
  • (5) On application made after the 30 days referred to in subsection (4), the registrar may issue an appointment for the hearing of all interested parties, and on the return of the appointment may
  • (a) hear all interested parties or their agents,
  • (b) adjourn the hearing of the application on terms the registrar considers proper,
  • (c) award costs the registrar considers just to the applicant or to any other person interested in the application, and order by whom the costs must be paid, and
  • (d) grant or refuse all or part of the application, or on conditions the registrar considers proper.
  • (6) A person dissatisfied with an order made under subsection (5) may
  • (a) require the registrar forthwith to provide written reasons, and
  • (b) within 21 days after receiving the registrar’s reasons, apply to the Supreme Court by way of appeal from the registrar’s decision.
  • (7) Sections 309 and 310 apply in respect of the application to the court and the proceedings on it.
  • (8) The deposit of a plan pursuant to an order of the registrar or court made under this section has the same effect in all respects as if the plan had been signed, without prejudice however, except as to a highway, park or public square included in the plan, to a condition, exception, reservation, charge, lien or interest to which the registered title to the subdivided land is subject.

1979-219-97; 1989-69-9, effective April 1, 1990 (B.C. Reg. 53/90).

PRACTICE

“Owner”

Section 1 of the Act states that “owner” means “a person registered in the records as owner of land or of a charge on land, whether entitled to it in the person’s own right or in a representative capacity or otherwise, and includes a registered owner”.

Signature of Crown or Local Government

Where the provincial Crown or a local government is the owner of a statutory right of way or a covenant under s. 219 of the Act and a plan is dedicating a road, forest service road, or park or returning areas to the Crown that affect that statutory right of way or covenant, the Crown or local government, as applicable, is required to sign the plan or provide a release of their interest.

This requirement does not apply to charge holders who are the designated approving authority on the plan.

Waiver of Signature Requirements

Interests of Owners Not Affected

Under s. 97(3), and in the following instances, the registrar usually accepts plans not signed by all owners:

  1. Incorporeal charge owners (for example, owners of easements and rights of way) do not sign the plan unless a dedication directly crosses their charges.
  2. Owners of lots covered by a building scheme need not sign a plan, except where a plan effects a dedication.
  3. Lease holders need not sign a plan, except where it may materially affect their rights, such as a dedication.

Submissions

The signature blocks that are normally required on a mylar plan are also shown on the electronic Application to Deposit Plan at Land Title Office. Included in the electronic plan application are three types of signature schedules that each contain a drop-down listing of all known examples of required approvals and signatories to assist in preparing the electronic plan application. Each schedule is created by clicking on the Add Owner/Charge Signatures, Add Approver Signatures, or Add SG Signatures button at the bottom of the form. Selection from the drop-down menu in each of the signature schedules automatically populates the signature or witness field with the appropriate editable text for the type selected. For assistance in completing the form, see the Electronic Plan Help Guide found at ltsa.ca.

Builders Lien Claimant

A builders lien claimant need not sign a subdivision plan where there is no dedication.

Charge Holder Has Executed Instrument Tendered Concurrently

The registrar may dispense with the signature of a charge holder where the charge holder has executed an instrument tendered concurrently with the plan and which properly identifies the plan. Examples of such instruments are partial releases.

Hardship

Where hardship would otherwise result, the registrar may accept a letter of consent to deposit a plan, duly signed and witnessed by a charge holder. The witnessing requirements are the same as for signatures to a composite plan under s. 72(2) of the Act.

Electronic Plans

A letter of consent is in the class of supporting documents designated by the director for electronic filing. On the Declaration form enter a description of the supporting document sufficient to identify it and attach an image of the letter of consent. Note that a print of the plan is not required as the letter must consent to a plan with a pre-assigned plan number.

As a copy of the electronic plan and plan application can be e-mailed or faxed, signed, and returned to the applicant in the same manner, the occasion for hardship is unlikely to occur for an electronic plan.

Signatures Capable of Reproduction

Electronic Plans

For an electronic plan, signatures are applied to the printed true copy of the electronic Application to Deposit Plan at Land Title Office.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Section 26 of the Property Law Act states that, unless the instrument or power of attorney expressly precludes it, a personal representative, trustee or attorney given the power to dispose of land may subdivide and dedicate as necessary. The registrar must still examine the instrument or power of attorney to see if there is any restriction on powers.

Where land is charged under the Agricultural Credit Act, R.S.B.C. 1996, c. 9, a plan of subdivision must be signed by all of the owners of the land and by the appropriate government official. See Order in Council No. 132, approved and ordered February 14, 1991.

Note: The Agricultural Credit Act was repealed by s. 1 of the Miscellaneous Statutes Amendment Act, 2003, S.B.C. 2003, c. 7, in force June 1, 2003, by B.C. Reg. 201/2003. Under s. 68 of that Act, s. 7 of the Agricultural Credit Act continues to apply to charges filed on or before May 31, 2003.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 1, paras. 133 and 166.

CASE LAW

See the annotation for Wesbild Enterprises Ltd. v. Shular, 1991 CanLII 253 (BC SC), under s. 103 of this Act.

In earlier proceedings, the appellant obtained a court order for specific performance of an agreement to convey certain strata property to it. Subsequent to the conveyance, the appellant intended to consolidate and subdivide the property into new strata lots reflecting its reconfigured commercial building. Some of the property subject to the agreement was common property in a strata plan. Although the appellant had initially obtained the consent of all of the owners in the strata plan to the conveyance, by the time the appellant obtained the court order, the ownership of several strata lots had changed. The appellant made diligent and costly efforts to obtain the consents of the new owners without complete success. The appellant then asked the registrar to exercise discretion under s. 97(3) of the Act to accept the subdivision plan for deposit without the consent of all owners. The registrar declined on the basis that the interests of the owners who did not sign the subdivision plan would be affected because their interests in the common property would be reduced through the conveyance of some of the common property to the appellant. In this appeal, the court upheld the registrar’s decision with respect to the signatures. It found that the registrar’s decision was reasonable and sufficient within the context in which it was made. The court also held that, in the absence of express wording, the test for the registrar under s. 97(3) was whether the owners would be “affected”, not whether they would be “adversely affected” by the deposit of the plan (Big White Mountain Mart Ltd. v. British Columbia (Ministry of Forests, Lands and Natural Resource Operations), 2012 BCSC 1258). Note that the order for specific performance in this case made no reference to the requirements necessary for a conveyance under the Land Title Act.

The petitioner purchased a large lot within a planned multi-phase 800-lot residential and golf course development. Over a number of phases, the petitioner intended to subdivide the lot into 232 residential lots, public roads, parks, walkways and utility corridors. Under the original master plan for the development, a number of amenities, including a fitness centre and walking trails, were included in the plan and intended as a benefit to all owners in the development. To achieve this, the original developer registered reciprocal charges including an easement, a covenant, a statutory right of way (SRW) and a rent charge encompassed in the SRW against each new lot. Under s. 97(1) of the Land Title Act, the petitioner was required to obtain the signature of each charge holder on the subdivision plan. As the phased development proceeded, this requirement became extremely difficult, if not impossible, for the petitioner to complete. The petitioner applied unsuccessfully to the registrar to waive the requirement under s. 97(3) of the Act and then applied to court to have the charges cancelled under s. 35 of the Property Law Act. The city and the community association consented to the petitioner’s application. None of the owners of the residential lots appeared in court or took any position on the application and so, by implication, agreed to the cancellation. Opposing the petitioner was a second developer who owned other large lots within the master plan area. The second developer was concerned that, if amenities were developed on the petitioner’s lot after the charges were cancelled, the benefit of those amenities would not be available to the purchasers of lots in his subdivision. In considering s. 35, the court agreed with the petitioner that the charges were obsolete. In accordance with the original plan, all of the roads and public areas would be owned and maintained by the city and hence accessible to all owners without the need for the charges. No other amenities had been planned or would be built within the undeveloped remainder of the petitioner’s lot. To support his position, the petitioner agreed to an undertaking not to construct any amenities in the future and not to sell any portion of his lot to anyone other than residential purchasers without a further court order. The court found that the petitioner’s plan to develop the remainder of his lot was a reasonable use of the land and that this use would be impeded if the charges remained on title. The court was satisfied that the petitioner met the requirements of s. 35(2)(a), (b) and (d) of the Property Law Act and ordered the cancellation of the charges subject to the prior posting of the petitioner’s undertaking with the court (Emil Anderson Construction Co. Ltd. v. 0977415 B.C. Ltd., 2017 BCSC 957).