98 New Indefeasible Titles For Parcels Shown On Deposited Plan

REGULATIONS

Parcel Consisting of Whole Lot and Fractional Interest in Another Lot

Where a fractional interest in a lot is created under s. 11 of the Land Title Act Regulation, the registrar registers a single title for both the whole lot and the fractional interest in accordance with s. 11(10).

PRACTICE

Pre-Plan Transfer Required

In circumstances where:

1. adjoining parcels of land are owned by different people or are owned by the same person(s) but the parcels have different financial encumbrances; and
2. the adjoining parcels are being subdivided to combine a part of one lot with a part or all of the adjoining lot,

it is necessary to file some additional documents with the subdivision plan to ensure that registration of the plan can occur.

The requirement to file additional documents is occasioned by the need to have unity of ownership, or identical financial encumbrances, in the various parts of the new parcel created by the plan of subdivision.

For example, as illustrated in Sketch A, a proposed subdivision affects two identically sized lots, 1 and 2, Plan VIP 13579:

The proposed subdivision is to take part of Lot 1 that is shown with shading in Sketch B and add it to Lot 2 to form a larger Lot A. Lot 1 is owned by Melvin and is subject to a mortgage, EL1234, in favour of Mortco Finance Ltd. Lot 2 is owned by Jones and is subject to a mortgage, EL5678, in favour of Trustco Ltd.

To conclude the registration of the proposed subdivision plan, the following documents must be filed:

• (1) Freehold transfer
• Electronic Plans
• For electronic plans and documents, the pre-assigned plan number is located on the plan and is referenced in the legal description. For an electronic plan and freehold transfer from Melvin to Jones, the legal description must describe the plan as follows:

This transfer requires a declared value, on the basis of fair market value, and a property transfer tax return. The effect of this transfer is to ensure that, upon registration of the new subdivision plan, all of the new Lot A created by the subdivision plan is owned by Jones.

• (2) A partial release of Mortgage EL 1234 signed by Mortco Finance Ltd. as it relates to the part of the former Lot 1, as legally described and as subject to the freehold transfer from Melvin to Jones.

The effect of the partial release of Mortgage EL 1234 is to ensure that the mortgage constitutes a charge only on that part of Lot 1 that remains as a distinct, identifiable parcel, and to ensure that the mortgage does not form a charge on a piece of the newly created Lot A. It is not possible to have a mortgage that charges only a portion of a lot.

• (3) An extension agreement that provides mortgage EL 5678 is extended to charge, in addition to the former Lot 2, the new parcel of land that is added to the former Lot 2 by the subdivision plan. The extension of the mortgage agreement must be signed by Jones, as the owner of Lot A. The mortgagee, in these circumstances, is not required to sign the extension agreement.

The extension agreement serves the same purpose as the partial release. Both ensure that mortgage EL 5678 does not charge only a portion of Lot A, being that portion of Lot A which was formerly in Lot 2.

The registrar makes the following entries on title:

(1) With respect to Lot 1:

(2) With respect to Lot 2:

(3) With respect to Lot A:

Post-Plan Registrations

Electronic Plans and Documents

The British Columbia land surveyor adds the pre-assigned plan number to the electronic plan. Where the applicant concurrently presents documents for registration against the title to a new parcel being created by a subdivision with the subdivision plan, the applicant describes the new lots with a complete legal description by reference to the new lot number, root description from the plan heading, and the pre-assigned plan number, as shown in the following example:

Standardized Legal Descriptions

Legal descriptions for titles to land defined by subdivision, and s. 100 reference plans are created using the following formatting guidelines:

[lot designation on plan] [the root description based on the crown grant or other originating document; e.g. District Lot reference and District name] [the concurrently filed subdivision plan number]

Accordingly, legal descriptions for titles to land defined by such plans will follow the following example:

Lot 1 District Lot 100 Peace River District Plan BCP12345.

Subdivision plans should designate new lots as “A, B, C…” or “1, 2, 3…” and not be labeled “Parcels” as the new legal descriptions will always refer to “Lots”. Accordingly, a simple reference to a lettered or numbered designation on the plan is all that is required. For example, a plan should have a designation of “A” as opposed to “Parcel A”. This will resolve inconsistencies that arise when, for instance, a subdivision plan is labeled as “Parcel A” and the associated title is formatted as “Lot A”.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

See Di Castri, Registration of Title to Land, vol. 1, paras. 130 and 131.

CASE LAW

The plaintiff agreed to purchase two parcels of land from the defendant. Under the terms of the agreement, the defendant was obliged to subdivide the land before closing. The defendant submitted a subdivision application to the land title office. As required under s. 86 of the Act, the land title office examined the documents, determined that they were acceptable, assigned new parcel numbers, and put new legal descriptions on the documents. However, before closing, no new titles had been registered, and neither the title numbers nor the descriptions of the parcels were shown on the plaintiff’s title searches. In granting the plaintiff’s application for the return of its deposit and for a declaration that it was not required to complete the transaction, the court found that, although the transfers were registered subsequent to the closing, the respondent was not entitled to rely on its pending application because the respondent had not fulfilled its covenant to subdivide the land so that it comprised two legal parcels before closing (Beedie Group Developments Ltd. v. Canada Lands Co. CLC Ltd., 1999 CanLII 4156 (BC SC)).