99 Registrar To Determine Whether Description Of Land Acceptable

FORMS

Application for Deposit of Reference or Explanatory Plan

Electronic Plans

For electronic plans, the director has approved the electronic Application to Deposit Plan at Land Title Office. On the electronic Application to Deposit Plan at Land Title Office, select “REFERENCE OR EXPLANATORY” in item 3. The “Number of new lots created” must be selected as 0, as any new parcel is created by the accompanying transfer, where applicable. This form is available at ltsa.ca.

PRACTICE

Plan Must Be Accompanied by Instrument

The registrar does not accept a plan by itself for registration. Except in the case of statutory rights of way under ss. 99(1)(e) and 113, an applicant must file for registration with the plan the instrument creating the interest shown in the plan, such as an instrument creating an easement or lease.

Electronic Plans and Documents

The electronic Form C Charge is the form approved to accompany electronic plans creating instruments such as an easement or lease.

Acceptance of Legal Descriptions and Reference and Explanatory Plans

Preliminary Reference to Registrar

Owners should refer all requests to use an explanatory plan, by metes and bounds or abbreviated description, to the registrar before proceeding. Requests should be made by emailing the Customer Service Centre at customerservice@ltsa.ca. If the registrar approves the request, the written approval of the registrar must be attached to the electronic Application to Deposit Plan form.

Note: Subdivision by description without an electronic plan is not available for electronic filing.

Reference Plan Preferred to Explanatory Plan

The registrar prefers a reference plan. However, the registrar may accept an explanatory plan as long as:

1. no known survey discrepancies exist;
2. the new boundaries do not contain excessive curves or jogs and are not affected by a natural boundary;
3. the registrar is of the opinion that a survey is not required to establish the location of the boundaries on the ground; and
4. the parent plan is not based on a description or explanatory plan.

The registrar will also consider an explanatory plan when the area delineated on the plan is defining an existing and immovable object, such as a tree or building. In this instance, the owner or applicant should include a written explanation with the application to file the plan.

Metes and Bounds Descriptions and Abbreviated Descriptions Discouraged

In the interests of accuracy and certainty, the registrar rarely accepts a metes and bounds description or an abbreviated description, thus avoiding complex and lengthy legal descriptions.

Descriptions Must Be Complete

Every description of an indefeasible title must apply to a definite and defined piece of land. The test is whether anyone reading the description could identify the parcel of land set out with no possibility of doubt about the parcel of land described. To that end, it is essential that every description be complete in itself. By reading the words on the indefeasible title, anyone referring to it must have a complete and clear picture of the parcel of land described.

Standardized Legal Descriptions

Legal descriptions for land defined by plans registered under s. 99(1)(f), (g), (h), and (j) and s. 114 are created using the following formatting guidelines:

• “That part of” [the legal description of the underlying parcel] “shown on” [followed by a reference to the concurrently filed plan].

For example, a s. 99(1)(h) plan is filed under plan number BCP45678. It has a plan heading that reads “Statutory Right of Way plan over part of Lot 1 District Lot 100 Peace River Plan BCP12345”. The resulting legal description reads:

• That part of Lot 1 District Lot 100 Peace River District Plan BCP12345 shown on plan BCP45678

There is no requirement to add a distinguishing letter or parcel. Under s. 99(1)(f), (g), (h), and (j) and s. 114, the plan itself does not create the parcel. This is accomplished with an accompanying Form A transfer. Therefore, a distinguishing letter or number designation on the plan may be misleading.

Where a plan filed under s. 99(1)(f), (g), (h), or (j) or s. 114 contains more than one area that is being transferred separately, the legal description will need to include an additional note to specify which areas are being dealt with. This will typically be by reference to the area of the portion being dealt with, for example:

• That part of Lot 1 District Lot 100 Peace River District Plan BCP12345 having an area of 20 square metres as shown on plan BCP45678

In the rare instances where the plan contains more than one area of the same size, a different solution will be required, for example, hatching of one area, such as:

• That part of Lot 1 District Lot 100 Peace River District Plan BCP12345 shown hatched on plan BCP45678

Searching the Records for Standardized Legal Descriptions

Please note that effective October 18, 2010, every plan creating a parcel, regardless of its type, may be searched on myLTSA with the following legal description information:

The newly filed plan number; in the above examples, this would be “BCP45678”.

In addition, the following search functionality also applies to s. 99 plans:

The legal description of the underlying parcel; in the above s. 99 examples, “Lot 1 Plan BCP12345” would be sufficient.

Subdivision by Way of Lease under Section 99(1)(k)

General Rule

As a rule, under s. 99(1)(k), where an applicant tenders a subdivision by way of lease for registration, the registrar may, subject to the approval of the appropriate approving officer, and, where the land is within the agricultural land reserve, subject to the approval of the Provincial Agricultural Land Commission, accept a reference plan or, if the circumstances allow, an explanatory plan. The registrar prefers to receive a reference plan.

Headings of Plans

If the registrar requires an explanatory or reference plan, the heading of the plan must be substantially as follows:

EXPLANATORY (REFERENCE) PLAN TO ACCOMPANY LEASE OF PART OF (DESCRIBE PARCEL) FOR LEASEHOLD PURPOSES; LEASE AND APPROVAL OF THE APPROVING OFFICER AND PROVINCIAL AGRICULTURAL LAND COMMISSION TO EXPIRE (DATE OF EXPIRY).

Notation on Instrument of Lease

Electronic Plans and Documents

For an electronic plan, the British Columbia land surveyor notes in a blank space outside the plotted boundaries the following statement:

This plan lies within the jurisdiction of the Approving Officer for (insert jurisdictions).

The following signature block is included in an electronic Application to Deposit Plan at Land Title Office:

Plan EPP _____ is approved under the Land Title Act for the purpose of a lease for a period of ____ years from ____________________ (date) (# of years including the term of any approved renewals).

____________________

(Signature)

____________________

Approving Officer

Ministry of Transportation and Infrastructure

(Or Other Authority)

and/or if applicable

Plan EPP _____ is approved under the Agricultural Land Commission Act for the purpose of a lease for a period of ____ years from ____________________ (date) (# of years including the term of any approved renewals).

____________________

(Signature)

____________________

Chair (Fill in name of

Chair or other Officer)

Provincial Agricultural Land Commission

Note, if the approval is contained in an electronic Form C Charge, a Form D without officer certification should be used for the approval and signature.

Plans Accompanying Leases of All or Part of a Building

Where an applicant applies to file a lease plan for a lease of all or part of a building, the registrar typically requires an explanatory plan prepared by a British Columbia land surveyor.

Plan Title

An explanatory plan of part of a building must indicate in the plan title how many storeys the building comprises. The body of the plan must indicate on which floor or storey the lease area is situated. For example: Explanatory plan of the second floor of a four-storey building situated upon (quote legal description). This will assist the land title office in determining whether the lease conflicts with an existing lease. See Survey and Plan Rule 4-3(4) and Electronic Land Title Plan and Plan Application Requirements s. 4.1(c).

Forms of Endorsement for Leases

For examples of the most common endorsements for leases, see chapter 70 (Legal Notations and Charges).

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Principles Guiding Approving Officer

See s. 101 regarding the principles and requirements guiding the approving officer in an application for subdivision approval under s. 99. Section 101 also imposes a two-month time limit on the approving officer’s decision and grants applicants a right to appeal in the same manner as provided in s. 89 for the non-approval or rejection of a subdivision plan.

Assurance Funds Do Not Guarantee Descriptions

The assurance funds are not responsible for errors outside the control of the land title office, such as those made by a surveyor in surveying and posting a piece of land. See ss. 294.6(b)(ii) and (d) and 303(b)(ii) and (d) of the Act.

Expropriations

Section 3 of the Expropriation Act

Section 99(1)(g) of the Act also applies to s. 3 of the Expropriation Act, under which owners agree to transfer land to the expropriating authority.

Transfer Required under the Expropriation Act

Where the Expropriation Act provides for a transfer of all or part of a parcel, the registrar registers a new indefeasible title for that parcel or part of it in the name of the expropriating authority. In all cases, an explanatory plan tendered for deposit under the Expropriation Act must meet Land Title Act requirements as well as the requirements of the Surveyor General’s regulations, whether or not a British Columbia land surveyor prepares the plan.

Expropriations under the Water Sustainability Act

Section 32 of the Water Sustainability Act authorizes the expropriation of land by a licensee under that Act for purposes such as the construction, maintenance, improvement, or operation of works authorized by licence. In accordance with s. 24 of the Water Sustainability Regulation, B.C. Reg. 36/2016, a licensee commences expropriation proceedings by filing with the Comptroller of Water Rights and the registrar a notice of intent to acquire land, a plan showing the area the licensee wishes to acquire, a draft of the conveyance or other instrument considered necessary to vest the title to or right over that land in the licensee, and a statement of the amount of compensation offered. The registrar receives the documents and assigns them a running serial number. Section 99 of the Land Title Act applies to the plan.

Any of the documents filed may be amended at any time before an application is made to the court under s. 28 of the regulation, and any amendments must be filed with the registrar. The registrar ultimately registers the licensee as owner or charge holder of the land described in the plan when the licensee provides an executed conveyance or other instrument and, where applicable, a certified copy of the award or Court of Appeal order. Where the owner of the expropriated land refuses to execute the conveyance or other instrument, the licensee may execute the instrument in accordance with s. 33 of the Act and must file a signed statement confirming the payment of compensation to the comptroller and the failure of the owner to execute the instrument.

Deposit of Statutory Right of Way Plans

Applicants should present surveyed statutory right of way plans under s. 113 and not as reference plans under s. 99(1)(e) A statutory right of way plan identified and labelled under s. 113 ensures the requirements of s. 116 have been met.

Restrictions on Subdivision

See s. 73 of the Act regarding restrictions on subdivisions.

Metes and Bounds and Abbreviated Descriptions

For an explanation on how to read metes and bounds and abbreviated descriptions, see “Appendix 1: Reading Metes and Bounds Descriptions” in this chapter.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 1, §6:2, §6:4, §6:5, §6:7, §6:25, §6:29, §6:32, and §6:34, and vol. 2, §12:10.

CASE LAW

Ambiguity in Lot Dimensions

A deposited subdivision plan showed a lot frontage of 66 feet, more or less. Originally, the registrar issued certificates of title, one for the east 26 feet of the lot, and the other for the west 40 feet of the lot. On application to register the west 40 feet, the registrar refused to issue a new certificate of title because an ambiguity existed in the precise dimensions of the lot. The registrar acted correctly because he had a duty under the Act to satisfy himself that the applicant had a good safe holding and marketable title, which in this case the applicant did not have so long as the ambiguity existed (Re Land Registry Act; Re Evans Application, 1955 CanLII 614 (BC SC)).

Statutory Right of Way Plans

Where the registration of a statutory right of way plan creates a “parcel”, namely, the statutory right of way, out of a larger registered parcel, the title to the balance of the parcel remains unchanged. Subsections 99(1)(e) and (g) of the Act do not apply in these circumstances to circumvent the requirement of approval by the approving officer for the subdivision of the remainder of the parcel. These provisions simply avoid the necessity of such approval with respect to the expropriated lands (Elsom v. Delta (Approving Officer), 1995 CanLII 742 (BC CA), affirming 1993 CanLII 921 (BC SC); see also the annotations for this decision under ss. 1, 75, 86, 89, and 219 of the Act).

Consideration of Access by the Registrar

See the annotation for Prince Rupert (City) v. British Columbia (Registrar of Titles), 1993 CanLII 2467 (BC CA), affirmed 1993 CanLII 2467 (BC CA), under s. 75 of the Act).

Surface Lease over Part of Property

The defendant had a surface lease over part of a property owned by the plaintiff. The lease, for a term of more than three years, was created for well site or access roadway purposes under the Petroleum and Natural Gas Act. The lease and an explanatory plan were registered in the land title office. In this action, the plaintiff asked the court to rule on the validity of the lease. In upholding the lease, the court found that s. 99 of the Act permits the registrar to accept descriptions of land defining new parcels without the necessity of filing a formal plan in certain limited circumstances. Section 99(1)(j) provides that a new parcel can be created for a well site or access road with no requirement other than that a reference plan or explanatory plan be accepted for filing by the registrar. Consequently, the prohibition against subdivision contained within s. 73(1) of the Act does not apply to a subdivision of land created by a registered lease and explanatory plan filed under s. 99(1)(j) (Nurnberger v. Orefyn Energy Advisors Corp., 2005 BCSC 872).