23 Effect Of Indefeasible Title

SECTION 23: GENERAL

PRACTICE

The Doctrine of Indefeasibility

The doctrine of indefeasibility of title as a result of registration is the essence of the Torrens system. A person named as owner on title is “indefeasibly entitled to an estate in fee simple to the land” subject to the exceptions specified in s. 23(2) of the Act. Section 23 is for the benefit of those who acquire title bona fide for value on the faith of the register.

Sections 12 to 20 in the Miscellaneous Statutes Amendment Act (No. 2), 2005, S.B.C. 2005, c. 35, amend the Land Title Act by establishing a system of immediate indefeasibility for fee simple interests in land. As a consequence of the amendments, the only exception to indefeasibility under s. 23(2)(i) arises when a registered owner acquires title by fraudulent means.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Other Sections of the Act Establishing Indefeasibility

While s. 23 makes a basic declaration of indefeasibility of title to land with certain exceptions, other sections of the Land Title Act are also important in establishing indefeasibility of title. For example, s. 25(3) abolishes the doctrine of notice and provides that a state of title certificate is conclusive evidence of title; s. 297 gives express protection to the bona fide purchaser for valuable consideration from fraud, error, or wrongful act; s. 25(2) gives express protection to the registered owner from ejectment except in specified instances; and s. 29 sets out the effect of notice of unregistered interests, particularly with respect to fraud.

Agricultural Land Commission Act

Section 60(1) of the Agricultural Land Commission Act, S.B.C. 2002, c. 36 provides that an indefeasible title for agricultural land is subject, “by implication and without endorsement”, to the Agricultural Land Commission Act and regulations that govern the agricultural land reserve and farm use of the land.

Although the indefeasible title is subject to this Act and regulations “by implication and without endorsement”, land title offices have tried to identify all titles that may be affected by the Act and to endorse them to that effect. Nevertheless, it is the responsibility of the registered owner to determine whether the owner’s title is subject to the Act.

Effect of Court Order Enforcement Act

See s. 86 of the Court Order Enforcement Act in chapter 38 (Court Order Enforcement Act, R.S.B.C. 1996, c. 78), which provides that registered judgments form a lien and charge on the land of a judgment debtor to the extent of the judgment debtor’s beneficial interest only and are therefore subject to some prior unregistered interests. The general rule is that a judgment can only charge a judgment debtor’s land to the extent of the judgment debtor’s beneficial interest in it.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 2, §17:7 and §17:19 to §17:27, and vol. 3, §19:2.

CASE LAW

Purpose and Application

A certificate of indefeasible title was issued in the name of a mortgagee after the mortgagee obtained a final order of foreclosure. The mortgagor, seeking to redeem, subsequently applied to re-open the mortgage and filed a lis pendens against the mortgagee’s title. The mortgagee argued that the issuance of a certificate of indefeasible title was a complete bar to the mortgagor’s claim. The Court of Appeal held that when the provisions of the Land Title Act were read as a whole and in the light of the presumption that common law rights will not be deemed to be abrogated except by clear and express statutory enactments, the Act, and particularly ss. 23 and 25, could not be read as bestowing conclusive indefeasible title upon the mortgagee. While ss. 23 and 25 of the Act offered absolute protection to bona fide purchasers for value, they did not protect the mortgagee in this case nor bar the mortgagor from applying to reopen the mortgage (Pacific Savings and Mortgage Corp. v. Can-Corp Development Ltd., 1982 CanLII 463 (BC CA)).

Note: The Pacific Savings and Mortgage decision should be read in the context of the law of foreclosure, which, in British Columbia, still draws upon equitable principles permitting the court to re-open foreclosure proceedings unless and until the property is sold to a bona fide purchaser for value.

See also the annotation for Bank of Montreal v. Oldroyd, 2005 BCSC 1260 under s. 14 of the Law and Equity Act in chapter 51 (Law and Equity Act, R.S.B.C. 1996, c. 253).

The petitioners and the respondents were each registered as owners of two undivided one-quarter interests in a piece of waterfront property. The petitioners applied for an order partitioning the property in accordance with a proposed subdivision plan. The respondents opposed the application and submitted, in the alternative, that if the order were granted, they should be entitled to 64% of the property based on historical use, existing boundaries, and length of possession. Relying on ss. 23(2) and 24 of the Land Title Act, the court found that any ability to acquire a right to land by prescription had been abolished and that any entitlement to more than an undivided one-quarter interest could not be acquired by length of possession. In granting the petitioner’s application, the court found no good reason to refuse the petitioners’ prima facie right to the partition and subdivision of the property (Davies v. Quaggan, 2002 BCSC 1661).

The plaintiff and his mother were each registered owners as tenants in common of a one-half interest in a residential property. The plaintiff paid $15,000 toward the $225,000 purchase price of the property. Thereafter, the plaintiff made monthly payments of $1,000 to his parents, the defendants in this action. The plaintiff claimed the payments were a contribution to his purchase of the one-half interest in the property. He sought a declaration that he was the legal and equitable owner of the one-half interest and an order for partition and sale. The defendants claimed the payments constituted rent for premises occupied by the plaintiff both at the property and elsewhere. In weighing the evidence of the parties, the court upheld the plaintiff’s claim to the half-interest in the property. Over the years, the plaintiff contributed an amount equal to one-half the original purchase price. Although the plaintiff had always been on title as owner of the one-half interest and the defendants were aware of the registration documents, they gave the court no plausible explanation why they took no steps at any time following registration to refute the accuracy of the title. In contrast, the plaintiff’s evidence as to the nature of his agreement with the defendants was consistent with both the evidence of third parties and other documentary evidence. The court ordered the partition and sale of the property with net proceeds divided equally between the plaintiff and his mother (Skender v. Skender, 2005 BCSC 418, affirmed 2006 BCCA 162).

See also the annotation for Gill v. Bucholtz, 2009 BCCA 137 under s. 297 of this Act.

The plaintiff was persuaded to transfer title to his property to the defendants, without consideration, at a time when the plaintiff’s ability “to think clearly … and protect his own interests was severely compromised”. In this action, the court granted the plaintiff’s application for a declaration that the transfer was subject to a resulting trust in his favour. Section 23(2) of the Land Title Act contains the words “as long as it remains in force and uncancelled”, thereby indicating that a court may find that a certificate of title is no longer in force and may order that the certificate be cancelled. Section 23(2) protects the acquisition of title by a bona fide purchaser for value. Here, the defendants acquired title gratuitously in untoward circumstances and they were not entitled to the protections afforded under s. 23. There was no evidence before the court to indicate that the plaintiff intended to give the property to the defendants. In these circumstances, the court was able to apply the presumption of resulting trust. As the defendants failed to rebut the presumption, the court ordered the property transferred back to the plaintiff (Fleming v. Kwakseestahla, 2010 BCSC 1006).

A mother made a gratuitous transfer of her property into joint tenancy with her son shortly before her death. Under the terms of the mother’s will, her estate was to be divided equally between her son and her daughter. In this action, the daughter petitioned for a declaration that the son held the property in trust for the estate. The court confirmed that the party challenging the state of title has the onus of displacing the statutory presumption, in s. 23(2) of the Land Title Act, that title, as currently registered, is conclusive evidence of legal and beneficial ownership and that the petitioner’s burden can be discharged through the operation of the presumption of resulting trust if the transfer was gratuitous. In this case, the court found that the son had exercised undue influence over his mother in arranging the transfer. The mother received no independent advice about the transfer, and she was confused and uncertain about it. The transfer was arranged and paid for by the son, who was physically present when the mother signed the transfer documents. At trial, the son offered no independent evidence that his mother had intended to gift the property to him. In light of these circumstances, the court declared that the property was an asset of the estate to be divided equally between the son and his sister (Modonese v. Delac Estate, 2011 BCSC 82, affirmed 2011 BCCA 501).

The appellants were registered owners of an investment property. At the time of purchase, the respondent made a substantial contribution to the down payment although his name was not registered on title. The trial judge found that, at the time of purchase, the parties intended a joint investment venture. Following the decision of the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10, the Court of Appeal confirmed that it is the intention of the transferor (or donor of funds) that is significant and that a person’s interest in property crystallizes at the time of acquisition. In this case, the presumption of resulting trust was supported by the findings of the trial judge and the trial court was correct in fixing the respective ownership of the parties on the basis of the respondent’s intentions and contributions at the time of purchase. However, it was not permissible for the trial judge to take account of post-purchase contributions by the parties in fixing their respective ownership interests. Rather, each party’s post-purchase payments or receipts should be credited to them through an accounting process (Dhaliwal v. Ollek, 2012 BCCA 86).

The plaintiff transferred title to her home to her son. At the time of the transfer, the plaintiff’s intent was to gift title to the land to her son and to retain the right of occupancy or possession during her lifetime. When the son decided to sell the property, the plaintiff brought this action on the basis that her son held the entire property in trust for her. The court disagreed. It found that the son held the property in trust for his mother’s use during her lifetime and that the remainder would pass to the son on his mother’s death. With respect to the sale, the court held that, in view of the plaintiff’s life interest, the proceeds of sale, less normal costs of selling, must be held in trust for the plaintiff’s lifetime, with the income at least available for the plaintiff’s reasonable maintenance and support (Ruff v. Ruff, 2013 BCSC 169).

A father and son were registered owners, as joint tenants, of a home. A dispute arose between the parties as to its beneficial ownership. The trial judge found that, by virtue of an unwritten agreement between the parties, registration of the father’s undivided 1/2 interest in the home amounted to a gratuitous transfer and triggered a presumption of resulting trust in favour of the son over the father’s interest. On appeal, the court found that the agreement was not binding and enforceable as it did not meet the requirement for certainty of objects. There was no consensus on the terms, no specified duration, and no evidence that either party took any steps to perfect the agreement by subsequent registration of title in the son’s name. At best, the agreement was a mere promise, and the statutory presumption of indefeasible title was not displaced by the evidence at trial (Suen v. Suen, 2013 BCCA 313). As the trial court had not found it necessary to deal with the son’s claim for unjust enrichment, the Court of Appeal remitted this aspect of the claim to the trial court for determination. In these proceedings, the trial court found that the son became responsible for the family finances, paying for housing, household expenses, his father’s debts, and the family’s obligations to their aging grandfather. Accordingly, the father received an economic benefit and the son suffered a corresponding deprivation. As the Court of Appeal had held that there was no contract between the parties and as the evidence submitted at trial did not disclose the son’s intention to make a gift to his father, the trial court found no juristic reason to justify the father’s retention of the benefit of the financial support he received from his son and ordered the sale of the property and an accounting between the parties, including a requirement that each party pay certain amounts on a line of credit secured by the property. The trial court also ordered a large payment from the father to the son to compensate him for unjust enrichment in relation to mortgage, tax, utility, debt, and household payments. The appellate court held that most of the expenditures identified by the trial judge were not properly the subject of an unjust enrichment claim in this litigation (Suen v. Suen, 2013 BCSC 1615, varied 2016 BCCA 107).

The petitioner had obtained an arbitration award in bankruptcy proceedings authorizing proceedings for an order of sale of a house in Chilliwack. The debtor in the bankruptcy proceedings was the spouse of the respondent. The debtor owned the house in joint tenancy with the respondent. The petitioner applied to the court for an order of sale of the house pursuant to the Partition of Property Act, R.S.B.C. 1996, c. 347. To rebut the statutory presumption under s. 23(2) of the Land Title Act, the respondent relied on an agreement she said she made with her spouse that she was the sole beneficial owner of the Chilliwack house and that upon her death the house would be her children’s property. The court found she had failed to rebut the presumption, as it was clear the debtor had given value for his legal interest. Accordingly, no resulting trust arose and the respondent’s application to vest the legal title in her name was dismissed. However, the evidence also showed that the respondent’s interest in the property greatly exceeded the debtor’s and that an order for sale would result in serious hardship to the respondent’s family. It was a case where there was good reason to refuse an order of sale (Luo v. Vesterinen, 2017 BCSC 1566, affirmed 2018 BCCA 167).

Registered Owners without Beneficial Interests

The bankrupt held the property as a bare trustee in trust for his parents, two joint owners. Section 23 could not be used as conclusive evidence in law and equity of the bankrupt’s interest because his interest could only vest at some future date when both joint tenants were dead. The only position which a trustee in bankruptcy can assume is a position equivalent to that held by the bankrupt’s creditors. The bankrupt here had no present interest in the property upon which a trustee in bankruptcy could realize (Re Heffner, 1986 CanLII 727 (BC CA)).

Where a beneficiary transfers title to a trustee, the trustee has something less than an estate in fee simple as it was understood at common law, but it does have an estate in fee simple as referred to in s. 23(2) of the Land Title Act. The interest a beneficiary retains is registered as a charge against the indefeasible title and the trustee’s estate is limited by the registered interest of the beneficiary (Shon Yee Benevolent Association of Canada v. British Columbia, 1991 CanLII 2291 (BC SC)).

Notwithstanding s. 23, the petitioner was able to prove that his wife’s mother was not entitled to a one-third interest as joint tenant in the property registered in the names of the petitioner, his wife, and the mother. The mother had been put on title only for the purpose of enabling the married couple to qualify for a mortgage, but following separation of the couple she made unanticipated expenditures to fulfill mortgage obligations under the Partition of Property Act. She was not entitled to a one-third interest, but justice and equity required an accounting between the parties (Engelage v. Engelage, [1994] B.C.J. No. 3036 (QL) (S.C.)).

See also the annotation of Nicholson v. Riach, 1997 CanLII 2081 (BC SC), under s. 29 of the Act.

See also the annotation describing Sojka v. Sojka, 2023 BCSC 52, affirmed 2023 BCCA 446 under s. 59 of the Law and Equity Act at “59 Enforceability of contracts” in chapter 51.

Section 55 of the Land Act

A certificate of title issued under the Land Registry Act does not prevail over s. 55 of the Land Act, which restricts the conveyance of shores and beds of certain bodies of water (British Columbia (Attorney General) v. Miller, 1974 CanLII 143 (SCC)).

Power to Own Land

Where a certificate of indefeasible title had been issued to a vendor company, a purchaser of the land in question could not contest the validity of the title by challenging the company’s power to own land under its Act of incorporation (Creelman v. Hudson’s Bay Insurance Co., 1919 CanLII 619 (UK JCPC)).

Form A Transfer Executed by Deceased May Rebut Presumption of Fee Simple Title

The petitioners were the daughter and son-in-law of BM. The petition was filed in August 2016 while BM was still alive. However, she died in 2016 before it was heard. The strata lot in question was purchased in 2007 as a home for BM and registered as tenants in common in her name as to a 98% interest, with the petitioners each holding a one percent interest to facilitate its financing. At the time of the purchase, a second Form A transfer was prepared and executed by BM for the purpose of transferring the property to the petitioners. At issue were the terms on which that Form A transfer was provided to the petitioners. The second Form A was purportedly only to be used upon BM’s death. However, the petitioners transferred the property to themselves in 2011. In April 2017, the strata lot was sold. In an earlier application the court ordered, by consent, that $65,976 (relating to the down payment) be paid to the petitioners from the sale proceeds. The remainder of the proceeds of $99,020 was placed in trust with counsel for the petitioners. The petitioners claimed that the state of title showing them as the registered owners was sufficient to establish legal and beneficial ownership of the property, as they were the owners at the time of BM’s death. If that did not establish legal and beneficial ownership, they said they also orally contracted with BM, and that the contract was established by the evidence of the circumstances of the purchase and the intentions of the parties confirmed by the evidence of the notary who completed the purchase and prepared the second Form A transfer, allegedly on the instructions of the petitioners and BM. The respondent executor of BM’s estate, another one of the five children who survived her, said the evidence supporting the alleged contract was ambiguous, the transaction occurred without BM having the benefit of legal advice, she was vulnerable, and she herself in responding to the petitioner’s claims disputed the petitioners’ assessment of events. BM also deposed that she was assured by the petitioners the second transfer would not be used until after her death. In addition, her actions after the second transfer was registered indicated she believed the strata lot was to have remained hers, and that the second Form A transfer was to protect the petitioners’ right to be reimbursed for strata lot-related expenses and avoid estate disputes. The respondent said the petition should be transferred to the trial list, as bona fide triable issues existed. In the alternative, she said it was not disputed that the evidence established that it was a gratuitous transfer. Hence, a resulting trust arose, and the presumption of resulting trust had not been rebutted. Held, petition converted to action. The court had to determine whether the petitioners were the beneficial owners of the strata lot. That required determination of the circumstances leading to the purchase, the circumstances respecting BM’s apparent but disputed acquiescence or agreement, and the circumstances relating to the purpose and terms of exercise of the second Form A transfer, i.e., whether there was an oral agreement, its terms, and their legal effect. Pursuant to Suen v. Suen, 2013 BCCA 313 at para. 34, the statutory presumption created by s. 23(2) of the Land Title Act that the person registered on title holds the estate in fee simple may be rebutted by:

• (i) the operation of a resulting trust which may be inferred where no value is given for a legal interest;
• (ii) the operation of an agreement between the parties that is contrary to the registered legal title; or
• (iii) taking into account the underlying equitable interests between the parties (e.g., considerations that arise in claims for unjust enrichment).

The petitioners relied on the evidence of the circumstances leading to the purchase of the strata lot, the preparation and execution of the documents, and BM’s affidavit filed in response to the petition in 2016. The court could appreciate that the desirability of avoiding unnecessary cost and delay as set out in Supreme Court Civil Rule 1-3(1) and (2) was a significant concern, as the available assets of the estate were not substantial, and further litigation would likely result in legal fees and costs consuming the bulk of the estate. However, proportionality does not override the rules of court generally, nor just disposition of the issues on the merits. The petitioners said it was a case regarding an agreement, not a resulting trust, but it was unclear what the agreement was. For example, even the evidence of the petitioners spoke about regaining their investment in the property and the transfer to them to avoid estate litigation, but failed to establish what disposition of equity in the property was agreed to. The affidavit of the notary, when read in context of her letter to the Society of Notaries and the affidavit of the deceased, did not resolve the issue in dispute. That was aside from the issue of enforceability of an agreement regarding land not in writing, although the petitioners submitted that s. 59 of the Law and Equity Act did not apply as the interest created was a life estate. It was not “manifestly clear” that there was no bona fide triable issue. The court had to engage in a weighing of the evidence in determining the terms of the agreement at issue. As such, the court was satisfied that the petition had to be converted to an action and transferred to the trial list (Levere v. Moore, 2020 BCSC 1656).

No Contract to Rebut Statutory Presumption but Constructive Trust Found

The plaintiff was the adult son of the defendant, who resided in a home she had owned with her ex-husband for over 25 years. When problems arose affecting the defendant’s ability to continue living in the home, she and the plaintiff agreed that the plaintiff and his family would move into the top floor of the house, and the plaintiff would take up residence in the ground floor suite. The defendant was to retain the equity she had built, and the plaintiff was to share mortgage payments and the costs of utilities. Subject to the defendant’s equity, the plaintiff was to become 50% owner of the property. The parties never reduced their arrangement to writing, and the plaintiff was never added on title. Several years later, during which time the plaintiff paid his share of expenses, the parties had a falling out. The plaintiff sued, claiming the defendant breached her agreement to grant the plaintiff an ownership interest in the property; alternatively, the plaintiff sought a constructive trust remedy based on unjust enrichment. Held, judgment for plaintiff. The evidence did not support the conclusion that the parties entered into a binding and enforceable contract. The court, however, allowed the claim for unjust enrichment, finding that the defendant had been enriched by the plaintiff’s payment of 50% of the defendant’s mortgage payments, and the plaintiff had been correspondingly deprived; had those payments not been made, they could have been used by the plaintiff to accumulate equity in another property. There was also no juristic reason for the enrichment: there was no binding agreement between the parties and no evidence that the plaintiff’s mortgage payments were intended as a gift or to satisfy a common law, equitable, or statutory obligation so as to allow the defendant to retain the benefit of the plaintiff’s contributions to a mortgage for which he was not responsible. In the result, the court held that the defendant’s registered ownership in the property was held on a constructive trust in favour of the plaintiff, and that the plaintiff was entitled to 50% of the net equity in the property after deducting the defendant’s accrued equity (Siemens v. Munroe, 2020 BCSC 1862).

SECTION 23(2)(a): CROWN GRANT RESERVATIONS

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

For some exceptions and reservations in Crown grants, see chapter 45 (Land Act, R.S.B.C. 1996, c. 245), and particularly s. 50 of that Act.

CASE LAW

Aboriginal Title Not Exception or Reservation

An Indian band appealed from a decision of the registrar refusing to register a certificate of pending litigation and a caveat against privately owned lands over which the band was seeking to assert an aboriginal land claim. As absolute owner, the Crown may grant an estate in fee simple and, as part of the grant, may except or reserve to itself certain rights. Aboriginal title is not an exception or reservation from the Crown within the meaning of s. 23(2)(a) of the Act. With respect to the lands in question, the court found no evidence that aboriginal title was excepted or reserved in the Crown grant; that the exception or reservation, if it existed, related to some right owned by the Crown as grantor; or that that which was not excepted or reserved remained with the Crown (Skeetchestn Indian Band v. British Columbia (Registrar of Land Titles), 2000 BCSC 118, affirmed 2000 BCCA 525; see also the annotations for this decision under ss. 1, 197, and 282 of the Act).

SECTION 23(2)(b): TAXES

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Crown Liens

Note that s. 23(2)(b) of the Act concerns only taxes that are imposed or able to be imposed as a lien. For the effect of Crown liens, see the discussion for s. 30 of the Act and see the Law Reform Commission of British Columbia, Report on The Crown as Creditor: Priorities and Privileges (1982).

Provincial Sales Tax Liens

A prior mortgage has priority over tax liens created under the Social Service Tax Act, R.S.B.C. 1996, c. 431 (now, the Provincial Sales Tax Act, S.B.C. 2012, c. 35) (North West Trust Co. v. Christiana Inn (1974) Ltd., 1976 CanLII 1509 (BC SC)).

SECTION 23(2)(c): MUNICIPAL RATE

PRACTICE

Verification of Taxes

An applicant needs to inquire in the appropriate municipal offices to verify municipal charges, rates, and assessments on the land.

Identification of Assessment Authorities, Water Districts, and Improvement Districts

Relevant assessment authorities, water districts, and improvement districts are shown in the parcel field of the indefeasible title.

SECTION 23(2)(d): SHORT-TERM LEASES

PRACTICE

“For a Term Not Exceeding 3 Years”

“A term not exceeding 3 years” refers to the original term of a lease and not to the remainder of the lease term yet to run. This reference is part of a defined term under s. 1 of the Act (“lease or agreement for lease for a term not exceeding 3 years if there is actual occupation under the lease or agreement”). A short-term lessee (less than three years) who is not in actual occupation can be protected by registering the lease. However, actual occupation is not a prerequisite to registrability.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Residential Tenancies

The Residential Tenancy Act, S.B.C. 2002, c. 78, applies to tenancy agreements, rental units, and other residential property. The Act establishes conditions for landlord and tenant relationships in residential tenancy agreements under 20 years, imposes standard terms, and permits inclusion of other reasonable terms in leases. The Act also provides for rent increases, termination of tenancy agreements, and arbitration of disputes. See ss. 2 to 4 of the Act regarding its application. A landlord’s obligations respecting a security deposit or a pet damage deposit run with the land (s. 93).

Registration of Option to Purchase without Lease

A lessee who has a lease for a term not exceeding three years, and who also has an option to purchase, may register the option without registering the lease. Section 156(5) of the Act provides that, if the lessee is in actual occupation, the lessee does not have to register the lease when registering the option to purchase. However, if the lessee is not in actual occupation, the registrar should refuse to register the option unless the lessee makes a concurrent application to register the lease.

“Actual Occupation”

For the evidence of “actual occupation” required by the registrar, see the discussion following s. 156 of the Act and refer to the definition of “lease or agreement for lease” in s. 1 of the Act.

CASE LAW

Actual Occupation Required

Section 23(2)(d) of the Act requires more than a right to possession to establish actual occupation. Actual occupation is required and that means an outward sign of occupancy and use (Vantreight v. Munzel, [1982] B.C.J. No. 117 (QL) (S.C.)).

Tenancy Agreements

Under s. 3(3) of the former Residential Tenancy Act, R.S.B.C. 1996, c. 406, the petitioner municipality sought a declaration that an agreement made by the owners of a rental apartment building was a “tenancy agreement for a term exceeding 20 years” which required its approval by bylaw. The respondents together owned 40 undivided legal interests in the title of the building and the land on which it was situated. As a tenant in common, each co-owner had a right of possession of the entire property equal to that of the other co-owners. The respondents accepted for the purposes of the petition that they were a “landlord” within the meaning of the Act. Furthermore, it would be difficult to read the owners’ agreement as not concerning the possession of residential premises. However, to have a tenancy agreement under the Act, there must be an agreement respecting possession between a landlord and a tenant. In determining whether any of them was a tenant, the intention of the parties expressed in the agreement was irrelevant; what mattered was the effect of the agreement. The owners did not give each of themselves possession by the owners’ agreement. Nor did they create an interest in land. The fundamental relationship among them was that of co-owners regulating their use of the land—not that of a landlord granting an interest in land to a tenant. Consequently, the respondents did not have a tenancy agreement within the meaning of the Residential Tenancy Act (West Vancouver (District) v. No. 85 Seabright Holdings Ltd., 1994 CanLII 948 (BC SC)). Note that the Residential Tenancy Act no longer requires local government approval of tenancies in excess of 20 years.

Notice of Unregistered Lease

See the annotations under the “Case Law” heading for s. 29 regarding the effect of notice of an unregistered lease for a term exceeding three years.

SECTION 23(2)(e): HIGHWAYS, WATERCOURSES, ETC.

PRACTICE

Purpose

A number of highways that cut across registered parcels are not registered against title and do not appear in land title records for those parcels. In such cases, Section 23(2)(e) of the Land Title Act protects the Crown’s ownership of the highways.

The section similarly protects the Crown’s unregistered ownership in watercourses.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Highways

“Highway”

Section 1 of the Land Title Act defines “highway” as follows:

• “highway” includes a public street, path, walkway, trail, lane, bridge, road, thoroughfare and any other public way.

Section 1 of the Transportation Act, S.B.C. 2004, c. 44, also includes the following definitions:

• “arterial highway” means any of the following that has not ceased to be an arterial highway under section 45(1)(b):

• (a) any land that becomes an arterial highway under section 44.1;
• (b) any land, improvement or highway that
  • (i) is designated as an arterial highway under section 45(1)(a), or
  • (ii) becomes an arterial highway under section 56(2)(a);

• “concession highway” has the same meaning as in the Transportation Investment Act;
• “controlled access highway” means a highway designated as a controlled access highway under section 48;
• “highway” means a public street, road, trail, lane, bridge, trestle, tunnel, ferry landing, ferry approach, any other public way or any other land or improvement that becomes or has become a highway by any of the following:

• (a) deposit of a subdivision, reference or explanatory plan in a land title office under section 107 of the Land Title Act;
• (b) a public expenditure to which section 42 applies;
• (c) a common law dedication made by the government or any other person;
• (d) declaration, by notice in the Gazette, made before December 24, 1987;
• (e) in the case of a road, colouring, outlining or designating the road on a record in such a way that section 13 or 57 of the Land Act applies to that road;
• (f) an order under section 56(2) of this Act;
• (g) any other prescribed means;

• “municipal highway” means a highway within a municipality that is not an arterial highway;
• “provincial public highway” means any highway that is a rural highway, an arterial highway or a highway referred to in section 35(2)(f) of the Community Charter;
• “rural highway” means a highway that is not within a municipality;
• “scenic highway” means a highway designated as a scenic highway under section 54;

And s. 1 of the Transportation Investment Act, S.B.C. 2002, c. 65, defines a “concession highway” as follows:

• “concession highway” means the highway or portion of a highway, or the highways or portions of highways, in relation to which interests or rights are transferred or granted or obligations are imposed under a concession agreement, and,

• (a) when used in relation to a concessionaire, means the highway or portion of highway, or the highways or portions of highways, in relation to which that person is a concessionaire, and
• (b) when used in relation to a concession agreement, means the highway or portion of highway, or the highways or portions of highways, in relation to which interests, rights or obligations are transferred, granted or imposed under that concession agreement,

• and includes expansions or extensions of the highway or portion of highway or of the highways or portions of highways;

Transportation Act, Part 4

Part 4 of the Transportation Act deals with highways, their use and ownership, and the minister’s power to close provincial public highways either permanently or temporarily. Selected provisions from Part 4 that are relevant to land title practice include the following:

• Travelled roads becoming highways
• 42 (1) Subject to subsection (2), if public money is spent on a travelled road that is not a highway, the travelled road is deemed and declared to be a highway.
• (2) Subsection (1) does not apply to any road or class of roads, or to any expenditure or class of expenditures, that is prescribed by the regulations.

Note that s. 4 of the Transportation Act Regulation, B.C. Reg. 546/2004, sets out the exceptions under s. 42(1). The exceptions include expenditures for snow ploughing and ice control, travelled roads that form part of a railway right of way, monies spent on highways under s. 13 of the Ministry of Energy and Mines Act, roads at ferry terminals, and certain recreational trails. See below for the case law summary of Harrison v. Nemeth, 2022 BCSC 1958 (Chambers), where the court considered s. 42(1) in determining whether a disputed road was a “travelled road”.

• Dedicated land becoming provincial public highways
• 43 If a person agrees under section 3(1) of the Expropriation Act or otherwise to dedicate land to the government to become a highway, the minister may, for the purposes of section 107 of the Land Title Act, prepare and deposit with the registrar of the applicable land title office an explanatory plan showing that land as highway, and, in that event,

• (a) section 107(1)(c) and (d) and (3) of the Land Title Act applies, and
• (b) the dedicated land becomes a provincial public highway.

• Arterial highway created on deposit of plan
• 44.1 (1) The deposit in a land title office of a subdivision, reference or explanatory plan that shows land as an arterial highway operates to make that land an arterial highway if the land surveyor who signed the plan certifies on the plan, in the prescribed form, that he or she was authorized by the minister to show that land as an arterial highway.
• (2) After a plan referred to in subsection (1) is deposited in a land title office, the minister must publish, in the prescribed manner, notice of the deposit of the plan and of the creation of the arterial highway effected by that deposit.

Specific directions for the completion of plans and plan applications are contained in Electronic Land Title Plan and Plan Application Requirements, available at https://ltsa.ca/professionals/land-title-practice/e-filing-user-guides-and-publications/.

• Designation of highways as arterial
• 45 (1) Without limiting section 44.1, the Lieutenant Governor in Council may, by order, on the recommendation of the minister,

• (a) designate as an arterial highway all or any part of
  • (i) any land or improvement in a municipality that has been expropriated or otherwise acquired by the government,
  • (ii) a municipal highway that has been resumed under section 35 of the Community Charter, or
  • (iii) any land or improvement in a municipality referred to in section 35(2)(a) to (f) and (j) of the Community Charter, and
• (b) order that all or any part of any land, improvement or highway referred to in the definition of “arterial highway” cease to be an arterial highway.

• (2) After an order is made under subsection (1), the minister must publish notice of the order in the prescribed manner.
• Soil and freehold of provincial public highways vested in government
• 57 Unless otherwise provided for in this Act, the soil and freehold of every provincial public highway is vested in the government.
• 58 Transfers of highways and other land
• (1) In this section, “provincial public highway” does not include

• (a) a ferry landing,
• (b) a highway on land leased to the government unless that highway is a bridge, or
• (c) a highway that is part of the major road network within the meaning of the South Coast British Columbia Transportation Authority Act.

• (2) Subject to subsection (5), the authority

• (a) holds all of the government’s right and title in and to the soil and freehold of every provincial public highway in British Columbia, and
• (b) acquires all of the government’s right and title in and to the soil and freehold of every provincial public highway that comes into being.

• (3) This section does not affect any powers, duties, functions and liabilities, in relation to highways, of the government, the Lieutenant Governor in Council, the minister or ministry, another minister or ministry or another authority under

• (a) this Act or any other enactment,
• (b) any contract, licence or permit, or
• (c) the law.

• (4) The authority, in relation to a provincial public highway referred to in subsection (2), does not hold, because of subsection (2), any of the powers, duties, functions and liabilities referred to in subsection (3), except for the purpose of accounting for the provincial public highways, and does not have, and has not had, since acquiring the right and title referred to in subsection (2), any of those powers, duties, functions and liabilities except for that purpose.
• (5) The authority may transfer to the government the authority’s right and title in and to the soil and freehold of any provincial public highway and, in that event, subsection (2) does not apply to that provincial public highway.
• (6) Subsection (2) does not operate to constitute the authority as an occupier, within the meaning of the Occupiers Liability Act, of a provincial public highway.

• Transfers to Canada

• 59 (1) Subject to the terms, reservations and restrictions the Lieutenant Governor in Council considers advisable, the Lieutenant Governor in Council may, despite section 58, transfer the administration, control and benefit of any provincial public highway to the government of Canada, in the same manner and with the same effect as if the transfer were a transfer of Crown land under the Land Act, either in perpetuity or for a specified period, and with or without consideration.
• (2) Except to the extent that it so provides, a transfer under subsection (1) is not subject to section 50 of the Land Act.
• Power to close a highway permanently
• 60 (1) In this section, “surplus highway” means a provincial public highway or part of a provincial public highway that is not considered necessary in the public interest.
• (2) The minister may discontinue and close a surplus highway by publishing in the prescribed manner a notice in a form, and containing the particulars, the minister considers appropriate.
• (3) If, in the opinion of the minister, no highway that is an alternative to a surplus highway exists or will be provided, the minister must, before publication of the notice referred to in subsection (2), give notice of the intention to discontinue and close the surplus highway by notice published, in a manner and with a frequency prescribed by the regulations, over 4 consecutive weeks.
• (4) A surplus highway to which a notice referred to in subsection (2) is published ceases to be a highway on the date specified in the notice.
• Power to close a highway temporarily
• 61 (1) Without limiting section 60, the minister may close a provincial public highway under this section for any reason, including, without limitation, if the minister believes that the closure is necessary

• (a) for the planning, design, acquisition, holding, construction, use, operation, upgrading, alteration, expansion, extension, maintenance, repair, rehabilitation, protection, removal, discontinuance, closure or disposition of a provincial public undertaking or any related land or improvement,
• (b) for the protection of the health or safety of a person who is or may be using, or who is near to, the provincial public undertaking or any related land or improvement, or
• (c) to enable traffic that is allowed to access the provincial public highway to be handled safely and expeditiously.

• (2) The minister may close a provincial public highway under subsection (1)

• (a) at a time,
• (b) for a period of time, and
• (c) for any or all classes of traffic or use,

• that the minister considers appropriate.

Expropriation Powers—Provincial Public Highways

Section 8 of the Transportation Act allows the minister to enter, remain on and use land for improvements or public utilities including provincial public undertakings as defined in s. 1 of the Act. Where compensation is payable under s. 9 of the Act, a dispute over the amount of compensation is determined under the Expropriation Act, R.S.B.C. 1996, c. 125. For a discussion of this Act, see chapter 41 (Expropriation Act, R.S.B.C. 1996, c. 125).

Watercourses

“Stream”

Section 1(1) of the Water Sustainability Act, S.B.C. 2014, c. 15 defines “stream” as follows:

• “stream” means

• (a) a natural watercourse, including a natural glacier course, or a natural body of water, whether or not the stream channel of the stream has been modified, or
• (b) a natural source of water supply,

• including, without limitation, a lake, pond, river, creek, spring, ravine, gulch, wetland or glacier, whether or not usually containing water, including ice, but does not include an aquifer;

Ownership of Water in Streams

Section 5 of the Water Sustainability Act provides as follows:

• Vesting water in government
• 5 (1) The property in and the right to the use and flow of all the water at any time in a stream in British Columbia are for all purposes vested in the government, except insofar as private rights have been established under authorizations.
• (2) The property in and the right to the use, percolation and flow of groundwater, wherever groundwater is found in British Columbia, are for all purposes vested in the government and are conclusively deemed to have always been vested in the government except insofar as private rights have been

• (a) established under authorizations, or
• (b) deemed under section 22(8).

• (3) No right to divert or use water may be acquired by prescription.

For a decision that considers the relationship between Aboriginal rights and title and the ownership of water in streams, see Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc., 2015 BCCA 154, leave to appeal refused 2015 CanLII 66255 (SCC).

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 2, §18:14.

CASE LAW

Highways Created by Deposit of Plans

Lands shown as a “proposed road” on a plan prepared in 1889 are encompassed within the definition of “highway”. The word “proposed” indicates only that the road had no physical existence at the time of one survey. The inference from the words or markings on the plan is that the purpose of the designation was to indicate the eventual location of a road, and the equally clear intent was to dedicate the area to that end. The proposed road was given the legal character of a highway when the Dominion land surveyor indicated it as such on the plan, which was subsequently filed in the land title office. Therefore, the 1901 Crown grant, did reserve the area, shown as proposed road and coloured in brown, to the Crown. Although the 1889 plan was not physically attached to the Crown grant, the plan was “annexed” within the meaning of s. 57 of the Land Act. The plan was clearly referred to in the grant and was identifiable as going to determine the extent of Crown land. As there was a form of constructive annexation, it was not necessary to show physical annexation (British Columbia v. Hilyn Holdings Ltd., 1989 CanLII 5270 (BC SC)), affirmed on this point 1991 CanLII 2397 (BC CA)).

The plaintiff, which sought to do some minor construction and improvements on a road passing through the defendants’ community, applied for a declaration that the road was a public highway within the meaning of the Highway Act, R.S.B.C. 1979, c. 167 (now the Transportation Act). The defendants resisted the plaintiff’s efforts and asserted that the road was merely a forestry access road. The land through which the road passed had originally been sold by the Crown to a group of community members who allowed a large number of individual residences to be constructed on the land. In 1989, the land was forfeited to the Crown for non-payment of taxes and title was cancelled, after which the Ministry of Environment, Lands and Parks offered the various individuals the opportunity to lease or purchase a parcel of land occupied by their respective homes. The offer was accepted by 29 individuals, and the ministry obtained two survey plans which provided the basis for the 29 Crown grants. The disputed road was indicated as a road on the survey plans and confirmed as such by the Deputy Surveyor General under s. 72 of the Land Act. The survey plans, having been confirmed as Official Plans, thus had the effect of creating a public road within the meaning of s. 1 of the Land Act. Because ss. 1 and 2 of the Highway Act (now s. 1 of the Transportation Act) define “highway” as including all public roads, and describe all roads other than private roads as public highways, the public road created pursuant to the Land Act was a public highway. It was also notable that a map with a road “coloured, outlined or designated in a colour other than red” under s. 57 of the Land Act was attached to each of the Crown grants, such that the road was thereby excluded from the grants (British Columbia (Minister of Transportation and Highways) v. Perepelkin, 1996 CanLII 1806 (BC SC)). Note that the definition of highway was amended by the Miscellaneous Statutes Amendment Act, 2000, S.B.C. 2000, c. 9, ss. 22 and 23. See under the “Highways” heading in this section.

Public Use of Roads

The parties disagreed on whether a road used by the plaintiffs to gain access to their property was a “public” road. At common law, a road is “public” if the owner of the land through which it is built intends to dedicate it to public use and public use follows. By statute, a road is “public” if it is used by the public and public funds have been spent on it. Although it had been common understanding since before 1942 that the road to the plaintiffs’ property was public, neither “common understanding” nor use of the road by the plaintiffs to gain access to their property made the road “public” (Emmett v. Arbutus Bay Estates, 1992 CanLII 269 (BC SC), reversed 1994 CanLII 8700 (BC CA), reconsideration denied 1994 CanLII 8694 (BC CA), additional reasons 1994 CanLII 8695 (BC CA), leave to appeal refused [1994] S.C.C.A. No. 365 (QL)).

If a government road crew builds a road at public expense over pre-empted Crown land, that road becomes a public road. The fact that government has no record of the expenditure and subsequently refuses to repair the road cannot make the public road a private road. Once a road is public and available for use, without interference from any property owner, the road cannot return, by default, to private ownership through lack of subsequent use (Brady v. Zirnhelt, 1998 CanLII 6526 (BC CA)).

Use of Easement over Private Land

Where a regional district has an easement over private land which provides access to a public park, the regional district may grant a general licence authorizing any person to use the right of way as a means of access to the park. However, the regional district is obliged to make it clear to its licencees that this is not a public way or a highway. The regional district has no right to hold out to any person by any means whatsoever that the right of way is other than a private right of way on private land, nor has it any right to suffer, permit, or allow any person to use the right of way in any manner inconsistent with the private right of way (Granfield v. Cowichan Valley (Regional District), 1996 CanLII 356 (BC CA), varying 1993 CanLII 2218 (BC SC); see also the annotation for this decision under s. 35 of the Property Law Act in chapter 56 (Property Law Act, R.S.B.C. 1996, c. 377)).

See also the annotation for Lafontaine v. University of British Columbia, 2012 BCSC 805, and related proceedings 2013 BCSC 1517, under ss. 182 and 223 of the Land Title Act and s. 35(2)(b) of the Property Law Act.

Improper Road Resumption

The original grant of land permitted the Crown to obtain part of the land for road purposes. The municipality passed a bylaw resuming a road allowance but did not file a plan or apply to raise title as required by the Land Registration Act, R.S.B.C. 1924, c. 127. The plaintiffs later acquired the land without notice of the bylaw. As the municipality’s interest remained inchoate until raising of title, the plaintiffs acquired title to all lands free of the road allowance (Madalozzo v. Abbotsford (District), 1985 CanLII 518 (BC SC)).

Public Money Expended on Travelled Roads

The following cases decided under s. 4 of the Highway Act (now repealed) consider whether travelled roads are deemed public highways on account of the expenditure of public money. A provision similar to s. 4 is found in s. 42 of the Transportation Act. See also s. 4 of the Transportation Act Regulation.

1. British Columbia v. Hilyn Holdings Ltd., 1991 CanLII 2397 (BC CA)
2. Wesbild Enterprises Ltd. v. Shular, 1991 CanLII 253 (BC SC)
3. Emmett v. Arbutus Bay Estates, 1992 CanLII 269 (BC SC), reversed 1994 CanLII 8700 (BC CA), reconsideration denied 1994 CanLII 8694 (BC CA), additional reasons 1994 CanLII 8695 (BC CA), leave to appeal refused [1994] S.C.C.A. No. 365 (QL)
4. Okanagan Similkameen Cooperative Growers Assn. v. Osoyoos, 1994 CanLII 2697 (BC SC)
5. Brady v. Zirnhelt, 1998 CanLII 6526 (BC CA)
6. Winskowski v. Coldstream (District), 1996 CanLII 3525 (BC SC), affirmed 1997 CanLII 3538 (BC CA)
7. Dunromin Investments Ltd. v. Spallumcheen (Township), 2000 BCSC 383
8. Silvern Estates Ltd. v. British Columbia, 2007 BCCA 284
9. Skutnik v. British Columbia (Attorney General), 2013 BCSC 195

Statutory Exemptions

There can be statutory exemptions from the provisions in s. 42 of the Transportation Act. For example, s. 42(1) does not apply to public money spent on a forest service road, a road authorized under an agreement under the Forest Act, R.S.B.C. 1996, c. 157, a road authorized under a special use permit, a road constructed or maintained under s. 121 of the Forest Act by the minister responsible, or any other road constructed or maintained under the Forest and Range Practices Act, S.B.C. 2002, c. 69; the Forest Act; the former act as defined in s. 1 of the Forest Act; or the Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c. 159. Such roads remain private roads over private lands (Vesuna v. British Columbia (Minister of Transportation), 2011 BCSC 941, affirmed 2013 BCCA 10, leave to appeal refused 2013 CanLII 53403 (SCC)).

SECTION 23(2)(f): EXPLORATION OR ESCHEAT

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

See the Expropriation Act at chapter 41 (Expropriation Act, R.S.B.C. 1996, c. 125).

See the Escheat Act at chapter 40 (Escheat Act, R.S.B.C. 1996, c. 120).

See Di Castri, Registration of Title to Land, vol. 3, §22:26.

SECTION 23(2)(g): ENDORSEMENTS ON TITLE

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

See Di Castri, Registration of Title to Land, vol. 3, §20:18.

CASE LAW

Notation Regarding Grant of Probate

A grant of probate with will annexed that is filed and entered on title is an “entry”. Accordingly, all parties dealing with the title have actual notice of the will’s contents (Civic Employees and District Credit Union v. Public Trustee, [1983] 4 W.W.R. 569 (B.C.S.C.)).

Priority of Caveats and Certificates of Pending Litigation

If s. 23(2)(g) is read in conjunction with s. 31, it must follow that the Legislature contemplated that the title of a registered owner might be affected by a person claiming an interest in the lands described in the title. In this case, the title of a mortgagee that had registered title in its name following an order absolute was subject to the rights of the mortgagor, which filed a lis pendens based on a notice of motion to re-open the final order of foreclosure (Pacific Savings and Mortgage Corp. v. Can-Corp Development Ltd., 1982 CanLII 463 (BC CA)).

Note: The Pacific Savings and Mortgage decision should be read in the context of the law of foreclosure which, in British Columbia, still draws upon equitable principles permitting the court to re-open foreclosure proceedings unless and until the property is sold to a bona fide purchaser for value.

See also the annotations under the “Case Law” heading for s. 29 regarding the effect of notice of an unregistered interest provided by a caveat or certificate of pending litigation.

SECTION 23(2)(h): WRONG BOUNDARIES

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Registrar’s Obligations before Registration

See s. 169(1) of the Act regarding the registrar’s obligation before registration of the first indefeasible title to land to be satisfied with respect to the sufficiency of the description of the boundaries of the land and the establishment of a good safe holding and marketable title in fee simple.

CASE LAW

Incorrect Boundaries

The appellants and respondents owned adjacent lots in a subdivision that was surveyed and registered in the early part of the twentieth century. There were unresolved discrepancies between what was actually posted and field surveyed in 1908 and what the boundaries described in the registered plan. Over the years, several unsuccessful attempts to reconcile the original postings with the plan resulted in an ongoing controversy as to the correct placement of the lot boundaries in the subdivision. In 1980, the appellants retained a land surveyor to determine the proper boundaries of their own lot and submitted the plan to the land title office for registration. The Surveyor General recommended a special survey which the Attorney General refused to fund primarily because of the costs involved. Subsequently, the respondents purchased their lot. They were aware of the boundary disputes and of the appellants’ survey and plan. The respondents sited and built their home at the request of the appellants in accordance with the appellants’ survey and plan. In this location, the respondents’ home straddled the boundary as defined in the original plan. The appellants then sought to enforce the original plan. The court found that the decision in Hawkes Estate v. Silver Campsites Ltd., 1991 CanLII 5718 (BC CA), did not categorically eliminate the use of estoppel to enforce a conventional boundary in all cases. Here, the registered plan was not an accurate representation of how the land was originally surveyed and posted, and subsequent surveys resulted in a lack of agreement among surveyors as to the correct boundaries. In these circumstances, where a plan is in error and the location of the true boundaries is uncertain and cannot be readily determined by modern survey techniques, the court is not precluded from resorting to the use of estoppel to enforce the equities raised. Although surveys form the foundation of the Torrens system, the survey upon which the land in question was brought under the Torrens system was in error, all the parties with an interest in the property were on notice of the error, and further surveys proved inconclusive as to how the land was originally posted. In dismissing the appeal, the court found that the words and conduct of the appellants before the construction of the respondents’ home raised an equity in favour of the respondents (Flello v. Baird, 1999 BCCA 244).

Ambiguous Boundaries

Where an error has occurred in previous certificates of title, the registrar should not perpetuate the error and should not issue a new certificate of title unless satisfied “that a good safe-holding and marketable title in fee simple has been established by the applicant”. In this case, the registrar refused to issue a new certificate of title to the surviving joint tenant of a lot where that lot and another lot had been created from a previous lot in a manner making the exact boundary ambiguous (Re Land Registry Act; Re Evans Application, 1955 CanLII 614 (BC SC)).

Where the dividing line between two parcels of land is described as the south boundary of a river, an uncertainty as to the location of the boundary of the river course does not translate into a wrong description of boundaries or parcels (Hawkes Estate v. Silver Campsites Ltd., 1991 CanLII 5718 (BC CA); for further proceedings, see the annotations below).

Mistaken Beliefs as to Boundaries

There can be little doubt that the vested interest of society in preserving the certainty and reliability associated with a Torrens system indefeasible title casts a heavy burden on a party seeking to impeach by extrinsic evidence. Where the allegation is that at an earlier stage in the chain of title a vendor intended to sell and a purchaser intended to purchase a lesser area of land than was contained in the vendor’s title and subsequently appeared in the purchaser’s title, “convincing proof” will be required. A complete stranger to the chain of title cannot challenge an antecedent transaction on the grounds of an imputed intention of the parties not reflected in the conveyance that implemented the transaction. The mere fact that a registered owner has been under a wrong impression as to what they were getting by the deed raises no equity against another registered owner upon whose land they are found to be trespassing. Furthermore, under a Torrens system, the court has no power to override the indefeasibility of title by invoking estoppel to enforce a finding of a conventional boundary (Hawkes Estate v. Silver Campsites Ltd., 1991 CanLII 5718 (BC CA); see 1994 CanLII 1737 (BC CA), annotated below, for related proceedings and see the annotation for this case under s. 36 of the Property Law Act in chapter 56 (Property Law Act, R.S.B.C. 1996, c. 377)).

Land Not Included within Surveyed Boundaries

The petitioners and the respondent claimed title to a disputed piece of land that was registered as part of a large farm. The disputed land was adjacent to a smaller parcel of land that had been subdivided and sold separately from the farm. The petitioners believed that they had acquired the disputed land when they acquired the smaller parcel, even though the disputed land was not included within the surveyed boundaries of the smaller parcel. The respondent believed that it had acquired the disputed land when it purchased all of the farm except the smaller parcel. At the time the smaller parcel was created, the surveyors were instructed by a third party predecessor in title not to include the disputed land because to do so would have added greatly to the costs of the initial survey. In these circumstances, there was no wrong description of boundaries as contemplated under s. 23(2)(h) of the Act. The surveyor committed no error. He simply did not create the disputed land as a distinct parcel because he was instructed to cut the survey short. The respondent was a bona fide purchaser for value from the third party whose purported sale of the disputed land to both the petitioner’s predecessor in title and the respondent was fraudulent. However, as required under s. 23(2)(i) of the Act, the petitioner simply did not meet the onerous burden of proving fraud in which the respondent “participated in any degree”. Accordingly, the court dismissed the petition and ordered the petitioners to vacate the disputed land (Leiterman Estate v. Karrer Holdings, 2000 BCSC 1215).

Determination of Boundaries

In determining the boundary of a parcel of land, land surveyors are guided by the best evidence then available. The hierarchy of evidence recognized by land surveyors in determining the location of boundaries is as follows: (1) natural boundaries; (2) monuments in place; (3) occupation by owners; (4) field notes, distances, and angles; (5) plans and incentive plans; and (6) areas (Hawkes Estate v. Silver Campsites Ltd., 1994 CanLII 1737 (BC CA)).

The plaintiff sought a declaration that the defendants, owners of the six adjacent strata lots, were trespassing on its property, a declaration that it was the owner of the land in question, damages, and other relief. The dispute arose from the fact that there was a 10-foot discrepancy between the westerly frontage of the plaintiff’s lot, as shown on a subdivision plan deposited in the land title office in 1945, and as delineated by the boundary markers. The court rejected suggestions that an iron witness post located near a corner of the lot was not the original monument placed by the original surveyor or that the witness post had been moved. Rather, it concluded that the discrepancy arose at the time of the original survey. In resolving the discrepancy, the placement of the original monuments had to prevail. It would not be possible to determine the boundary of any lot without reference to the monuments, because the plan locates the property in relation to the monuments shown on the plan. The monuments themselves are an integral and necessary part of the plan’s delineation of the lot. When property is surveyed, the posts when placed are clearly marked so that those concerned know the boundaries. Thereafter, the practice is to identify the boundaries by viewing the posts in place or, if missing, to have them replaced by a surveyor. Boundaries are best understood by seeing them on the land rather than by viewing a plan alone (Mark’s Service Center Ltd. v. Henderson, 1996 CanLII 2339 (BC SC)).

The appellants and respondents disagreed over the location of the property line separating their two backyards. The appellants relied on evidence provided by a BC Land Surveyor in a related survey plan. The respondents claimed that a fence in place at the time both parties purchased their properties correctly defined the boundary. At trial, the court concluded that the best evidence available in the circumstances in this case was the location of the fence. This decision was based upon the application of the “survey profession’s hierarchy of evidence” in that the expert evidence of the surveyors at the trial determined that the fence was the best available evidence of the location of the boundary. This evidence was adopted in the absence of any of the original survey monuments. The Court of Appeal affirmed the trial court decision and went on to address a new issue raised by the appellants on appeal, namely that the surveyor’s plan was conclusive evidence of property lines under s. 23(2)(h) of the Land Title Act. The Court of Appeal disagreed. Section 23(2)(h) allows for the possibility that lands have been improperly included in title by wrong description of boundaries or parcels. There is no inconsistency between the statutory provisions in the Act, which govern indefeasibility of title, and the survey profession’s hierarchy of evidence, which is used to locate boundaries on the ground. The Act speaks to legal title. The survey evidence speaks to the physical location of what is described in the title. In affirming the trial court decision, the Court of Appeal accepted the location of the fence as better evidence of the boundary than evidence of measurements from plans that the court determined suffered several inconsistencies. The location of the monuments establishing the boundaries were not shown on the plan and in the absence of that evidence the fence was the preferred indicator of the boundary (Phillips v. Keefe, 2012 BCCA 123).

SECTION 23(2)(i): FRAUD

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

For related fraud provisions, see also ss. 25, 29, and 297 of the Act.

See Di Castri, Registration of Title to Land, vol. 3, §19:1, §19:2, and §19:12.

CASE LAW

Notes on Case Law: The following cases are a very limited sample of cases involving fraud and s. 23. For a more complete sample of cases, see the annotations under s. 29 of the Act regarding the effect of notice of unregistered interests, a central issue in many fraud cases. Further annotations involving cases of fraud can also be found in Part 20 of the Act (ss. 295 to 307) regarding the assurance fund.

“Fraud”

The fraud referred to in s. 25(2) of the Act and s. 23 is actual, not constructive, fraud, as where one buys land with actual or imputed knowledge that the vendor is not the owner (Greveling v. Greveling and Blackburn, 1949 CanLII 233 (BC CA); see also the annotation of this and other cases on actual and constructive notice in relation to fraud under s. 29 of the Act).

See also the annotation for Leiterman Estate v. Karrer Holdings, 2000 BCSC 1215, under s. 23(2)(h) at “23 Effect of indefeasible title” in this chapter.

“Forgery”

The fact that a discharge of a prior mortgage has been forged does not affect the priority of a subsequent mortgagee who accepts title as a bona fide mortgagee (Canadian Commercial Bank v. Island Realty Investments Ltd., 1988 CanLII 2966 (BC CA); see also the annotation of this decision under s. 248 of the Act).

“Person Deprived of Land”

See the annotation for First West Credit Union v. Burton, 2013 BCCA 531 under s. 25.1 of the Act.

SECTION 23(3): NO TITLE BY ADVERSE POSSESSION

PRACTICE

Abolition of Doctrine of Adverse Possession

Under s. 23(3), but subject to s. 23(4), the doctrine of adverse possession is abolished after issuance of the first indefeasible title. Title cannot be established by length of possession alone. However, a caveat may be lodged against the absolute title under the Act if a person is in actual occupation before registration of the first indefeasible title.

Cross References and Other Sources of Information

Land Title Inquiry Act

Section 171 of the Land Title Act provides that the registrar must not accept an application “founded in whole or in part on adverse possession … unless [the application is] permitted by this Act and supported by a declaration of title under the Land Title Inquiry Act”. See the discussion of the Land Title Inquiry Act in chapter 49 (Land Title Inquiry Act, R.S.B.C. 1996, c. 251).

CASE LAW

First Certificate of Title

The phrase “after the issue of a certificate of indefeasible title” in s. 38(2) of the former Land Registry Act, R.S.B.C. 1960, c. 208 (now, s. 23(3)), means after the issue of the first certificate of indefeasible title, not after the issue of any subsequent certificate of title. The effect of the issue of the first certificate of title is to cut across the accruing period of any adverse “possessory” title (Morrison v. Weller, 1951 CanLII 280 (BC SC)).

SECTION 23(4)

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

See Di Castri, Registration of Title to Land, vol. 3, §18:76.

See also the discussion of adverse possession in “Overview of the Land Title Inquiry Act” in chapter 49.

CASE LAW

Entitlement to Land

Adverse possession for more than 20 years under the terms of verbal promises by a deceased brother, coupled with an unsigned memorandum of assets in the plaintiff’s favour, was not sufficient to bring the plaintiff within the section. She was at most a licensee or tenant at will and the memorandum, whatever the deceased’s intention, had no effect because of the Statute of Frauds (Drummond v. Drummond (1964), 50 W.W.R. (N.S.) 538 (B.C.S.C.)). Note that under the Statute of Frauds, R.S.B.C. 1960, c. 369, s. 2, an agreement concerning an interest in land was unenforceable by action unless evidenced by a writing signed by the party to be charged or that party’s agent. See s. 59 of the Law and Equity Act, which now allows greater latitude for the enforcement of unwritten contracts concerning interests in land.

Claim of Easement

Section 23(4) does not apply to persons claiming only an easement, because the possession must be open, physical, obvious possession. The “quasi” possession referable to an easement over land is not the possession to which s. 23(4) applies (Morrison v. Weller, 1951 CanLII 280 (BC SC)).

First Indefeasible Title and Adverse Possession

In 1910, three parcels of land were transferred, or were intended to be transferred, to the City of Victoria for the purpose of building a high school. At that time, the owners of the three parcels held “absolute titles” under an absolute title system used before the adoption of the Torrens system (these were converted by the Registrar of Land Titles to first indefeasible titles in 2000 and 2003). However, transfer of titles to the City was never perfected. The school continued in operation since 1910. The City sought a declaration that it was the legal and beneficial owner of the properties. Held, petition allowed; the court declared that under the authority of the Land Title Inquiry Act, the City is the legal and beneficial owner in fee simple in possession of the three properties, subject to the conditions, exceptions, and reservations enumerated or referred to in s. 23(2)(a) to (j) of the LTA, but free from all other rights, interests, claims, and demands, and that it holds good safe holding and marketable title. Under the Land Title Inquiry Act and the LTA, adverse possession is available if the possession commenced prior to July 1, 1975 and continued adversely for 20 years in the case of land owned by an individual, or 60 years in the case of land owned by the Crown. On the evidence the court found valid adverse possession against first indefeasible titles, satisfying s. 23(4) of the LTA. A claim of adverse possession requires possession of the subject land that is (citing Re Canadian Pacific Railway Co., 2002 BCSC 1041 at para. 57) “open and notorious, adverse, exclusive, peaceful (not by force), in general actual (as opposed to constructive), and continuous”. It was difficult to imagine use of land more open, notorious, and exclusive of others than in the present case, involving as it did the construction and operation of a high school for 110 years on a large piece of property located among busy suburban streets. The development of the land had to have been a major and obvious change in the surrounding neighbourhood, if not in the city of Victoria itself. There was no evidence that any of the names on title or their heirs or anyone objected to the adverse possession by the City for 20 or 60 years after 1910, or ever. Section 171 of the LTA states that an application “founded in whole or in part on adverse possession” must not be accepted unless permitted by the LTA and “supported by a declaration of title under the Land Title Inquiry Act”. The City was accordingly entitled to the declaration it sought (Re Victoria (City), 2020 BCSC 1942).

Presumption of Indefeasibility Rebutted Where No Value Given for Legal Interest

In Freeland v. Farrell, 2021 BCSC 1318, varied 2022 BCCA 99, the petitioner gave evidence that, before he purchased a house with the respondent, with whom he had had “a short-term, later-in-life romantic relationship”, he had been ready and able to buy without her and now sought to have her removed from title on which both were registered owners and both bound by the mortgage. In three and a half years, the respondent had made no financial contribution to the house despite an expectation that she would reimburse the petitioner for her share of the deposit, the closing costs, the mortgage payments, and the costs of maintaining the property. Nor had the respondent lived in the home. The court was satisfied that the presumption of indefeasibility had been rebutted because the respondent gave no value for her legal interest, which the court found that she held on resulting trust for the petitioner. It found that to allow the respondent to remain joint owner would amount to unjust enrichment and rejected her argument that an accounting between the parties would account for the petitioner’s financial contributions. The court followed Suen v. Suen, 2016 BCCA 107 in considering the parties’ respective contributions to the property and not “the totality of their financial and social dealings with one another” (at para. 93, citing Suen at para. 58). The court decided the respondent had no beneficial interest in the home and ordered her removed from the mortgage and title. The appellate court set aside the order that the appellant be released from the mortgage covenants, as it was unenforceable, the lender not being a party to the action. That court made an order that would achieve the desired result of the appellant transferring her legal interest in the property to the respondent.

Injunction Denied in Dispute Over Right to Access Rural Road

In Harrison v. Nemeth, 2022 BCSC 1958 (Chambers), the plaintiffs sought interlocutory injunctive relief to allow them unimpeded access to an unsurveyed road onto their rural property.

The plaintiffs and defendants owned neighbouring properties, large rural acreages, near Burns Lake. The dispute concerned the plaintiffs’ use of “E Rd.”, which partially crossed the defendants’ properties, to access their property. The plaintiffs also had access to their property over another road, “H Rd.” E Rd. began on the defendant V Ltd.’s property for 150 metres, then entered the property of the defendants PN and MN, ran through the centre of their property, through their barnyard, and very close to their house. E Rd. was unsurveyed.

In 1984, the Ministry of Transportation and Highways made H Rd. a public highway by establishing a right of way, and the H Rd. access to the plaintiffs’ property was noted on the parties’ titles. When there was a dispute between prior owners of the properties in 2013, they made inquiries of the ministry about the status of the disputed road, and were advised that E Rd. was a public road to which the general public could not be denied access. When the plaintiffs took possession in 2018, they were left the letter from the ministry as well as a 2009 email from the ministry’s area manager pertaining to maintenance for E Rd., saying the first 328 metres of the road were maintained and classified “7E”, the lowest standard for winter maintenance, and from there to the 889-metre mark the road was classified “8F”, meaning unmaintained.

When the plaintiffs moved into their property in 2018, the Ns did not initially object to the plaintiffs using E Rd. through their property temporarily. They snowploughed E Rd. through the entirety of their property, but expected the plaintiff would invest in proper equipment for snow removal and eventually use their own access road through H Rd. During the time the Ns permitted the plaintiffs to use E Rd., they found the volume of traffic concerning in terms of their safety, privacy, and potential liability issues.

In the fall of 2019, the Ns asked the plaintiffs to now use H Rd. and to stop using E Rd. The Ns agreed to the plaintiffs’ request to use their field as a bypass around their house as a temporary solution for the upcoming winter, and they ploughed a route that came to be called the Field Rd. The Ns refused the plaintiffs’ request to again use E Rd.

The plaintiffs contacted the ministry, which in April 2020 reversed its earlier position and said that E Rd. was never legally established as a public highway under the Transportation Act, and that the ministry had no interest in establishing the road as a highway. The plaintiffs said that H Rd. did not provide practical, reliable access. The Ns tendered two estimates from a local road building company. Its estimate of the cost of improving E Rd. across all their property was $52,855. The quote for the cost of repairing and resurfacing H Rd. in its problem areas, including the cost of a culvert, was $29,920. V Ltd. had not impeded any of its neighbours’ access where E Rd. ran through its property, but its principal deposed that E Rd. was not used by the public and that he had never seen anyone on behalf of the ministry do anything to maintain E Rd. other than to snowplough occasionally. The plaintiff applied for interlocutory injunctive relief restraining the defendants from impeding their access over E Rd.

Held, application dismissed. The relief the plaintiffs sought was properly characterized as a mandatory rather than a prohibitory injunction because its significant features would force the defendants to: allow the plaintiffs unimpeded use for vehicular, equestrian, and pedestrian travel over their property; remove a wire fence; allow the plaintiffs and their agents onto their property in order to reconstruct the roadway without interference; pay half the cost of the reconstruction up to a maximum of $15,000; and snowplough E Rd. up to the plaintiffs’ property line or require them to grant the plaintiffs access to their property for them to plough. Therefore, the first element of the test for an injunction was whether the plaintiffs had a strong prima facie case rather than a serious question to be determined.

The plaintiffs failed to establish a strong prima facie case that E Rd. was a public highway under the Transportation Act. Section 42(1) of the Transportation Act has two components for a travelled road to become a highway: that it be a travelled road, and that public money be expended on it. The evidence the plaintiffs adduced did not demonstrate even a serious question that E Rd. was a “travelled road”, as that phrase has been considered in case authorities. At best, it was used occasionally by employees and guests of the property owners and some undefined number of some neighbouring friends more than 25 years ago. This was not evidence of substantial public use.

On the second component, most public funds had been spent on snowploughing a portion of E Rd., 328 metres from Highway 16 through V Ltd.’s first lot and into a part of the Ns’ property, but how much money and over what period of time was unknown. It was difficult to determine if this expenditure could be considered significant, but even if it were, the expenditure would be excluded from the application of s. 42(1) of the Transportation Act by application of s. 4(1)(a) of the Transportation Act Regulation.

The plaintiffs also failed to show there was a strong prima facie case that there had been a common law dedication under para. (c) of the definition of “highway”, because the evidence fell far short of supporting an intention on the defendants’ parts to dedicate E Rd. as a public road; the evidence was strongly to the contrary. The Ns’ initial neighbourly gestures did not establish intention to dedicate use of E Rd. or the Field Road to all members of the public. There was also no evidence that the previous owners of the defendants’ properties intended to dedicate E Rd. There was no strong prima facie case as against V Ltd. based on proprietary estoppel. It did nothing to restrict the plaintiffs’ access to that portion of E Rd. on its property and made no representations or assurances to the plaintiffs or their predecessors in title upon which any of them relied to their detriment.

There was also no strong prima facie case against the Ns in proprietary estoppel. Any representations or assurances the Ns made to the plaintiffs related to their use of E Rd. or the Field Rd. were temporary, and reliance by the plaintiffs on those temporary neighbourly accommodations would be unreasonable. At most, the evidence disclosed that the plaintiffs’ own realtor gave them an assurance that they could use E Rd. However, the plaintiffs did not, on the evidence adduced, suffer a detriment leading to an unfair, unjust result because of the Ns’ asserting their right to restrict access to roads on their property.

Further, the plaintiffs did not establish irreparable harm if the injunction were not granted. They did not allege that they had suffered or would suffer any harm as a result of anything that V Ltd. had or had not done. If the injunction were denied, the plaintiffs might expend funds to remedy the deficiencies in H Rd., and if the plaintiffs were to succeed at trial, that loss would be easily quantifiable in damages. Further, the plaintiffs had used H Rd. for about two years and had taken no meaningful steps to improve that road. Their inconvenience in using H Rd. did not amount to irreparable harm.

Finally, the balance of convenience did not favour the plaintiffs. None of their claims met the high threshold required. If they succeeded at trial, any loss sustained could be compensated by damages. The orders sought would cause harm to the Ns, including having to relinquish control over part of their property and pay up to $15,000, the recovery of which was uncertain if the plaintiffs’ claims failed. In addition, the orders sought were effectively the orders they sought if successful at trial. E Rd. was not the plaintiffs’ only access route, since they had a legal access route over H Rd., which was a public road, and there were steps they could take to mitigate the inconveniences of using that road. The balance of convenience militated strongly against the granting of the injunctive relief sought.