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Land (Spouse Protection) Act

[RSBC 1996] CHAPTER 246

Contents
1Definitions
2Application for charge under this Act
3When disposition without consent of spouse is void
4Application of Wills, Estates and Succession Act
5Spouses living apart
6When Act ceases to apply
7Filing of consent on disposition
8Dispensing with consent and notice
9Presumption of consent from participation in sale
10Abandonment by spouse of benefits and privileges
11Cancellation on protected spouse predeceasing other spouse
12Spouse may be required to show why entry should not be discharged
13Appeal from registrar's decision
14Repealed
15Power to prescribe forms

Definitions

1  In this Act:

"disposition" means any disposition by an act between living persons that is required to be executed by the owner of the land disposed of, and includes

(a) a transfer, agreement of sale, assignment of an agreement for sale, lease or other instrument intended to convey or transfer any interest in land,

(b) a mortgage or encumbrance intended to charge land with the payment of money, and required to be so executed,

(c) a devise or other disposition made by will, and

(d) a mortgage by deposit of duplicate indefeasible title or indefeasible title, or other mortgage not requiring the execution of any document;

"entry" means an entry made in the register of land titles under section 2;

"homestead" means land or any interest in it entitling the owner to possession of it that is registered in the records of the land title office in the name of the spouse and on which there is a dwelling occupied by the spouses as their residence, or that has been so occupied within the period of one year immediately preceding the date of the making of the application under section 2.

"spouse" means a person who

(a) is married to another person, or

(b) has lived with another person in a marriage-like relationship for a continuous period of at least 2 years.

Application for charge under this Act

2  (1) If a spouse or a person's spouse on the person's behalf applies to the registrar for an entry on the register that a homestead is subject to this Act the registrar must make the entry

(a) if the application is in the prescribed form,

(b) the application is accompanied by an affidavit of the applicant spouse in the prescribed form, and

(c) the registrar is satisfied that there has been compliance with this Act.

(2) The application for an entry may be made by a spouse in person or on a person's behalf by that person's spouse, solicitor or authorized agent.

(3) The person making the application must reside in British Columbia and must be 19 years or older.

When disposition without consent of spouse is void

3  (1) If an entry has been made on the register under section 2, a disposition of the homestead by a spouse during the life of that spouse if the interest of that spouse must or may vest in any other person at any time during the life of that spouse, or during the life of the spouse of that spouse living at the date of the disposition, is void for all purposes unless made with the written consent of the spouse on whose behalf the entry is made.

(2) A conveyance designed to avoid the right given by this Act has no effect.

Application of Wills, Estates and Succession Act

4  (1) If an entry has been made on the title under section 2, section 162 (1) of the Wills, Estates and Succession Act applies to the devolution of the homestead.

(2) Despite any testamentary disposition or rule of law and subject to the liability of the land comprising the homestead for foreclosure or the payment of debts, a personal representative holds the homestead in trust for an estate for the life of the surviving spouse.

Spouses living apart

5  If at the time of death of a spouse, the surviving spouse is living apart from the deceased spouse under circumstances disentitling the surviving spouse to support, alimony or maintenance, no life estate vests in the surviving spouse and the surviving spouse does not take any benefit under this Act.

When Act ceases to apply

6  This Act ceases to apply when the spouses have

(a) separated, and

(b) resolved the ownership or division of the homestead by an agreement or order made under the Family Law Act.

Filing of consent on disposition

7  (1) Any consent required for a disposition during the lifetime of a spouse that takes effect during the lifetime of that spouse, of a homestead under this Act must be produced and filed in the land title office with the instrument by which the disposition is effected.

(2) The consent may be embodied in or endorsed on the instrument effecting the disposition.

(3) The execution of a disposition referred to in subsection (1) by the spouse on whose behalf the entry is made constitutes a consent under this Act.

Dispensing with consent and notice

8  (1) On application by petition and on being satisfied that it is fair and reasonable under the circumstances to do so, the Supreme Court may dispense with the consent of a spouse, on whose behalf an entry is made, to a proposed disposition if

(a) the spouses are living apart,

(b) the spouse on whose behalf the entry is made

(i) has not since the marriage lived in British Columbia, or

(ii) unreasonably withholds consent, or

(c) the whereabouts of the spouse referred to in paragraph (b) is unknown.

(2) An order under subsection (1) may be made on terms and conditions as to payment into court or otherwise that the court in the circumstances thinks proper.

(3) If the court is satisfied that the spouse on whose behalf the entry is made has not, since the marriage, lived in British Columbia or the whereabouts of that spouse is unknown, it may dispense with the giving of notice of the application for the order or give other directions as to service of the notice.

(4) If the spouse on whose behalf entry is made is a mentally disordered person or person of unsound mind, notice of an application to dispense with the consent of that spouse must be served in the manner provided by the rules of the Supreme Court for the service of writs on those persons.

(5) On the order being filed with the registrar at the proper land title office, and on compliance with the Land Title Act, the registrar must register the transfer.

Presumption of consent from participation in sale

9  (1) If the spouse on whose behalf an entry is made has executed a contract for sale of the homestead, joined in the execution of it with the other spouse or given written consent to the execution of it, and the consideration under the contract has been totally or partly performed by the purchaser, the spouse on whose behalf the entry was made is, in the absence of fraud on the part of the purchaser, deemed to have consented to the sale in accordance with this Act.

(2) If a subsequent disposition by way of transfer of the homestead is presented for registration under the Land Title Act, the consent previously given or the agreement executed, if produced and filed with the registrar, is sufficient for the purposes of this Act.

Abandonment by spouse of benefits and privileges

10  (1) A homestead or part of a homestead and the benefits and privileges conferred on the spouse on whose behalf an entry is made under this Act in respect of the homestead or any part of it may be abandoned by that spouse by a document, in the prescribed form, abandoning the homestead rights.

(2) The registrar must cancel the entry on receiving an application in the form prescribed for applying for the cancellation of an entry, accompanied by the document referred to in subsection (1).

Cancellation on protected spouse predeceasing other spouse

11  On application in the form prescribed for applying for the cancellation of an entry, accompanied by evidence satisfactory to the registrar that the spouse on whose behalf the entry was made has died, or that a decree has been pronounced dissolving or annulling the marriage of the spouse on whose behalf an entry was made to the spouse in whose name the homestead is registered, the registrar must cancel the entry.

Spouse may be required to show why entry should not be discharged

12  (1) A spouse or the personal representative of the spouse may by summons call on the other spouse to attend before a court of competent jurisdiction to show cause why an entry should not be discharged if

(a) an entry under section 2 has been made on the register, and

(b) the spouse in whose name the homestead is registered, or that spouse's personal representative, claims

(i) that the land affected or a part of it is not a homestead, or

(ii) that the entry for any other reason should not have been made.

(2) On proof that the spouse has been summoned as required by subsection (1), and on evidence that the court may require, the court may make an order that it considers appropriate in the circumstances.

Appeal from registrar's decision

13  If a person is dissatisfied with a decision of the registrar under this Act, that person may, within 21 days of the receipt of notice of the decision, appeal to the Supreme Court in a summary way by petition, and section 309 of the Land Title Act applies to the appeal.

Repealed

14  [Repealed 2004-66-65.]

Power to prescribe forms

15  The Lieutenant Governor in Council may prescribe forms for the purposes of this Act.