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This Act has "Not in Force" sections. See the Table of Legislative Changes.

Land Title Act

[RSBC 1996] CHAPTER 250

Part 14 — Registration of Title to Charges

Division 1 — General

Registration of charges

197  (1) On being satisfied from an examination of an application and any instrument accompanying it that the applicant is entitled to be registered as the owner of a charge, the registrar must register the charge claimed by the applicant by entering it in the register.

(2) Despite subsection (1), the registrar may refuse to register the charge claimed if the registrar is of the opinion that

(a) a good, safeholding and marketable title to it has not been established by the applicant, or

(b) the charge claimed is not an estate or interest in land that is registrable under this Act.

Registration of person creating charge

198  An instrument purporting to create a charge on land executed by a person who is entitled to be registered as owner of the fee simple must not be registered unless that person has first been registered as the owner of the fee simple.

Registration of subcharges

199  An instrument purporting to create a charge by way of a submortgage or other subcharge of any kind must not be registered unless the charge on which the submortgage or subcharge depends has first been registered.

No subright to purchase registrable

200  A subagreement for sale by the registered owner of a right to purchase land or of a subright to purchase land, entered into after October 30, 1979, is not registrable.

Registration of assignment of charge

201  If the person purporting to assign a charge is alive and entitled to be registered as the owner, the person to whom the assignment purports to be made must not be registered under the charge unless the person so purporting to assign it is first registered as the owner of the charge.

Repealed

202  [Repealed 2003-70-208.]

Floating charges on land

203  (1) In this section:

"circular priority" means the situation where 3 or more competing charges have been registered against the same parcel of land and the application of subsections (9) and (10) leads to a priority relationship among them in which each charge is subordinate in priority to at least one of the other charges;

"crystallized", with reference to a floating charge, means a charge that has fixed on specific land in accordance with the applicable law and the terms of the instrument in which the charge is created;

"financing statement" has the same meaning as in the Personal Property Security Act;

"floating charge" means a charge that secures the payment or performance of an obligation and that does not become a fixed charge on specific land until the occurrence of an event, stipulated in the instrument that created the floating charge.

(2) The personal property registry established under the Personal Property Security Act is the proper office for registration of an uncrystallized floating charge.

(3) An uncrystallized floating charge may be registered in the personal property registry by registering a financing statement in the form and manner prescribed under the Personal Property Security Act.

(4) If a floating charge and a security interest in personal property are created by the same instrument, registration with respect to that security interest under the Personal Property Security Act also constitutes registration of the floating charge under subsection (3).

(5) Sections 18, 43 (1) to (9), (12) to (15), 44 to 48 and 51 to 54 of the Personal Property Security Act apply to an uncrystallized floating charge registered in the personal property registry.

(6) An application to register a crystallized floating charge in a land title office must be accompanied by proof, in the form of a sworn declaration satisfactory to the registrar, stating

(a) that the charge has crystallized, and

(b) the circumstances under which the crystallization occurred.

(7) Registration of a crystallized floating charge does not constitute a determination by the registrar that crystallization has occurred.

(8) Except as provided in subsection (6), the registrar must not register a floating charge.

(9) The priority of a crystallized floating charge registered under section 197 must be determined under sections 27 and 28.

(10) Despite subsection (9), priority between crystallized floating charges that charge the same parcel of land must be determined by the date of registration under subsection (3) or section 197, whichever is the earlier.

(11) If a circular priority exists, the rights of the parties must be resolved by allowing the person having priority under subsection (10) to pursue the person's claim as if the person were subrogated to the claim of the person otherwise having priority under subsection (9).

(12) The priority of a floating charge registered against a specific parcel of land before October 1, 1990 must be determined without regard to this section.

(13) An uncrystallized floating charge that, immediately before October 1, 1990, was covered by an unexpired registration under section 75 of the Company Act, R.S.B.C. 1979, c. 59, is deemed to be registered under subsection (3).

(14) A deemed registration under subsection (13) expires 3 years from October 1, 1990, but may be continued by registration under subsection (3) or (4) before the expiry of the 3 years.

Registration of debt to the government as a charge

204  There may be registered in the same manner as a charge is registered, a debt owing to the government against the land of a debtor to the government, but no debt owing to the government affects land of a debtor to the government unless it is registered.

Writ of affecting land

205  (1) A sheriff, after delivery to him or her of a writ affecting land may, on behalf of the Crown for the purpose of enforcing or recovery of a debt due to the Crown, apply to register, in the same manner as a charge is registered, a copy of the writ against the title to the land registered in the name of the debtor.

(2) The copy of the writ referred to in subsection (1) must be certified as a true copy by the sheriff or the registrar of the issuing court.

(3) If a writ is not registered, a purchaser in good faith of the land of the debtor to the Crown takes free of it.

(4) Sections 212 and 213 apply to a writ registered under this section as if the writ were a judgment.

Registration of transfer, extension or modification of charges

206  (1) On application being made for registration of a transfer, extension or modification of a charge, the registrar, on being satisfied that all necessary parties have joined in it, must register the transfer, extension or modification by endorsing it in the register as a separate entry or as a note against the original entry or both, using the number and date of the application for registration and an appropriate symbol or abbreviation indicating the nature and effect of the instrument registered.

(2) Unless he or she is a party to it, a modification of a charge does not affect the holder of a charge registered before the registration of the modification.

Form of postponement

207  (1) A registered owner of a charge, in this section referred to as the "prior charge", may postpone that person's rights under it by executing an instrument in the form approved by the director or in another form that may be acceptable to the registrar and, when in the approved form and registered, the instrument operates to postpone that person's rights to those of the registered owner of the subsequent charge designated in the instrument in the same manner and to the same extent as if the prior charge had been registered immediately after the registration of the subsequent charge.

(2) [Repealed 1997-45-51.]

Certificates of charge

208  (1) After the registration of a charge, the registrar must, if requested by the owner of it, issue to the owner a certificate of charge in the appropriate form approved by the director, and make an endorsement of its issue in the register.

(2) Before a dealing with or a total release of a charge is registered, the certificate of charge must be surrendered to the registrar for cancellation; but if there is

(a) a partial release, extension or modification of the charge, or

(b) a postponement of the charge to another charge,

the certificate of charge must be delivered to the registrar who must, after noting on it particulars of the dealing, return the certificate to the person entitled to it.

(3) The registrar may dispense with the production of a certificate of charge, other than to minerals, if satisfactory evidence of its loss or destruction is filed with the registrar.

Transfer of mortgage

209  A transfer of a mortgage may be in the form approved by the director and, when in the approved form and registered, operates to transfer the following to the transferee:

(a) the mortgage;

(b) the benefit of all collateral securities and the right to call for an express assignment of them;

(c) the right to demand, sue for, recover and give receipts for the mortgage money or the unpaid part of it, and the interest then due or to become due on it, if any;

(d) the full benefit of and the right to sue on the covenants with the mortgagee, and the right to exercise the powers of the mortgagee.

Division 2 — Judgments

Registration of judgments in same manner as charge

210  (1) An application to register a judgment or to renew the registration of a judgment

(a) must be made in the same manner as an application to register a charge is made,

(b) must comply with Part 5 of the Court Order Enforcement Act, and

(c) must not be entered in the register of judgments.

(2) The registrar must effect the registration or the renewal of registration of a judgment by making an endorsement of it in the register in the same manner as a charge is endorsed under section 197.

Registration of assignment of judgment and form of assignment

211  (1) If an assignment of a registered judgment is not prohibited by law, the registrar may, on application, effect registration of the assignment by making an endorsement of it in the register in the manner approved by the director.

(2) This section applies to judgments registered or renewed and assigned after October 30, 1979.

(3) An assignment of a registered judgment may be in the form approved by the director and, when in the approved form and registered, operates to assign the following to the assignee:

(a) the judgment;

(b) all money due and to become due on the judgment for principal, interest and costs, and all other securities to be derived from the judgment, at law or equity, or otherwise;

(c) the right to exercise the powers of the judgment creditor.

Notice to judgment creditor of intention to register

212  (1) If an application is made to register an instrument under which the applicant claims

(a) registration as an owner of an estate in fee simple or an estate or interest by way of charge, or

(b) cancellation of a charge registered against the title to the applicant's land,

and there is a judgment registered against

(c) the grantor of the fee simple,

(d) the person who created the estate or interest to be registered as a charge, or

(e) the holder of the charge to be cancelled,

the registrar may, despite section 86 (3) (c) of the Court Order Enforcement Act, if the applicant claims priority to the judgment, serve a notice in the form approved by the director on the judgment creditor.

(2) In addition to any other method of service, the notice may be served by leaving it at the address for service of the judgment creditor shown on the certificate of judgment, whether or not the judgment creditor is in occupation of premises at that address.

(3) If a judgment creditor claims a lien on land because of the judgment, the judgment creditor must, within the time set by the registrar's notice, follow the procedure provided in Part 5 of the Court Order Enforcement Act for enforcing the judgment creditor's charge, and register a certificate of pending litigation; otherwise the registrar may effect registration or cancellation, as applied for, free from the judgment, and cancel the judgment as to the estate or interest in the land so registered or as to the charge so cancelled.

Costs on failure to establish priority

213  If proceedings referred to in section 212 (3) taken by the judgment creditor fail, because of a court finding that the instrument under which the applicant for registration or cancellation is claiming is entitled to priority over the judgment creditor's registered judgment, the court may

(a) dismiss the proceedings without costs, or

(b) allow costs to the judgment creditor if, in the opinion of the court, the judgment creditor was justified under the circumstances in requiring the applicant to have judicially established that the instrument was in good faith and validly executed.

Form of release

214  A release of a judgment may be in the form approved by the director and must be witnessed and the execution proved in the manner required by Part 5.

Division 3 — Certificate of Pending Litigation

Registration of certificate of pending litigation in same manner as charge

215  (1) A person who has commenced or is a party to a proceeding, and who is

(a) claiming an estate or interest in land, or

(b) given by another enactment a right of action in respect of land,

may register a certificate of pending litigation against the land in the same manner as a charge is registered, and the registrar of the court in which the proceeding is commenced must attach to the certificate a copy of the pleading or petition by which the proceeding was commenced, or, in the case of a certificate of pending litigation under Part 5 of the Court Order Enforcement Act, a copy of the notice of application or other document by which the claim is made.

(2) The land affected by the certificate of pending litigation must be described in a manner satisfactory to the registrar.

(3) On registration of a certificate of pending litigation, the registrar must forthwith mail a copy to the owner against whose title the certificate has been registered.

(4) If, after registration of a certificate of pending litigation, a change of parties occurs, the registrar,

(a) on receiving a certificate of pending litigation showing the new party, and

(b) on compliance with this Act,

must register the certificate of change in the same manner as a modification of a charge.

(5) Despite subsection (1), if a person entitled to enforce a restrictive covenant or building scheme has commenced an action to enforce it, the person may register under this section a certificate of pending litigation in the form approved by the director against land in respect of which a breach is alleged to have occurred.

(6) A party to a proceeding for an order under the Family Law Act respecting the division of property may register under this section a certificate of pending litigation in the form approved by the director in respect of any estate or interest in land the title to which could change as an outcome of the proceeding.

(7) Despite subsection (1), a person who has commenced an action under the Wills, Estates and Succession Act may register a certificate of pending litigation in the form approved by the director against the land affected.

(8) A judgment creditor who

(a) applies under section 9 of the Fraudulent Preference Act, and

(b) in the application, claims to be entitled to register the judgment against the land in respect of which the application was made, or against the judgment debtor's or another person's interest in the land,

may register a certificate of pending litigation in the form approved by the director against the land.

Effect of registered certificate of pending litigation

216  (1) After registration of a certificate of pending litigation, the registrar must not make any entry in the register that has the effect of charging, transferring or otherwise affecting the land described in the certificate until registration of the certificate is cancelled in accordance with this Act.

(2) Subsection (1) does not apply to the lodging of a caveat or to the registration of

(a) an indefeasible title or a charge, if the instrument supporting the application is expressed to be subject to the final outcome of the proceeding,

(b) an indefeasible title or a charge in respect of which the applicant, in writing,

(i)   elects to proceed to registration subject to the final outcome of the proceeding, and

(ii)   authorizes the registrar to register the title or charge claimed subject to the certificate of pending litigation,

(c) a priority or postponement agreement,

(d) an assignment of a charge, if the charge was registered before the certificate of pending litigation was registered,

(e) a sublease, if the lease from which it is derived was registered before the certificate of pending litigation was registered, or

(f) a certificate of judgment, order, notice, claim of lien under the Builders Lien Act, certificate of pending litigation or any other involuntary charge.

(3) Registration under subsection (2)

(a) does not constitute a determination by the registrar that what was registered is not affected by the final outcome of the proceeding, and

(b) is subject to the final outcome of the proceeding if what was registered is affected by that outcome.

Effect of certificate of pending litigation if prior application is pending

217  (1) The registrar may, despite section 216, make an entry in the register to complete the registration of an indefeasible title or charge that was applied for before an application to register a certificate of pending litigation was received by the registrar.

(2) If, in the circumstances described in subsection (1),

(a) the prior applicant is a party to the proceeding, the registrar must register the indefeasible title or charge claimed by the prior applicant subject to the certificate of pending litigation,

(b) the prior applicant is not a party to the proceeding, the registrar must, on registration of the indefeasible title or charge claimed by the prior applicant, cancel the registration of the certificate and give notice of the cancellation to the person who applied to register it, or

(c) the certificate relates to a proceeding

(i)   in respect of a charge, or to enforce, foreclose or cancel a registered charge,

(ii)   referred to in section 215 (6), or

(iii)   referred to in section 215 (7),

the registrar must register the indefeasible title or charge claimed by the prior applicant, subject to the certificate of pending litigation, whether or not the prior applicant is a party to the proceeding.

Division 4 — Statutory Rights of Way, Miscellaneous Covenants and Easements

Statutory right of way

218  (1) A person may and is deemed always to have been able to create, by grant or otherwise in favour of

(a) the Crown or a Crown corporation or agency,

(b) a municipality, a regional district, the South Coast British Columbia Transportation Authority, a local trust committee under the Islands Trust Act or a local improvement district,

(c) a water users' community, a public utility, a pulp or timber, mining, railway or smelting corporation, or a pipeline permit holder as defined in section 1 (2) of the Oil and Gas Activities Act, or

(d) any other person designated by the minister on terms and conditions that minister thinks proper,

an easement, without a dominant tenement, to be known as a "statutory right of way" for any purpose necessary for the operation and maintenance of the grantee's undertaking, including a right to flood.

(2) To the extent necessary to give effect to subsection (1), the rule requiring an easement to have a dominant and servient tenement is abrogated.

(2.1) The minister may delegate to the Surveyor General the minister's powers under subsection (1) (d).

(3) Registration of an instrument granting or otherwise creating a statutory right of way

(a) constitutes a charge on the land in favour of the grantee, and

(b) confers on the grantee the right to use the land charged in accordance with the terms of the instrument, and the terms, conditions and covenants expressed in the instrument are binding on and take effect to the benefit of the grantor and grantee and their successors in title, unless a contrary intention appears.

(4) A person who executes an instrument in which a statutory right of way is created is not liable for a breach of a covenant in the instrument occurring after the person has ceased to be the owner of the land.

(5) This section is retroactive in its application and applies to all statutory rights of way, whenever created.

(6) A recital in a grant or reservation of a statutory right of way that it "is necessary for the operation and maintenance of the grantee's undertaking", or a statement to that effect in the application to register the statutory right of way, is sufficient proof to the registrar of that fact.

Registration of covenant as to use and alienation

219  (1) A covenant described in subsection (2) in favour of the Crown, a Crown corporation or agency, a municipality, a regional district, the South Coast British Columbia Transportation Authority, or a local trust committee under the Islands Trust Act, as covenantee, may be registered against the title to the land subject to the covenant and is enforceable against the covenantor and the successors in title of the covenantor even if the covenant is not annexed to land owned by the covenantee.

(2) A covenant registrable under subsection (1) may be of a negative or positive nature and may include one or more of the following provisions:

(a) provisions in respect of

(i)   the use of land, or

(ii)   the use of a building on or to be erected on land;

(b) that land

(i)   is to be built on in accordance with the covenant,

(ii)   is not to be built on except in accordance with the covenant, or

(iii)   is not to be built on;

(c) that land

(i)   is not to be subdivided except in accordance with the covenant, or

(ii)   is not to be subdivided;

(d) that parcels of land designated in the covenant and registered under one or more indefeasible titles are not to be sold or otherwise transferred separately.

(3) A covenant described in subsection (4) in favour of

(a) the Crown or a Crown corporation or agency,

(b) a municipality, a regional district, the South Coast British Columbia Transportation Authority or a local trust committee under the Islands Trust Act, or

(c) any person designated by the minister on terms and conditions he or she thinks proper,

as covenantee, may be registered against the title to the land subject to the covenant and, subject to subsections (11) and (12), is enforceable against the covenantor and the successors in title of the covenantor even if the covenant is not annexed to land owned by the covenantee.

(4) A covenant registrable under subsection (3) may be of a negative or positive nature and may include one or more of the following provisions:

(a) any of the provisions under subsection (2);

(b) that land or a specified amenity in relation to it be protected, preserved, conserved, maintained, enhanced, restored or kept in its natural or existing state in accordance with the covenant and to the extent provided in the covenant.

(5) For the purpose of subsection (4) (b), "amenity" includes any natural, historical, heritage, cultural, scientific, architectural, environmental, wildlife or plant life value relating to the land that is subject to the covenant.

(6) A covenant registrable under this section may include, as an integral part,

(a) an indemnity of the covenantee against any matter agreed to by the covenantor and covenantee and provision for the just and equitable apportionment of the obligations under the covenant as between the owners of the land affected, and

(b) a rent charge charging the land affected and payable by the covenantor and the covenantor's successors in title.

(7) If an instrument contains a covenant registrable under this section, the covenant is binding on the covenantor and the covenantor's successors in title, even though the instrument or other disposition has not been signed by the covenantee.

(8) No person who enters into a covenant under this section is liable for a breach of the covenant occurring after the person has ceased to be the owner of the land.

(9) A covenant registrable under this section may be

(a) modified by the holder of the charge and the owner of the land charged, or

(b) discharged by the holder of the charge

by an agreement or instrument in writing the execution of which is witnessed or proved in accordance with this Act.

(9.1) A covenant that was required as a condition of subdivision under section 82 and registered under this section before the coming into force of the repeal of section 82 may be

(a) modified by the approving officer and the owner of the land charged, or

(b) discharged by the approving officer.

(9.2) For the purpose of determining whether to modify or discharge a covenant under subsection (9.1), an approving officer may exercise the powers provided under section 86 (1) (d), whether or not the modification or discharge is related to an application for subdivision approval.

(10) The registration of a covenant under this section is not a determination by the registrar of its enforceability.

(11) On the death or dissolution of an owner of a covenant registrable under subsection (3) (c), the covenant ceases to be enforceable by any person, including the Crown, other than

(a) another covenantee named in the instrument creating the covenant, or

(b) an assignee of a covenantee if the assignment has been approved in writing by the minister.

(12) If a covenantee or assignee referred to in subsection (11) is a corporation that has been dissolved and subsequently restored into existence under an enactment of British Columbia, the covenant continues to be enforceable by the restored corporation from the date of its restoration.

(13) A recital in a covenant that a person "has been designated by the minister under section 219 (3) (c) of the Land Title Act", or a statement to that effect in the application to register the covenant, is sufficient proof to a registrar of that fact.

(14) The minister may delegate to the Surveyor General the minister's powers under subsections (3) (c) and (11) (b).

Statutory building scheme and letting scheme

220  (1) If a registered owner in fee simple intends to sell or lease or a registered lessee intends to sublease 2 or more parcels and to impose restrictions consistent with a general scheme of development, the registered owner may register a Declaration of Creation of Building Scheme in the form approved by the director, herein referred to as the declaration of building scheme, as a charge against the land defined in the declaration of building scheme.

(2) On receiving the declaration of building scheme, the registrar must make an endorsement of it in the appropriate register.

(3) From the date of the endorsement, the restrictions created by the declaration of building scheme run with and bind all the land affected and every part of it without further registration, but subject to this section and to the provisions of an applicable lease or sublease, render

(a) the owner,

(b) each purchaser, lessee and sublessee of all or part of the land, and

(c) each successor in title, future purchaser, lessee and sublessee of the land

subject to the restrictions and confer on them the benefits of the building scheme, unless in the declaration of building scheme the owner in fee simple or the registered lessee expressly reserves the right to exempt that part of the land remaining undisposed of at the time the exemption takes effect from all or any of the restrictions and benefits.

(4) The owners for the time being of the land defined in the declaration of building scheme may consent to a modification or discharge of all or part of the registration, and the registrar, on application and on production of evidence satisfactory to the registrar, must amend the records accordingly.

(5) Section 221 applies to the declaration of building scheme.

(6) A declaration of a building scheme or a modification or discharge of it is not registrable in respect of land that is subject to a charge unless

(a) the holder of the charge consents to the registration and grants priority to the scheme or the modification of it or consents to the discharge of it, or

(b) the registrar orders that the holder of the charge is not required to consent or grant priority or to do either.

(7) A declaration of building scheme registered under this section may be referred to as a statutory building or a statutory letting scheme.

(8) After October 30, 1979, no instrument creating a building scheme in a manner other than that provided by this section is registrable, but the registrar may allow the registration of the instrument on the ground that refusal to register would cause hardship or economic loss.

(9) Section 35 of the Property Law Act applies to a declaration of building scheme registered under this section.

Requirements of registrable restrictive covenant

221  (1) The registrar must not register a restrictive covenant unless

(a) the obligation that the covenant purports to create is, in the registrar's opinion, negative or restrictive,

(b) the land to which the benefit of the covenant is annexed and the land subject to the burden of the covenant are both satisfactorily described in the instrument creating the covenant, and

(c) the title to the land affected is registered under this Act.

(2) The registration of a restrictive covenant is not a determination by the registrar of its essential nature or enforceability.

Discriminating covenants are void

222  (1) A covenant that, directly or indirectly, restricts the sale, ownership, occupation or use of land on account of the sex, race, creed, colour, nationality, ancestry or place of origin of a person, however created, whether before or after the coming into force of this section, is void and of no effect.

(2) The registrar, on application, may cancel a covenant referred to in subsection (1) that was registered before October 31, 1979.

(3) If the registrar has notice that a registered restrictive covenant is void under this section, the registrar may, on the registrar's own initiative, cancel the covenant.

Subdivision of dominant tenement

223  (1) If a dominant tenement is subdivided in whole or in part, on the deposit of a plan of subdivision

(a) the benefit of a registered appurtenant easement is annexed to each of the new parcels shown on the plan,

(b) the burden of the easement is increased accordingly, even though the owner of the servient tenement has not consented to the increase, and

(c) the easement continues to be annexed to the remainder, if any, of the dominant tenement,

unless the instrument creating the easement expressly provides otherwise, or the subdivider designates on the plan the parcel or a part of the land to which the benefit does not attach.

(2) A designation under subsection (1) witnessed or proved in accordance with this Act is sufficient authority for the registrar to give effect to it and to make the necessary endorsements in the records.

(3) Subsection (1) (b) applies only to easements registered after October 30, 1979.

Division 4.1 — Party Wall Agreements

Definitions

223.1  In this Division:

"adjoining parcels" means two parcels that share a common boundary;

"grant", used in relation to adjoining parcels, means a grant by the owner of one of the parcels in favour of the owner of the other parcel;

"party wall" means a shared supporting wall that is in a building or between two adjoining buildings and is situated on any part of the common boundary shared by adjoining parcels;

"party wall agreement" means an instrument that contains a grant of one or more positive covenants in relation to any of the following:

(a) altering, decorating, maintaining, repairing, replacing or taking down the party wall;

(b) carrying out procedures to ascertain the location of cables, drains, pipes, sewers, wires or other conduits in or near the party wall and clearing, repairing or replacing them;

(c) repairing damage as a result of doing anything referred to in paragraph (a) or (b);

(d) carrying out inspections, obtaining professional advice, drawing up plans and performing other tasks requisite for doing anything referred to in paragraphs (a) to (c);

(e) allocating between the owners of adjoining parcels the costs and expenses of doing anything referred to in paragraphs (a) to (d) and requiring the owners to pay the costs and expenses as allocated;

(f) carrying insurance in respect of a party wall.

Binding effect

223.2  (1) A party wall agreement may be registered against the title to one or both adjoining parcels.

(2) Subject to subsection (3), a positive covenant in a party wall agreement registered on or after the date this section comes into force runs with and binds, without further registration, the adjoining parcels against which the party wall agreement is registered and renders each successor in title to the adjoining parcels subject to the obligations of the positive covenant.

(3) Despite any term to the contrary in a registered party wall agreement, a person who was an owner of an adjoining parcel against which the party wall agreement is registered is not liable for any breach of a positive covenant in the party wall agreement if the breach occurs after the person ceased to be an owner of the adjoining parcel.

(4) A positive covenant in a party wall agreement is an interest in land and registerable under this Act.

Division 5 — Mortgages

Definition

224  In this Division, "terms" includes covenants, conditions, representations, warranties, grants and assignments.

Form of mortgage

225  (1) A mortgage of an estate or interest in land must comply with this section unless

(a) another enactment requires a mortgage to be in a form different from that required by this section, or

(b) the registrar considers it would be proper to accept another form of mortgage for registration.

(2) A mortgage must be in 2 parts.

(3) Part 1 of the mortgage must be in the form approved by the director, must be completed in the manner approved by the director and must contain the following:

(a) the parties to the mortgage;

(b) the legal description of the mortgaged land;

(c) the signatures of the mortgagor and witness in accordance with Part 5;

(d) the terms that, if contained in the mortgage, are required by regulation to be included in Part 1 of the mortgage;

(e) other information required by the director.

(4) In approving a form under subsection (3), the director may

(a) require Part 1 of the mortgage to be on a single page,

(b) permit the addition of one or more pages to accommodate an additional or necessary party or any other addition the registrar requires or considers necessary,

(c) specify the information or material that must be set out on the first page and on any additional page,

(d) specify the information or material that is permitted to be set out on the first page and on any additional page, or

(e) specify any other requirements as to the format and content of the approved form that the director considers necessary for the purpose of this Act or for any other purpose.

(5) Part 2 of the mortgage must consist of all other terms of the mortgage and must be adopted in one of the following forms:

(a) the set of standard mortgage terms prescribed under section 227 that was in effect at the time the mortgage was executed;

(b) a set of standard mortgage terms filed under section 228;

(c) a set of mortgage terms that is expressly set out in Part 2 of the mortgage.

(6) If Part 2 of the mortgage consists of the set of standard mortgage terms prescribed under section 227, Part 1 of the mortgage must contain a statement that Part 2 of the mortgage consists of the set of standard mortgage terms prescribed under that section.

(7) If Part 2 of the mortgage consists of a set of standard mortgage terms filed under section 228, Part 1 of the mortgage must contain a statement that Part 2 of the mortgage consists of the set of standard mortgage terms contained in the filed set of standard mortgage terms with a reference to the filing number assigned by the land title office under section 228.

(8) If Part 2 of the mortgage consists of terms referred to in subsection (5) (c), Part 1 of the mortgage must contain a statement that Part 2 consists of express mortgage terms that are annexed to Part 1 as Part 2.

(9) The registrar must not register a mortgage that incorporates, as Part 2 of the mortgage, more than one set of standard mortgage terms.

Modification of standard terms

226  (1) If Part 2 of the mortgage consists of the set of standard mortgage terms prescribed under section 227 or a set of standard mortgage terms filed under section 228, the set may be modified by making additions, amendments or deletions.

(2) If a modification is made,

(a) Part 1 of the mortgage must contain a statement, in the manner approved by the director, to that effect, and

(b) the modification must

(i)   if space permits, be included in Part 1 of the mortgage, or

(ii)   if space does not permit, be attached as a schedule to Part 1 of the mortgage.

(3) If, as a result of a modification referred to in subsection (1), there is an inconsistency between a term contained in the set of standard mortgage terms and one of the modified terms, the latter prevails.

Prescribed standard mortgage terms

227  (1) The Board of Directors may prescribe one set of standard mortgage terms for the purposes of

(a) this Division, and

(b) adoption under section 225 (5) (a).

(2) The Board of Directors must not amend a set of standard mortgage terms prescribed under subsection (1), but the Board of Directors may repeal the set and prescribe another set under that subsection.

(3) If the Board of Directors repeals the set of standard mortgage terms prescribed under subsection (1), the terms of any mortgage that adopted that set before the repeal are conclusively deemed to be the terms of that mortgage, subject to any modification made under section 226.

(4) The Registrar of Regulations must, on depositing a regulation under section 3 of the Regulations Act, deliver to the director, in the manner specified by the director, true copies of the regulation and the director must, on receiving them, file a true copy of the regulation in each land title office in British Columbia and on filing it becomes part of the records of each land title office in British Columbia.

Filed standard mortgage terms

228  (1) A person, other than the director, who wishes to file a set of standard mortgage terms for purposes of adoption under section 225 (5) (b), must make application to a registrar, accompanying the application with the proposed set of standard mortgage terms.

(2) The director may prepare one or more sets of standard mortgage terms and deliver them for filing under subsection (3).

(3) If a registrar considers that the set of standard mortgage terms received under subsection (1) is appropriate for filing under this section or if the registrar receives a set from the director under subsection (2), the registrar must

(a) file the set and assign a filing number to it,

(b) advise the applicant of the date on which the set was filed and the filing number assigned to it, and

(c) deliver a true copy of the set, identified with the date of filing and the filing number assigned to it, to each other land title office in British Columbia.

(4) The director may require that a set of standard mortgage terms that is proposed to be filed under this section be delivered to the registrar in an electronic form or in any other form that will facilitate the electronic entry of the set in the records of the land title office.

(5) A set of standard mortgage terms filed under this section

(a) must not contain any reference to any other set of standard mortgage terms for the purpose of incorporating a term contained in the other set, and

(b) must set out the mortgage terms in numbered paragraphs.

(6) A set of standard mortgage terms must not, other than under section 226, be added to, varied or deleted.

(7) A set of standard mortgage terms that has been filed under this section is part of the records of all land title offices and each registrar may store the contents of the set by photographic, electronic or some other means approved by the director.

Receipt of standard mortgage terms by mortgagor

229  (1) If Part 2 of a mortgage consists of a set of standard mortgage terms referred to in section 225 (5) (a) or (b), the mortgagee or the mortgagee's agent must, at or before the time the mortgage is executed,

(a) give a true copy of the standard set together with a statement of additions, amendments or deletions referred to in section 226 (2), if any, to each person comprising the mortgagor, and

(b) obtain an acknowledgment from each of those persons that the copy and statement have been received.

(2) If subsection (1) is not complied with, the terms of Part 2 of the mortgage are deemed to be the terms, prescribed by the Board of Directors under section 227 (1), that were in effect at the time the mortgage was executed, but the failure to comply does not extinguish

(a) the mortgage debt or the obligation to repay it,

(b) the right of the court to foreclose the mortgagor's right to redeem, or

(c) any other right or remedy that is available to the parties under the general law of mortgages.

Registrar may require filing

230  (1) If the registrar considers

(a) that a mortgagee makes frequent use of similar mortgage terms referred to in section 225 (5) (c), and

(b) that it would be appropriate to file the mortgage terms as a set under section 228,

the registrar may, on terms the registrar considers advisable, order the mortgagee to file the frequently used mortgage terms as a set of standard mortgage terms under section 228.

(2) If the mortgagee does not comply with an order under subsection (1), the registrar may refuse to accept for registration any mortgage made in favour of that mortgagee in which any of the frequently used mortgage terms referred to in subsection (1) (a) are expressly set out in Part 2 of the mortgage.

(3) The registrar, on hearing the mortgagee or the mortgagee's representative, may

(a) vary or set aside the order under subsection (1), or

(b) make any other order the registrar considers appropriate.

Effect of a mortgage

231  (1) Subject to other applicable provisions of this Act being complied with, a mortgage that complies with this Division operates to charge the estate or interest of the mortgagor to secure payment of the debt or performance of the obligation expressed in it, whether or not the mortgage contains words of transfer or charge subject to a proviso for redemption.

(2) Whether or not a mortgage referred to in section 225 contains words of transfer or charge subject to a proviso for redemption, the mortgagor and mortgagee are entitled to all the legal and equitable rights and remedies that would be available to them if the mortgagor had transferred the mortgagor' interest in the land to the mortgagee, subject to a proviso for redemption.

(3) Subsections (1) and (2) do not

(a) validate a mortgage that, at law or in equity, is void or unenforceable,

(b) operate to change the general law of mortgages or the legal and equitable rules that apply between mortgagor and mortgagee, or

(c) preclude the inclusion of express words of transfer or charge subject to a proviso for redemption in a set of standard or express mortgage terms referred to in section 225 (5).

Division 6 — General Instruments

Definitions and application

232  (1) In this Division:

"interest" means an interest in land that is recognized under law and that is registrable under this Act;

"terms" includes covenants, conditions, representations, warranties, grants and assignments.

(2) Subject to subsection (3), this Division applies to any instrument that creates, assigns, modifies, discharges, enlarges or governs the priority of an interest.

(3) This Division does not apply to an instrument or class of instrument that is prescribed by this Act or another enactment or to an instrument that

(a) creates or transfers a freehold estate, or

(b) creates a mortgage.

(4) The Board of Directors may, by regulation, exempt an instrument or class of instrument from the application of subsection (2).

Form of general instrument

233  (1) An instrument to which this Division applies must comply with this section unless

(a) another enactment requires a general instrument to be in a form different from that required by this section, or

(b) the registrar considers it would be proper to accept another form of general instrument for registration.

(2) An instrument to which this Division applies must be in the form of a general instrument.

(3) Except as provided in section 237, a general instrument must be in 2 parts.

(4) Part 1 of a general instrument must be in the form approved by the director, must be completed in the manner approved by the director and must contain the following:

(a) the parties to the instrument;

(b) the legal description of the land affected by the instrument;

(c) a description of the interest created, discharged or otherwise affected by the instrument;

(d) the signatures of the transferor and witness in accordance with Part 5;

(e) the signature of the transferee if the instrument requires the signature of the transferee;

(f) terms that, if contained in the instrument, are required by regulation to be included in Part 1 of the instrument;

(g) other information required by the director.

(5) In approving a form under subsection (4), the director may

(a) require Part 1 of the general instrument to be on a single page,

(b) permit the addition of one or more pages to accommodate an additional or necessary party or any other addition the registrar requires or considers necessary,

(c) specify the information or material that must be set out on the first page and on any additional page,

(d) specify the information or material that is permitted to be set out on the first page or on any additional page, or

(e) specify any other requirements as to the format and content of the approved form that the director considers necessary for the purpose of this Act or for any other purpose.

(6) Part 2 of the general instrument must consist of all other terms of the general instrument and must be adopted in any one of the following forms:

(a) a set of standard charge terms filed under section 235;

(b) terms that are expressly set out in Part 2 of the general instrument.

(7) If Part 2 of the general instrument consists of a set of standard charge terms filed under section 235, Part 1 of the general instrument must contain a statement that Part 2 of the general instrument consists of the set of standard charge terms contained in the filed set of standard charge terms with a reference to the filing number assigned by the land title office under section 235.

(8) If Part 2 of the general instrument consists of terms referred to in subsection (6) (b), Part 1 of the general instrument must contain a statement that Part 2 consists of express charge terms that are annexed to Part 1 as Part 2.

(9) The registrar must not register a general instrument that incorporates, as Part 2 of that general instrument, more than one set of standard charge terms.

Modification of standard terms of general instrument

234  (1) If Part 2 of a general instrument consists of a set of standard charge terms filed under section 235, the set may be modified by making additions, amendments or deletions.

(2) If a modification is made,

(a) Part 1 of the general instrument must contain a statement, in the manner approved by the director, to that effect, and

(b) the modification must

(i)   if space permits, be included in Part 1 of the general instrument, or

(ii)   if space does not permit, be attached as a schedule to Part 1 of the general instrument.

(3) If, as a result of a modification referred to in subsection (1), there is an inconsistency between a term contained in the set of standard charge terms and one of the modified terms, the latter prevails.

Filed standard general instrument terms

235  (1) A person, other than the director, who wishes to file a set of standard charge terms for purposes of adoption under section 233 (6), must make application to the registrar, accompanying the application with the proposed set of standard charge terms.

(2) The director may prepare one or more sets of standard charge terms and deliver them for filing under subsection (3).

(3) If a registrar considers that the set of standard charge terms received under subsection (1) is appropriate for filing under this section or if the registrar receives a set from the director under subsection (2), the registrar must,

(a) file the set and assign a filing number to it,

(b) advise the applicant of the date on which the set was filed and the filing number assigned to it, and

(c) deliver a true copy of the set, identified with the date of filing and the filing number assigned to it, to each other land title office in British Columbia.

(4) The director may require that a set of standard charge terms that is proposed to be filed under this section be delivered to the registrar in an electronic form or in any other form that will facilitate the electronic entry of the set in the records of the land title office.

(5) A set of standard charge terms filed under this section

(a) must not contain a reference to any other set of standard charge terms for the purpose of incorporating a term contained in the other set, and

(b) must set out the charge terms in numbered paragraphs.

(6) A set of standard charge terms must not, other than under section 234, be added to, varied or deleted.

(7) A set of standard charge terms that has been filed under this section is part of the records of all land title offices and each registrar may store the contents of the set by photographic, electronic or some other means approved by the director.

Effect of a general instrument

236  Subject to other applicable provisions of this Act being complied with, a general instrument that complies with this Division has effect in accordance with its terms.

Release of registered charge

237  (1) Part 1 of a general instrument must be used to release a charge from land.

(2) Part 1 must be completed in the manner approved by the director and contain the following:

(a) the registration number of the charge that is to be released;

(b) the legal description of the land to be released from the charge;

(c) a statement that the charge is released or discharged as a charge on the specified land;

(d) a statement that there is no Part 2 to the general instrument.

(3) A general instrument that complies with this section operates to release the charge from the land described in the instrument whether or not

(a) the charge was created by a registered mortgage,

(b) the charge affects land other than the land from which the charge is being released, and

(c) the general instrument contains words of transfer, release, discharge or assignment.

Contents  |  1  |  2  |  3  |  4  |  5  |  6  |  7  |  8  |  9  |  10  |  10.1  |  11  |  12  |  13  |  14  |  15  |  16  |  17  |  18  |  19  |  19.1  |  20  |  21  |  22  |  23  |  24  |  24.01  |  24.1  |  24.2  |  25  |  Schedule 1  |  Schedule 2