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Land Title Act

[RSBC 1996] CHAPTER 250

Part 16 — Cancellation of Charges

Cancellation of registration of charge

241  (1) If a registered charge has been satisfied, surrendered, released or discharged in whole or in part, the registrar must, on application in the form approved by the director and on satisfactory proof, cancel the registration of the charge in whole or in part.

(2) If the charge was registered by an endorsement on the register, the registrar must cancel the charge by endorsing the register with a note of the cancellation.

(3) If the charge was registered in the charge books provided under an Act repealed by the Land Registry Act, S.B.C. 1921, c. 26, the registrar must effect cancellation by writing "cancelled" or "cancelled in part" across or against the entry, with the serial number of the instrument deposited in support of the application for cancellation and the date of cancellation and the registrar's signature, and by writing "cancelled" or "cancelled in part" in all places on the records where a note of the charge exists.

(4) Section 157 applies to this section.

Application to cancel mortgage created by vendor

242  (1) If application has been made to the registrar to register a transfer of land

(a) from a registered owner in fee simple, in this section called a "transferor", to the holder of a registered charge by way of an agreement for sale, in this section called the "purchaser",

(b) from a registered owner in fee simple, in this section called a "transferor", to the holder of a registered charge by way of an option to purchase, in this section called the "optionee", or

(c) from a registered owner of a charge by way of agreement for sale, in this section called a "transferor", to the holder of a registered charge by way of a subagreement for sale, in this section called the "subpurchaser",

and there is registered against the title to the land a mortgage created by a transferor referred to in paragraph (a), (b) or (c) and registered after the registration of the agreement for sale, option or subagreement for sale, as the case may be, the registrar may give notice to the mortgagee of the registrar's intention, on the expiration of the time set by the notice, being not less than 14 days from the service of the notice on the mortgagee, to register the transfer free from the mortgage.

(2) If the mortgagee disputes the right of the purchaser, optionee or subpurchaser, as the case may be, to registration free of the mortgage, the mortgagee must file with the registrar a notice of objection in the form approved by the director within the time set by the registrar's notice.

(3) If no notice of objection is filed by the mortgagee, the registrar may effect registration pursuant to the application free from the mortgage and the mortgage no longer forms a charge on the land.

(4) If a notice of objection is filed by the mortgagee, the registrar must give notice of a hearing before the registrar to the applicant for registration, the mortgagee and to any other parties who have an interest, and on the hearing, the registrar must determine the issue and give notice in writing of the registrar's decision, with reasons, within 14 days after the date of the hearing.

(5) If no notice of appeal to the Supreme Court of the registrar's decision is served on the registrar within 14 days after the date of the registrar's decision, the registrar must effect registration pursuant to the application free from the mortgage, or subject to the mortgage, in accordance with the registrar's decision.

(6) Section 309 applies to an appeal to the court from the registrar's decision.

Redemption of mortgage if mortgagee absent

243  (1) If a mortgagor or owner of the equity of redemption becomes entitled to pay off or has paid off a mortgage in accordance with its terms, and

(a) the registered mortgagee is absent from British Columbia or cannot be found, and

(b) there is no person in British Columbia authorized, by power of attorney filed in the land title office where the mortgage is registered, to receive payment of the mortgage money and execute a discharge of the mortgage,

the Supreme Court may,

(c) on application made without notice to any person, and

(d) on proof of the facts and of the amount, if any, due for principal, interest and all other sums rightly payable to the mortgagee under the mortgage,

order

(e) within a time limited in the order, the payment of that amount, less the taxed costs of the application, into court to the credit of the mortgagee or other person entitled to it, or

(f) that, if the mortgage has been paid off in accordance with its terms, the mortgage be discharged.

(2) On payment into court of the amount so ordered within the time limited, all interest accruing under the mortgage ceases.

(3) On application to the registrar for cancellation, and on deposit of a certified copy of the order with proof of

(a) payment, if any, into court in compliance with the order, and

(b) mailing a copy of the order to the mortgagee at the mortgagee's last known address,

the registrar must make an entry in the register cancelling the registration of the mortgage, and the entry is deemed to be a valid discharge of the mortgage and has the same effect as a similar entry made on an application for cancellation accompanied by the production of a discharge of mortgage executed by the mortgagee.

(4) Money paid into court under this section must, with the accrued interest, be paid out to the person entitled to it on application accompanied by proof of the surrender to the registrar of the certificate of charge or duplicate indefeasible title, if any, held by that person relating to the land covered by the mortgage.

Mortgagee's refusal or neglect to give discharge

244  (1) If a mortgagee, without just cause, refuses or neglects to give the mortgagor or owner of the equity of redemption, herein referred to as the "owner", a discharge of the mortgage, despite the tender or attempted tender of all money due and owing by the owner to the mortgagee, the owner may make an application to the Supreme Court in the same manner as provided in section 243, and the court has all the power conferred on that court by section 243.

(2) Section 243 (1) (a) and (b) does not apply to this section.

Vesting order in favour of purchaser

245  (1) If it is proved to the satisfaction of the Supreme Court that

(a) land has been sold by a registered owner and the whole of the purchase money has been paid,

(b) the purchaser, being the registered holder of an agreement for sale of land or subagreement for sale of land, or a person claiming under the purchaser, has entered and taken possession under the purchase, and

(c) entry and possession have been acquiesced in by the vendor or the vendor's representatives, but

(d) a transfer cannot be obtained because the registered owner is dead, or out of British Columbia, or cannot be found, or, for any reason, it is impracticable to obtain the registered owner's signature within a reasonable time,

the court may make a vesting order to give effect to the sale and vest title to the land in the purchaser.

(2) The registrar, on

(a) application,

(b) the deposit of a certified copy of the court order, and

(c) being satisfied that the purchaser has established a good safe holding and marketable title to the land,

must register an indefeasible title to the land in the name of the purchaser, or, if the purchaser is the registered owner of a subright to purchase, must give effect to the order by making an appropriate endorsement on the register.

Cancellation if charge determined by effluxion of time

246  (1) If a registered charge that, by the terms of the instrument creating or evidencing it, is determined by the effluxion of time or the happening of an event, the registrar, on application and after giving such notice as the registrar considers necessary or advisable, may cancel the registration of the charge on the effluxion of the time or the happening of the event.

(2) Nothing in this section authorizes the registrar, without an order of the Supreme Court, to cancel, because of the purchaser's default, the registration of an agreement for sale or a subagreement for sale of land, whether made before or after this section comes into force.

Cancellation of lease on breach of covenant

247  (1) In this section, "derivative charge" means a sublease or other charge derived through a lease and includes a mortgage or judgment registered against the lessee or sublessee.

(2) If a lease is registered, the registrar may,

(a) on application,

(b) on proof to the registrar's satisfaction of a breach of a covenant and re-entry and recovery of possession by the lessor or owner of the reversion,

(c) after 30 days' notice of the application to the lessee, and

(d) on hearing all parties attending on the hearing of the application,

cancel the registration of the lease on the register, and the estate of the lessee in the land described in the lease, and the lease, so far as it affects the land, ceases.

(3) Cancellation of the lease does not release the lessee from liability in respect of an express or implied covenant in the lease.

(4) If a person appears on the register as holder of a derivative charge, the registrar may require the applicant for cancellation to give 30 days' notice to that person.

(5) If the registrar cancels the registration of the lease the registrar may cancel the derivative charge, and the estate of the holder of the derivative charge in the land described in the instrument under which the derivative charge is registered, and the instrument, so far as it affects the land, ceases, but the cancellation does not release a party to the instrument from liability in respect of an express or implied covenant in it.

Effect of cancellation

248  If a reconveyance, surrender or transfer would otherwise have been necessary, the cancellation of the registration of a charge operates as and must for all purposes be deemed to be a reconveyance, surrender or transfer in favour of the person entitled in equity to the land in question, and the charge no longer affects the land in respect of which it was registered.

Power of court to order cancellation of charge

249  (1) If, in a proceeding pending in the Supreme Court,

(a) a question is raised

(i)   as to the validity of a registered charge, or

(ii)   as to money owing on or rights respecting a registered charge, and

(b) in the opinion of the court, the question raised is sufficiently material for the application of this section,

on affidavit or other proof of the good faith of the question raised, the court may, on terms as to security and otherwise it considers proper, order that the registration of the charge be cancelled on payment into court of a specified amount of money by the person claiming relief.

(2) Except under special circumstances to be established to the satisfaction of the court, an order must not be made under this section for the cancellation of the registration of a mortgage, except on payment into court of the full amount which the mortgagee, or the mortgagee's successor in title, has stated on affidavit to be due.

Cancellation of charge on payment into court

250  (1) If land that is subject to a charge, whether immediately payable or not, is sold under an order of a court directing the land to be sold, the court may, if it considers proper, on the application of a party to the sale, direct or allow payment into court,

(a) if an annual sum is charged on the land or a capital sum is charged on a determinable interest in the land, of such amount as, when invested in securities approved by the court, the court considers will be sufficient to yield an income adequate to pay or otherwise provide for that charge, and

(b) if capital money is charged on the land, of such amount as is sufficient to meet the charge and any interest due on it.

(2) In either of the cases referred to in subsection (1) there must be paid into court such additional amount, not exceeding 10% of the original amount to be paid in, as the court considers will be sufficient to meet further costs, expenses and interest, excepting the depreciation of investments.

(3) On compliance with subsections (1) and (2) the court must, if it considers proper, without notice to the owner of the charge or with such notice as the court considers proper,

(a) declare the land to be freed from the charge,

(b) make an order for conveyance, or a vesting order, proper for giving effect to the sale, and

(c) give directions for the retention and investment of the money in court.

(4) The court, on application and on satisfactory proof that the persons interested in or entitled to the money in court have been given adequate notice of the application, must

(a) direct payment or transfer to the persons entitled to receive or give a discharge for the money, and

(b) generally give directions respecting the application or distribution of the capital or the income on it.

(5) Payment of money into court under this section satisfies the liability of the person making the payment.

Application to court

251  (1) An application under section 250 must be made and served on the parties affected in accordance with the Supreme Court Civil Rules.

(2) The court may

(a) direct service on those persons it considers proper, and

(b) make an order it considers just respecting the costs, charges or expenses of the parties to the application.

Cancellation of certificate of pending litigation

252  (1) If a certificate of pending litigation has been registered and no step has been taken in the proceeding for one year, any person who is the registered owner of or claims to be entitled to an estate or interest in land against which the certificate has been registered may apply for an order that the registration of the certificate be cancelled.

(2) An application under subsection (1) must be made to the court in which the proceeding was commenced and must be brought

(a) as an application in that proceeding, if the applicant is a party to the proceeding, or

(b) by petition, if the applicant is not a party.

(3) The registrar must, on application and on production of a certified copy of the order of the court directing cancellation under subsection (1), cancel the registration of the certificate of pending litigation.

Cancellation of certificate of pending litigation if action discontinued

253  If an action in respect of which a certificate of pending litigation is registered has been discontinued, the registrar must cancel the registration, on

(a) application, and

(b) production of a certificate of the registrar of the court that issued the certificate of pending litigation, certifying that the action has been discontinued in whole or in part as to the land in respect of which the certificate of pending litigation is registered.

Cancellation of certificate of pending litigation if action dismissed

254  If an action in respect of which a certificate of pending litigation is registered has been dismissed, the registrar must cancel the registration as provided in the regulations, or, on

(a) application, and

(b) production of a certificate of the registrar of the court that issued the certificate of pending litigation, endorsed by the registrar of the Court of Appeal, certifying that

(i)   the action has been dismissed and that the time limited for appeal has expired and no notice of an appeal has been filed with the registrar of the Court of Appeal, or

(ii)   a notice of appeal has been filed and has been finally disposed of, and the dismissal of the action has not been set aside by the Court of Appeal or the Supreme Court of Canada.

If action neither dismissed nor discontinued

255  (1) If an action in respect of which a certificate of pending litigation has been registered has neither been discontinued nor dismissed, the registrar, on application, may cancel the registration of a certificate of pending litigation, on the written request of the party initiating the proceedings or the party's solicitor.

(2) The request must be in a form satisfactory to the registrar, describe the land in respect of which the registration is to be cancelled, and, in the case of a party, witnessed and proved in the manner required under Part 5.

Cancellation of certificate of pending litigation on other grounds

256  (1) A person who is the registered owner of or claims to be entitled to an estate or interest in land against which a certificate of pending litigation has been registered may, on setting out in an affidavit

(a) particulars of the registration of the certificate of pending litigation,

(b) that hardship and inconvenience are experienced or are likely to be experienced by the registration, and

(c) the grounds for those statements,

apply for an order that the registration of the certificate be cancelled.

(2) An owner whose indefeasible title or charge is registered subject to a certificate of pending litigation under section 217 (2) (a) or (c) (ii) may, on setting out in an affidavit

(a) that the pleading or petition by which the proceeding was commenced or notice of application attached to the certificate contains no allegation that the owner is not a purchaser in good faith and for valuable consideration,

(b) that the owner applied to register the owner's indefeasible title or charge before the certificate was received by the registrar, and

(c) particulars of dates and times of receipt, application and registration of the owner's application and the certificate,

apply for an order that the registration of the certificate be cancelled.

(3) An application under this section must be made to the court in which the proceeding was commenced and must be brought

(a) as an application in that proceeding, if the applicant is a party to the proceeding, or

(b) by petition, if the applicant is not a party.

Power of court to order cancellation

257  (1) On the hearing of the application referred to in section 256 (1), the court

(a) may order the cancellation of the registration of the certificate of pending litigation either in whole or in part, on

(i)   being satisfied that an order requiring security to be given is proper in the circumstances and that damages will provide adequate relief to the party in whose name the certificate of pending litigation has been registered, and

(ii)   the applicant giving to the party the security so ordered in an amount satisfactory to the court, or

(b) may refuse to order the cancellation of the registration, and in that case may order the party

(i)   to enter into an undertaking to abide by any order that the court may make as to damages properly payable to the owner as a result of the registration of the certificate of pending litigation, and

(ii)   to give security in an amount satisfactory to the court and conditioned on the fulfilment of the undertaking and compliance with further terms and conditions, if any, the court may consider proper.

(2) The form of the undertaking must be settled by the registrar of the court.

(3) In setting the amount of the security to be given, the court may take into consideration the probability of the party's success in the action in respect of which the certificate of pending litigation was registered.

(4) On hearing the application referred to in section 256 (2) and on being satisfied that

(a) the facts set out in the affidavit are consistent with the records of the land title office, and

(b) there is nothing in the pleading or petition by which the proceeding was commenced or notice of application attached to the certificate that expressly or by necessary implication alleges that the owner is not a purchaser in good faith and for valuable consideration,

the court may make an order declaring that the owner's indefeasible title or charge is not affected by the certificate of pending litigation or the outcome of the proceeding.

(5) On receipt of an order made under subsection (4), the registrar must file it and cancel the registration of the certificate of pending litigation.

Cancellation of registration

258  On

(a) application to the registrar for the registration of an order of cancellation of registration of a certificate of pending litigation under section 257, and

(b) production of the order or a certified copy, and a certificate from the registrar of the court from which the certificate of pending litigation was issued certifying that the security required has been given,

the registrar must cancel the registration of the certificate of pending litigation as to the land affected by the order.

Discharge of mortgage

259  A discharge of mortgage may be in the form approved by the director.

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