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| This archived statute consolidation is current to November 10, 1992 and includes changes enacted and in force by that date. |
[Consolidated April 2, 1986.]
[Act administered by the Ministry of Attorney General]
1. In this Act
"disposition" means any disposition by an act inter vivos that is required to be executed by the owner of the land disposed of, and includes every transfer, agreement of sale, assignment of an agreement for sale, lease or other instrument intended to convey or transfer any interest in land and every mortgage or encumbrance intended to charge land with the payment of money, and required to be so executed, and every devise or other disposition made by will, and includes every mortgage by deposit of duplicate indefeasible title or indefeasible title or other mortgage not requiring the execution of any document;
"homestead" means land or any interest in it entitling the owner to possession of it which is registered in the records of the land title office in the name of the husband or wife and on which there is a dwelling occupied by the husband and wife 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.
Historical Note(s): RS1960-407-2; 1978-25-334; 1982-60-110, proclaimed effective August 1, 1983; 1985-68-63, effective April 17, 1985 (B.C. Reg. 392/85).
2. (1) A spouse or a person's spouse on the person's behalf may make application to the registrar for an entry on the register that a homestead is subject to this Act by statutory declaration in Form C in the Schedule, accompanied by an affidavit in Form A in the Schedule, and the registrar shall make the entry if satisfied that this Act has been complied with.
(2) The statutory declaration in Form C in the Schedule may be made by a spouse in person or on a person's behalf by that person's spouse, solicitor or authorized agent residing in the Province and of the full age of 19 years.
Historical Note(s): RS1960-407-3; 1985-68-64, effective April 17, 1985 (B.C. Reg. 392/85).
3. (1) When an entry has been made on the register under section 2, every inter vivos disposition of the homestead by a spouse where the interest of that spouse shall or may vest in any other person at any time during the life of that spouse, or during the life of the husband or wife of that spouse living at the date of the disposition, is null and 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 shall not be of any force or effect.
Historical Note(s): RS1960-407-4; 1985-68-65, effective April 17, 1985 (B.C. Reg. 392/85).
4. When an entry has been made on the title under section 2, section 90 (1) of the Estate Administration Act applies to the devolution of the homestead; but, notwithstanding 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, the personal representative shall hold the homestead in trust for an estate for the life of the surviving spouse.
Historical Note(s): RS1960-407-5; 1985-68-66, effective April 17, 1985 (B.C. Reg. 392/85).
5. Where 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 alimony, no life estate shall vest in the surviving spouse nor shall the surviving spouse take any benefit under this Act.
Historical Note(s): 1985-68-67, effective April 17, 1985 (B.C. Reg. 392/85).
6. This Act ceases to apply on the pronouncement of a decree of dissolution or nullity of the marriage of the spouse with respect to whom the entry is made under this Act to the spouse in whose name the homestead is registered.
Historical Note(s): RS1960-407-6; 1960-61-2; 1985-68-68, effective April 17, 1985 (B.C. Reg. 392/85).
7. (1) Any consent required for the disposition inter vivos of a homestead under this Act shall 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.
Historical Note(s): RS1960-407-7; 1978-25-334; 1985-68-69, effective April 17, 1985 (B.C. Reg. 392/85).
9. (1) Where
(a) spouses are living apart,
(b) the spouse on whose behalf the entry is made
(i) has not since the marriage lived within the Province, or
(ii) unreasonably withholds consent, or
(c) the whereabouts of the spouse referred to in paragraph (b) is unknown,
the Supreme Court may, on application by petition, dispense with the consent of that spouse to the proposed disposition if, in the opinion of the court, it seems fair and reasonable under the circumstances to do so, on terms and conditions as to payment into court or otherwise the court in the circumstances thinks proper.
(2) Where the court is satisfied that the spouse on whose behalf the entry is made has not, since the marriage, lived within the Province 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 that may appear proper to it.
(3) Where 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 shall be served in the manner provided by the rules of the Supreme Court for the service of writs on those persons.
(4) On the order being filed with the registrar at the proper land title office, and on compliance with the Land Title Act, the registrar shall register the transfer.
Historical Note(s): RS1960-407-9; 1978-25-334,335; 1985-68-71,72, effective April 17, 1985 (B.C. Reg. 392/85).
10. (1) Where the spouse on whose behalf the entry is made has executed a contract for sale of the homestead, joined in the execution of it with his 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 shall, in the absence of fraud on the part of the purchaser, be deemed to have consented to the sale in accordance with this Act.
(2) When 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.
Historical Note(s): RS1960-407-10; 1978-25-332; 1985-68-73, effective April 17, 1985 (B.C. Reg. 392/85).
11. A homestead or part of a homestead and the benefits and privileges conferred on the spouse on whose behalf the 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 which may be in Form D in the Schedule, and the registrar, on application in Form E in the Schedule, accompanied by the document, shall make an entry of the abandonment on the register.
Historical Note(s): RS1960-407-11; 1985-68-74, effective April 17, 1985 (B.C. Reg. 392/85).
12. On application in Form E in the Schedule, accompanied by evidence satisfactory to the registrar that one spouse has died, or that a decree has been pronounced dissolving or annulling the marriage of the spouse on whose behalf the entry was made to the spouse in whose name the homestead is registered, the registrar shall cancel the entry.
Historical Note(s): 1985-68-75, effective April 17, 1985 (B.C. Reg. 392/85).
13. (1) Where an entry under section 2 has been made on the register, and the spouse in whose name the homestead is registered, or his personal representative, claims that the land affected or a part of it is not a homestead, or that the entry for any other reason should not have been made, that spouse or his personal representative may by summons call on the other spouse to attend before a court of competent jurisdiction to show cause why the entry should not be discharged.
(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.
Historical Note(s): 1985-68-75, effective April 17, 1985 (B.C. Reg. 392/85).
15. 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 289 of the Land Title Act applies to the appeal.
Historical Note(s): RS1960-407-15; 1978-25-335.
16. The registrar of the land title district is entitled to take for every application for
(a) an entry, including the filing of the affidavit — $2.50;
(b) abandonment or cancellation of a homestead, including filing of evidence — $2.50.
Historical Note(s): RS1960-407-16; 1978-25-333.
Form A
I, _________________, of ________________, in the Province of _________________, make oath and say:
(1) That my spouse, ______________________, of ________________________, is the registered owner of all and singular [here give complete legal description].
Or
(1) That I, ____________________, of ____________________, am the registered owner of all and singular [here give complete legal description].
(2) [Repealed 1985-68-76, effective April 17, 1985 (B.C. Reg. 392/85).]
(2) That I am the lawful spouse of ____________________, of ____________________.
(3) That on the land there is a dwelling occupied by ____________________ and myself as our residence.
Or
(3) That on the land there is a dwelling that was last occupied by ________________ and myself as our residence on __________ [month, day], 19__.
| SWORN before me at ____________________, in | |
_______________________________ |
| the Province of _______________________, | ||
| ____________________ [month, day], 19__. | ||
| _______________________________________ | ||
| A Commissioner, etc. [or as the case may be]. |
Form B
[Repealed 1985-68-77, effective April 17, 1985 (B.C. Reg. 392/85).]
Form C
Application for Entry
Date __________ [month, day], 19__.
I, _______________________, solemnly declare that I am [in case of solicitor (solicitor for ____________________, and that)] [in case of agent (of the full age of 19 years, that I reside in the Province of British Columbia, and that I am the authorized agent of ____________________, and that)] [in case the spouse in whose name the homestead is registered makes the entry on the other spouse's behalf (the husband/wife of ________________________________, and that)] ______________________ entitled to an entry on the title to the land hereunder described, and make application under the Land (Spouse Protection) Act for entry.
The full name, address and occupation of the person entitled is______________________
[Description of homestead]
[Documents in support]
And I make this solemn declaration conscientiously believing it to be true, and knowing that it is of the same force and effect as if made under oath and the Canada Evidence Act.
| Declared before me ____________ | |
|
| _____________ [month, day], 19__, | ||
| at __________________________, | _______________________________________ | |
| British Columbia | (Signature) ______________________________ | |
| ___________________________ | (Full post office address) ____________________ |
Form D
I, ________________, of __________________, in the Province of _________________, abandon all homestead rights in the land described as [here describe the property].
Dated this __________ [month, day], 19__.
(Signed) ____________________
Witness: ____________________
Form E
Application for Cancellation of an Entry
Date __________ [month, day], 19__.
I, _______________________, solemnly declare that I am [in case of solicitor (solicitor for _____________________, and that)] [in case of agent (of the full age of 19 years, that I reside in the Province of British Columbia, and that I am the authorized agent of ____________________, and that)] he/she is entitled to the *____________________ cancellation of the entry under the Land (Spouse Protection) Act and I apply for cancellation accordingly.
[Description of (part of) homestead]
[Documents in support]
And I make this solemn declaration conscientiously believing it to be true, and knowing that it is of the same force and effect as if made under oath and the Canada Evidence Act.
| Declared before me ____________ | |
|
| _____________ [month, day], 19__, | ||
| at __________________________, | _______________________________________ | |
| British Columbia | (Signature) ______________________________ | |
| ___________________________ | (Full post office address) ____________________ |
* If "partial", so state here.
Historical Note(s): RS1960-407-Sch.; 1985-68-76 to 79, effective April 17, 1985 (B.C. Reg. 392/85).
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