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This Act is current to January 20, 2021
See the Tables of Legislative Changes for this Act’s legislative history, including any changes not in force.

Land Title Act

[RSBC 1996] CHAPTER 250

Contents
Part 1 — Definitions, Interpretation and Application
1Definitions
2References
3Application to Strata Property Act
Part 2 — Land Title Offices and Officers
4Land title districts
5Power to constitute and change districts
6Land title office
7Continuation of existing offices and records
8Duty of registrar to provide records affecting land in new district
9Director of Land Titles
10Registrar and staff
11Deputy registrar and assistant deputy registrar
12Evidence of authority of officials to act in certain cases
13Qualifications for appointment to office
14Prohibition of officers and staff acting in conflict with duties
15Official seal
16Office hours
17Repealed
18Protection of director and registrar from personal liability
19Exemption of registrar from attendance as witness in court
Part 3 — Registration and Its Effect
20Unregistered instrument does not pass estate
21Unregistered instruments executed and taking effect before July 1, 1905
22Operation of instrument as from time of registration
23Effect of indefeasible title
24Title by prescription abolished
25Protection of registered owner against actions for recovery of land
25.1Void instruments — interest acquired or not acquired
26Registration of a charge
27Notice given by registration of charge
28Priority of charges based on priority of registration
29Effect of notice of unregistered interest
30Notice of unregistered interest as affecting registered owner of charge
31Priority of caveat or certificate of pending litigation
32Validity of registered voluntary conveyance
33Equitable mortgage or lien not registrable
34Registration of indefeasible title by court order
35Admissibility of instruments
36Completion of registration
37Registration effective from time of application
38Registrar to create official record of instruments and documents
Part 4 — Forms of Instruments
39Registrable instruments
40Order in Council transferring government rights in highway
Part 5 — Attestation and Proof of Execution of Instruments
41Definitions
42Witnessing and execution
43Witnessing — individuals
44Witnessing — corporations
45Witnessing — individual power of attorney
46Witnessing — corporate power of attorney
47Witnessing — persons not fluent in English
47.1Repealed
48Execution under seal
49If instrument not witnessed
50Defects
Part 6 — Powers of Attorney
51Deposit of power of attorney on registration of instrument
52Attorney's powers extend to after acquired land
53Index of powers of attorney
54Effect of execution of second power of attorney
55Power of personal representative or trustee
56Power of attorney valid for 3 years only
57Revocation of power of attorney
Part 7 — Descriptions and Plans
Division 1 — General
58Description of land
59Public official plan
60Description in Crown grant
61Registration of title to Esquimalt and Nanaimo Railway Company land
62Subsequent descriptions of land
63Description by parcels shown on subdivision plan
64Substitution for metes and bounds or abbreviated description
65Assignment of distinguishing letter to remainder
66Assignment of distinguishing letter by registrar
67Requirements as to subdivision and reference plans
68Posting plan
69Block outline survey
70Explanatory plan of block or lot in Esquimalt and Nanaimo Railway Company grant
71Composite plans
72When composite plan not to be deposited
Division 2 — Subdivision of Land
73Restrictions on subdivision
73.1Lease of part of a parcel of land enforceable
74Method of defining new parcel
75Requirements for subdivisions
76Relief from requirements established by section 75
Division 3 — Appointment, Powers and Duties of Approving Officers
77Appointment of municipal approving officers
77.1Appointment of regional district and islands trust approving officers
77.2Provincial approving officers
77.21Appointment of treaty first nation approving officers
77.3Nisa'a approving officer
78Certain designations prohibited on subdivision plans
79Repealed
80Controlled access highways
81Land in improvement districts
82Repealed
Division 4 — Approval of Subdivision Plans
83Tender of plan for examination and approval
83.1Referral to designated highways official
84Plan tendered later than 3 months after survey
85Time limit for approval and consideration of public interest
85.1Environmental Management Act requirements must be met
86Matters to be considered by approving officer on application for approval
87Local government matters to be considered by approving officer
88Approval of plan
89Appeal to Supreme Court
90Power of Lieutenant Governor in Council to prohibit deposit of plan
Division 5 — Deposit of Subdivision Plans
91Approval of subdivision plan required
92Application for deposit
93Title to land in plan required to be registered
94Endorsement of certificate
95Accreted land within plan
96Water boundary deemed to be natural boundary
97Signatures of owners to plan
98New indefeasible titles for parcels shown on deposited plan
Division 6 — Other Methods of Defining New Parcels
99Registrar to determine whether description of land acceptable
100Re-establishment of boundaries
101Principles guiding approving officer
102Dedication by reference or explanatory plan
103Execution of plan by owner
104Serial deposit number
Division 7 — Conflicting Measurements
105Power of registrar if measurements on plans conflict
106Power of registrar to correct errors, defects or omissions
Division 8 — Vesting of Title by Deposit of Plan
107Dedication and vesting
108If designation on plan "Returned to Crown in right of the Province"
109Extinguishment of highway not shown on plan
Division 9
110Repealed
Division 10 — Penalties If Plan Not Deposited
111Rights of purchaser when plan not deposited
112Penalty for failure to deposit plan of subdivision
Division 11 — Statutory Right of Way Plans
113Deposit
114Statutory right of way plan may be used in application to register fee simple
115Deposit of statutory right of way plan
116Requirements of statutory right of way plans
117Widening of statutory right of way
118When water boundary deemed natural boundary
119Alteration in deposited statutory right of way plan
Division 12 — Plans and Descriptions to Accompany Bylaws
120Municipal bylaw cancelling highway or public square dedication
Part 8 — Cancellation of Plans
121Definitions and interpretation
122Cancellation of plans by application to the registrar
123Petition to cancel plan
124Report of approving officer and district highways manager
125Service of petition and other documents
126Publication and posting
127Notice of intention to appear
128Place of hearing
129Powers of registrar in relation to the hearing
130Duties of registrar on hearing the petition
131Powers of the registrar to cancel or alter a plan
132Opposition by local authority
133Opposition by minister
134Preparation and registration of order
135Registrar may vest an estate in fee simple
136Cancellation by minister of plan comprising Crown land
137Cancellation of interior lines
Part 9 — Air Space Titles
138Definitions
139Air space is land
140Covenant to grant easements or to convey restrictive covenants not implied
141Subdivision of land into air space parcels
142Air space parcels in respect of highways
143Air space plan
144Air space plan
145Taxation
146Application
Part 10 — Applications for Registration and Evidence in Support
147Application required
148Form and manner of applying
149Address of applicant
150Particulars as to witness and parties to instrument
151Repealed
152Description of foreign government
153Time of application
154Application for registration of fee simple
155Application for registration of charge
156Application must be for all lands or charges comprised in instrument
157Forms
158Restrictions as to scope of application
159Registrar may require deposit of instruments
160Summons to produce instruments
161Application to court to compel production or deposit of instruments
162Powers of court on hearing
163Notice of intention to register
164Registration after notice
165Corporate powers assumed
166Disposal of instruments deposited
167Withdrawal of application
168Summary rejection of defective application
Part 10.1 — Electronic Filing
Division 1 — Definitions and Application
168.1Definitions
168.11Application of other provisions of Act
Division 1.1
168.111Repealed
Division 2 — Electronic Filing
168.12Repealed
168.2Electronic filing
168.21Effect of electronic filing
168.22Directions on electronic filing
Division 2.1
168.712-
168.77
Repealed
Division 3 — Special Rules for Certain Documents
168.3Plans — preparation by land surveyor
168.31Plans — signature of other persons
168.32Charges — cancellation by corporate registered owner
168.33Supporting documents
168.71Repealed
168.78Not enacted
168.79-
168.82
Repealed
Division 4 — Certification by Designate
168.4Designates
168.41Documents executed or witnessed
168.42Plans
168.43Supporting documents
168.9Repealed
168.91Repealed
Division 5 — General
168.5Original document
168.51Copies of electronic documents
168.52Admissibility of execution copies
168.53Delivery in registrable form
168.54Deeds
168.55Corrective declarations
168.56Amendments to electronic plans
168.57Production of evidence
168.58Disposal of electronic documents
Division 6 — Certification of Subscribers
168.6Definitions
168.61Certification authority
168.62Certification practice statement
168.63Warranties of certification authorities
168.64Immunity
Division 7 — Offences
168.7Offences
Part 11 — Registration of Title in Fee Simple
Division 1 — First Registration
169Registration of title
170Requirements as to production of title deeds
171Adverse possession
172First estate of inheritance necessary to registration of fee simple
173Several persons interested in registration
174Application to convert absolute fee into indefeasible title
Division 2 — The Register and Duplicate Indefeasible Titles
175Register and records
176Duplicate indefeasible title
177Registration of joint tenants
Division 3 — General
178Limitation on number of parcels
179Rights of owner of surface
180Recognition of trust estates
181Interest or right reserved to transferor
182Registration of restrictive covenants and easements
183Entries carried forward from original entry
184Registration of grantor a condition precedent
Part 12 — Transfers
185Form of transfer
186Implied covenants
187Registration of transferee
188Registration by amendment to register
189Dealings with duplicate indefeasible title on transfer
190Destruction of duplicate indefeasible title
Part 13 — Dealings With Indefeasible Title Other Than by Registration
191Registration of new indefeasible title and change of name
192Registration of several indefeasible titles instead of original
193Lost indefeasible certificate of title
194Effect given to new or provisional indefeasible title
195Surrender of duplicate indefeasible title on registration of charge
196Provisional title may issue to minerals
Part 14 — Registration of Title to Charges
Division 1 — General
197Registration of charges
198Registration of person creating charge
199Registration of subcharges
200No subright to purchase registrable
201Registration of assignment of charge
202Repealed
203Floating charges on land
204Registration of debt to the government as a charge
205Writ of affecting land
206Registration of transfer, extension or modification of charges
207Form of postponement
208Certificates of charge
209Transfer of mortgage
Division 2 — Judgments
210Registration of judgments in same manner as charge
211Registration of assignment of judgment and form of assignment
212Notice to judgment creditor of intention to register
213Costs on failure to establish priority
214Form of release
Division 3 — Certificate of Pending Litigation
215Registration of certificate of pending litigation in same manner as charge
216Effect of registered certificate of pending litigation
217Effect of certificate of pending litigation if prior application is pending
Division 4 — Statutory Rights of Way, Miscellaneous Covenants and Easements
218Statutory right of way
219Registration of covenant as to use and alienation
220Statutory building scheme and letting scheme
221Requirements of registrable restrictive covenant
222Discriminating covenants are void
223Subdivision of dominant tenement
Division 4.1 — Party Wall Agreements
223.1Definitions
223.2Binding effect
Division 5 — Mortgages
224Definition
225Form of mortgage
226Modification of standard terms
227Prescribed standard mortgage terms
228Filed standard mortgage terms
229Receipt of standard mortgage terms by mortgagor
230Registrar may require filing
231Effect of a mortgage
Division 6 — General Instruments
232Definitions and application
233Form of general instrument
234Modification of standard terms of general instrument
235Filed standard general instrument terms
236Effect of a general instrument
237Release of registered charge
Part 15 — Instruments
238Registration of instruments
239Floating charges on land
240Suspension and alteration
Part 16 — Cancellation of Charges
241Cancellation of registration of charge
242Application to cancel mortgage created by vendor
243Redemption of mortgage if mortgagee absent
244Mortgagee's refusal or neglect to give discharge
245Vesting order in favour of purchaser
246Cancellation if charge determined by effluxion of time
247Cancellation of lease on breach of covenant
248Effect of cancellation
249Power of court to order cancellation of charge
250Cancellation of charge on payment into court
251Application to court
252Cancellation of certificate of pending litigation
253Cancellation of certificate of pending litigation if action discontinued
254Cancellation of certificate of pending litigation if action dismissed
255If action neither dismissed nor discontinued
256Cancellation of certificate of pending litigation on other grounds
257Power of court to order cancellation
258Cancellation of registration
259Discharge of mortgage
Part 17 — Transmission of Fee Simple and Charge
Division 1 — General
260Registration of transmission before subsequent dealing
261Conveyance under Court Order Enforcement Act or Builders Lien Act
262Registration of land vested in Crown by statute
Division 2 — On Death of Will-Maker or Intestate
263Definitions
264Power and title of personal representative on registration
265Death before April 1, 1947
266Death after March 31, 1947
267Discharge of mortgage
268When resealing may be dispensed with
Division 3 — On Death of Joint Tenant
269Transmission re joint tenancies
270Discharge of mortgage by surviving joint tenant
Division 4 — On Foreclosure
271Presumption as to regularity of foreclosure and cancellation proceedings
Division 5 — Tax Sales
272Notice of tax sale as to each parcel sold
273Notice of redemption of tax sale land
274Application to other Acts
275Registration of tax sale purchaser under Taxation (Rural Area) Act
276Effect of registration of title derived from tax sale
277Provincial tax sale purchaser under repealed Acts
278Land forfeited to or vested in Crown
279Tax sales held under Taxation (Rural Area) Act
280Application to the government
Part 18 — Notice of Certain Conditions and Obligations
281Forest Act
Part 19 — Caveats
282Lodging caveat
283Right of registered owner to lodge caveat
284Power of court to issue injunction
285Power of registrar to lodge caveat
286Form of caveat
287Duty of registrar on receipt of caveat
288Effect of caveat
289Proceedings for discharge of caveat
290Withdrawal of caveat
291Further caveat lodged after caveat has lapsed, been withdrawn or discharged
292Registration of withdrawal, lapse or discharge of caveat
293Lapse of caveat
294Compensation if caveat lodged wrongfully
Part 19.1 — Land Title and Survey Authority Assurance Fund
294.1Definition
294.11Establishment and maintenance of assurance fund
294.12Application of this Part
294.2Remedies of person deprived of land
294.21Protection of purchaser in good faith and for value
294.22Fault of registrar
294.3Notice of actions against Land Title and Survey Authority
294.4Liability of plaintiff for costs
294.5Judgment against person liable
294.6Limitation of liability of fund
294.61Recovery limited to value of land
294.7Payment from fund without action
294.8Payment by Land Title and Survey Authority
294.9Withholding of payment until proceedings concluded
Part 20 — Government Assurance Fund
294.91Definition
295Maintenance of assurance fund
295.1Application of this Part
296Remedies of person deprived of land
297Protection of purchaser in good faith and for value
298Fault of registrar
299Notice of actions against minister
300Liability of plaintiff for costs
301Actions against minister
302Judgment against person liable
303Limitation of liability of assurance fund
304Recovery limited to value of land
305Payment from assurance fund without action
306Payment from consolidated revenue fund
307Withholding of payment until proceedings concluded
Part 21 — Appeals
308Duty of registrar to notify applicant of refusal of registration
309Appeal to court
310Preservation of applications
311Appeals from decision of registrar
312Registrar to act on order of court
313Registrations made under order of court
314Power of registrar to state case
Part 22 — Notices
315Powers of registrar regarding preparation and service of notice
316Personal service
317Service by mail
317.1Service by electronic means
318Substituted service
319Service if person is dead
320Effect of service
321Rights of purchaser for value protected
Part 23 — Special Surveys
322Definitions
323Minister may order special survey
324Apportionment of costs if land within municipality
325Apportionment of costs if land is in a rural area
326Power to amend order if land subsequently becomes included within municipality
327Advancement of costs by municipality or owners
328Transmittal of copy of order to proper officer and registrar
329Notice of special survey
330Surveyor to act under minister
331Preliminary procedure
332Supplemental order or direction of minister
333Procedure for fixing boundary of survey area
334Transmittal of copy of supplemental order to proper officer and registrar
335Guiding principles for surveyor
336Nature of survey
337Plans
338Appointment of substituted surveyor
339Report of surveyor
340Notice to registrar
341Notice to corporate officer
342Notice of completion of survey
343Notice of hearing
344Statement of complaint or claim
345Hearing by minister or other person appointed by him
346Subpoena
347Method of conducting hearing
348Power of minister to decide complaints and claims and make order
349Principles for determining compensation
350Approval of survey and plan by Lieutenant Governor in Council
351Power to vest land
352Notice of order in council approving of survey
353Appeal
354Entry of appeal
355Registration
356Method of registration
357Effect of registration
358Notice of registration
359Assessment within municipalities
360Assessment in rural area
361Duty of surveyor to destroy conflicting monuments
362Recovery of compensation and costs
363Removal of special survey monuments
364Power of Lieutenant Governor in Council to correct errors
365Offence and penalty
Part 24 — Registration of Title to Indian Lands
366Definitions and interpretation
367Filing of patent
368Application for registration of Indian land — general
369Where application affects unregistered Indian land
370If application affects registered Indian land
371Other laws not to affect Torrens system
372Execution of instruments
373Liability limited
373.1Not in force. Repealed.
Part 24.01 — Treaty Lands
373.11Application of Act to treaty lands
Part 24.1 — Nisa'a Lands and Categories A and B Lands
Division 1 — Treatment of Nisa'a Lands and Institutions
373.2Effect of indefeasible title to Nisa'a Lands
373.21Assignment of distinguishing letter by registrar
373.22Requirements as to subdivision in respect of Nisa'a Lands
373.23Controlled access highways
373.3Tender of plan for examination and approval
373.31Matters to be considered by approving officer on application for approval
373.32Matters to be considered in respect of land within Nisa'a Lands
373.33Acceptable descriptions of land
373.4Dedication by reference or explanatory plan
373.41Dedication and vesting
373.42Designation of plans in respect of submerged lands
373.43Repealed
373.44Deposit of statutory right of way plan
373.5Nisa'a law to be filed if closing road or public square
373.51Definitions for applying Part 8
373.52Cancellation of plans
373.53Air space
373.6Rights of owner of surface
373.61Registration of debt owing to Nisa'a Nation or Nisa'a Village
373.62Statutory right of way
373.63Registration of covenant as to use and alienation
373.64Registration of land vested under Nisa'a law
373.7Notice of tax sale or redemption of tax sale land
373.71Effect of registration of title derived from tax sale
373.72Power of registrar to lodge caveat
Division 2 — First Registration of Title to Nisa'a Lands
373.73Plan required with application for first registration
373.8Conclusive evidence of good safe holding and marketable title
373.81Additions to Nisa'a Lands
373.82Execution of instruments in respect of Nisa'a Lands
Division 3 — Registration of Categories A and B Lands
373.9Requirements for first registration of Categories A & B Lands
373.91Effect of indefeasible title to Categories A & B Lands
Part 24.2 — Cancelling Registration of Reserve Lands Registered to Canada
373.92Cancelling registration of reserve lands registered to Canada
Part 25 — Miscellaneous
374Record of names
375Record of registered land
376Pending applications
377Searching of records
378Registrar to provide certificates
379Certificate as evidence
380Lost or destroyed instruments
381Rights of officers of taxing authorities
382Powers and duties of registrar
383Registrar to cancel or correct instruments, etc.
383.1Public Agency Accommodation Act amendments
383.2Homeowner Protection Act amendments
384Preservation of registry records and plans
384.1Records of Land Title and Survey Authority
385Power to make regulations
386Fees
386.1Fees specified in Schedule 2
386.2Fees payable despite other enactments
387Offence of fraud
388Offence of false representation
389Application of Offence Act
390Penalties
391Conviction not to affect liability
392Contaminated land
393Transitional
394Transitional — removal of notations made under the Forest Land Reserve Act
Schedule 1
Schedule 2

Part 1 — Definitions, Interpretation and Application

Definitions

1   In this Act:

"absolute certificate of title" means a certificate of title issued on the registration of an absolute fee and includes such a certificate issued before October 31, 1979;

"approving officer" means, as applicable,

(a) the municipal approving officer under section 77,

(b) the regional district approving officer under section 77.1,

(c) the islands trust approving officer under section 77.1,

(d) the Provincial approving officer under section 77.2,

(e) the Nisa'a approving officer under section 77.3, or

(f) the treaty first nation approving officer appointed under section 77.21;

"apt descriptive words" means a metes and bounds description and includes an abbreviated description;

"Board of Directors" means the board of directors of the Land Title and Survey Authority;

"book" includes a file, index and an electronic data bank;

"building scheme" means a scheme of development that comes into existence where defined land is laid out in parcels and intended to be sold to different purchasers or leased or subleased to different lessees, each of whom enters into a restrictive covenant with the common vendor or lessor agreeing that his or her particular parcel is subject to certain restrictions as to use, the restrictive covenants constituting a special local law applicable to the defined land and the benefit and burden of the covenants passing to, as the case may be, the purchaser, lessee or sublessee of the parcel and his or her successors in title;

"Category A Lands" has the same meaning as in the Nisa'a Final Agreement;

"Category B Lands" has the same meaning as in the Nisa'a Final Agreement;

"charge" means an estate or interest in land less than the fee simple and includes

(a) an estate or interest registered as a charge under section 179, and

(b) an encumbrance;

"chief executive officer" means the chief executive officer of the Land Title and Survey Authority;

"designated highways official" means an employee of the Ministry of Transportation designated, by name or by title, by the minister responsible for that ministry as a designated highways official for the purposes of the applicable provision of this Act;

"director" means the Director of Land Titles appointed under section 9 and a registrar instructed under section 10 to perform the duties and exercise the powers of the director;

"distinguishing letter" includes a distinguishing number;

"duplicate indefeasible title" means a certificate issued under section 176 (1) or a duplicate certificate of indefeasible title issued before August 1, 1983;

"electronic" includes created, recorded, transmitted or stored in digital or other intangible form by electronic, magnetic or optical means or by any other similar means;

"encumbrance" includes

(a) a judgment, mortgage, lien, Crown debt or other claim to or on land created or given for any purpose, whether by the act of the parties or any Act or law, and whether voluntary or involuntary,

(b) in respect of Nisa'a Lands, a judgment, mortgage, lien, debt owed to the Nisa'a Nation or a Nisa'a Village or other claim to or on Nisa'a Lands created or given for any purpose by any Nisa'a law, and whether voluntary or involuntary, and

(c) in respect of treaty lands, a judgment, mortgage, lien, debt owed to the treaty first nation or other claim to or on those treaty lands created or given for any purpose by a law of the treaty first nation, and whether voluntary or involuntary;

"endorse", "enter" or "note" means to store information in the records, including information respecting a cancellation;

"enduring power of attorney" means an enduring power of attorney made under Part 2 of the Power of Attorney Act;

"explanatory plan" means a plan that

(a) is not based on a survey but on existing descriptions, plans or records of the land title office, and

(b) is certified correct in accordance with the records of the land title office by a British Columbia land surveyor or by

(i) a person designated under section 121 (7) of the Forest Act for the purpose of that section, or

(ii) the minister charged with the administration of the Transportation Act;

"former Act" means the Land Registry Act, R.S.B.C. 1960, c. 208;

"highway" includes a public street, path, walkway, trail, lane, bridge, road, thoroughfare and any other public way;

"indefeasible title" means

(a) a certificate of indefeasible title issued by the registrar under this Act or the former Act, at any time before August 1, 1983, and

(b) that part of the information stored in the register respecting one title number, that is required under section 176 (2) to be contained in a duplicate indefeasible title;

"instrument" means

(a) a Crown grant or other transfer of Crown land, and

(b) a document or plan relating to the transfer, charging or otherwise dealing with or affecting land, or evidencing title to it, and includes, without limitation

(i) a grant of probate or administration or other trust instrument, and

(ii) an Act;

"judgment" means a judgment as defined in the Court Order Enforcement Act or that is deemed to be or to be made registrable in the same manner as a judgment under that Act by any other Act;

"Land Title and Survey Authority" means the Land Title and Survey Authority of British Columbia;

"land title district" includes a land registration district under the former Act;

"land title office" includes a land registry office under the former Act;

"lease or agreement for lease for a term not exceeding 3 years if there is actual occupation under the lease or agreement" means a lease or agreement for lease for a term that, at its beginning, does not exceed 3 years if there is actual occupation under the lease or agreement, and, if an option or covenant for renewal is included in the lease or agreement, the option or covenant must not extend the total lease periods beyond 3 years;

"Ministry of Transportation" means the ministry of the minister charged with the administration of the Transportation Act;

"Nisa'a certificate" means a certificate of the Nisa'a Lisims Government referred to in paragraph 7 (b) of the Land Title Chapter of the Nisa'a Final Agreement;

"Nisa'a Corporation" has the same meaning as in the Nisa'a Final Agreement;

"Nisa'a road" has the same meaning as in the Nisa'a Final Agreement;

"Nisa'a Village Lands" has the same meaning as in the Nisa'a Final Agreement;

"owner" means a person registered in the records as owner of land or of a charge on land, whether entitled to it in the person's own right or in a representative capacity or otherwise, and includes a registered owner;

"parcel" means a lot, block or other area in which land is held or into which land is subdivided;

"posting plan" means a plan filed as a posting plan under this or the former Act;

"record", as a verb, means write or stamp manually or annotate electronically;

"records" includes the register, books, indices, drawings, plans, instruments and other documents or any part of them registered, deposited, filed or lodged in the land title office, and those recorded or stored by any means, whether graphic, electronic, mechanical or otherwise, in any location approved by the Board of Directors;

"register" means

(a) as a noun, that part of the records where information respecting registered indefeasible titles is stored or, if the context requires, the register of absolute fees, and

(b) as a verb, to register under this Act;

"registrar" means a registrar appointed under this Act and includes a deputy registrar or acting registrar;

"right to flood" means a right or power to flood or otherwise injuriously affect land for purposes related to the construction, maintenance or operation of a dam, reservoir or other plant used or to be used for or in connection with the generation, manufacture, distribution or supply of power;

"rural area" means an area outside a municipality;

"sketch plan" means an adequately dimensioned drawing of the area affected by a lease of all or part of a building located on land shown on a plan of survey deposited in the land title office;

"solicitor" includes a barrister;

"statutory right of way" means an easement without a designated dominant tenement registrable under section 218;

"statutory right of way plan" means a plan prepared by a British Columbia land surveyor and deposited under section 113;

"subdivision" means the division of land into 2 or more parcels, whether by plan, apt descriptive words or otherwise;

"transfer" includes a conveyance, a grant and an assignment;

"transferee" includes a grantee and an assignee;

"transferor" includes a grantor and an assignor;

"transmission" means a change of ownership

(a) effected by the operation of an Act or law,

(b) under an order of a court, or

(c) consequent on any change in the office of a personal representative or trustee,

but does not include

(d) an amalgamation of 2 or more corporations, however effected, whether or not the amalgamation is in respect of a beneficial or a trust estate or interest in land, or

(e) an amalgamation under the Strata Property Act;

"true copy" means

(a) in relation to a paper document, an exact copy of the document, and

(b) in relation to an electronic document,

(i) an exact copy of the document, or

(ii) a legible paper copy of the document containing every material provision and particular contained in the original.

References

2   (1) A provision in this Act or in another enactment relating to the duties and powers of the registrar is a reference to the registrar of the land title district in which the land described in the instrument or document is located.

(2) A reference in this or in another enactment to the land title office is a reference to the land title office designated under section 6 for the land title district in which the land described in the instrument or document is located.

Application to Strata Property Act

3   (1) This Act, except Parts 7 and 8, applies to the Strata Property Act, unless inconsistent with that Act.

(1.1) Despite subsection (1), provisions of Parts 7 and 8 of this Act apply to the Strata Property Act if stated to apply by the Strata Property Act.

(2) Part 9 of this Act applies to the Strata Property Act only to the extent expressly stated in the Strata Property Act or in Part 9.

Part 2 — Land Title Offices and Officers

Land title districts

4   For the purpose of this Act, there are in British Columbia 7 land title districts, respectively known as the Kamloops, Nelson, New Westminster, Prince George, Prince Rupert, Vancouver and Victoria Land Title District, with their respective district boundaries as defined by a regulation of the Board of Directors.

Power to constitute and change districts

5   The Board of Directors may, by regulation,

(a) increase or decrease the number of land title districts in British Columbia,

(b) constitute all or a portion of British Columbia a land title district, whether or not all or part of it is included in an existing land title district,

(c) declare by what local name a new land title district is to be known, and

(d) change or redefine the boundaries of a land title district.

Land title office

6   (1) There must be offices, each called the "Land Title Office", at locations designated by the Board of Directors, at which the records of the land title district served by the office are maintained.

(2) An office referred to in subsection (1) may serve more than one land title district and may be supplemented by suboffices designated by the Board of Directors and under the control and direction of a registrar or person designated by the director.

Continuation of existing offices and records

7   The land title offices set out in Column 1 of the following table

(a) are continued with their respective records,

(b) are the offices of the land title district with the same name, and

(c) are located as set out opposite them in Column 2 of the table, unless otherwise designated by the Board of Directors under section 6:

ItemColumn 1
Land Title Office
Column 2
Location
1KamloopsKamloops
2NelsonKamloops
3New WestminsterNew Westminster
4Prince GeorgeNew Westminster
5Prince RupertNew Westminster
6VancouverNew Westminster
7VictoriaVictoria

Duty of registrar to provide records affecting land in new district

8   (1) If a new land title district is established or the boundaries of a land title district are enlarged, the registrar of each land title district from which land comprised in the new or enlarged land title district is separated must

(a) provide to the registrar of the new or enlarged land title district originals or certified copies of those portions of the records affecting the land in the new or enlarged land title district, and

(b) if the records have been microfilmed, supply the original or a certified copy of the microfilm.

(2) The originals or certified copies referred to in subsection (1) are for all purposes of the same effect, when deposited in the office of the land title office of the new or enlarged land title district, as if they or the originals of which any of them purport to be copies had been originally registered, deposited, filed or kept in that office.

(3) If an original record contains entries affecting land in a new or enlarged land title district as well as land in the old land title district, the registrar of the old land title district may, instead of providing certified copies, cause those portions of the original record relating to land in the old land title district to be copied and certified, and the copies to be retained in that office, and may provide the original record to the registrar of the new or enlarged land title district.

(4) The copies retained under subsection (3) by the registrar of the old land title district are for all purposes of the same effect as the originals of which they are copies.

Director of Land Titles

9   (1) The chief executive officer may appoint an employee of the Land Title and Survey Authority as the Director of Land Titles, whose powers and duties, under the direction of the chief executive officer, are

(a) to inspect the records of the several land title offices, and to regulate the practice in them, in accordance with this Act and regulations, so as to secure uniformity in matters of detail and procedure,

(b) under the style of "acting registrar", to perform the duties of a registrar under this Act, and

(c) to perform those other duties that may be assigned to the director by the chief executive officer.

(2) The director may approve the form of an instrument, document or notice that is to be registered, deposited, filed or given under this Act.

Registrar and staff

10   (1) For each land title office, the chief executive officer may appoint an employee of the Land Title and Survey Authority as the registrar.

(1.1) An individual may be appointed as

(a) the director and a registrar,

(b) the registrar of more than one land title office, or

(c) the director and the registrar of more than one land title office.

(1.2) The business of each land title office is to be conducted by the registrar together with the employees of the Land Title and Survey Authority that are necessary.

(2) On instructions from the director, a registrar must perform the duties and exercise the powers of the director, or of a registrar in another land title district, during the illness or absence of the director or registrar or during a vacancy in the office, and a registrar, while performing those duties or exercising those powers, is to be known as "acting director" or "acting registrar", as the case may be.

Deputy registrar and assistant deputy registrar

11   (1) The chief executive officer may appoint employees of the Land Title and Survey Authority as deputy registrars and assistant deputy registrars to assist and carry out the directions of a registrar.

(2) A deputy registrar may, in the event of the illness or absence or at the request of the registrar, perform any duty required by this Act or any other Act to be done by the registrar.

(3) Subject to instructions, which the director may give under section 10 (2), in case of a vacancy in the office of registrar, a deputy registrar designated by the director must perform the duties of a registrar under this Act until another registrar is appointed.

Evidence of authority of officials to act in certain cases

12   If the director, a registrar, a deputy registrar or an assistant deputy registrar acts in the performance of any duty under the purported exercise of the powers conferred by any of the preceding sections, the fact that he or she has so acted is conclusive evidence that an occasion that warranted him or her in exercising those powers had arisen.

Qualifications for appointment to office

13   (1) A person must not be appointed the director unless the person is a solicitor.

(2) A person must not be appointed a registrar unless the person

(a) is a solicitor, or

(b) is employed in a land title office in British Columbia and has been so employed for at least 12 years.

(3) [Repealed 2018-37-12.]

Prohibition of officers and staff acting in conflict with duties

14   The director or a registrar or other employee in a land title office must not

(a) directly or indirectly act as the agent of a person investing money and taking securities on land in British Columbia,

(b) advise for a fee, reward or otherwise on titles to land,

(c) practise as a solicitor, notary public or conveyancer, or

(d) carry on or transact in the land title office a business or occupation other than his or her duties as director, registrar or employee.

Official seal

15   (1) Each land title office must have an official seal bearing the impression of the corporate seal of the Land Title and Survey Authority and inscribed with the words "The Land Title Office" and with the name of the land title office.

(2) A print of the official seal, stamped on a document requiring an official seal of a land title office, other than an indefeasible title not stored by electronic means or a certificate of charge, is for all purposes deemed to be an impression of the official seal of the land title office.

(3) An indefeasible title not stored by electronic means, certificate of charge, certificate, notice or instrument issued by the registrar must be signed by the registrar and sealed with the official seal, and is admissible in evidence without proof of the seal or the signature of the registrar.

(4) If the signature of the registrar is required

(a) to an endorsement made on an instrument or record, or

(b) to an instrument or document of an official nature to be sealed with the official seal, except an indefeasible title not stored by electronic means or a certificate of charge,

the endorsement, instrument or document may be signed by an employee acting under the general directions of the registrar.

(5) A duplicate indefeasible title is deemed to have been signed by the registrar if the registrar's name is written on it by a person duly appointed by the registrar to perform that function.

Office hours

16   Except on Saturdays and holidays, the registrar must keep the land title office open to the public for the transaction of business every day from 9 a.m. until 3 p.m.

Repealed

17   [Repealed 2004-66-77.]

Protection of director and registrar from personal liability

18   The director and registrar are not, nor is a person acting under their directions, liable personally in a proceeding for or in respect of an act or matter that is, in good faith, done, or omitted to be done, in the exercise or supposed exercise of the powers conferred on either of them, or in the performance of their duties under this or any other Act or for costs in connection with a proceeding.

Exemption of registrar from attendance as witness in court

19   (1) The registrar, in his or her official capacity, is not bound by a subpoena, order or summons issued from a court in a civil matter

(a) to attend out of the land title office as a witness for examination, or

(b) to produce a record registered, deposited or filed under this or any other Act.

(2) Subsection (1) applies whether or not the subpoena, order or summons is directed to the registrar personally or in the registrar's official capacity.

(3) The registrar may be examined and records produced at the land title office under a commission or similar order for the examination of a witness.

Part 3 — Registration and Its Effect

Unregistered instrument does not pass estate

20   (1) Except as against the person making it, an instrument purporting to transfer, charge, deal with or affect land or an estate or interest in land does not operate to pass an estate or interest, either at law or in equity, in the land unless the instrument is registered in compliance with this Act.

(2) An instrument referred to in subsection (1) confers on every person benefited by it and on every person claiming through or under the person benefited, whether by descent, purchase or otherwise, the right

(a) to apply to have the instrument registered, and

(b) in proceedings incidental or auxiliary to registration, to use the names of all parties to the instrument, whether or not a party has since died or become legally incapacitated.

(3) Subsection (1) does not apply to a lease or agreement for lease for a term not exceeding 3 years if there is actual occupation under the lease or agreement.

Unregistered instruments executed and taking effect before July 1, 1905

21   Instruments executed before and taking effect before July 1, 1905, purporting to transfer, charge, deal with or affect land or an estate or interest in it, unless registered before that date, are not receivable by a court or the registrar as evidence or proof of the title of a person to the land, as against the title of another person to that land, registered on or after July 1, 1905, except in an action before the court questioning the registered title to the land on the ground of fraud in which the registered owner has participated or colluded.

Operation of instrument as from time of registration

22   An instrument purporting to transfer, charge, deal with or affect land or an estate or interest in land passes the estate or interest, either at law or in equity, created or covered by the instrument at the time of its registration, irrespective of the date of its execution.

Effect of indefeasible title

23   (1) In this section, "court" includes a person or statutory body having, by law or consent of parties, authority to hear, receive and examine evidence.

(2) An indefeasible title, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against the Crown and all other persons, that the person named in the title as registered owner is indefeasibly entitled to an estate in fee simple to the land described in the indefeasible title, subject to the following:

(a) the subsisting conditions, provisos, restrictions, exceptions and reservations, including royalties, contained in the original grant or contained in any other grant or disposition from the Crown;

(b) a federal or Provincial tax, rate or assessment at the date of the application for registration imposed or made a lien or that may after that date be imposed or made a lien on the land;

(c) a municipal charge, rate or assessment at the date of the application for registration imposed or that may after that date be imposed on the land, or which had before that date been imposed for local improvements or otherwise and that was not then due and payable, including a charge, rate or assessment imposed by a public body having taxing powers over an area in which the land is located;

(d) a lease or agreement for lease for a term not exceeding 3 years if there is actual occupation under the lease or agreement;

(e) a highway or public right of way, watercourse, right of water or other public easement;

(f) a right of expropriation or to an escheat under an Act;

(g) a caution, caveat, charge, claim of builder's lien, condition, entry, exception, judgment, notice, pending court proceeding, reservation, right of entry, transfer or other matter noted or endorsed on the title or that may be noted or endorsed after the date of the registration of the title;

(h) the right of a person to show that all or a portion of the land is, by wrong description of boundaries or parcels, improperly included in the title;

(i) the right of a person deprived of land to show fraud, including forgery, in which the registered owner has participated in any degree;

(j) a restrictive condition, right of reverter, or obligation imposed on the land by the Forest Act, that is endorsed on the title.

(3) After an indefeasible title is registered, a title adverse to or in derogation of the title of the registered owner is not acquired by length of possession.

(4) Despite subsection (3), in the case only of the first indefeasible title registered, it is void against the title of a person adversely in actual possession of and rightly entitled to the land included in the indefeasible title at the time registration was applied for and who continues in possession.

Title by prescription abolished

24   All existing methods of acquiring a right in or over land by prescription are abolished and, without limiting that abolition, the common law doctrine of prescription and the doctrine of the lost modern grant are abolished.

Protection of registered owner against actions for recovery of land

25   (1) In this section, "courts" includes a person or statutory body having, by law or consent of parties, authority to hear, receive and examine evidence.

(2) An action of ejectment or other action for the recovery of land for which an indefeasible title has been registered must not be commenced or maintained against the registered owner named in the indefeasible title, except in the case of

(a) a mortgagee or encumbrancee as against a mortgagor or encumbrancer in default,

(b) a lessor as against a lessee in default,

(c) [Repealed 2005-35-13.]

(d) a person deprived of land improperly included in an indefeasible title of other land by wrong description of boundaries or parcels,

(e) 2 or more indefeasible titles having been registered under this Act in respect of the same land, the registered owner claiming under the instrument that was registered first,

(f) a right arising or partly arising after the date of the application for registration of the title under which the registered owner claims, including, without limitation,

(i) the right of a purchaser claiming under a contract with the registered owner for the sale of the land, and

(ii) the right of a beneficiary if the registered owner is a trustee, and

(g) a right arising under section 23 (2).

(3) In any case other than those enumerated by way of exception in subsection (2), the production of a subsisting state of title certificate must be held in all courts to be an absolute bar and estoppel to an action referred to in subsection (2) against the registered owner named in the certificate, despite a rule of law or equity to the contrary.

Void instruments — interest acquired or not acquired

25.1   (1) Subject to this section, a person who purports to acquire land or an estate or interest in land by registration of a void instrument does not acquire any estate or interest in the land on registration of the instrument.

(2) Even though an instrument purporting to transfer a fee simple estate is void, a transferee who

(a) is named in the instrument, and

(b) in good faith and for valuable consideration, purports to acquire the estate,

is deemed to have acquired that estate on registration of that instrument.

(3) Even though a registered instrument purporting to transfer a fee simple estate is void, a transferee who

(a) is named in the instrument,

(b) is, on the date that this section comes into force, the registered owner of the estate, and

(c) in good faith and for valuable consideration, purported to acquire the estate,

is deemed to have acquired that estate on registration of that instrument.

Registration of a charge

26   (1) A registered owner of a charge is deemed to be entitled to the estate, interest or claim created or evidenced by the instrument in respect of which the charge is registered, subject to the exceptions, registered charges and endorsements that appear on or are deemed to be incorporated in the register.

(2) Registration of a charge does not constitute a determination by the registrar that the instrument in respect of which the charge is registered creates or evidences an estate or interest in the land or that the charge is enforceable.

Notice given by registration of charge

27   (1) The registration of a charge gives notice, from the date and time the application for the registration was received by the registrar, to every person dealing with the title to the land affected, of

(a) the estate or interest in respect of which the charge has been registered, and

(b) the contents of the instrument creating the charge so far as it relates to that estate or interest,

but not otherwise.

(2) A payment made by a mortgagor under a registered mortgage, or by a purchaser under a registered agreement for sale or subagreement for sale, is not a dealing with the title to the land affected.

(3) A transferee of a mortgage, or of a vendor's interest in an agreement for sale, takes subject to the equities and to the subsisting state of accounts between, respectively, mortgagor and mortgagee, or vendor and purchaser.

Priority of charges based on priority of registration

28   If 2 or more charges appear entered on the register affecting the same land, the charges have, as between themselves, but subject to a contrary intention appearing from the instruments creating the charges, priority according to the date and time the respective applications for registration of the charges were received by the registrar, and not according to the respective dates of execution of the instruments.

Effect of notice of unregistered interest

29   (1) For the purposes of this section, "registered owner" includes a person who has made an application for registration and becomes a registered owner as a result of that application.

(2) Except in the case of fraud in which he or she has participated, a person contracting or dealing with or taking or proposing to take from a registered owner

(a) a transfer of land, or

(b) a charge on land, or a transfer or assignment or subcharge of the charge,

is not, despite a rule of law or equity to the contrary, affected by a notice, express, implied, or constructive, of an unregistered interest affecting the land or charge other than

(c) an interest, the registration of which is pending,

(d) a lease or agreement for lease for a period not exceeding 3 years if there is actual occupation under the lease or agreement, or

(e) the title of a person against which the indefeasible title is void under section 23 (4).

(3) Subject to section 49 of the Personal Property Security Act, a person contracting with respect to, dealing with or taking from or proposing to take from a registered owner, an estate or interest in land, or a transfer or assignment of an estate or interest in land, is not affected by a financing statement registered under that Act whether or not the person had express, constructive or implied notice or knowledge of the registration.

(4) The fact that the person who is contracting or dealing with or taking or proposing to take from a registered owner under subsection (2) had knowledge of a financing statement registered under the Personal Property Security Act, or that the person could have obtained knowledge of the financing statement by searching the personal property registry established under that Act, is not evidence of fraud or bad faith for the purposes of subsection (2).

(5) A person contracting with respect to, dealing with or taking from or proposing to take from a registered owner, an estate or interest in land, or a transfer or assignment of an estate or interest in land, is not affected by a transparency declaration or transparency report filed with the administrator under the Land Owner Transparency Act, or by reported information or publicly accessible information made available for search under that Act, whether or not the person had express, constructive or implied notice or knowledge of the transparency declaration, transparency report, reported information or publicly accessible information.

(6) The fact that the person who is contracting or dealing with or taking or proposing to take from a registered owner under subsection (2) had knowledge of a transparency declaration, transparency report, reported information or publicly accessible information referred to in subsection (5), or that the person could have obtained knowledge of the transparency declaration, transparency report, reported information or publicly accessible information by carrying out a search authorized under the Land Owner Transparency Act, is not evidence of fraud or bad faith for the purposes of subsection (2).

Notice of unregistered interest as affecting registered owner of charge

30   (1) In this section, "filing" includes a claim of lien filed under the Builders Lien Act but does not include

(a) a notice filed under the Sale of Goods on Condition Act, R.S.B.C. 1979, c. 373, or

(b) a filing under the Manufactured Home Act.

(2) In subsection (3), "claim" includes a certificate of pending litigation and a caveat, other than a caveat lodged by the registrar.

(3) Under this Act,

(a) a registered owner of a charge enforcing that owner's charge by the exercise of the power of sale contained in it, or in an action for foreclosure,

(b) a purchaser under the power of sale, or under a sale pursuant to an order of the court in an action for foreclosure,

(c) a court in which an action to enforce a charge by foreclosure is pending, and

(d) a registrar considering an application founded on a sale under such a power of sale, or on a foreclosure decree, or on a sale pursuant to an order of the court in an action for foreclosure,

are not bound by or deemed to have notice of an interest, right or claim, the registration, filing, deposit or lodging of which is not applied for until after

(e) a notice of the intended exercise of the power of sale, or

(f) a certificate of pending litigation in a foreclosure action

has been filed or registered.

(4) On the filing of a notice under subsection (3), the registrar must endorse it and its filing number in the register.

(5) Subsection (3) applies to a registered owner who is, or who is a successor in title to, a vendor or subvendor and who has registered a certificate of pending litigation in respect of an action for the cancellation of a registered agreement for sale of the land and who obtains an order for cancellation.

(6) Nothing in this section affects the right of a person claiming through a mortgagor or mortgagee, or through a vendor or purchaser, while the action is pending, to file a pleading or other document in the action.

Priority of caveat or certificate of pending litigation

31   If a caveat has been lodged or a certificate of pending litigation has been registered against the title to land,

(a) the caveator or plaintiff, if that person's claim is subsequently established by a judgment or order or admitted by an instrument duly executed and produced, is entitled to claim priority for that person's application for registration of the title or charge so claimed over a title, charge or claim, the application for registration, deposit or filing of which is made after the date of the lodging of the caveat or registration of the certificate of pending litigation, and

(b) if proof of service of notice of claim to priority on the subsequent applicant is provided to the registrar before registration is effected, the registration of the title or charge claimed by the caveator or plaintiff relates back to and takes effect from the time of the lodging of the caveat or registration of the certificate of pending litigation, and that time, as well as the time of the application for registration of the title or charge so claimed, must be endorsed on the register.

Validity of registered voluntary conveyance

32   (1) An instrument executed in good faith and registered before the execution of a transfer to, and before the creation of a binding contract for the transfer to, a subsequent purchaser for value from the same grantor of the same land or any part of it, merely because of the absence of a valuable consideration in the instrument, is not and must not be considered to be void as against the subsequent purchaser for value or a person claiming by, from or under the subsequent purchaser for value.

(2) Nothing in this section makes valid an instrument that is for any reason, other than or in addition to the absence of a valuable consideration, void under any Act or law.

Equitable mortgage or lien not registrable

33   An equitable mortgage or lien created by the deposit of a duplicate indefeasible title or other instrument, whether or not accompanied by a memorandum of deposit, is not registrable.

Registration of indefeasible title by court order

34   (1) Except as provided in section 180, the registrar must not register an indefeasible title in favour of a person under a direction contained in an order of a court unless the order declares that it has been proved to the satisfaction of the court on investigation that the title of the person designated in the direction is a good safe holding and marketable title.

(2) Subsection (1) applies to the registration of a charge.

Admissibility of instruments

35   An instrument the execution of which is proved in the manner required by this Act, together with the affidavit, if any, by which the execution is proved, must be received in evidence in all courts without further proof of execution.

Completion of registration

36   (1) The registrar, after registration of title in fee simple or a charge or a cancellation of a charge, must, unless the director otherwise orders, make on an instrument deposited in support of the application for registration or cancellation or, if no instrument is deposited, on the application, an endorsement in the form approved by the director, which must be received in all courts as conclusive evidence of the registration of the instrument or application.

(2) If an application affects records that are stored by electronic means, the registration of the instrument or application is complete when the particulars of it have been entered, other than as a pending application, in the appropriate part of the register.

Registration effective from time of application

37   (1) An instrument or application so registered is deemed to have been registered and to have become operative for all purposes in respect of the title, charge or cancellation claimed by the application for registration, and according to the intent of the instrument or application, as of the date and time when the application was received by the registrar.

(2) An indefeasible title stored by electronic means, when entered in the register, other than as a pending application, is deemed to be registered and take effect as of the date and time when the application for the title was received by the registrar.

(3) An indefeasible title not stored by electronic means, when signed by the registrar, is deemed to be registered and take effect as of the date and time when the application for the title was received by the registrar.

(4) A certificate of charge, when signed by the registrar, is deemed to be issued and take effect as of the date and time when the application for the certificate was received by the registrar.

Registrar to create official record of instruments and documents

38   (1) In this section:

"duplicate" means a counterpart of the original instrument or document made by the registrar in the usual and ordinary course of business from the original instrument or document using any chemical, mechanical or electronic technique, including, without limitation, microphotographic reproduction and electronic recording on an optical disk, that

(a) is capable of recording all significant details of the original instrument or document, and

(b) does not permit additions, deletions or changes from the original instrument or document;

"original instrument or document" means the instrument or document that is filed, deposited or registered under this Act.

(2) The registrar must make and maintain an official record of all instruments and documents filed, deposited or registered under this Act, and the official record may consist of the original instrument or document or the duplicate, or both.

(3) The registrar must store the official record made under subsection (2) either in the land title office or in some other location approved by the Board of Directors.

(4) A copy taken from an original instrument or document, or from a duplicate, that is

(a) made by the registrar, and

(b) certified by the registrar to be a true copy of the original instrument or document

is admissible in a court to the same extent as the original instrument or document.

(5) A certification of the registrar under subsection (4) is conclusive proof that the copy, and the duplicate if the copy is made from a duplicate, was made by the registrar in the usual and ordinary course of business using procedures and techniques that

(a) are capable of recording all significant details of the original instrument or document, and

(b) do not permit additions, deletions or changes from the original instrument or document.

(6) Despite section 166, if an original instrument or document filed under this Act is

(a) a marriage certificate or a death certificate, or

(b) a trust instrument referred to in section 180 (4),

the registrar may, at the time the original instrument or document is filed, create a duplicate and return the original to the person who applied to file it.

Part 4 — Forms of Instruments

Registrable instruments

39   Unless the use of a form approved by the director is required by this Act, an instrument sufficient to pass or create an estate or interest in land is registrable, and for all purposes of registration effect must be given to the form of instrument according to its tenor.

Order in Council transferring government rights in highway

40   (1) A certified copy of an order of the Lieutenant Governor in Council releasing or waiving the right of the government in a highway vested in the Crown has the same effect as if a Crown grant had been issued by the government to the person named in the order in council as transferee, and must be so dealt with by the registrar.

(2) Unless an order in council under subsection (1) otherwise provides, the following are deemed to be excepted from its operation:

(a) minerals and placer minerals as defined in the Mineral Tenure Act;

(b) coal;

(c) petroleum as defined in the Petroleum and Natural Gas Act;

(d) gas or gases.

Part 5 — Attestation and Proof of Execution of Instruments

Definitions

41   In this Part:

"corporation" includes Her Majesty;

"instrument" includes an execution copy, as defined in section 168.1, of an electronic instrument;

"officer" means a person before whom an affidavit may be taken or made under section 42 (3), but does not include a registrar;

"signature" includes the mark of an individual who cannot sign his or her name in English characters;

"transferor" includes a grantor and assignor and any other transferring or charging party.

Witnessing and execution

42   (1) The execution by a transferor of an instrument must be witnessed by an officer who is not a party to the instrument.

(2) Subsection (1) does not apply to

(a) a Crown grant,

(b) an order in council,

(c) a court order, or

(d) an instrument or an instrument that is of a class of instrument that is prescribed for the purposes of this section.

(3) An affidavit necessary for the purposes of this Act may be taken or made inside or outside British Columbia by and before a person before whom an affidavit may be sworn under the Evidence Act.

(4) The signature of a transferor on an instrument is proof, in the absence of evidence to the contrary, that the transferor

(a) knows the contents of the instrument and has signed it voluntarily, and

(b) has the legal capacity to execute the instrument and intends to be bound by it.

Witnessing — individuals

43   The signature of the officer witnessing the execution of an instrument by an individual is a certification by the officer that

(a) the individual appeared before and acknowledged to the officer that he or she is the person named in the instrument as transferor, and

(b) the signature witnessed by the officer is the signature of the individual who made the acknowledgement.

Witnessing — corporations

44   (1) In the case of an instrument that is executed by a corporation, the signature of the officer witnessing the execution is a certification by the officer that

(a) the individual who executed the instrument for the corporation appeared before and acknowledged to the officer that

(i) the individual is an authorized signatory of the corporation,

(ii) the individual and any other individual who executed the instrument for the corporation were authorized by the corporation to execute the instrument, and

(iii) the corporation existed at the time the instrument was executed and is legally entitled to hold and dispose of land in British Columbia, and

(b) the signature witnessed by the officer is the signature of the individual who made the acknowledgement.

(2) A corporation must execute an instrument by its authorized signatory who must, on behalf of the corporation, sign his or her name to the instrument.

(3) In the case of an instrument executed for a corporation by more than one authorized signatory, only the signature of one authorized signatory is required to be witnessed in accordance with this Part.

Witnessing — individual power of attorney

45   (1) In the case of an instrument that is executed by an individual who is acting under a subsisting power of attorney, the signature of the officer witnessing the execution is a certification by the officer that

(a) the individual appeared before and acknowledged to the officer that

(i) the individual is the person named as the attorney of the transferor in a subsisting power of attorney,

(ii) if the transferor is an individual, the individual acting under the power of attorney had, at the time the instrument was executed, no knowledge of the death or bankruptcy of the transferor, or of the revocation of the power by the transferor, and

(A) if the power of attorney is not an enduring power of attorney, the individual had, at that time, no knowledge of the mental infirmity of the transferor, or

(B) in the case of an enduring power of attorney, the individual had, at that time, no knowledge of the suspension or termination of his or her authority under any enactment,

(ii.1) each change to the authority of an attorney under an enduring power of attorney has been filed with the registrar under this Act or a copy, certified under section 51 (4) as a true copy of those changes, has been filed, and

(iii) if the transferor is a corporation, it is legally entitled to hold and dispose of land in British Columbia and, at the time the instrument was executed, the corporation existed and the individual had no knowledge of the bankruptcy of the transferor or of a revocation of the power by the transferor, and

(b) the signature witnessed by the officer is the signature of the individual who made the acknowledgement.

(2) An attorney who is an individual must execute the instrument by signing his or her name and must indicate on the instrument that he or she is the attorney of the transferor.

Witnessing — corporate power of attorney

46   (1) In the case of an instrument that is executed by a corporation acting under a power of attorney, the signature of the officer witnessing the execution is a certification by the officer that

(a) the individual who executed the instrument for the corporate attorney appeared before and acknowledged to the officer that

(i) the individual is an authorized signatory of the corporate attorney,

(ii) the individual and any other individual who executed the instrument for the corporate attorney were authorized by the corporate attorney to execute the instrument,

(iii) the corporate attorney is the attorney of the transferor under a subsisting power of attorney,

(iv) if the transferor is an individual, the individual executing the instrument for the corporate attorney had, at the time the instrument was executed, no knowledge of the death or bankruptcy of the transferor, or of the revocation of the power by the transferor, and

(A) if the power of attorney is not an enduring power of attorney, the individual had, at that time, no knowledge of the mental infirmity of the transferor, or

(B) in the case of an enduring power of attorney, the individual had, at that time, no knowledge of the suspension or termination of the authority of the corporate attorney under any enactment,

(iv.1) each change to the authority of an attorney under an enduring power of attorney has been filed with the registrar under this Act or a copy, certified under section 51 (4) as a true copy of those changes, has been filed, and

(v) if the transferor is a corporation, it is legally entitled to hold and dispose of land in British Columbia and, at the time the instrument was executed, the corporation existed and the individual had no knowledge of the bankruptcy of the transferor or of a revocation of the power by the transferor, and

(b) the signature witnessed by the officer is the signature of the individual who made the acknowledgement.

(2) A corporate attorney must execute an instrument in accordance with section 44 (2) and must indicate on the instrument that the corporation is the attorney of the transferor.

Witnessing — persons not fluent in English

47   In the case of an instrument that is executed by an individual who appears to the officer to be unable to read English or sign his or her name in English characters, the signature of the officer is, in addition to the certification in section 43, a certification by the officer that the individual appeared before and acknowledged to the officer that the contents and effect of the instrument were sufficiently communicated to the individual and that the individual fully understood the contents of the instrument.

Repealed

47.1   [Repealed 2007-34-88.]

Execution under seal

48   (1) In the case of an instrument executed under seal by an individual, whether on the individual's own behalf or as the attorney for the transferor, the signature of the officer witnessing the execution is, in addition to any other certification evidenced by the officer's signature, a certification by the officer that the individual appeared before the officer and acknowledged that

(a) the individual affixed his or her seal to the instrument, or

(b) if the individual is acting under a power of attorney, the individual affixed his or her seal to the instrument and was authorized by the transferor to do so.

(2) In the case of an instrument executed under the seal of a corporation, whether on its own behalf or as the corporate attorney of the transferor, the signature of the officer witnessing the execution is, in addition to any other certification evidenced by the officer's signature, a certification by the officer that the individual who signed the instrument as the authorized signatory appeared before the officer and acknowledged that

(a) the individual affixed the corporate seal of the transferor to the instrument and was authorized to do so, or

(b) in the case of a corporate attorney, the individual affixed the corporate seal of the attorney to the instrument and was authorized to do so.

If instrument not witnessed

49   If

(a) the signature of a transferor is not witnessed in the manner required by this Part, and

(b) the registrar is of the opinion that the circumstances require,

the registrar may receive the instrument for the purpose of registration in the same manner as if its execution had been witnessed in accordance with this Part on being satisfied

(c) as to the facts, and

(d) as to the testimony, by affidavit,

(i) of a person 16 years of age or older acquainted with the transferor and the signature of the transferor stating his or her belief that the signature subscribed to the instrument is the signature of the person named in the instrument as transferor, or

(ii) in the case of a corporate transferor or corporate attorney, of a person 16 years of age or older having personal knowledge of the matters contemplated in sections 44, 46 and 48 (2) that would otherwise be acknowledged by the authorized signatory before an officer under those sections.

Defects

50   If there is a defect in the execution of an instrument, the registrar may, if the registrar considers that the instrument is legally binding, register it, and the registration is valid for all purposes despite the defect.

Part 6 — Powers of Attorney

Deposit of power of attorney on registration of instrument

51   (1) An instrument tendered for registration and executed by an attorney under a power of attorney must not be registered unless one of the following is filed with the registrar:

(a) the original power of attorney;

(b) a copy of the original power of attorney certified to be a true copy of the original

(i) by the registrar, if he or she has custody of the original,

(ii) by the registrar of companies, if he or she has custody of the original, or

(iii) by the registrar under subsection (4);

(c) if the original power of attorney has been executed, filed or deposited in a province or country the laws of which require that the original power of attorney be filed or deposited with the officer preparing it or with some other officer or a court, a copy of the original power of attorney certified by the officer under the officer's seal of office or under the seal of the court, as the case may be, and accompanied by a certificate or other evidence that the original has been so filed or deposited, and that the filing or depositing was required by the law of that province or country.

(2) The execution of a power of attorney must be witnessed or proved in the manner required for instruments by Part 5.

(2.1) In the case of an agreement that is

(a) an enduring power of attorney signed under section 16 (2) of the Power of Attorney Act, or

(b) a representation agreement deemed to be an enduring power of attorney under section 44.3 of the Representation Agreement Act, signed under section 13 (4) of that Act,

the signature of the person signing the agreement on behalf of the adult making the agreement is deemed to be the adult's signature for the purposes of this Act.

(3) Subject to subsection (3.1), a person who is appointed an attorney for the execution of an instrument tendered for registration must have reached 19 years of age at the time of the appointment, and proof of that fact must be given to the registrar at the time the power of attorney is filed.

(3.1) In the case of an enduring power of attorney, a person who is appointed an attorney for the execution of an instrument tendered for registration must have reached 19 years of age at the time of registration, and proof of that fact must be given to the registrar at the time the enduring power of attorney is filed.

(4) The registrar, under subsection (1) (b) (iii), may certify a copy of a power of attorney to be a true copy if the instrument tendered for registration is accompanied by

(a) the original power of attorney, and

(b) an application, in a form acceptable to the registrar, for the return of the original.

(4.1) [Repealed 2007-34-89.]

(5) A certified copy filed under subsection (1) is conclusive proof of the contents of the power of attorney for the purposes of this Act.

(6) [Repealed 2007-34-89.]

(7) If a person changes an enduring power of attorney in accordance with section 28 of the Power of Attorney Act,

(a) the changed enduring power of attorney must be filed in the same manner as an original power of attorney under subsection (1) of this section,

(b) the execution of the change must be witnessed or proved in the manner required for instruments by Part 5 of this Act,

(c) subsection (4) applies to a copy of a change to an enduring power of attorney as it applies to a copy of a power of attorney, and

(d) subsection (5) applies to a change to an enduring power of attorney as it applies to a power of attorney.

Attorney's powers extend to after acquired land

52   Unless a power of attorney provides expressly to the contrary, the rights and powers conferred on an attorney with respect to land owned by the principal at the date of the execution of the power of attorney also apply to land acquired by the principal after that date.

Index of powers of attorney

53   (1) The registrar must keep an index, to be called an index of powers of attorney, in which the registrar must enter alphabetically references to

(a) the serial number of the power of attorney or certified copy, and

(b) the names of the principal and the attorney.

(2) The registrar must endorse on every power of attorney, or certified copy of it, filed in the land title office, a serial number and the date and time of filing.

(3) If a person changes an enduring power of attorney in accordance with section 28 of the Power of Attorney Act and the changed enduring power of attorney, or a certified copy of it, is filed in the land title office in accordance with section 51 (7) of this Act, the registrar must endorse on the changed enduring power of attorney, or a certified copy of it,

(a) the serial number of the original enduring power of attorney, and

(b) the date and time that the changed enduring power of attorney was filed.

Effect of execution of second power of attorney

54   (1) The execution by a principal of a subsequent power of attorney does not for the purpose of this Act revoke the appointment of an attorney made by that principal under a previous power of attorney, unless

(a) the subsequent power of attorney expressly revokes in whole or in part the previous power of attorney, and

(b) section 57 is complied with.

(2) The execution by a principal of a change to an enduring power of attorney, made in accordance with section 28 of the Power of Attorney Act, does not for the purpose of this Act revoke the appointment of an attorney made by that principal under the original enduring power of attorney, unless

(a) the changed enduring power of attorney expressly revokes in whole or in part the original enduring power of attorney, and

(b) section 57 of this Act is complied with.

Power of personal representative or trustee

55   A personal representative or trustee who resides outside British Columbia and who has the power, either alone or jointly with another or others, to sell and transfer land or to create a charge on land may

(a) act in British Columbia by attorney, and

(b) unless expressly forbidden by the trust instrument, give a valid power of attorney for the exercise in British Columbia of that power and of all discretionary powers in connection with it to any person capable of acting as attorney, including a co-personal representative or a co-trustee.

Power of attorney valid for 3 years only

56   (1) For the purpose of this Act, but subject to subsections (2), (3) and (5) and unless the effect of this section is expressly excluded in it, a power of attorney filed in the land title office either before or after this Act comes into force is not valid after 3 years after the date of its execution.

(2) Subsection (1) does not invalidate

(a) a dealing that is

(i) otherwise valid,

(ii) registered before October 31, 1979, and

(iii) entered into by an attorney acting in good faith under a valid power of attorney filed with the registrar before October 31, 1979, or

(b) a dealing that is

(i) otherwise valid, and

(ii) entered into within 3 years after the date of execution of a valid power of attorney.

(3) For the purpose of this Act, but subject to section 57 (1), an enduring power of attorney that is filed under section 51 of this Act remains valid, unless terminated by another means, until an order terminating the enduring power of attorney is filed in the land title office.

(4) Section 57 (3) of this Act applies to the order filed under subsection (3) as if it were a notice of revocation.

(5) Subsection (1) does not apply to a power of attorney executed by a corporation after July 30, 1981.

(6) The amendments to this section made by the Attorney General Statutes Amendment Act, 1981 do not apply to powers of attorney executed before July 30, 1981.

Revocation of power of attorney

57   (1) A power of attorney filed in the land title office may be revoked by filing a notice of revocation in the form approved by the director, or by filing other evidence that, in the opinion of the registrar, is sufficient to effect a revocation.

(2) If the power of attorney has not been filed, the principal may lodge a caveat under section 283.

(3) On receiving a notice of revocation of a power of attorney or other sufficient evidence under subsection (1), the registrar must

(a) endorse in the index of powers of attorney, opposite the entry of the power, the fact and date of revocation, and

(b) unless the power of attorney has been microfilmed, endorse on the document itself the fact that it has been revoked.

Part 7 — Descriptions and Plans

Division 1 — General

Description of land

58   (1) The registrar may allow or require the use of a method of describing land that is authorized by this Act and that will, in the registrar's opinion, best ensure brevity, accuracy and uniformity in the records.

(2) Descriptions of land in accordance with this Act are sufficient for every transaction, dealing, instrument or proceeding relating to land, whether in or out of the land title office, and whether under this Act or any other Act where a description of land is required.

(3) The registrar may assign to a parcel of land a number, known as the permanent parcel identifier, for the purpose of facilitating parcel identification in records and instruments.

(4) The registrar may require as part of a description of land,

(a) the permanent parcel identifier that has been assigned by the registrar under subsection (3),

(b) computer keying instructions respecting the parcel, and

(c) other information that the director prescribes.

Public official plan

59   (1) A copy of a public official plan may be deposited in the land title office by the Surveyor General and must be deposited by the Surveyor General at the request of the registrar.

(2) A plan deposited under subsection (1) must be certified by the Surveyor General as a true copy of the original.

Description in Crown grant

60   Registration of the title to land must, in the first instance, be according to the description of the land shown

(a) in the Crown grant, or

(b) if there is no Crown grant, in another instrument that is satisfactory to the registrar.

Registration of title to Esquimalt and Nanaimo Railway Company land

61   The registration of title to land within the Esquimalt and Nanaimo Railway Company's land grant, the title to which is registered in the land title office at Victoria in Absolute Fees Book, Volume 9, Folio 693, No. 7434A, alienated by the Esquimalt and Nanaimo Railway Company, must, in the first instance, be according to the description and parcel boundaries specified by the Esquimalt and Nanaimo Railway Company in its original return pertaining to alienation of that land made under the Taxation (Rural Area) Act and the Esquimalt and Nanaimo Railway Belt Tax Act, unless a deviation in the description and parcel boundaries is approved by the registrar.

Subsequent descriptions of land

62   A description of land made after a description referred to in section 60 or 61 must be in accordance with one of the methods permitted by this Part.

Description by parcels shown on subdivision plan

63   (1) A parcel shown on a deposited subdivision plan may be described in the register either

(a) as a lettered or numbered lot or block of the previously registered parcel dealt with by the plan, or

(b) as a lot or block as shown on the plan without any reference to the former description of the land dealt with by the plan.

(2) In all cases the number of the plan must be given in the register.

Substitution for metes and bounds or abbreviated description

64   (1) If the registrar accepts a metes and bounds description or an abbreviated description of a new parcel, with or without an explanatory or reference plan, the registrar may assign a distinguishing letter to the parcel.

(2) The description referred to in subsection (1), together with the distinguishing letter, may be endorsed in the register at the time of the first registration of indefeasible title to the parcel, but in all subsequent indefeasible titles, the description, unless the registrar otherwise directs, must be omitted, and in the case of a metes and bounds description, the parcel may be sufficiently described by an abbreviated description.

(3) If the registrar has, under subsection (1), accepted a description accompanied by an explanatory or reference plan, the registrar may require the distinguishing letter to be marked on the plan.

Assignment of distinguishing letter to remainder

65   If a distinguishing letter is assigned to a newly created parcel, the registrar may

(a) assign another distinguishing letter to the remainder of the previously registered parcel of which the newly created parcel forms part, or

(b) describe the remainder by excepting the newly created parcel.

Assignment of distinguishing letter by registrar

66   (1) If, in the opinion of the registrar, convenience of reference will be served, the registrar may assign to a parcel described in an indefeasible title a distinguishing letter.

(2) The letter assigned under subsection (1) must be endorsed on the register.

(3) After a letter is assigned under subsection (1), the parcel may be sufficiently described by an abbreviated description consisting of the distinguishing letter, together with an appropriate reference to

(a) the instrument creating the parcel, and

(b) the previously registered parcel of which the new parcel forms a part.

(4) If the existing indefeasible title to the parcel to which a distinguishing letter has been assigned includes other land, the registrar may register one or more new indefeasible titles in respect of that land.

(5) If a letter is assigned or an indefeasible title is registered under this section, the registrar must so advise the registered owner and the taxing authority.

Requirements as to subdivision and reference plans

67   A plan tendered for deposit, other than an explanatory plan or sketch plan, must comply with the following requirements:

(a) the plan must be based on a survey made by a British Columbia land surveyor;

(b) the plan must comply with the rules respecting surveys and plans made under section 385 (5) for the purposes of this section;

(c) the plan must have a title that includes the legal description, in accordance with the register, of the land subdivided and indicate whether all or part of that land is being subdivided;

(d) to (r) [Repealed 2003-66-37.]

(s) unless otherwise provided by regulation, the plan must be accompanied by a machine made transparent copy of a type approved by the Surveyor General, together with the number of white prints that may be necessary for the purpose of taxing authorities, the Surveyor General, the Ministry of Transportation and the regional board of the regional district in which the land is located;

(t) the correctness of the survey and plan must be verified by the surveyor by his or her statement in the form approved by the director.

Posting plan

68   (1) If an angle of a parcel is redefined on the ground by a post or monument, or if an angle or a parcel described by

(a) metes and bounds,

(b) an abbreviated description, or

(c) an explanatory plan,

is defined on the ground by a post or monument, the redefinition or definition must be

(d) made by a British Columbia land surveyor, and

(e) shown on a posting plan.

(2) The surveyor referred to in subsection (1) must certify the posting plan as correct and file it in the land title office within 2 months after the completion of the redefinition or definition.

(3) On receiving a posting plan, the registrar must

(a) assign a serial number to the plan, and

(b) make a note of the number in the register.

(4) The acceptance by the registrar of a posting plan for filing is not a determination by the registrar as to the location of the boundaries of the parcel posted.

(5) A posting plan must comply with the rules respecting surveys and plans made under section 385 (5) for the purposes of this section.

(6) This section does not apply to a posting plan filed under section 69.

Block outline survey

69   (1) Before a survey is made, the Surveyor General, subject to conditions the Surveyor General considers necessary, may allow the survey to be posted by setting, at proper intervals, monuments of a specified permanent character.

(2) The monuments with the information on the plan showing their location is the only posting of the survey required.

(3) As an alternative to the procedure under subsection (1), the Surveyor General, subject to conditions the Surveyor General may consider necessary, may allow a block outline posting of the survey to be made by setting key monuments at specified locations.

(4) The information on the plan showing the relationship of the monuments to the boundaries shown on the plan is evidence of the boundaries until a complete and final posting of the boundaries is made.

(5) The Surveyor General must require the surveyor to complete the final posting referred to in subsection (4) within a specified period.

(6) The surveyor who made the block outline survey must be the same person to make a final posting.

(7) A posting plan must be filed before the termination of the time limit imposed under subsection (5) and, after filing the posting is, in the absence of evidence to the contrary, proof of the boundaries.

(8) The posting plan referred to in subsection (7) must

(a) comply with all the requirements of this Act for a subdivision or reference plan, except

(i) the signature of the owner, and

(ii) the approval of the approving officer, and

(b) conform in all respects with the block outline plan, unless a departure from it is authorized by the Surveyor General.

(9) On receiving the posting plan, the registrar must,

(a) if the posting plan refers only to one block outline plan, assign it the same number as that assigned to the block outline plan, and

(b) if the posting plan refers to more than one block outline plan, assign a serial number to it in the manner specified by the director.

(10) In the event of the death or inability of the surveyor referred to in subsection (6) to make the final posting, the Surveyor General may appoint another British Columbia land surveyor to carry out the final posting.

(11) An application to the Surveyor General under subsection (3) must be accompanied by the fees payable under this Act.

Explanatory plan of block or lot in Esquimalt and Nanaimo Railway Company grant

70   (1) An explanatory plan of an unsurveyed area designated as a block in an original grant from the Esquimalt and Nanaimo Railway Company and completely surrounded by surveyed parcels, the titles to which are registered under this Act, may be considered to be the plan of survey of that area.

(2) If the unsurveyed area referred to in subsection (1) and shown on the explanatory plan is not completely surrounded by surveyed parcels, the boundaries of the area adjoining the unsurveyed land must be run or traversed in accordance with the provisions of this Act and the rules made under section 385 (5), and the explanatory plan is the plan of survey of the area.

(3) An explanatory plan described in subsection (1) or (2) must not be received on deposit in the land title office unless it has first been proved by the Surveyor General who may, in the Surveyor General's discretion, approve or reject the plan.

(4) An application to the Surveyor General under subsection (3) must be accompanied by the fees payable under this Act.

Composite plans

71   (1) If the registrar considers it necessary or convenient for registration or administrative purposes, the registrar may allow or require composite plans to be prepared from the deposited plans or other records in the land title office.

(2) The Surveyor General must assist in the preparation of the composite plans whenever the service can be provided by the Surveyor General's office.

(3) A composite plan may contain any number of contiguous parcels.

(4) The parcels shown on the composite plans may be designated by their original distinguishing letters, if any, or the registrar may assign on the plan new distinguishing letters to the parcels.

(5) The registrar must

(a) sign and date the plan,

(b) assign to it a deposit number, and

(c) make a reference to it in the records.

(5.1) Subsection (5) does not apply to a plan in electronic format.

(6) A composite plan deposited under this section must, after the date of deposit, for all purposes and for all subsequent dealings with a parcel shown on it, be referred to in the same manner as a subdivision plan deposited under this Act.

When composite plan not to be deposited

72   (1) A composite plan must not be deposited under section 71 if the deposited plans and other records from which the composite plan is compiled reveal any discrepancy or uncertainty in boundaries unless the several owners of the parcels affected sign the composite plan to evidence their consents to the boundaries shown on the composite plan.

(2) All signatures required by subsection (1) must be witnessed by at least one person who is 16 years of age or older and who is not an owner of a parcel affected by the plan, and the address and occupation of each witness must be stated on the plan.

Division 2 — Subdivision of Land

Restrictions on subdivision

73   (1) Except on compliance with this Part, a person must not subdivide land into smaller parcels than those of which the person is the owner for the purpose of

(a) transferring it, or

(b) leasing it, or agreeing to lease it, for life or for a term exceeding 3 years.

(2) Except on compliance with this Part, a person must not subdivide land for the purpose of a mortgage or other dealing that may be registered under this Act as a charge if the estate, right or interest conferred on the transferee, mortgagee or other party would entitle the person in law or equity under any circumstances to demand or exercise the right to acquire or transfer the fee simple.

(3) Subsection (1) does not apply to a subdivision for the purpose of leasing a building or part of a building.

(4) A person must not grant an undivided fractional interest in a freehold estate in land or a right to purchase an undivided fractional interest in a freehold estate in land if the estate that is granted to or that may be purchased by the grantee is

(a) a fee simple estate on condition subsequent, or

(b) a determinable fee simple estate

that is or may be defeated, determined or otherwise cut short on the failure of the grantee to observe a condition or to perform an obligation relating to a right to occupy an area less than the entire parcel of the land.

(5) Subsection (4) does not apply to land if an indefeasible title to or a right to purchase an undivided fractional interest in

(a) a fee simple estate on condition subsequent in the land of the kind described in subsection (4), or

(b) a determinable fee simple estate in the land of the kind described in subsection (4)

was registered before May 30, 1994.

(6) An instrument executed by a person in contravention of this section does not confer on the party claiming under it a right to registration of the instrument or a part of it.

Lease of part of a parcel of land enforceable

73.1   (1) A lease or an agreement for lease of a part of a parcel of land is not unenforceable between the parties to the lease or agreement for lease by reason only that

(a) the lease or agreement for lease does not comply with this Part, or

(b) an application for the registration of the lease or agreement for lease may be refused or rejected.

(2) This section does not apply to an airport lease, as defined in section 41 of the Municipalities Enabling and Validating Act (No. 2).

Method of defining new parcel

74   Except as otherwise provided in section 99, a new parcel created by subdivision or a parcel for which an indefeasible title is sought must be defined by a subdivision plan.

Requirements for subdivisions

75   (1) A subdivision must comply with the following, and all other, requirements in this Part:

(a) to the extent of the owner's control, there must be a sufficient highway to provide necessary and reasonable access

(i) to all new parcels, and

(ii) through the land subdivided to land lying beyond or around the subdivided land;

(b) all highways provided for in a subdivision plan or otherwise legally established on lands adjoining, lying beyond or around the land subdivided must be continued without unnecessary jogs and must be cleared, drained, constructed and surfaced to the approving officer's satisfaction, or unless, in circumstances the approving officer considers proper, security is provided in an amount and in a form acceptable to the approving officer;

(c) if the land subdivided borders on

(i) a body of water, the bed of which is owned by the Crown,

(ii) the boundary of a strip of land established as the boundary of a water reservoir, where the strip of land and reservoir are owned by the Crown, or

(iii) a strip of Crown land 20 m or less in width contiguous to a natural boundary as defined in the Land Act,

access must be given by highways 20 m wide to the body of water and to the strips at distances not greater than 200 m between centre lines, or, in a rural area where the parcels into which the land is subdivided all exceed 0.5 ha, at distances not greater than 400 m between centre lines;

(d) if the land subdivided borders on a body of water, the bed of which is owned by a person other than the Crown and,

(i) in the case of a lake or pond, the surface of the body of water at mean annual high water is at least 1.5 ha, and the mean depth at mean annual high water is at least 0.6 m, or

(ii) in the case of a river, creek or watercourse, the average width at mean annual high water is at least 6 m and the average depth at mean annual high water is at least 0.6 m,

access must be given by highways 20 m wide to the body of water and to the strips at distances not greater than 200 m between centre lines, or, in a rural area where the parcels into which the land is subdivided all exceed 0.5 ha, at distances not greater than 400 m between centre lines;

(e) suitable lanes must be provided in continuation of existing lanes and in every case where lanes are considered necessary by the approving officer.

(2) As an exception, subsection (1) (d) (i) does not apply to a reservoir or pond referred to in paragraph (d) of that subsection if the reservoir or pond is used for the purpose of domestic or industrial water supply and its bed is owned by a public body other than the Crown.

(3) In considering the sufficiency of a highway shown on a plan and to be dedicated to the Crown, the approving officer must consider the following:

(a) the location and width of the highway;

(b) the suitability of the highway in relation to the existing use of the subdivided land and the use intended by the subdivision;

(c) the configuration of the land subdivided;

(d) the relation of the highway to be dedicated to an existing main highway or approach, whether by land or water, and local circumstances;

(e) on the question of width, the extent of the use, present and future, to which the highway may be put;

(f) the likely or possible role of the highway in a future highway network serving the area in which the subdivided land is located.

Relief from requirements established by section 75

76   (1) In circumstances prescribed under subsection (2), an approving officer may grant relief from compliance with all or part of the provisions of section 75 (1) (a) or (b).

(2) The Lieutenant Governor in Council may make regulations prescribing circumstances for the purposes of subsection (1), which may be different for different areas.

(3) On receiving an application made in accordance with subsection (4), the minister charged with the administration of the Transportation Act may grant relief from strict compliance with a requirement under section 75 (1) (c) or (d).

(4) An application under subsection (3) must be supported by an affidavit and, if the approving officer is a municipal, regional district, islands trust or treaty first nation approving officer appointed under section 77, 77.1 or 77.21 or is the Nisa'a approving officer appointed under section 77.3, by the written recommendation of the approving officer.

(5) Relief granted under subsection (3) may be evidenced by a certificate endorsed on the plan and signed by the minister charged with the administration of the Transportation Act or by a designated highways official.

Division 3 — Appointment, Powers and Duties of Approving Officers

Appointment of municipal approving officers

77   (1) For land within a municipality, the municipal council must appoint a person as an approving officer.

(2) An approving officer appointed under this section must be

(a) the municipal engineer,

(b) the chief planning officer,

(c) some other employee of the municipality appointed by the municipal council, or

(d) a person who is under contract with the municipality.

Appointment of regional district and islands trust approving officers

77.1   (1) Subject to subsection (2), the Lieutenant Governor in Council may, by order, do one or more of the following:

(a) authorize a regional district board to appoint a person as an approving officer for the rural area of the regional district;

(b) authorize the trust council under the Islands Trust Act to appoint a person as an approving officer for the rural area of the trust area under that Act;

(c) if an order under paragraph (a) or (b) applies, provide that section 83.1 does not apply in relation to the regional district or trust area.

(2) An order under subsection (1) (a) or (b) must be requested by resolution of the regional district board or trust council, as applicable, and must be recommended by the minister charged with the administration of the Transportation Act.

(3) An order under subsection (1) (a) or (b) may include one or more of the following:

(a) requirements that must be met before the authorization becomes effective;

(b) conditions relating to the appointment of the approving officer under this section;

(c) provisions respecting the transition to the exercise of authority by an approving officer appointed under this section including, without limiting this, exceptions and modifications respecting how applications that are pending at the time the authorization becomes effective are to be dealt with.

(4) If a regional district board or the trust council is authorized under subsection (1), it must appoint an approving officer for the rural area of its jurisdiction.

(5) An approving officer appointed under this section must be

(a) the regional district or trust area engineer,

(b) the chief planning officer,

(c) some other employee of the regional district or trust council appointed by the board or council, as applicable, or

(d) a person who is under contract with the regional district or trust council.

Provincial approving officers

77.2   (1) If an approving officer is not appointed under section 77.1 for a rural area, the approving officers for the area are

(a) the deputy minister to the minister charged with the administration of the Transportation Act, and

(b) approving officers appointed under subsection (2).

(2) The Lieutenant Governor in Council may appoint a person as an approving officer for a rural area referred to in subsection (1).

Appointment of treaty first nation approving officers

77.21   (1) A treaty first nation must appoint an approving officer for its treaty lands.

(2) An approving officer appointed under subsection (1) must be

(a) an official or employee of the treaty first nation, or

(b) a person who is under contract with the treaty first nation.

(3) Sections 77.1 and 77.2 do not apply to the treaty lands of a treaty first nation.

Nisa'a approving officer

77.3   (1) The Nisa'a Lisims Government must appoint an approving officer for Nisa'a Lands.

(2) The approving officer appointed under subsection (1) must be

(a) an official of the Nisa'a Lisims Government, or

(b) a person who is employed by or under contract with the Nisa'a Nation.

(3) The approving officer appointed under subsection (1) may exercise his or her powers in relation to all Nisa'a Lands, including Nisa'a Village Lands.

(4) Sections 77.1 and 77.2 do not apply to Nisa'a Lands.

Certain designations prohibited on subdivision plans

78   An approving officer must not approve, and the registrar must not accept for deposit, a plan of subdivision that designates the land subdivided as a municipality, townsite or port, or as a separate part of, or an addition to, a municipality, townsite or port.

Repealed

79   [Repealed 1997-25-33.]

Controlled access highways

80   If a plan of subdivision affects land adjacent to a controlled access highway, as designated under section 48 of the Transportation Act,

(a) the approving officer must not approve the plan if it does not conform to any applicable regulations under the Transportation Act, and

(b) an approving officer appointed under section 77, 77.1 or 77.21 must not approve the plan unless it has first been approved by the minister charged with the administration of the Transportation Act or a designated highways official.

Land in improvement districts

81   If a plan of subdivision affects land located in an improvement district under the Local Government Act, within 7 days after the plan is received by the approving officer for approval, the approving officer must notify the board of trustees of the improvement district.

Repealed

82   [Repealed 2003-72-16.]

Division 4 — Approval of Subdivision Plans

Tender of plan for examination and approval

83   (1) A subdivision plan must be tendered for examination and approval by the approving officer as follows:

(a) if the land affected is within a municipality, to the designated municipal officer;

(b) if the land affected is in the rural area of a regional district authorized to appoint an approving officer under section 77.1, to the designated regional district officer;

(c) if the land affected is in the rural area of the trust area under the Islands Trust Act and the trust council is authorized to appoint an approving officer under section 77.1, to the secretary of the trust council;

(d) in other cases, to the district highways manager of the Ministry of Transportation.

(2) The subdivision plan must be accompanied by the following:

(a) the applicable fees established under section 462 (1) (f) of the Local Government Act or under section 292 (1) (h) of the Vancouver Charter or prescribed under subsection (3) of this section;

(b) a certificate

(i) that all taxes assessed on the subdivided land have been paid, and

(ii) if local service taxes are payable by instalments, that all instalments owing at the date of the certificate have been paid;

(c) if the approving officer considers that there is reason to anticipate that the land may be resubdivided and requires this information, a sketch showing that the parcels into which the land is subdivided can conveniently be further subdivided into smaller parcels;

(d) if the approving officer requires this information, profiles of every new highway shown on the plan and such necessary topographical details as may indicate engineering problems to be dealt with in opening up the highways, including environmental impact or planning studies.

(3) The Lieutenant Governor in Council may, by regulation, prescribe fees for subdivision plan examination by a Provincial approving officer, which may vary with the number, size and type of parcels involved in the proposed subdivision.

Referral to designated highways official

83.1   (1) Unless the application of this section is excepted by order under section 77.1 (1) (c), a regional district or islands trust approving officer who receives a plan tendered under section 83 (1) (b) or (c)

(a) must refer the plan to a designated highways official for review, and

(b) must not approve the plan unless the designated highways official consents.

(2) The designated highways official may direct the approving officer to impose on the applicant specified requirements that must be met before the plan is approved or that must be conditions of approval.

(3) Requirements that may be directed under subsection (2) are

(a) requirements that the approving officer may require under this or another Act including, without limiting this, under section 83 (2) (d) of this Act or section 513 of the Local Government Act, and

(b) any other requirements that the designated highways official considers necessary to ensure that present and future highways needs can be adequately met.

(4) Without limiting the authority of an approving officer, the approving officer may impose on an applicant any requirements directed by the designated highways official under subsection (2).

(5) In determining whether or not to consent, the designated highways official is limited to considering the following:

(a) whether the plan complies with the enactments that establish requirements and standards in relation to highways;

(b) whether the highways within and leading to and beyond the subdivision are sufficient in relation to their capacity to carry traffic and their provision of access into and out of the subdivision;

(c) whether any requirements directed under subsection (2) have been satisfied.

Plan tendered later than 3 months after survey

84   (1) If a subdivision plan is tendered for examination and approval after the expiration of 3 months after the date the survey is completed, the approving officer may require the surveyor who carried out the survey to inspect the survey and

(a) satisfy himself or herself that

(i) all posts and monuments are in place, and

(ii) the survey has not been affected by an intervening survey or a registration, deposit or filing under this Act, and

(b) write on the plan "inspected under the Land Title Act", with the date of the inspection and his or her signature.

(2) The surveyor may inspect and certify under subsection (1) before the plan is tendered for approval.

(3) In the event of the death or disability of the surveyor, the Surveyor General may appoint another British Columbia land surveyor to make the inspection.

Time limit for approval and consideration of public interest

85   (1) A subdivision plan must be approved or rejected by the approving officer within 2 months after the date it is tendered for examination and approval or within another period that may be set by the Lieutenant Governor in Council.

(2) If, under subsection (1), the approving officer rejects the subdivision plan, the approving officer must forthwith notify in writing the applicant, or the solicitor or agent of the applicant, of the rejection, stating briefly the reason and the approving officer's requirements, if any.

(3) In considering an application for subdivision approval in respect of land, the approving officer may refuse to approve the subdivision plan if the approving officer considers that the deposit of the plan is against the public interest.

Environmental Management Act requirements must be met

85.1   (1) This section applies to an application for subdivision.

(2) Despite section 85, an approving officer must not approve an application referred to in subsection (1) with respect to a site where a site profile is required under section 40 of the Environmental Management Act unless at least one of the following is satisfied:

(a) the approving officer has received a site profile required under section 40 of the Environmental Management Act with respect to the site and the approving officer is not required to forward a copy of the site profile to the director under section 40 (4) (b) of that Act;

(b) the approving officer has received a site profile under section 40 of the Environmental Management Act with respect to the site, has forwarded a copy of the site profile to a director under section 40 (4) (b) of that Act and has received notice from the director that a site investigation under section 41 of that Act will not be required by the director;

(c) the approving officer has received a final determination under section 44 of the Environmental Management Act that the site is not a contaminated site;

(d) the approving officer has received notice from the director under the Environmental Management Act that the approving officer may approve an application under this section because, in the opinion of the director, the site would not present a significant threat or risk if the application were approved;

(e) the approving officer has received notice from a director under the Environmental Management Act that the director has received and accepted a notice of independent remediation with respect to the site;

(f) the approving officer has received notice from a director under the Environmental Management Act that the director has entered into a voluntary remediation agreement with respect to the site;

(g) the approving officer has received a valid and subsisting approval in principle or certificate of compliance under section 53 of the Environmental Management Act with respect to the site.

Matters to be considered by approving officer on application for approval

86   (1) Without limiting section 85 (3), in considering an application for subdivision approval, the approving officer may

(a) at the cost of the subdivider, personally examine or have an examination and report made on the subdivision,

(b) hear from all persons who, in the approving officer's opinion, are affected by the subdivision,

(c) refuse to approve the subdivision plan, if the approving officer considers that

(i) the anticipated development of the subdivision would injuriously affect the established amenities of adjoining or reasonably adjacent properties,

(ii) the plan does not comply with the provisions of this Act relating to access and the sufficiency of highway allowances shown in the plan, and with all regulations of the Lieutenant Governor in Council relating to subdivision plans,

(iii) the highways shown in the plan are not cleared, drained, constructed and surfaced to the approving officer's satisfaction, or unless, in circumstances the approving officer considers proper, security is provided in an amount and in a form acceptable to the approving officer,

(iii.1) a highway provided for in a subdivision plan or otherwise legally established on lands adjoining, lying beyond or around the land subdivided is, in the approving officer's opinion, not sufficient,

(iv) the land has inadequate drainage installations,

(v) the land is subject, or could reasonably be expected to be subject, to flooding, erosion, land slip or avalanche,

(vi) after due consideration of all available environmental impact and planning studies, the anticipated development of the subdivision would adversely affect the natural environment or the conservation of heritage property to an unacceptable level,

(vii) the cost to the government of providing public utilities or other works or services would be excessive,

(viii) the cost to the municipality or regional district of providing public utilities or other works or services would be excessive,

(ix) the subdivision is unsuited to the configuration of the land being subdivided or to the use intended, or makes impracticable future subdivision of the land within the proposed subdivision or of land adjacent to it,

(x) the anticipated development of the subdivision would unreasonably interfere with farming operations on adjoining or reasonably adjacent properties, due to inadequate buffering or separation of the development from the farm, or

(xi) despite subparagraph (ix), the extent or location of highways and highway allowances shown on the plan is such that it would unreasonably or unnecessarily increase access to agricultural land within the agricultural land reserve, as those terms are defined in the Agricultural Land Commission Act, and

(d) if the approving officer considers that the land is, or could reasonably be expected to be, subject to flooding, erosion, land slip or avalanche, the approving officer may require, as a condition of consent to an application for subdivision approval, that the subdivider do either or both of the following:

(i) provide the approving officer with a report certified by a professional engineer or geoscientist experienced in geotechnical engineering that the land may be used safely for the use intended;

(ii) enter into one or more covenants under section 219 in respect of any of the parcels that are being created by the subdivision.

(2) The Lieutenant Governor in Council may, by regulation, amend, add to, substitute or repeal any of the grounds for refusal set out in this section or in section 85 (3).

Local government matters to be considered by approving officer

87   Without limiting section 85 (3), the approving officer may refuse to approve a subdivision plan if the approving officer considers that the subdivision does not conform to the following:

(a) all applicable provisions of the Local Government Act;

(b) all applicable municipal, regional district and improvement district bylaws regulating the subdivision of land and zoning;

(c) if the land affected is within the trust area under the Islands Trust Act, all applicable local trust committee bylaws regulating the subdivision of land and zoning.

Approval of plan

88   On the approval of a plan, the approving officer must write on it "Approved under the Land Title Act" with the date of approval and must sign it and append below his or her signature the title

Approving Officer for

.........................................................................
(municipal, or as the case may be)

.........................................................................
(name of municipality, or as the case may be).

Appeal to Supreme Court

89   (1) If a subdivision plan is rejected by the approving officer, or if the approving officer has failed within the time limit set out in section 85 to approve a subdivision plan, the subdivider may make an application in the nature of an appeal to the Supreme Court

(a) within one month after receiving the approving officer's rejection, or

(b) if the subdivision plan has not been approved within the time limit set out in section 85, within one month after the expiration of that time.

(2) The court may, on application made within the time limit for appeal under subsection (1) and on the terms it thinks proper, extend the time for appeal for a period not exceeding one month.

(3) The application must be supported by an affidavit of the subdivider or the subdivider's solicitor or agent, stating fully and fairly all the material facts of the case, and that to the best of his or her information, knowledge and belief all facts material to the application for approval have been fully and fairly disclosed.

(4) The appellant must serve a copy of the application on the approving officer, together with copies of all material and exhibits proposed to be used on the hearing.

(5) At least 10 days' notice must be given of the time and place of hearing, and at that time and place all interested persons, whether or not served with the application, may appear and be heard.

(6) The court may make any order it considers proper as to the notification of other persons of the hearing.

(7) On the hearing of the application, the court may make any order

(a) that the circumstances of the case require, including a direction that the approving officer approve the plan, if otherwise in order, and

(b) with respect to the costs of the persons appearing on the hearing of the application as appears just.

(8) If the approving officer is directed by the order to approve the plan, the approving officer must note on it "Approved under the Land Title Act pursuant to the order of .............., made ................", with the date of approval, and must append below his or her signature his or her title in the manner provided in section 88.

(9) This section applies to the nonapproval or refusal to grant approval of an application under section 101.

Power of Lieutenant Governor in Council to prohibit deposit of plan

90   (1) The Lieutenant Governor in Council may, when it appears that the deposit of a subdivision plan is against the public interest, order the registrar not to receive the plan for deposit.

(2) Subsection (1) applies whether or not the subdivision has been approved and despite the right of appeal under section 89.

Division 5 — Deposit of Subdivision Plans

Approval of subdivision plan required

91   (1) A subdivision or reference plan must not be deposited by the registrar unless it has first been approved by the approving officer.

(2) Subsection (1) does not apply

(a) if, under section 94, the plan only consolidates into a single parcel lawfully accreted land and another parcel, or

(b) subject to section 99 (2), to a reference plan deposited under section 99 (1) (e), (f), (g), (h) and (j), or 100.

Application for deposit

92   (1) An application to deposit a subdivision plan must be

(a) in the form approved by the director,

(b) accompanied by

(i) the subdivision plan and the reproductions required by section 67 (s), and

(ii) the duplicate indefeasible title, if any, and if it is not on deposit in the land title office, and

(c) tendered for deposit to the registrar within 2 months or any other period that may be prescribed after it has been approved by the approving officer, or within a further time the registrar, on application made to the registrar before the expiration of the 2 months or the other period prescribed, may allow for sufficient cause.

(2) If the application and plan are not tendered to the registrar within the time allowed, the approval of the plan is deemed to have been revoked.

Title to land in plan required to be registered

93   (1) Except if a subdivider is proceeding under

(a) section 94,

(b) Part 9, in respect of a highway, or

(c) section 58 or 80 of the Land Act,

a plan must not be deposited by the registrar unless the title to all the land included in the plan and subdivided by it is registered in the indefeasible fees register.

(2) The registrar may, in his or her discretion, refuse to deposit a plan covering land held under more than one title if the registrar considers that confusion as to title of parcels may result.

Endorsement of certificate

94   (1) Despite the Land Act, if a plan to be tendered for deposit in the land title office

(a) includes land that adjoins Crown land and that has lawfully accreted to the land being subdivided, or

(b) shows a water boundary that differs from the water boundary shown on the plan already on deposit on which the present title is based,

the Surveyor General may, if in the Surveyor General's opinion it is in the public interest to do so, endorse on the plan a certificate

(c) that the land in question is lawfully accreted land, or

(d) that the water boundary is the natural boundary as defined in the Land Act.

(2) The Surveyor General must not certify a plan under subsection (1) unless the Surveyor General is satisfied that

(a) the land in question has lawfully accreted to the registered land of the subdivider, or

(b) the water boundary shown on the plan is in fact the correct water boundary, and the water boundary as shown on the plan already on deposit on which the present title is based was incorrectly shown on that plan due to lack of detail or sufficient detail, or other good reason.

(3) An application to the Surveyor General for endorsement under subsection (1) must be accompanied by the fees payable under this Act.

Accreted land within plan

95   (1) If a subdivision or reference plan is tendered for deposit, and endorsed on it is a certificate of the Surveyor General certifying that all or part of land intended to be dealt with by the plan is lawfully accreted land adjoining Crown land, the certificate is deemed to be proof satisfactory to the registrar that

(a) the registered owner, purporting to include in the plan the accreted land, has established to it a good safe holding and marketable title in fee simple, and

(b) the subdivider's indefeasible title to the land included in the boundaries of the plan and affected by the accretion is the registered title to the accreted land.

(2) If the indefeasible title is endorsed with a registered charge, the charge is extended to include the accreted land.

Water boundary deemed to be natural boundary

96   (1) If a subdivision or reference plan is tendered for deposit, and endorsed on it is a certificate of the Surveyor General certifying that the water boundary shown on the plan is the natural boundary, as defined in the Land Act, of the land shown outlined in accordance with the rules made under section 385 (5) or, if the plan is in electronic format, outlined in the manner established by the director, then, on the deposit of the plan, and even though the water boundary does not agree with the natural boundary shown on a plan already on deposit in the land title office due to a lack of sufficient detail on the deposited plan or other good reason, the certificate is deemed to be proof satisfactory to the registrar that

(a) the registered owner, purporting to include in the plan tendered for deposit the area comprising the subject matter of the discrepancy, has established to the area a good safe holding and marketable title in fee simple, and

(b) the subdivider's indefeasible title to the land adjoining the area and included in the boundaries of the plan tendered for deposit is the registered title to the area.

(2) If the indefeasible title is endorsed with a registered charge, the charge is extended to include in it the area referred to in subsection (1).

Signatures of owners to plan

97   (1) A subdivision plan must be signed by each owner of the land subdivided.

(2) All the signatures to the plan must be witnessed in the same manner as is required by section 72 (2).

(3) The registrar may accept a plan that has not been signed by all the owners if, in the registrar's opinion, the interests of the owners who have not signed are not affected by the deposit of the plan.

(4) If an owner of a charge, other than a charge by way of mortgage, lease, agreement for sale or subagreement for sale, fails or refuses to sign the plan, the owners in fee simple may apply to the registrar 30 days after serving that owner with notice of an application to be made under subsection (5).

(5) On application made after the 30 days referred to in subsection (4), the registrar may issue an appointment for the hearing of all interested parties, and on the return of the appointment may

(a) hear all interested parties or their agents,

(b) adjourn the hearing of the application on terms the registrar considers proper,

(c) award costs the registrar considers just to the applicant or to any other person interested in the application, and order by whom the costs must be paid, and

(d) grant or refuse all or part of the application, or on conditions the registrar considers proper.

(6) A person dissatisfied with an order made under subsection (5) may

(a) require the registrar forthwith to provide written reasons, and

(b) within 21 days after receiving the registrar's reasons, apply to the Supreme Court by way of appeal from the registrar's decision.

(7) Sections 309 and 310 apply in respect of the application to the court and the proceedings on it.

(8) The deposit of a plan pursuant to an order of the registrar or court made under this section has the same effect in all respects as if the plan had been signed, without prejudice however, except as to a highway, park or public square included in the plan, to a condition, exception, reservation, charge, lien or interest to which the registered title to the subdivided land is subject.

New indefeasible titles for parcels shown on deposited plan

98   (1) The registrar must examine the application and plan, and any supporting instrument produced and, if satisfied that they are in order and in compliance with all the requirements of this Act, must deposit the plan under the serial deposit number assigned to the plan on its receipt and register new indefeasible titles for the parcels shown on the plan as may be necessary.

(2) If a new indefeasible title is registered, the former indefeasible title must be cancelled in the manner provided for in section 189.

(3) If a new indefeasible title is registered, a print of the plan must be transmitted to the appropriate taxing authorities.

(4) Concurrently with the tender of the plan, an application may be made to the registrar to register an instrument dealing with any parcel included in the plan, and reference in the instrument to the plan and parcel must be in the manner required by the registrar.

Division 6 — Other Methods of Defining New Parcels

Registrar to determine whether description of land acceptable

99   (1) The registrar may accept

(a) a metes and bounds description or an abbreviated description, with or without a reference plan or an explanatory plan, or

(b) a reference plan or an explanatory plan, with or without a metes and bounds description

in any of the following cases:

(c) if a new parcel is created by the subdivision of an existing parcel shown on a deposited subdivision plan;

(d) if the new parcel is created for the purpose of adding it to an already existing adjoining parcel in the same subdivision plan, in which case the new parcel is deemed to be an integral portion of the parcel to which the new parcel is added;

(e) if an easement, restrictive covenant, covenant under section 219 or a statutory right of way is being created;

(f) if a parcel is being transferred to the Crown or other transferee for highway purposes;

(g) if there is a statutory right to acquire compulsorily a parcel smaller than the registered parcel;

(h) if a parcel is being transferred, leased or donated for public purposes to

(i) the Crown, including a Crown agency,

(ii) a municipality, regional district or improvement district,

(iii) a public body exercising public functions over the area in which the land is located, or

(iv) a person designated by the minister under section 219 (3) (c);

(i) if the registrar is satisfied that

(i) the creation of the new parcel is to provide for an isolated transaction and is not a step in a progressive subdivision, and

(ii) due to the previous legal establishment of sufficient highways in accordance with section 75, the acceptance of the description or the deposit of the plan is not against the public interest;

(j) if a new parcel is being created for a lease for well site or access roadway or both well site and access roadway purposes under the Oil and Gas Activities Act;

(k) if a new parcel is being created for a lease other than a lease referred to in paragraph (j).

(2) The registrar, before exercising his or her discretion in respect of the matters covered by subsection (1) (c), (d), (f), (h) (iv), (i) or (k), must require the applicant to provide satisfactory evidence that the approving officer has granted approval of the subdivision but in the case of a transfer under subsection (1) (f), approval is required only if the land is in a rural area.

(3) In the case of a lease of all or part of a building, the registrar may, on the ground of hardship or economic loss, accept a sketch plan with or without a metes and bounds description or abbreviated description.

Re-establishment of boundaries

100   (1) The registrar may accept

(a) a reference plan without an accompanying description, if a resurvey or survey of an existing parcel is made for the purpose of re-establishing the boundaries of the parcel in accordance with the registered title, and

(b) despite section 158 (1), a reference or an explanatory plan without an accompanying description, if a new parcel is created by the consolidation of adjoining surveyed parcels.

(2) Section 98 applies to the deposit of a reference plan or an explanatory plan under this section.

(3) Sections 75 and 91 do not apply to a survey, resurvey or consolidation under this section.

(4) A reference plan or an explanatory plan tendered for deposit under this section must be accompanied by

(a) an application in the form approved by the director signed by the owner in fee simple or that owner's agent and consented to by each holder of a registered charge, and

(b) the duplicate indefeasible title, if any.

(5) If there is a consolidation of surveyed parcels, a consent referred to in subsection (4) (a) on the application and given by the holder of a mortgage granted by the owner of the fee simple operates, on the deposit of the plan, to extend the mortgage registered against the title to the surveyed parcel so as to coincide with the boundaries of the new parcel as shown on the reference or explanatory plan.

Principles guiding approving officer

101   (1) In considering an application for approval of a subdivision under section 99, the approving officer must be guided by the principles and requirements set out in this Act applicable to the examination of subdivisions made by subdivision plan.

(2) An application for approval must be accompanied by the prescribed fee.

(3) If the approving officer refuses to grant approval, or if approval is not granted within 2 months after the date the application is tendered to the approving officer for approval, the owner of the land is entitled to make an application in the nature of an appeal to the Supreme Court in the same manner as is provided in section 89 for the nonapproval or rejection of a subdivision plan.

Dedication by reference or explanatory plan

102   (1) If the Crown is the registered owner of a parcel free from encumbrances, and intends to establish all or part of the parcel as a highway, the Crown may deposit a reference plan showing the area intended to become a highway.

(2) The registrar may, if the intended establishment under subsection (1) is being effected primarily for the clarification of the records, accept an explanatory plan instead of a reference plan.

(3) The reference plan or explanatory plan must be

(a) signed by the Surveyor General, and

(b) unless the highway has been previously established by notice in the Gazette, approved by a designated highways official.

(4) The deposit of the reference plan or explanatory plan by the registrar operates as a dedication by the Crown to the public of the land shown on the reference or explanatory plan as a highway.

(5) The registrar must accordingly amend or cancel, as the case may be, the existing indefeasible title, and the land ceases to be registered under this Act.

(6) This section applies if the Crown is a registered owner under section 278.

Execution of plan by owner

103   Unless the application of this section is dispensed with by the registrar, a reference or an explanatory plan must be

(a) signed by each owner of the land dealt with by the plan, and

(b) witnessed in the same manner as is required by section 72 (2).

Serial deposit number

104   The registrar must assign a serial number to each reference or explanatory plan deposited by the registrar.

Division 7 — Conflicting Measurements

Power of registrar if measurements on plans conflict

105   (1) The registrar may

(a) refuse to accept a plan tendered for deposit, the measurements of which do not correspond with the measurements shown on a plan already on deposit covering all or part of the same land or having a common boundary with the plan being tendered,

(b) refer a plan to the Surveyor General for the Surveyor General's report, or

(c) order

(i) a new survey, or

(ii) that all other necessary steps be taken to ascertain the true measurements.

(2) This section does not apply to a posting plan.

Power of registrar to correct errors, defects or omissions

106   (1) If it appears to the registrar, on the filing of satisfactory evidence, including a plan or other instrument the registrar may require, that there is an error, defect or omission in a deposited plan, the registrar may correct the plan.

(2) The registrar must make an appropriate note of the correction on the plan and in the register following the description of the land.

(3) If a plan has been microfilmed, the registrar must, as far as practicable, make the correction on the plan and update the microfilm copy.

Division 8 — Vesting of Title by Deposit of Plan

Dedication and vesting

107   (1) The deposit of a subdivision, reference or explanatory plan showing a portion of the land

(a) as a highway, park or public square, that is not designated on the plan to be of a private nature, or

(b) as covered by water and as lying immediately adjacent to a lake, river, stream or other body of water not within the land covered by the plan, and designated on the plan to be returned to the government,

operates

(c) as an immediate and conclusive dedication by the owner to the public of that portion of land shown as a highway, park or public square, or to be returned to the government, for the purpose indicated on or to be inferred from the words or markings on the plan,

(d) to vest in the Crown in right of the Province, subject to any other enactment, title to the highway, park or public square, or to the portion to be returned to the government, except any of the following that are registered in the name of a person other than the owner:

(i) minerals and placer minerals as defined in the Mineral Tenure Act;

(ii) coal;

(iii) petroleum as defined in the Petroleum and Natural Gas Act;

(iv) gas or gases, and

(e) to extinguish the owner's common law property, if any, in the portion of land referred to in subsection (1) (a) or (b).

(2) If the Crown in right of Canada, in trust for a band, as defined in the Indian Act (Canada), is the owner of the subdivided land, the Lieutenant Governor in Council may limit, in whole or in part, and subject to the terms and conditions the Lieutenant Governor in Council considers necessary, the operation of subsection (1).

(3) An indefeasible title must not be registered for a highway, park or public square dedicated and vested under this section.

(4) A public street, road, square, lane, bridge or other highway that vests in the City of New Westminster under section 204 of the New Westminster Act, 1888 vests subject to the exceptions referred to in subsection (1) (d) of this section.

If designation on plan "Returned to Crown in right of the Province"

108   (1) Except as provided in section 107 (1), if, on the subdivision of land, a subdivision or reference plan is deposited in the land title office, and a portion of the land subdivided is designated on the plan "Returned to Crown in right of the Province", the deposit of the plan is deemed to be a transfer in fee simple by the registered owner in favour of the government.

(2) If the subdivided area shown in and included in a subdivision or reference plan deposited in the land title office before or after this section comes into force adjoins land covered by water, and the land is included in the subdivider's indefeasible title and adjoins land the title to which is vested in the Crown in right of the Province, the deposit is deemed to be a transfer in fee simple of the first mentioned land to the government, and the title of the registered owner to the first mentioned land covered by water is deemed to be extinguished.

(3) Subsection (2) does not apply to land that has been exempted from the application of that subsection by order of the minister, subject to any terms or conditions contained in the exemption order.

(3.1) The minister may delegate to the Surveyor General the minister's powers and duties under subsection (3).

(4) A certified copy of an order under subsection (3) must be filed with the deposit of the plan, and the registrar must make a note of the order in the records in the manner required by the director.

(5) An application to the minister for an exemption under subsection (3) must be accompanied by the prescribed fee.

(5.1) Subject to any terms or conditions the Lieutenant Governor in Council considers appropriate, the Lieutenant Governor in Council may order retroactively that subsection (2) did not operate on one or more occasions in respect of land identified in the order, if, in the opinion of the Lieutenant Governor in Council, one or both of the following apply:

(a) it is desirable to clarify title to land because of uncertainty about the operation of subsection (2);

(b) the operation of subsection (2) is inappropriate or unfair because a person, including a registered owner, as a result of a belief that the registered owner had title to land,

(i) has incurred costs in the past,

(ii) is likely to suffer loss in the future, or

(iii) is otherwise prejudiced.

(5.2) Subject to the terms and conditions provided for by the Lieutenant Governor in Council and to subsection (5.4), an order under subsection (5.1) is retroactive for all purposes and, without limitation, has the following retroactive effects:

(a) the land referred to in the order is conclusively deemed not to have been transferred in fee simple to the government under subsection (2) on any occasion identified in the order;

(b) the title of the registered owner at the time of an occasion identified in the order is conclusively deemed not to have been extinguished under subsection (2).

(5.3) The registrar must make a note of an order under subsection (5.1) in the records in the manner required by the director on receipt of the following:

(a) a certified copy of the order;

(b) if required by the registrar, a certificate from the minister stating that all terms and conditions in the order have been satisfied;

(c) any other filings required by the registrar.

(5.4) An order under subsection (5.1) only has effect if the registrar has made a note of it under subsection (5.3).

(6) A transfer under subsection (1) or (2) is deemed to include the mines and minerals except if the title to them is registered in the name of an owner not required to sign a subdivision or reference plan.

(7) An indefeasible title must not be registered for land transferred under subsections (1) and (2).

Extinguishment of highway not shown on plan

109   (1) For the purpose of this section, "highway" means a highway located in a rural area and discontinued and closed by notice published in the Gazette, but does not include a highway dedicated by the deposit under this Act or the former Act of a subdivision or reference plan.

(2) The deposit by the registrar of a subdivision or reference plan that has been approved by a designated highways official

(a) extinguishes a highway in the plan that adjoins on both its sides land the title to which is registered in the name of the subdivider,

(b) vests the title to the highway extinguished in the owner of the land covered by the plan without a further instrument of transfer, and

(c) if the title to the land covered by the plan is subject to a registered charge, extends the charge to include the land covered by the highway extinguished.

Division 9

Repealed

110   [Repealed 2018-37-15.]

Division 10 — Penalties If Plan Not Deposited

Rights of purchaser when plan not deposited

111   (1) In this section, "contract" includes a transfer.

(2) If a person sells or transfers or agrees to sell or transfer a parcel purporting to be described according to a plan of subdivision before the plan has been deposited under this Act, a purchaser or transferee, or a person claiming under either, who has purchased or accepted delivery of a transfer without knowledge of the nondeposit of the plan, or of the necessity for its deposit, may at his or her option, on acquiring knowledge of it, rescind the contract of purchase and recover

(a) all money paid under it, with lawful interest, and

(b) all taxes paid and other expenses incurred in consequence of the purchase, with lawful interest.

(3) If the contract is rescinded, the purchaser, transferee or other person has a lien for all sums referred to in subsection (2) on the land of the vendor included in the plan of subdivision.

(4) Despite subsections (2) and (3), if the purchaser does not exercise the right to rescind, the vendor remains bound.

(5) Liens created under this section rank equally.

Penalty for failure to deposit plan of subdivision

112   (1) A person who has subdivided land and unreasonably neglects or refuses, after service on him or her of a written demand by a purchaser or other person who has acquired an interest in the land, to deposit the plan of subdivision under this Act within 2 months after service of the demand, must pay to the purchaser or other person a penalty of $500 for each month the neglect or refusal continues.

(2) The penalty may be recovered by the purchaser or other person referred to in subsection (1) in any court in the same manner as a debt.

Division 11 — Statutory Right of Way Plans

Deposit

113   (1) For the purpose of this section, "person" means a person referred to in section 218 (1) (a), (b) or (d) as grantee.

(2) A statutory right of way must not be registered unless a statutory right of way plan is deposited with the registrar or its deposit is dispensed with by the registrar on the ground of hardship or economic loss.

(3) A plan tendered under subsection (2) must

(a) include in its title, if applicable, a reference to the enactment authorizing the acquisition of the statutory right of way, and

(b) comply with section 116 and the rules respecting surveys and plans made under section 385 (5) for the purposes of this section.

(4) The person entitled to the statutory right of way may apply for its registration concurrently with the tendering of the plan or after its deposit.

(5) The registrar must examine the plan and, if satisfied that it complies with this Division, assign to the plan a serial deposit number.

(6) Subject to a contrary enactment, the deposit of a statutory right of way plan unaccompanied by an instrument of grant does not confer an interest in the land affected but if the part of the register relating to the land is stored by electronic means, the registrar must make a note of it in the register against the indefeasible title.

(7) After a plan has been deposited in the land title office, an instrument affecting the land included in the plan must conform to the plan and contain a reference to its deposit number, unless those requirements are dispensed with by the registrar.

Statutory right of way plan may be used in application to register fee simple

114   (1) The registrar may allow a person to use and deposit a statutory right of way plan, instead of a reference plan, if all the following requirements are met:

(a) the registrar is satisfied that the nature of the person's undertaking requires the acquisition of a title in fee simple to the land included within the statutory right of way plan;

(b) the plan is approved by the approving officer in the manner required under this Act for a subdivision plan;

(c) in the case of a plan that establishes a highway, approval of the plan has received the consent of a designated highways official under section 83.1, unless that section does not apply by reason of an order under section 77.1 (1) (c);

(d) the plan complies with this Part and the applicable rules respecting surveys and plans made under section 385 (5).

(2) Subsection (1) (b) and (c) does not apply to a person having a statutory right to acquire compulsorily a parcel smaller than the registered parcel.

(3) If the statutory right of way plan has been deposited before an application for title in fee simple, the approval required by subsection (1) (b) and the consent required by subsection (1) (c) may be given in a separate document of the approving officer, instead of being written on the plan.

Deposit of statutory right of way plan

115   (1) The minister charged with the administration of the Transportation Act may apply to the registrar to deposit a statutory right of way plan in respect of land acquired for a highway, and the registrar, if satisfied that the application and plan are in order, must assign to the plan a serial deposit number.

(2) Concurrently with or following the deposit of the statutory right of way plan, the minister charged with the administration of the Transportation Act may file with the registrar a certificate in the form approved by the director certifying that all or part of the land in the statutory right of way plan has been established as a highway and the title vested in the government under section 57 of the Transportation Act or in the BC Transportation Financing Authority under section 58 of that Act, as the case may be.

(3) On the filing of the notice, the registrar must amend the records accordingly.

(4) After complying with subsection (3), the registrar must send a notice in the form approved by the director to the registered owner.

(5) An indefeasible title must not be registered for the land described in the notice but, on compliance with subsection (4), the title to that land ceases to be registered under this Act.

(6) This section applies to plans deposited by the minister charged with the administration of the Transportation Act under this or the former Act but subsections (3) and (4) apply only insofar as the state of business in the land title office makes it possible for the registrar to comply with those subsections.

Requirements of statutory right of way plans

116   (1) A statutory right of way plan tendered to the registrar for deposit under section 113 must, in addition, comply with the following requirements:

(a) the area taken from each section, district lot or parcel, as the case may be, must be shown on the plan;

(b) the boundary lines of each section, district lot or parcel affected by the plan must be shown according to the original survey, and there must also be shown a sufficient number of angular and linear measurements to define the limits of the statutory right of way and to show their connection with each section, district lot or parcel through which the statutory right of way passes;

(c) if the statutory right of way is through land that has been subdivided and shown on any deposited plan, the plan must show distinctly, as to all registered parcels affected by the statutory right of way, the boundaries and designation of each parcel according to the deposited plan, and a sufficient number of angular and linear measurements to show the location and connection of the statutory right of way with each registered parcel and subdivision affected;

(d) except as provided in section 117, the centre line from which measurements to the limits of the statutory right of way are shown must be referenced on the ground by iron posts or equally permanent monuments, so placed as to identify the points of deflection from all tangents, and the plan must show, by angular and linear measurements, the relation of all corners of the land within the statutory right of way plan to those iron posts or monuments;

(e) if transition curves are used on the located centre line of the statutory right of way, they must be replaced in each case on the plan tendered for deposit by a simple curve tangential to the main tangent and compounded with the main curve at its junction with the transition curve, and the simple curve must then be called a terminal curve;

(f) if the limits of the statutory right of way are governed by a circular curve on the centre line, they must be circular curves concentric with and at the appropriate radial distance from the governing centre line curve;

(g) if the limits of the statutory right of way are governed by a transition curve on the centre line, they must be formed by a series of straight lines connecting points at the appropriate distances from the centre line, measured along the radii, or radii produced, or along the line bisecting the angle between contiguous chords of the transition curve, as the case may be.

(2) If there is a statutory right of way through unsurveyed Crown land, it is acceptable to the registrar if a sufficient number of angular and linear measurements are shown on the statutory right of way plan to define the limits of the land affected by the statutory right of way.

Widening of statutory right of way

117   If a statutory right of way

(a) is contiguous to and parallel to a surveyed boundary, or

(b) is shown on a posted statutory right of way plan on deposit, and the statutory right of way is to be widened by the addition of a parallel contiguous strip,

the registrar may, if the application for the registration of the title to the statutory right of way comprising the strip is by way of a charge, accept, instead of a statutory right of way plan, an explanatory plan with no accompanying description.

When water boundary deemed natural boundary

118   (1) If a statutory right of way plan tendered for deposit has endorsed on it a certificate of the Surveyor General certifying that

(a) the water boundary, as shown on the statutory right of way plan, deemed to be the natural boundary, as defined in the Land Act, of the land included within the statutory right of way plan, and

(b) a designated area within the statutory right of way plan, not included in the title of the registered owner to be affected by the deposit of the statutory right of way plan, is incorporated in the registered owner's title,

on the deposit of the statutory right of way plan, and even if

(c) the water boundary shown on the plan does not agree with the natural boundary shown on a plan already on deposit in the land title office, and

(d) the area designated is not included in the registered owner's title,

the certificate is conclusive evidence that

(e) the registered owner has established a good safe holding and marketable title in fee simple to the designated area, and

(f) that the registered owner's indefeasible title to the land adjoining that area is the registered title to that area.

(2) If an indefeasible title under subsection (1) is endorsed with a registered charge, on the deposit of the statutory right of way plan, the charge is extended to include the area referred to in subsection (1).

(3) The registrar, after notice accompanied by a copy of the plan to all affected registered owners, must amend the records accordingly.

(4) The indefeasible title under subsection (1) must be amended by adding to the legal description of the land "including the area designated on SRW Plan No. ...........", followed by the date and the registrar's initials.

(5) The duplicate indefeasible title, if any, and if not on deposit, must be delivered to the registrar, who must return it to the holder after making the necessary amendments.

(6) On amendment of the existing indefeasible title as provided in subsection (4), the registrar may register a new indefeasible title in the name of the registered owner that incorporates the substance of the amendment.

(7) An application under this section for endorsement by the Surveyor General must be accompanied by the fees payable under this Act.

Alteration in deposited statutory right of way plan

119   (1) If an alteration in a deposited statutory right of way plan is necessary to define a subsequently acquired area, the registrar may

(a) authorize the deposit of a supplemental plan prepared by a British Columbia land surveyor showing the alteration, and

(b) if satisfied the supplemental plan is in order, assign to it a serial deposit number and cross reference it with the original statutory right of way plan.

(2) Section 113 (6) applies to a supplemental plan deposited under this section.

Division 12 — Plans and Descriptions to Accompany Bylaws

Municipal bylaw cancelling highway or public square dedication

120   (1) A municipal bylaw cancelling the dedication of all or part of a highway or public square must be filed in the land title office.

(2) In relation to a bylaw under subsection (1), the registrar may accept a reference plan, or an explanatory plan, or a description by apt descriptive words.

(3) On the filing of a bylaw cancelling the dedication of all or part of a highway, the registrar must register the indefeasible title of the property in the name of the municipality, subject to the reservations and exceptions provided in section 50 of the Land Act and section 35 [ownership and possession of highways] of the Community Charter, as if the vesting were made by Crown grant under the Land Act.

Part 8 — Cancellation of Plans

Definitions and interpretation

121   (1) In this Part:

"arterial highway" has the same meaning as in section 1 of the Transportation Act;

"local authority",

(a) in relation to land in a municipality, means the municipal council,

(b) in relation to land not in a municipality, means the regional board of a regional district, and

(c) in relation to land in a local trust area, means the local trust committee;

"local trust area" and "local trust committee" have the same meanings as in the Islands Trust Act;

"party" means a person who has filed a notice of intention to appear at the hearing of a petition, in compliance with section 127, and includes the petitioner;

"plan" means a subdivision plan, reference plan or air space plan deposited in the land title office;

"public area" means an area dedicated as a highway, park or public square under this Act or the former Act;

"registrar" includes a person appointed by the director under subsection (2).

(2) The director may appoint a person other than the registrar to exercise and perform all or some of the powers and duties of the registrar under this Part.

Cancellation of plans by application to the registrar

122   (1) By order of the registrar, a plan may be cancelled

(a) in whole, on petition by the owner of all the parcels in the plan, or

(b) in part, on petition by the owner of a parcel in the plan.

(2) The registrar must not make an order cancelling or altering the boundaries of all or part of a public area

(a) unless the public area is in the plan and is adjacent to a parcel that is owned by the petitioner and is in the plan, or

(b) for which a certificate has been filed under section 132 or 133.

Petition to cancel plan

123   (1) A petition under this Part must be

(a) made by an owner referred to in section 122 (1),

(b) addressed to and filed with the registrar,

(c) signed by the owner, and

(d) verified by affidavit of a signatory to the petition.

(2) The petition must include all of the following information:

(a) the date of deposit of the plan in the land title office, the plan's number and a description of the land within the plan;

(b) the name of the regional district in which the land is located and, if the land is also located in a municipality, the name of the municipality;

(c) whether or not the land is in a local trust area and, if so, the name or identity of the local trust area;

(d) whether the petitioner seeks cancellation of the plan in whole or in part, and, if in part, a description of the public areas and parcels within the plan that are affected by the petition;

(e) the name, occupation and address of the petitioner and a description of the land owned by the petitioner;

(f) the name, occupation and address of all freehold owners of parcels within the plan and a description of the parcels owned by them;

(g) the name, occupation and address of all charge owners, a description of the charges and of the parcels charged;

(h) if the petitioner was the owner of all the parcels in the plan at the time it was deposited in the land title office, a statement to that effect together with a summary of the record verifying the statement;

(i) the facts on which the petitioner relies in support of the petition and a description of the order petitioned for.

(3) The petition must contain a notice that any person who wishes to make a submission at the hearing of the petition must file with the registrar, before the date set for the hearing, a notice of intention to appear.

(4) A print of the plan showing, to the satisfaction of the registrar, the land referred to in the petition must be annexed as a schedule to the petition.

Report of approving officer and district highways manager

124   (1) Unless the registrar otherwise orders, before the date set for the hearing of the petition, the petitioner must file with the registrar a report of the approving officer that contains all of the following information:

(a) whether any part of a public area affected by the petition is an arterial highway;

(b) the approving officer's opinion as to whether, if the petition is granted, the plan referred to in the petition will comply with

(i) the applicable subdivision and zoning bylaws, and

(ii) the requirements of section 75;

(c) other information that the approving officer considers material to the petition.

(2) If any part of a public area affected by the petition is a highway in a rural area or an arterial highway in a municipality, before the date set for the hearing of the petition, the petitioner must file with the registrar a report of the district highways manager of the Ministry of Transportation.

(3) A request for a report required under this section must be made in writing to

(a) the approving officer, in the case of a report under subsection (1), or

(b) the district highways manager of the Ministry of Transportation, in the case of a report under subsection (2),

and must be accompanied by a copy of the petition and a print of the plan annexed as a schedule to the petition.

(4) Within 60 days after receiving a request referred to in subsection (3), the approving officer or district highways manager, as applicable, must deliver the report to the petitioner.

Service of petition and other documents

125   (1) On receiving a petition under this Part, the registrar, by order, must set a date, time and place for the hearing of the petition.

(2) At least 6 weeks before the date set for the hearing, the petitioner must serve a copy of the petition and a notice of hearing on the following persons:

(a) if the land affected by the petition is in a municipality, the municipality;

(b) if the land affected by the petition is in a local trust area, the person appointed under section 17 (1) (a) of the Islands Trust Act as secretary to the Islands Trust Council;

(c) if the land affected by the petition is not in a municipality, the deputy minister to the minister charged with the administration of the Transportation Act and the regional district where the land is located;

(d) if the land affected by the petition is a part of an arterial highway, the deputy minister to the minister charged with the administration of the Transportation Act;

(e) the deputy minister to the minister charged with the administration of the Park Act;

(f) every owner of a parcel or charge on a parcel in the plan affected by the petition;

(g) every other person who, in the opinion of the registrar, might be affected by the petition.

(3) Unless the registrar orders otherwise, as soon as practicable after the report of the approving officer under section 124 (1) or the report of the district highways manager under section 124 (2) has been filed, the petitioner must serve it on the persons referred to in subsection (2) of this section.

(4) Section 315 (1) applies to the service of documents under this section.

Publication and posting

126   The registrar may order a petitioner to do one or both of the following:

(a) publish a notice of the petition and of the date, time and place of the hearing in the Gazette and in a newspaper circulating in the area of the land affected by the petition at least 2 weeks before the hearing date;

(b) post the petition and any other documents, for 4 consecutive weeks before the date set for the hearing, at one or more of the following places:

(i) a conspicuous place on the land affected by the petition;

(ii) if the land affected by the petition is in a municipality, the municipal hall;

(iii) if the land affected by the petition is not in a municipality, a nearby court house or other Provincial government building or in a nearby post office, with the permission of the person in charge.

Notice of intention to appear

127   (1) On filing with the registrar a notice of intention to appear, any person whose land might be affected by a petition under this Part may become a party to the proceeding initiated by the petition.

(2) The notice under subsection (1) must contain the following:

(a) the name of the person filing the notice and an address for service;

(b) a description of the land owned by the person and the manner in which the land is affected by the petition;

(c) a summary of the argument and evidence the person intends to submit at the hearing.

(3) A person who files a notice under this section must serve a copy of the notice on the petitioner, on any other parties and on any other persons on whom service is required under section 125.

(4) A notice under this section may be filed at any time before the date set for the hearing.

(5) The petitioner and any party is entitled to be heard, to call and examine witnesses and to submit argument and evidence at the hearing of the petition.

Place of hearing

128   The hearing of a petition is to be held in the city where the land title office is.

Powers of registrar in relation to the hearing

129   In the same manner as a judge of the Supreme Court under the Supreme Court Civil Rules, the registrar may

(a) hear the petitioner and the parties and the witnesses called by any of them,

(b) order the discovery of documents,

(c) exercise any of the powers under section 382 in connection with the proceeding initiated by the petition,

(d) inspect the land covered by the plan referred to in the petition,

(e) adjourn the hearing of the petition on terms that the registrar considers proper,

(f) award to the petitioner or a party costs the registrar considers just and order by whom the costs must be paid, and

(g) give directions that the registrar considers appropriate.

Duties of registrar on hearing the petition

130   In the same manner as a judge of the Supreme Court under the Supreme Court Civil Rules, the registrar, on hearing the petition, must

(a) consider whether or not there is sufficient cause connected with the dedication of any public area affected by the petition to continue the dedication over all or any part of the public area,

(b) as far as possible,

(i) protect existing utilities and assure anticipated utilities,

(ii) assure the rights of adjoining owners as to entry and exit, whether of a public or private nature, and

(iii) consider whether or not an easement, statutory right of way or other interest needs to be created, enlarged or extended, and

(c) permit any party to call, examine and cross examine witnesses and, without limitation, to examine or cross examine an approving officer on matters relating to the contents or sufficiency of his or her report.

Powers of the registrar to cancel or alter a plan

131   (1) Subject to sections 132 (3) and 133 (3), the registrar, by order after hearing a petition under this Part, may do one or more of the following:

(a) cancel or alter or refuse to cancel or alter

(i) the plan referred to in the petition, or

(ii) a public area

or any part of either of them;

(b) in the circumstances described in section 135, consolidate into a single parcel

(i) land that ceases to be a public area, and

(ii) land of the petitioner;

(c) direct that any land that ceases to be a public area be consolidated into a single parcel with land of the petitioner, as a condition of registering a transfer from the Crown to the petitioner of the land that ceased to be a public area;

(d) extend any charge or encumbrance registered against a parcel in the plan affected by the petition over other land in the plan and direct that the charge or encumbrance, as extended, vest in the owner of the charge or encumbrance;

(e) register in the name of the Crown in right of British Columbia an indefeasible fee simple title to any land that ceases to be a public area and direct that the title be encumbered by any easement, statutory right of way or other interest that the registrar considers necessary to

(i) protect existing utilities and assure anticipated utilities, and

(ii) assure the rights of adjoining owners as to entry and exit, whether of a public or private nature.

(2) An order of the registrar under this section

(a) may be made on terms the registrar considers necessary, and

(b) may be made conditional on the creation, enlargement, extension, cancellation or registration of any interest that the registrar considers necessary to give effect to a term of the order.

(3) An order of the registrar that cancels or alters the boundaries of a public area extinguishes the dedication or establishment of the public area or of that part of it that ceases to be a public area as a result of the cancellation or alteration.

Opposition by local authority

132   (1) Except in the circumstances set out in section 135, a local authority by resolution declaring that a public area is required for the purpose for which it is dedicated, may oppose the cancellation or alteration under this Part of the boundaries of the public area or any part of the public area.

(2) A local authority that passes a resolution under subsection (1) must file with the registrar before the hearing date a certificate containing

(a) the name of the petitioner, the filing number of the petition and a description of the land referred to in the petition,

(b) the text of the declaration contained in the resolution, and

(c) a description, along with a print of the plan, that shows to the satisfaction of the registrar the public areas or parts of them to which the declaration applies.

(3) After a certificate is filed with the registrar under subsection (2), the registrar must not, without the written consent of the local authority, make an order under this Part that cancels or alters the boundaries of a public area to which the certificate pertains.

(4) A local authority that files a certificate under this section

(a) must, in the manner required by section 315 (1), serve a copy of the certificate on the petitioner, the parties and any other persons that the registrar considers might be affected by the certificate, and

(b) within 7 days after receiving a request from the petitioner or any party, must

(i) give written reasons for the declaration, and

(ii) deliver to the petitioner or party a copy of the reports, plans and other documents that were taken into account by the local authority in passing the resolution.

Opposition by minister

133   (1) Except in the circumstances set out in section 135, the minister charged with the administration of the Transportation Act may oppose the cancellation or alteration under this Part of the boundaries of all or part of a public area that is an arterial highway, wherever located, or of a public area that is not in a municipality, if he or she considers that the public area is required for the purpose for which it is dedicated.

(2) If the minister charged with the administration of the Transportation Act opposes the cancellation or alteration, he or she must file with the registrar before the hearing date a certificate containing

(a) the name of the petitioner, the filing number of the petition and a description of the land referred to in the certificate, and

(b) a description, along with a print of the plan, that shows to the satisfaction of the registrar the public areas or parts of them to which the certificate pertains.

(3) After a certificate is filed with the registrar under subsection (2), the registrar must not, without the written consent of the minister charged with the administration of the Transportation Act, make an order under this Part that cancels or alters the boundaries of a public area to which the certificate pertains.

(4) The minister charged with the administration of the Transportation Act must, in the manner required by section 315 (1), serve a copy of a certificate filed under this section on the petitioner, the parties and any other persons that the registrar considers might be affected by the certificate.

Preparation and registration of order

134   (1) Following the conclusion of the hearing of a petition under this Part, the registrar, exercising the powers given under section 131, must decide the outcome of the petition and publish written reasons for the decision.

(2) Within 30 days after publication by the registrar of the written reasons, the petitioner must prepare and submit to the registrar for approval and signature an order giving effect to the registrar's decision.

(3) If all applications necessary to give effect to an order deciding the outcome of a petition under this Part are not submitted for registration within 3 months after the order is signed or within a further period allowed by the registrar,

(a) the order ceases to have effect, and

(b) any extinguishment previously effected by the order by the operation of section 131 (3) is deemed not to have occurred.

(4) The registrar must not register an application referred to in subsection (3) unless all duplicate indefeasible titles to the land affected by the order have been surrendered for cancellation.

(5) Within 21 days after the registrar has published the reasons for the decision under this section, the petitioner or any party may appeal the decision to the Supreme Court.

Registrar may vest an estate in fee simple

135   The registrar, by order, may vest in the petitioner an estate in fee simple to all or part of a public area adjacent to a parcel owned by the petitioner in the plan referred to in the petition if

(a) the public area or part of it, as the case may be, has been cancelled by order of the registrar under this Part,

(b) at the time the plan was deposited, the petitioner was the fee simple owner of all land in the plan, and

(c) the petitioner continues to be the owner of all the land in the plan.

Cancellation by minister of plan comprising Crown land

136   (1) Subject to subsection (1.1), the minister may

(a) order the cancellation of a plan or a portion of a plan comprising land owned by the government, including land vested in a municipality as a highway, and

(b) by that order or a subsequent order, make provisions he or she considers proper for the protection of the rights of a purchaser of a parcel shown on the plan.

(1.1) In respect to land vested in a municipality as a highway, the minister may only make an order under subsection (1) if the municipality has done all of the following:

(a) closed the highway and removed the dedication of the land as a highway in accordance with sections 40 [permanent closure and removal of highway dedication] and 41 [restrictions in relation to highway disposition, closure or alteration] of the Community Charter;

(b) disposed of the land that was a highway to the government in accordance with section 26 [notice of proposed property disposition] of the Community Charter.

(2) On receiving a certified copy of an order under subsection (1) and an explanatory plan showing the land affected, the registrar must

(a) assign one or more distinguishing letters to the new parcel created, and

(b) cancel the existing indefeasible title affected and register a new indefeasible title for the newly created parcel.

(3) If, under the Land Act, Crown land, comprising all the land included in a plan, has been removed from the operation of this Act, the minister may order the cancellation of the plan and the registrar must amend the records accordingly.

(4) The minister may delegate to the Surveyor General the minister's powers under subsections (1) and (3).

Cancellation of interior lines

137   (1) On application in the form approved by the director, accompanied by the plan, if any, that the registrar may require, the registrar may cancel the lines dividing 2 or more contiguous parcels shown on a plan, if

(a) the parcels are owned by one person, or by 2 or more persons as joint tenants or tenants in common, or by the Crown, and

(b) the parcels are free from all charges or encumbrances, or the holders of all existing charges and encumbrances consent in writing and the charges and encumbrances are extended by an appropriate instrument to cover and coincide with the boundaries of the parcel to be created as a result of the petition.

(2) If the plan showing the parcels that are the subject of an application under this section has been microfilmed, or the registrar considers that the cancellation cannot satisfactorily be shown on the plan because of its age, or for any other reason, the registrar

(a) may require the applicant to deposit an explanatory plan showing the new boundaries, and

(b) must incorporate with the description shown on the new indefeasible title a reference to the explanatory plan.

Part 9 — Air Space Titles

Definitions

138   In this Part:

"air space parcel" means a volumetric parcel, whether or not occupied in whole or in part by a building or other structure, shown as such in an air space plan;

"air space plan" means a plan that

(a) is described in the title to it as an air space plan,

(b) shows on it one or more air space parcels consisting of or including air space, and

(c) complies with the requirements of section 144;

"geodetic elevation" means an elevation derived from a source approved by the Surveyor General.

Air space is land

139   Air space constitutes land and lies in grant.

Covenant to grant easements or to convey restrictive covenants not implied

140   (1) A grant of an air space parcel does not transfer to the grantee an easement of any kind whatsoever nor does it imply a covenant restrictive of use nor a covenant to convey another portion of the grantor's land.

(2) Unless expressly granted, the title to the air space above the upper limits and below the lower limits of an air space parcel remain in the grantor.

Subdivision of land into air space parcels

141   (1) An owner in fee simple whose title is registered under this Act may, by the deposit of an air space plan, create one or more air space parcels separated by surfaces and obtain indefeasible titles for them.

(2) The air space parcel created by the plan devolves and may be transferred, leased, mortgaged or otherwise dealt with in the same manner and form as other land the title to which is registered under this Act.

(3) An air space parcel may be subdivided in accordance with the Strata Property Act.

Air space parcels in respect of highways

142   (1) If the title to all or part of a highway is vested solely in the Crown in right of the Province or in the BC Transportation Financing Authority, the minister charged with the administration of the Transportation Act may apply to register the title to all or part of the highway in the Crown in right of the Province or in the BC Transportation and Financing Authority, as the case may be, and, on registration, the government may create air space parcels and deal with them in accordance with this Act but, if the right of possession to a highway is vested, by an enactment, in a municipality, the minister charged with the administration of the Transportation Act must obtain the municipality's consent before creating or dealing in air space parcels.

(2) Despite subsection (1), the Lieutenant Governor in Council, on the recommendation of the minister charged with the administration of the Transportation Act, may authorize a municipality that has a statutory right of possession to a highway to create air space parcels and to deal with them under this Act.

(3) If the title to all or part of a highway is vested solely in a municipality, the council may, by bylaw, authorize an application to be made for the registration of the municipality's title to all or part of the highway and, on registration, the municipality may create air space parcels and deal with them under this Act.

(4) For the purpose of this section, an indefeasible title may be registered for all or part of a highway.

Air space plan

143   (1) An air space plan must not be accepted for deposit by the registrar unless

(a) the title to the land of which the air space parcels are part is registered in the register of indefeasible fees, and

(b) the land of which the air space parcels are part is shown as a single parcel on a subdivision plan or a reference plan deposited under this Act.

(2) The registrar must examine the application and the air space plan produced in support of it and, if satisfied that they are in order and in compliance with this Act, must assign to the plan a serial deposit number and register new indefeasible titles to the air space parcels.

Air space plan

144   (1) An air space plan must

(a) have its side boundary limits consist of vertical or inclined surfaces conforming to or lying within the boundaries of the single parcel referred to in section 143 (1) (b),

(b) have as its upper and lower limit a horizontal or inclined plane or arc of a circle, or combination of them,

(c) have a title, identifying the single parcel on the plan referred to in section 143 (1) (b) and indicating that the plan is a subdivision of the whole or part of that parcel,

(d) have noted on it the geodetic elevation of one corner of the ground surface of the single parcel referred to in section 143 (1) (b) and the geodetic elevation of every corner or angle of the air space parcel,

(e) include

(i) a plot to scale of the single parcel referred to in section 143 (1) (b), and

(ii) a 3 dimensional paraline drawing of the air space parcel contained between the planes or arcs and, if the surfaces of the air space parcel are both horizontal and vertical the plan must so state, otherwise all boundaries of the air space parcel must be fully dimensioned for length and direction, and

(f) contain a book of reference that

(i) allots a parcel letter or number to each air space parcel by reference to the lettered or numbered corners of it as shown on the plan, or as otherwise designated by a rule made under section 385 (5), and

(ii) states the cubic contents of each air space parcel.

(2) An air space plan tendered for deposit must

(a) be prepared by a British Columbia land surveyor and bear the statement approved by the director,

(b) be accompanied by whatever number of copies may be required by the registrar for taxing authorities,

(c) comply with the rules respecting surveys and plans made under section 385 (5) for the purposes of this Part,

(d) be signed and witnessed in the same manner as is required under this Act for a subdivision plan,

(e) comply with subsection (1), and

(f) be approved by the proper approving officer.

Taxation

145   An estate or interest in an air space parcel, if separately owned, must be separately assessed for taxation for all types of rates, assessments and taxes authorized to be assessed against land and improvements by any Act.

Application

146   (1) Part 8 applies to an air space plan.

(2) Part 7 does not apply to this Part.

Part 10 — Applications for Registration and Evidence in Support

Application required

147   (1) An instrument or other document tendered for registration, filing, lodging or deposit must not be received by the registrar unless it is the original instrument or document and is accompanied by an appropriate application.

(2) The registrar may dispense with compliance with subsection (1) if

(a) no form of application is approved by the director, and

(b) in the registrar's opinion hardship might otherwise ensue.

(3) An instrument itself constitutes a sufficient form of application if

(a) the instrument is in the form approved by the director, and

(b) the registrar considers that no further information or act of the applicant is necessary for the registrar to receive an application in respect of the instrument.

Form and manner of applying

148   (1) An application under this Act must be in writing and be in or include one of the forms approved by the director or, if no appropriate form is approved, in a form satisfactory to the registrar.

(2) An application may be made by the applicant in person, or on the applicant's behalf by the applicant's

(a) solicitor, or

(b) agent who has reached 19 years of age.

(3) A solicitor or agent who has made an application may, under this Act, do all other acts and things that lie within the scope of the authority given to the solicitor or agent.

(4) A statement in an application of a solicitor or agent that he or she is the solicitor or agent of the person on whose behalf an application is made is, in the absence of evidence to the contrary, proof that he or she is solicitor or agent of the person on whose behalf the application is made.

Address of applicant

149   (1) An applicant must

(a) include in the instrument or other document tendered for registration, filing, lodging or deposit, or

(b) deliver to the registrar a memorandum in writing containing

an address to which it will be sufficient to mail any notices that, under this Act, is required to be served on or allowed to be posted to the applicant.

(2) The applicant may from time to time, by a notice in the form approved by the director or by other writing, file with the registrar a change of address.

(3) On receiving the notice or other writing duly completed, the registrar must note the change in the register.

Particulars as to witness and parties to instrument

150   (1) The registrar may require that the given names, surname, address and occupation of the witness and of all parties to an instrument produced for registration be provided by evidence to the satisfaction of the registrar.

(2) If a party is a corporation, the registrar may require that its incorporation number be stated after the name of the corporation.

Repealed

151   [Repealed 1998-42-24.]

Description of foreign government

152   In an instrument tendered for registration to which a government of a foreign country, province or state is a party, the party must be described in a manner satisfactory to the registrar.

Time of application

153   (1) The registrar must record on each application received by the registrar

(a) the date and time of its receipt, and

(b) the serial number assigned to the instrument or other document.

(2) For the purposes of priority among purchasers, transferees, mortgagees and others, and for all purposes of this Act, the date and time recorded under subsection (1) (a) is the date and time when the application was received by the registrar and a true copy of that record must be received in all courts as conclusive proof of the date and time the application was received by the registrar.

Application for registration of fee simple

154   A person claiming to be registered as owner in fee simple of land must apply to the registrar for registration in the form approved by the director.

Application for registration of charge

155   (1) If the title to an estate in fee simple has been registered or registration has been applied for, a person not entitled to be registered in fee simple, claiming to be registered as owner of a charge on the land, whether the charge is in respect of a present and vested right or a future or contingent interest, must apply in the form approved by the director to the registrar for registration of the charge, and if registration of the fee simple has been applied for by an application that is pending, the application for registration of a charge must await the result of the application for registration of the fee simple.

(2) If, before June 1, 1921, an estate less than the fee simple has been granted by the Crown and a charge has been registered in respect of it, a person claiming under a subsequent dealing with the charge may apply for registration in the form approved by the director and adapted to suit the circumstances.

(3) If a registered charge

(a) is transferred either absolutely or conditionally, or

(b) by agreement between the parties,

(i) is modified or extended, or

(ii) is postponed to another charge,

the transferee or a party to the agreement may apply for registration in the form approved by the director and adapted to suit the circumstances.

Application must be for all lands or charges comprised in instrument

156   (1) A person producing an instrument in support of an application for registration must apply to register the title dealt with by the instrument to the full extent to which the instrument is effectual.

(2) If application is made to register the title to a part of the land or to an undivided portion of the interest comprised in and effectually dealt with by an unregistered instrument, the registrar must not register the application unless registration of the title to the remainder of the land, or to the remaining interest comprised in the instrument and located in the registrar's land title district is concurrently applied for.

(3) In case of a transmission of property by reason of death, the registrar may, if in the registrar's opinion hardship might otherwise ensue, accept an application for the registration of the title to a portion of the property.

(4) Subsection (1) applies to an instrument purporting to create, assign or otherwise deal with 2 or more charges on land.

(5) Subsection (4) does not apply to a lease or agreement for lease for a term not exceeding 3 years if there is actual occupation under the lease or agreement so as to require the tenant, on applying to register an option to purchase or right of first refusal contained in the lease or agreement, to register the lease or agreement.

Forms

157   (1) If an application is made in the appropriate approved form, the form must appear on the first page at least 1 1/2 inches from the top of the instrument tendered for registration unless the registrar allows the form to appear elsewhere, and must be signed by the applicant or the applicant's solicitor or authorized agent.

(2) If no instrument is required to be produced in support of an application under section 154 or 155, the approved form may be included in a letter or other document satisfactory to the registrar.

(3) The signature of a person to the form implies a statement by the signatory that the applicant

(a) is applying for registration under this Act,

(b) is entitled to be registered, as applicable,

(i) as the owner in fee simple of the land described, or

(ii) as the owner of the charge specified over the land described, and

(c) claims registration accordingly.

(4) A signatory to the form, unless he or she is the applicant, must state whether he or she is acting as solicitor or the authorized agent for the applicant, and if the signatory fails to so state, he or she is deemed to state that he or she is the duly authorized agent for the applicant.

(5) Unless otherwise stated in the form, the address of the person entitled to be registered as owner is deemed to be that shown in the instrument.

(6) If a signatory to the form is an agent, his or her signature to the application is deemed to state that he or she is the duly authorized agent for the applicant and has reached 19 years of age.

Restrictions as to scope of application

158   (1) An application for the registration of the fee simple must not include

(a) subdivided and unsubdivided land,

(b) parcels shown under different subdivision plans,

(c) more than 5 parcels of subdivided land,

(d) several parcels of unsubdivided land that are not contiguous, or

(e) several parcels of unsubdivided land, whether or not they are contiguous, if the total area of the parcels included would exceed 800 ha.

(2) Despite subsection (1), one single parcel containing in excess of 800 ha may be included in a single application.

(3) For the purpose of this section, a highway, dike, stream or statutory right of way is not a break in the contiguity of land that is otherwise contiguous.

(4) The Board of Directors may make regulations amending the restrictions imposed by this section.

Registrar may require deposit of instruments

159   The registrar may require an applicant to produce or deposit an instrument or other document in the applicant's possession or in the applicant's control in any capacity affecting the land covered by the application or evidencing title to it.

Summons to produce instruments

160   The registrar may, by summons in the form approved by the director, require a person to produce an instrument in the person's possession or in the person's control in any capacity affecting land or a charge, or evidencing the title to it, and, if the instrument is required to complete registration, the registrar may require the person to deposit the instrument.

Application to court to compel production or deposit of instruments

161   (1) If a person summoned by the registrar to produce or deposit an instrument or other document refuses or neglects to do so, the registrar may apply to the Supreme Court, calling on the person to appear and show cause why the person should not obey the summons.

(2) If a person, after being served with notice of the application under subsection (1), refuses or neglects to attend before the court at the time and place set in the notice, the court may

(a) issue a warrant authorizing and directing the person so summoned to be apprehended and brought before the court for examination, or

(b) make any order that may be just.

Powers of court on hearing

162   (1) The court may examine on oath the person summoned under section 160 and, after the examination or in the person's absence, may order the person to produce or deliver up the instrument or other document requested by the registrar.

(2) If the person summoned

(a) refuses or neglects to comply with the order, or

(b) cannot be found and the summons or warrant cannot be served on the person,

the court may

(c) direct the registrar to proceed with the application pending before the registrar without the production of the instrument or other document,

(d) declare that the instrument or other document is deemed to be cancelled, amended or endorsed, in whole or to the extent that the registrar would have had authority to cancel, amend, or endorse it if it had been produced to the registrar on the application under section 161 (1), and

(e) make any further order that the circumstances of the case may require.

Notice of intention to register

163   (1) If an applicant is unable to comply with a requisition of the registrar that a particular instrument or document, including an absolute certificate of title, a duplicate indefeasible title or a certificate of charge, be produced or deposited, because it is in the possession of the registered owner or another person who refuses or neglects to produce the instrument, the registrar may,

(a) instead of proceeding under section 160, and

(b) on being satisfied that the applicant has otherwise established a good safe holding and marketable title to the land in question,

give notice in the form approved by the director to the person who has possession of the instrument.

(2) If a duplicate indefeasible title for land affected by an expropriation notice is issued at the time the notice is filed, the registrar must

(a) cancel the duplicate indefeasible title, and

(b) give notice of its cancellation to the person to whom it was delivered at the person's address specified in section 176 (5)

and the registrar must not issue another duplicate indefeasible title for the land until a vesting notice or notice of abandonment respecting the expropriation has been filed in accordance with the Expropriation Act.

Registration after notice

164   (1) The period stipulated in the notice in the approved form or an extension of that period is in the discretion of the registrar.

(2) Unless a good and valid objection in writing from the person served with the notice is received within the period stipulated in the notice or in an extension of it, the registrar may proceed with the registration of the title claimed by the applicant.

(3) If the title claimed is an estate in fee simple, an outstanding absolute certificate of title or duplicate indefeasible title, the nonproduction of which is mentioned in the notice, is deemed conclusively to be cancelled as to the land so registered in the name of the applicant.

Corporate powers assumed

165   (1) For the purpose of this Act, a corporation, including a strata corporation, is deemed to have the power and capacity of a natural person of full capacity in acquiring and disposing of land despite a stipulation, restriction or qualification expressed or imposed in any other Act or law, charter or memorandum and articles of association of the corporation, or in any other document.

(2) Subsection (1) does not relieve a person who under an Act or law is responsible for or in control of a corporation from liability for acts of the corporation that, despite subsection (1), are beyond the powers of the corporation.

(3) If a corporation holds land in a fiduciary capacity, subsection (1) is subject to section 180 and does not

(a) extend the powers of the corporation in respect of that land, or

(b) relieve the corporation or a person who by statute or law is responsible for or in control of the corporation from liability to the beneficiaries for an act of the corporation that is beyond its powers, or is contrary to the trusts under which the corporation holds the land.

(4) Despite

(a) any other Act or law,

(b) the charter, memorandum, notice of articles and articles or other constating documents of a corporation, or

(c) any other document,

an instrument executed by a corporation is, in favour of all persons dealing in good faith with the corporation, conclusively deemed to be properly executed and the instrument takes effect accordingly if

(d) the instrument is executed for the corporation by an individual whose signature is represented in the instrument as the signature of an authorized signatory of the corporation,

(e) the execution of the instrument is witnessed or proved in accordance with Part 5, and

(f) in the case of a strata corporation, the instrument is accompanied by a Certificate of Strata Corporation in the prescribed form under the Strata Property Act stating that the execution of the instrument has been approved by a resolution at an annual or special general meeting in accordance with the requirements of the Strata Property Act, and that the instrument conforms to the resolution.

(5) The registrar may accept the signature of an officer under Part 5 or an affidavit under section 49 as sufficient evidence that a corporation existed at the time an instrument was executed by it, or the registrar may require further evidence of that fact.

Disposal of instruments deposited

166   (1) Subject to subsection (3), all instruments and other documents deposited with the registrar must remain on deposit in the land title office or in some other location approved by the Board of Directors.

(2) If an application to register or deposit an instrument is refused by the registrar or withdrawn, the instrument produced in support of the application must be returned to the applicant.

(3) An instrument or other document may be destroyed if

(a) there is a duplicate, as defined in section 38, of the instrument or other document,

(b) the instrument or other document has no significant historical value, and

(c) the destruction is authorized by the bylaws of the Land Title and Survey Authority.

Withdrawal of application

167   (1) If an application has been made, and no other pending application is affected by it, the applicant may withdraw the application as to all or a part of the land comprised in it at any time before registration, on terms the registrar considers proper.

(2) If the person making the application is

(a) an agent who is not a solicitor, or notary public under the Notaries Act, or

(b) one of several owners acting on behalf of himself or herself and the other owners,

the registrar may refuse to allow the applicant to withdraw the application until the applicant produces the written consent, properly verified, of his or her principal or, as the case may be, the other owners.

(3) If a caveat has been lodged contesting the applicant's right to registration, the registrar may refuse to allow the application to be withdrawn until the applicant has paid the caveator a sum the Supreme Court on application may set, and the court may, by order, direct the applicant to pay reasonable compensation for the costs and expenses to which the caveator has been put because of the application.

(4) An application that has been withdrawn is void.

Summary rejection of defective application

168   (1) The registrar may cause an application and an instrument or other document presented with it

(a) to undergo a preliminary inspection, or

(b) to be received without preliminary inspection.

(2) An application may be summarily rejected if, in a preliminary inspection under this section,

(a) the instrument or other document

(i) does not qualify in substance and in form for registration, filing or deposit,

(ii) is not on sufficiently durable paper,

(iii) is illegible in any respect, including the signature of a witness or an official authorized to take an affidavit,

(iv) is in whole or in part a carbon copy of a typewritten document, or

(v) is not capable of being satisfactorily microfilmed or photocopied or of being scanned and stored electronically using equipment in the land title office,

(b) the supporting application or other document is incomplete or not in proper form, or

(c) obvious defects in title are discovered.

(3) Whether or not there has been a preliminary inspection, the application is received when the registrar has complied with section 153.

(4) Every application received must be examined without delay and, except for an application to register a certificate of pending litigation or to lodge a caveat, must be given consideration in order of its receipt.

Part 10.1 — Electronic Filing

Division 1 — Definitions and Application

Definitions

168.1   In this Part:

"designate", in relation to a document, means an individual designated under section 168.4 as authorized to certify the document under Division 4;

"document" means an instrument or other document that is required or permitted by this Act, another enactment or an e-filing direction to be registered, filed, lodged or deposited in the land title office;

"e-filing direction" means a direction under section 168.22 (1);

"execution copy", in relation to an electronic document, means a legible paper copy of the document, containing every material provision and particular contained in the original, that is prepared for the purposes of certification under

(a) section 168.41 [documents executed or witnessed], or

(b) section 168.42 [plans];

"submit" means to submit to the land title office;

"supporting document" means a document that is required or permitted by this Act, another enactment or an e-filing direction to be registered, filed, lodged or deposited in the land title office with an application.

Application of other provisions of Act

168.11   (1) The following provisions do not apply in relation to a document that is submitted electronically:

(a) in the case of any document,

(i) section 35 [admissibility of instruments], and

(ii) section 166 (2) [return of instrument if application refused or withdrawn];

(b) in the case of an application,

(i) section 148 (2) [form and manner of applying], and

(ii) section 157 [forms];

(c) in the case of a plan,

(i) section 67 (s) [copies accompanying plan tendered for deposit],

(ii) section 144 (2) (b) [copies accompanying air space plan tendered for deposit],

(iii) section 147 (2) and (3) [application required], and

(iv) section 245 (e) [copies accompanying strata plan tendered for deposit] of the Strata Property Act.

(2) Section 148 (3) and (4) applies in relation to a person referred to in section 168.2 (1) (a), (b) or (c).

Division 1.1

Repealed

168.111   [Repealed 2018-37-18.]

Division 2 — Electronic Filing

Repealed

168.12   [Repealed 2018-37-18.]

Electronic filing

168.2   (1) A document may be submitted electronically, in accordance with an applicable e-filing direction, by

(a) the applicant,

(b) the solicitor or agent of the applicant, or

(c) a person authorized by that solicitor or agent to submit the document.

(2) If an e-filing direction under section 168.22 (1) (b) applies in relation to a document, a person may not submit the document other than electronically unless a registrar decides that it is appropriate in the circumstances to accept the document.

(3) The electronic submission of an application constitutes a statement by the person who submits the application of the following:

(a) in the case of an application for registration, that the applicant

(i) is applying for registration under this Act,

(ii) is entitled to be registered, as applicable,

(A) as the owner in fee simple of the land described, or

(B) as the owner of the charge specified over the land described, and

(iii) claims registration accordingly;

(b) in the case of an application to cancel the registration of a charge, that the applicant

(i) is applying for cancellation under this Act,

(ii) is entitled to cancellation of the charge, and

(iii) claims cancellation accordingly;

(c) in the case of an application to deposit a plan, that the applicant

(i) is applying to deposit the plan in the land title office, and

(ii) is entitled to submit the plan for deposit.

Effect of electronic filing

168.21   Despite any enactment or rule of law to the contrary, a document that is submitted electronically in accordance with section 168.2 (1) and, if applicable, the requirement under section 168.3 (2) (a) [plans — preparation by land surveyor] is conclusively deemed to be

(a) in writing,

(b) if applicable, in the form required by this Act or another enactment,

(c) if signed electronically by a person, signed in writing by the person, and

(d) if certified by a designate in accordance with Division 4, signed in writing by the persons named as signatories on the certified document.

Directions on electronic filing

168.22   (1) The director may direct that a document

(a) may be submitted electronically, or

(b) may only be submitted electronically.

(2) An e-filing direction may include any directions that the director considers necessary or advisable respecting electronic submission of a document, including, without limitation, directions as follows:

(a) respecting the format, contents and preparation of the document and any supporting documents;

(b) respecting the electronic signature of the document;

(c) respecting the certification of the document under Division 4.

(3) An e-filing direction may specify that the submission of a document constitutes signature by the applicant if

(a) the only signatory to the document is the applicant, and

(b) the manner of submission will allow for the identification of

(i) the applicant, and

(ii) the document that is submitted.

(4) An e-filing direction may be different for different

(a) classes of documents, interests or persons, or

(b) circumstances.

Division 2.1

Repealed

168.712-
168.77
 
[Repealed 2018-37-18.]

Division 3 — Special Rules for Certain Documents

Plans — preparation by land surveyor

168.3   (1) A plan that is submitted electronically must be signed electronically by a British Columbia land surveyor.

(2) If the applicable e-filing direction requires a plan that is submitted electronically to contain a serial deposit number,

(a) the plan must contain a serial deposit number incorporated into the plan in accordance with that direction, and

(b) the incorporation of the serial deposit number into the plan in accordance with that direction satisfies the requirement under any Act that a serial deposit number be assigned to the plan.

(3) The electronic signature of a British Columbia land surveyor on a plan is a certification by the land surveyor that the information in each notation, endorsement, statement or certification made by that land surveyor and set out on the plan is correct.

Plans — signature of other persons

168.31   (1) In this section, "endorsement" includes an annotation, approval, certification or statement.

(2) A requirement in this Act or another enactment that a plan be signed or endorsed by a person other than a British Columbia land surveyor is satisfied if

(a) the plan and the plan application are submitted electronically,

(b) the plan application contains the required endorsement, if any, above the name of the person, and

(c) the plan application is signed electronically by the person.

(3) A requirement in this Act or another enactment that a signature or endorsement on a plan be witnessed is satisfied if

(a) the plan and the plan application are submitted electronically,

(b) the electronic signature required under subsection (2) (c) is witnessed, and the witness electronically signs the plan application, in accordance with the requirements, and

(c) any information respecting the witness required to be stated on the plan is stated on the plan application.

Charges — cancellation by corporate registered owner

168.32   (1) In this section, "corporation" has the same meaning as in Part 5.

(2) Section 42 (1) [execution to be witnessed] does not apply to an instrument that cancels the registration of a charge if

(a) the instrument is submitted electronically,

(b) the charge is in a class designated by the director,

(c) the registered owner of the charge is a corporation in a class of corporations designated by the director, and

(d) the individual who executes the instrument for the corporation

(i) is approved by the director for the purposes of this section, and

(ii) certifies on the instrument the matters set out in section 44 (1) (a) (i) to (iii).

Supporting documents

168.33   (1) A requirement in this Act or another enactment to register, file, lodge or deposit a supporting document is satisfied in relation to an application that is submitted electronically if

(a) the application is submitted electronically,

(b) the applicable e-filing direction provides that this section applies in relation to the supporting document,

(c) the application contains the following:

(i) a description of the supporting document sufficient to identify it;

(ii) a copy, prepared in accordance with the applicable e-filing direction, of the supporting document;

(iii) any information and authorizations required by the applicable e-filing direction for the purpose of allowing the registrar to verify the copy referred to in subparagraph (ii), and

(d) the application is signed electronically by the applicant.

(2) The electronic signature of an applicant on an application referred to in subsection (1) is a certification by the applicant that the supporting document described in the application, or a true copy of that supporting document if the applicable e-filing direction allows, is in the possession of the applicant.

Repealed

168.71   [Repealed 2006-24-39.]

Not enacted

168.78   [Not enacted.]

Repealed

168.79-
168.82
 
[Repealed 2018-37-18.]

Division 4 — Certification by Designate

Designates

168.4   (1) The director may designate classes of individuals as authorized to certify documents under this Division.

(2) A designation under subsection (1) may be restricted to one or more classes of documents or interests.

Documents executed or witnessed

168.41   (1) In this section, "officer" has the same meaning as in Part 5.

(2) A requirement

(a) in Part 5 or another provision of this Act, other than section 168.42, or

(b) in another enactment

that a document other than a plan be executed in a particular manner or witnessed is satisfied if the document is certified under this section by a designate and submitted electronically.

(3) A document is certified under this section by a designate if the document

(a) includes a statement that the document is certified under this section by the designate, and

(b) is signed electronically by the designate.

(4) The electronic signature of a designate on a document described in subsection (3) is a certification by the designate that

(a) an execution copy of the document has been executed and witnessed in writing if and as required, and

(b) the execution copy referred to in paragraph (a), or a true copy of that execution copy, is in the possession of the designate.

(5) For the purpose of subsection (4) (a), a designate is entitled to presume, unless the designate knows otherwise, that

(a) the signatures on the execution copy are those of the signatories named on the execution copy, and

(b) a person named on the execution copy

(i) as an officer is an officer, and

(ii) as a witness of a signature meets any requirements to serve as a witness of the signature.

(6) A document that is certified under this section is conclusively deemed to have been executed on the date recorded as the execution date on the document, regardless of the date on which the designate electronically signed the document.

Plans

168.42   (1) In this section, "endorsement" includes an annotation, approval, certification or statement.

(2) A requirement in this Act or another enactment that a plan be signed or endorsed by a person other than a British Columbia land surveyor or that a signature or endorsement on a plan be witnessed is satisfied if

(a) the plan and the plan application are submitted electronically,

(b) the plan application contains the following, if applicable:

(i) the required endorsement set out above the name of the person;

(ii) the information about the witness that is required to be stated on the plan, and

(c) the plan application is certified under this section by a designate.

(3) A plan application is certified under this section by a designate if the plan application

(a) includes a statement that the plan application is certified under this section by the designate, and

(b) is signed electronically by the designate.

(4) The electronic signature of a designate on a plan application described in subsection (3) is a certification by the designate that

(a) an execution copy of the plan application has been signed, endorsed and witnessed in writing if and as required, and

(b) the execution copy referred to in paragraph (a), or a true copy of that execution copy, is in the possession of the designate.

(5) For the purpose of subsection (4) (a), a designate is entitled to presume, unless the designate knows otherwise, that

(a) the signatures on the execution copy are those of the signatories named on the execution copy, and

(b) a person named on the execution copy as a witness of a signature meets any requirements to serve as a witness of the signature.

Supporting documents

168.43   (1) A requirement in this Act or another enactment to register, file, lodge or deposit a supporting document is satisfied in relation to an application if

(a) the application is submitted electronically,

(b) the applicable e-filing direction provides that this section applies in relation to the supporting document,

(c) the application contains the following:

(i) a description of the supporting document sufficient to identify it;

(ii) a copy, prepared in accordance with the applicable e-filing direction, of the supporting document, and

(d) the application is certified under this section by a designate.

(2) An application is certified under this section by a designate if the application

(a) includes a statement that the application is certified under this section by the designate, and

(b) is signed electronically by the designate.

(3) The electronic signature of a designate on an application referred to in subsection (2) is a certification by the designate that the supporting document described in the application, or a true copy of that supporting document if the applicable e-filing direction allows, is in the possession of the designate.

Repealed

168.9   [Repealed 2018-37-18.]

Repealed

168.91   [Repealed 2010-6-16.]

Division 5 — General

Original document

168.5   A document, other than a supporting document, that is submitted electronically is conclusively deemed to be the original document.

Copies of electronic documents

168.51   If there is a difference between a copy obtained under section 38 (4) from a document that was submitted electronically and a copy of the document obtained from another source, the former prevails, whether or not the latter contains an original signature.

Admissibility of execution copies

168.52   Except to the extent necessary to prove the authenticity of a signature or other writing, mark or impression, an execution copy that contains an original signature or other writing, mark or impression is not admissible in court for any purpose.

Delivery in registrable form

168.53   In the case of an instrument that may be submitted electronically, the delivery by the transferor to the transferee, or to the solicitor or agent of the transferee, of either of the following satisfies the transferor's obligations under the Property Law Act or any other rule of law to deliver the instrument in registrable form:

(a) an execution copy that has been executed and witnessed in accordance with Part 5 of this Act;

(b) a true copy of the execution copy referred to in paragraph (a).

Deeds

168.54   If an instrument that may be submitted electronically contains a statement that the transferor intends the instrument to take effect as a deed, the instrument takes effect as a deed.

Corrective declarations

168.55   (1) A person referred to in section 168.2 (1) (a) or (b) may, in accordance with an applicable e-filing direction, electronically submit a declaration bringing to the attention of the registrar an error, omission or misdescription in a document that the person, or another person on behalf of the person, has submitted electronically.

(2) A declaration under subsection (1) must be signed electronically by the person who submits it.

(3) The electronic signature of a person on a declaration under subsection (1) is a certification by the person that, based on the personal knowledge or reasonable belief of the person, the declaration sets out the material facts accurately.

Amendments to electronic plans

168.56   The registrar may exercise a power under this Act or another enactment to amend, alter, correct or cancel an electronic plan if the registrar

(a) does so in the manner directed by the director, and

(b) if the plan is changed as a result of the exercise of the power, replaces, in the manner directed by the director, the original plan in the records of the land title office with a plan that depicts the changes.

Production of evidence

168.57   The registrar may, before registering, filing, lodging or depositing a document that is submitted electronically, require the applicant to produce documents or other evidence as follows:

(a) in the case of an application certified under section 168.32 (2) (d) (ii) [charges — cancellation by corporate registered owner], the registrar may require production of evidence, satisfactory to the registrar, to verify the matters certified;

(b) in the case of a document certified under section 168.41 [documents executed or witnessed], the registrar may require production of one or both of the following:

(i) the execution copy referred to in section 168.41 (4) (a), which requirement may be met by producing that execution copy or a true copy of that execution copy;

(ii) evidence, satisfactory to the registrar, to verify that the execution copy referred to in section 168.41 (4) (a) was executed and witnessed if and as required;

(c) in the case of an application certified under section 168.42 [plans], the registrar may require production of one or both of the following:

(i) the execution copy referred to in section 168.42 (4) (a), which requirement may be met by producing that execution copy or a true copy of that execution copy;

(ii) evidence, satisfactory to the registrar, to verify that the execution copy referred to in section 168.42 (4) (a) was signed, endorsed and witnessed if and as required;

(d) in the case of an application certified under section 168.33 or 168.43 [supporting documents], the registrar may require production of the supporting document described in the application, which requirement may be met by producing that supporting document or, if the applicable e-filing direction allows, a true copy of that supporting document.

Disposal of electronic documents

168.58   The registrar may delete from the records a document that is submitted electronically if the application relating to the document is

(a) void as a result of the registrar's refusal to register, file, lodge or deposit the document, or

(b) withdrawn.

Division 6 — Certification of Subscribers

Definitions

168.6   In this Division:

"certificate" means a computer-based record created by a certification authority and issued to a subscriber for the purposes of permitting the subscriber to sign one or more classes of electronic documents;

"certification authority" means a certification authority recognized by the director under section 168.61;

"certification practice statement" means the statement approved by the director under section 168.61;

"electronic signature" means an electronic signature that is created by a subscriber using a private cryptographic key under the control of the subscriber that corresponds to a public cryptographic key contained in a certificate;

"subscriber" means an individual who is authorized by a certificate to sign one or more classes of electronic documents.

Certification authority

168.61   For the purposes of this Act, the Land Owner Transparency Act and the Property Transfer Tax Act, the director may recognize a person as a certification authority if

(a) the person has adopted and published a certification practice statement that has been approved by the director, and

(b) the director is satisfied that

(i) the person is capable of administering the certification practice statement, and

(ii) subscribers named in certificates issued by the person are required to observe and comply with the certification practice statement.

Certification practice statement

168.62   A certification practice statement must contain

(a) the policies, practices and procedures to be used by a certification authority in

(i) issuing, administering, suspending and revoking a certificate,

(ii) providing access to the information contained in a certificate, and

(iii) establishing and maintaining the security and validity of electronic signatures of subscribers, and

(b) other provisions that the director considers necessary, including provisions relating to the form and content of certificates and provisions to ensure

(i) that an electronic signature is unique to a specific subscriber,

(ii) that a subscriber named in a certificate is eligible to be a subscriber under the requirements established by the director, and

(iii) the security of the electronic filing system contemplated by this Part, the Land Owner Transparency Act and the Property Transfer Tax Act.

Warranties of certification authorities

168.63   (1) The issuance of a certificate by a certification authority constitutes a warranty by the certification authority of the following matters:

(a) the information contained in the certificate is, to the knowledge of the certification authority, true;

(b) the certificate was issued in accordance with the certification practice statement;

(c) the subscriber to whom the certificate was issued has agreed to observe and comply with the requirements of the certification practice statement;

(d) the subscriber named or identified in the certificate is eligible to be a subscriber under the requirements established by the director;

(e) the certification authority will act promptly to suspend or revoke a certificate in accordance with the requirements of the certification practice statement.

(2) The registrar, the administrator under the Land Owner Transparency Act and the administrator under the Property Transfer Tax Act are entitled to rely on the warranties referred to in subsection (1).

Immunity

168.64   In the absence of an unlawful or negligent act or omission by a certification authority in relation to its powers or duties under this Act, no action for damages lies or may be brought against a certification authority in respect of any loss or damage arising out of an unlawful or negligent act or omission of a subscriber under this Act, the Land Owner Transparency Act or the Property Transfer Tax Act.

Division 7 — Offences

Offences

168.7   (1) A person commits an offence if the person wilfully makes a false certification under any of the following provisions:

(a) section 168.3 (3) [plans — preparation by land surveyor];

(b) section 168.33 (2) [supporting documents];

(c) section 168.41 (4) [documents executed or witnessed];

(d) section 168.42 (4) [plans];

(e) section 168.43 (3) [supporting documents];

(f) section 168.55 (3) [corrective declarations].

(2) A person commits an offence if the person

(a) signs, using an electronic signature of another person, a document that may be submitted electronically under this Part, or

(b) permits an electronic signature of the person to be used by another person to sign a document that may be submitted electronically under this Part.

Part 11 — Registration of Title in Fee Simple

Division 1 — First Registration

Registration of title

169   (1) If an application is made for the registration of indefeasible title to land, the registrar must register the title claimed by the applicant, if the registrar is satisfied that

(a) the boundaries of the land are sufficiently defined by the description or plan on record in the land title office or provided by the applicant, and

(b) a good safe holding and marketable title in fee simple has been established by the applicant.

(2) If the registrar considers it advisable, the registrar may, before registration under subsection (1), direct that a person named by the registrar be served with notice of the registrar's intention to register the title of the applicant at the expiration of a period set in the notice unless within that period the person served lodges a caveat or registers a certificate of pending litigation contesting the applicant's right to registration.

(3) If a caveat is lodged or a certificate of pending litigation is registered under subsection (2), the registrar must defer consideration of the application until the caveat expires or is withdrawn or the adverse claim is disposed of.

Requirements as to production of title deeds

170   On an application for the registration of title in favour of an owner in fee simple, a mortgagee, or other person entitled by right to the possession of documents of title, the registrar must require the person applying to be registered as owner in fee simple, as mortgagee or otherwise, to produce all title deeds of the land to which the registration is intended to refer unless their nonproduction is satisfactorily explained to the registrar by means of an affidavit.

Adverse possession

171   An application founded in whole or in part on adverse possession must not be accepted by the registrar unless permitted by this Act and supported by a declaration of title under the Land Title Inquiry Act.

First estate of inheritance necessary to registration of fee simple

172   If 2 or more persons are owners of different estates or interests in the same land, by way of remainder or otherwise,

(a) the first owner of an estate of inheritance must be registered as the owner of the fee simple but, in the register, the owner of the estate of inheritance must not be shown to be possessed of a larger or different estate from that to which he or she is by law entitled, and

(b) the estates or interests of the other owners must be registered by way of a charge according to their priority.

Several persons interested in registration

173   The registrar may effect registration of the fee simple at the instance of a joint tenant or tenant in common, or of several persons, who together are entitled to the complement of the fee simple.

Application to convert absolute fee into indefeasible title

174   (1) The registered owner of the absolute fee of land under the Acts repealed by the former Act may apply in writing to the registrar for registration of indefeasible title to the land and the application must be in the form approved by the director.

(2) Section 158 applies to this section.

(3) The registrar, on his or her own initiative, in respect of any land in the absolute fees register, may convert the absolute fee into an indefeasible title without an application from the registered owner of the absolute fee.

Division 2 — The Register and Duplicate Indefeasible Titles

Register and records

175   (1) The registrar must keep a register and enter or store in it

(a) all indefeasible titles and all matters required under this Act to be registered or entered on an indefeasible title and affecting land included in it, and

(b) any other matter required by the director.

(2) The registrar may remove records of indefeasible titles from the register where they were required to be kept or stored, and on removal those records may be kept in a manner and for a period that the director may direct.

(3) The registrar may convert existing records in a land title office, including records of indefeasible titles, into another form in order to facilitate computerization of those records, and on conversion the substituted form must, for all purposes, be accepted and received as the original record.

(4) If a record is converted under subsection (3), evidence of the original record must be preserved among the records of the land title office.

(5) The registrar may duplicate any record in a land title office in the form and manner directed by the director and, if an original record so duplicated becomes lost, damaged, destroyed or not immediately available for use, the registrar may declare that the duplicate has the same effect as the original.

(6) The registrar may remove from the register any record that has been cancelled if the registrar retains evidence of it.

(7) The registrar may establish, keep and maintain the register, books and indices required for the purpose of this Act by any means, whether chemical, electronic, mechanical or otherwise.

Duplicate indefeasible title

176   (1) The registrar must, on the written application of the registered owner in fee simple of land that is not subject to a registered mortgage or agreement for sale, issue a certificate to be known as a duplicate indefeasible title.

(2) A duplicate indefeasible title must contain all information contained in the register respecting the indefeasible title to the land in question together with all conditions, exceptions and reservations, charges, liens or interests to which the title of the applicant is subject.

(3) A duplicate indefeasible title must be in the form approved by the director and must be certified by the registrar as an accurate statement of the information referred to in subsection (2) as it is stored in the register.

(4) The registrar must endorse a note in the register that the duplicate indefeasible title has been issued, and the registrar must not issue a second duplicate indefeasible title until the first one has been cancelled or deemed to be cancelled.

(5) The registrar may deliver a duplicate indefeasible title

(a) by mailing it to the person who made the application or the person named in the application for that purpose at the person's address set out in the application, or

(b) by personal delivery to that person, in which case the person to whom it is personally delivered must sign a receipt for it.

(6) Unless the registrar otherwise directs, a duplicate indefeasible title that is returned to a land title office is cancelled, whether or not a note of the cancellation is made on it.

Registration of joint tenants

177   If, on the registration of the title to land under an instrument or document, 2 or more persons are joint tenants, the registrar must enter in the register, following the names, addresses and occupations of those persons, the words "joint tenants".

Division 3 — General

Limitation on number of parcels

178   (1) Despite section 158 (1), an indefeasible title must not cover more than one parcel unless the registrar permits a greater number to be covered.

(2) A registrar may require an application under section 158 (1) to be limited to the number of parcels that can be covered by an indefeasible title under subsection (1).

(3) The registrar may cancel an indefeasible title that covers more than one parcel and substitute in its place a single indefeasible title for each parcel that was covered by the cancelled title or any other combination that the registrar sees fit.

Rights of owner of surface

179   (1) Except as provided in the Strata Property Act and in Part 9, the owner of the surface of land is alone entitled to be or remain as registered owner of the fee simple, and the owner of a part of land above or below its surface who is not also the owner of the surface is only entitled to register that person's estate or interest as a charge.

(2) If no Crown grant of the surface has been registered, the registrar may enter the Crown in the register as owner of the surface.

(3) If the title of an owner to certain minerals or to certain timber or to an undivided interest in them is registered in the register of absolute fees and the owner applies to become the registered owner of other minerals or other timber in the same land or a further undivided interest in the minerals or timber, the registrar must

(a) consolidate the ownership of the minerals or timber or the interests in them, and register the title to them as a single charge in the register of indefeasible fees, subject to registered charges, if any, affecting that title, and

(b) cancel the entry in the register of absolute fees, together with any outstanding absolute certificate of title.

Recognition of trust estates

180   (1) If land vests in a personal representative or a trustee, that person's title may be registered, but particulars of a trust created or declared in respect of that land must not be entered in the register.

(2) In effecting registration in the name of a personal representative, the registrar must add, following the name and address of the personal representative, an endorsement containing any additional information that the registrar considers necessary to identify the estate of the testate or intestate and a reference by number to the trust instrument.

(3) In effecting registration in the name of a trustee, the registrar must add, following the name and address of the trustee, an endorsement containing the words "in trust" and a reference by number to the trust instrument.

(4) The trust instrument must be filed with the registrar with the application for registration of title.

(5) If an instrument, other than a will, creating or declaring a trust has been executed outside British Columbia, and also affects or deals with land or other property outside British Columbia, or the trusts of the instrument are being administered outside British Columbia, the registrar,

(a) on satisfactory proof of the facts and that the original instrument is required for use outside British Columbia, and

(b) on production of the original or a copy certified by the officer in charge of the public record office in which the original is filed,

may accept for filing the certified copy, or a copy that the registrar has compared with the original and certified as a true copy.

(6) A copy certified under subsection (5) has the same effect as the original.

(7) If an endorsement has been made in the register under subsection (2) or (3), an instrument purporting to transfer, mortgage or otherwise deal with the land must not be registered unless

(a) expressly authorized by law or by the instrument creating or declaring the trust, or

(b) an order has been obtained from the Supreme Court construing the instrument as authorizing the transfer, mortgage or other dealing, or ordering and directing the transfer, mortgage or other dealing, and a certified copy of the order has been filed with the registrar.

(8) Subsection (7) does not apply to a dealing in land by the Public Guardian and Trustee.

(9) If

(a) a registered owner appears on the face of the register to be beneficially entitled to land, and

(b) from an instrument creating or declaring a trust, it is established to the satisfaction of the registrar that the registered owner was at the time that person became registered and the person still is a trustee on the trusts set out in the instrument,

the registrar,

(c) on application, may make an endorsement in the register similar to that required under subsection (3) and of the date on which it is made, or

(d) if, in the registrar's opinion, the circumstances require, may register a new indefeasible title in the name of the trustee.

(10) If registration has been completed in accordance with this section and an instrument produced and filed is effective

(a) to modify the terms or conditions of the trust, or

(b) for the purpose of evidencing an alteration of or among the beneficiaries by operation of law, or on the happening of an event contemplated by the trust instrument, and not being a transfer or assignment of the rights of a beneficiary made while the transferor or assignor is living,

the registrar, on application, may add to the existing endorsement a note of the fact of the modification or alteration and of the filing number of the instrument.

Interest or right reserved to transferor

181   (1) On an application to register a person as owner in fee simple of land under an instrument by which

(a) an estate or interest in the land transferred remains in the transferor,

(b) a restrictive covenant is entered into by the transferee for the benefit of other land registered in the name of the transferor, or

(c) a condition, exception, reservation, easement, statutory right of way or other right in or on the land covered by the application is imposed, reserved or created that, despite this section, could be registered as a charge under section 197,

the existing indefeasible title must be cancelled and the estate or interest remaining in, and the rights reserved to the transferor or imposed or created must, on application, be registered as a charge against the new indefeasible title.

(2) The applicant for the registration of the fee simple is authorized to make, on behalf of a transferor, any application necessary to give effect to subsection (1).

Registration of restrictive covenants and easements

182   (1) If a restrictive covenant, an easement, a party wall agreement as defined in section 223.1, or other incorporeal right is entered into or created for the purpose of being annexed to other land, hereinafter referred to as the dominant tenement, for which an indefeasible title has been registered, the registrar must make an endorsement of the covenant, easement or right, and of the instrument creating it, against the indefeasible title of the dominant tenement.

(2) A transfer of the land covered by an indefeasible title on which an endorsement under subsection (1) has been made transfers, without express mention, the benefit of the covenant, easement, agreement or right.

Entries carried forward from original entry

183   If a condition, exception, reservation, charge, lien or interest is carried forward from a former folio in the register to a new certificate of title, the new entry in the register has the same effect as the original entry, and for all purposes dates from the time when it was originally made in the register.

Registration of grantor a condition precedent

184   If the person purporting to transfer an estate in fee simple in land is alive and entitled to be registered as the owner in fee simple, the person to whom the transfer purports to be made must not be registered under it unless the person so purporting to transfer the estate is first registered as the owner in fee simple.

Part 12 — Transfers

Form of transfer

185   (1) A transfer of a freehold estate must be in the form approved by the director and on a single page.

(2) This section does not apply

(a) if a form of transfer is prescribed by another enactment, or

(b) if, in the opinion of the registrar, it would be proper to accept another form of transfer.

(3) Nothing in subsection (1) precludes the addition, in the approved form, of an additional or necessary party.

Implied covenants

186   (1) In this section, "transferor" and "covenantor" include the personal representatives of each, and "transferee" and "covenantee" include the personal representatives and assignees of each.

(2) Unless expressly excepted or qualified, and except as provided in subsection (3), a transfer of a freehold estate for valuable consideration in the approved form or in a form permitted by the registrar under section 185 (2) (b) is deemed

(a) to be made under Part 1 of the Land Transfer Form Act,

(b) to contain the forms of words contained in column 1 of Schedule 2 to that Act, and

(c) to be made by the transferor as covenantor with the transferee as covenantee,

and to have the same effect and be construed as if it contained the forms of words contained in column 2 of Schedule 2 to that Act.

(3) Despite subsection (2), unless expressly excepted or qualified, a transfer of an estate in fee simple in the approved form made by a personal representative or trustee is deemed to contain only the form of words in section 7 of column 1 of Schedule 2 to the Land Transfer Form Act, Part 1, and to have the same effect and be construed as if it contained only the form of words in section 7 of column 2 of Schedule 2 to that Act.

(4) Subject to subsections (5) to (8), a transfer of a freehold estate for valuable consideration and in the approved form that is completed and executed in the manner approved by the director, and the execution of which has been witnessed or proved in accordance with Part 5, operates to transfer the freehold estate of the transferor to the transferee whether or not it contains express words of transfer.

(5) Subject to subsection (8), if the transfer does not contain express words of limitation, the transfer operates to transfer the freehold estate of the transferor in the land to the transferee in fee simple.

(6) Subject to subsection (8), if the transfer contains express words of limitation, the transfer operates to transfer the freehold estate of the transferor in the land to the transferee in accordance with the limitation.

(7) Subject to subsection (8), if the transfer contains an express reservation or condition, the transfer operates to transfer the freehold estate of the transferor to the transferee subject to the reservation or condition.

(8) Subsections (4) to (7) do not operate to transfer an estate greater than the estate in respect of which the transferor is the registered owner.

Registration of transferee

187   If there is a transfer, in the approved form or other form satisfactory to the registrar, of land the title to which is registered, the transferee is entitled to be registered as the owner of the estate or interest held by or vested in the former owner to the extent to which that estate or interest is transferred and the registrar must register the title claimed by the applicant

(a) on being satisfied that the transfer produced has transferred to and vested in the applicant a good safe holding and marketable title, and

(b) on production of the former absolute certificate of title or duplicate indefeasible title, if any.

Registration by amendment to register

188   (1) In this section, "transfer" includes a transmission, and "transferee" includes a person entitled by transmission to be a registered owner.

(2) If

(a) land described in a transfer is the subject of a further transfer, or

(b) the registrar has reason to believe that a further transfer is pending,

the registrar may amend the existing indefeasible title by striking out the name of the transferor on it and substituting the name of the transferee in the first transfer.

(3) An amendment made under subsection (2) constitutes the transferee the registered owner of the land described in the indefeasible title as effectively and in the same manner as if an indefeasible title in respect of the land described in the transfer had issued.

Dealings with duplicate indefeasible title on transfer

189   (1) The holder of a duplicate indefeasible title to land for which the holder has given a transfer must deliver up the holder's duplicate indefeasible title to the registrar for cancellation.

(2) If the transfer covers all the land included in the duplicate indefeasible title, the registrar must retain the duplicate and must mark or stamp on it "cancelled" and note on the duplicate and the existing indefeasible title, the number of the new indefeasible title covering the land.

(3) If the transfer covers

(a) only a part of the land included in the duplicate indefeasible title, or

(b) an undivided interest in the land less than the whole interest shown on the duplicate indefeasible title,

the registrar may,

(c) in the manner provided in this section, cancel the duplicate indefeasible title and the existing indefeasible title and, subject to production of a reference or explanatory plan that the registrar may require, register a new indefeasible title covering the remainder, or

(d) amend the existing indefeasible title and duplicate indefeasible title, if any, by removing the part or interest covered by the transfer.

(4) A plan required under subsection (3) by the registrar does not require approval under sections 75 and 91.

(5) If a person registered as a co-owner acquires by transfer all or part of the interest of the person's co-owner, the registrar must register a single indefeasible title consolidating the interest so acquired with that held by that person at the date of registration, and any outstanding duplicate indefeasible title must be cancelled under this section.

(6) The registrar may apply subsection (3) if a part of or an interest in the land is to cease being contained in the title.

Destruction of duplicate indefeasible title

190   Despite section 166, a cancelled duplicate indefeasible title, other than a certificate endorsed with an executed transfer under the former Act in Form N (Special), may be destroyed by the registrar at any time after the expiration of 3 months from the date of cancellation.

Part 13 — Dealings With Indefeasible Title Other Than by Registration

Registration of new indefeasible title and change of name

191   (1) On application by a person shown as a fee simple owner of land with respect to which an indefeasible title has been registered and on production of the duplicate indefeasible title, if any, accompanied by proof satisfactory to the registrar that the name of that person has been lawfully changed, and of the person's identity, the registrar must cancel the existing indefeasible title and register a new indefeasible title in the changed name of that person.

(2) The registrar may, instead of the procedure set out in subsection (1), endorse the change of name on the register.

(3) On application by a person who is the registered owner of a charge, and on production of proof satisfactory to the registrar that the name of that person has been lawfully changed, and of the person's identity, the registrar must endorse the change of name on the register.

(4) For the purposes of this section, a change of name is deemed to include an amalgamation of 2 or more corporations, however effected, and whether in respect of a beneficial or trust estate or interest in land, and the continuing corporation following the amalgamation may apply under subsection (1) or (3).

Registration of several indefeasible titles instead of original

192   (1) On application by a registered owner of the fee simple and on the surrender and cancellation of one or more duplicate indefeasible titles, the registrar may cancel the title in the register, and register in the name of the owner, subject to the restrictions of sections 158 and 178, one or more indefeasible titles collectively covering the land included in the surrendered titles and, respectively, covering that part of the land that the owner may direct.

(2) On application by a registered owner whose title is subject to one or more cancelled charges, and on the surrender and cancellation of the registered owner's duplicate indefeasible title, the registrar may cancel the subsisting title and register a new indefeasible title.

(3) On application by tenants in common, the registrar may, in the same manner as provided in subsection (1),

(a) consolidate in one indefeasible title the undivided interests to which the applicants are entitled, or

(b) unless the separation would result in the same person being the registered owner under separate indefeasible titles of all that person's undivided interests, separate into several indefeasible titles the undivided interests to which the applicants are entitled.

(4) The holder of a duplicate indefeasible title on which the registrar has endorsed a transfer of part of the land included in the indefeasible title, may surrender it for cancellation under this section and receive a new duplicate indefeasible title for the land or interest remaining in the surrendered certificate.

(5) The registrar may act under subsection (2) or (4) without an application being made.

(6) The registrar must note in the register all conditions, charges, liens, interests and endorsements to which the respective land is subject at the time of the application or of the registrar proceeding under subsection (5).

Lost indefeasible certificate of title

193   (1) On the registrar being satisfied by affidavit that a duplicate indefeasible title has been lost or destroyed, and on advertisement of the registrar's intention published for such time in one or more newspapers, or in the Gazette, or in both, as the registrar considers necessary and proper, the registrar may issue a provisional indefeasible title instead of the duplicate indefeasible title lost or destroyed.

(2) The provisional indefeasible title must contain an exact copy of the corresponding indefeasible title kept in the register, and of every endorsement on it, and must state the reason why it is issued and refer to the document filed as evidence of loss or destruction by its filing number.

(3) The registrar must note on the register the issue of the provisional indefeasible title and the date of issue and refer to the document filed as evidence of loss or destruction by its filing number.

(4) The registrar may dispense with the advertisement of intention or may substitute the posting of a notice in the land title office if the registrar is satisfied of the destruction of the duplicate indefeasible title or of its loss under such circumstances that it could not fall into other hands and that advertisement may safely be dispensed with.

(5) The registrar may, on the surrender of a defaced or mutilated duplicate indefeasible title, issue a provisional indefeasible title in place of it.

Effect given to new or provisional indefeasible title

194   A new indefeasible title or provisional indefeasible title registered or issued under sections 191 to 193 is available for all purposes and uses for which the former indefeasible title or duplicate indefeasible title, as the case may be, would have been available, and in respect of the land or interest included in it is as valid and effectual as the former indefeasible title or duplicate indefeasible title, and relates back to the date of registration or issue of the former indefeasible title or duplicate indefeasible title.

Surrender of duplicate indefeasible title on registration of charge

195   (1) On an application to register a charge by way of mortgage or agreement for sale, the duplicate indefeasible title, if any, must be surrendered to the registrar for cancellation.

(2) When all charges referred to in subsection (1) appearing in the register have been cancelled, the registrar may, on request of the registered owner in fee simple, issue to the registered owner a duplicate indefeasible title and deliver it to the registered owner or that owner's nominee.

Provisional title may issue to minerals

196   Sections 193 to 195 apply to a certificate of title to minerals.

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 signed statement 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 acknowledgement 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's 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.

Part 15 — Instruments

Registration of instruments

238   (1) An instrument must not be registered unless,

(a) in the case of a transfer of a freehold estate or a mortgage, the instrument complies with and has been completed, executed and witnessed in accordance with this Act and the regulations,

(b) in the case of a general instrument to which Division 6 of Part 14 applies, it complies with and has been completed, executed and witnessed in accordance with this Act and the regulations, or

(c) in the case of any other instrument, its form complies with and the instrument has been completed, executed and witnessed in accordance with this Act and the regulations.

(2) Subsection (1) (a) and (c) does not apply to an instrument that was executed before the coming into force of this Act, and the failure to comply with subsection (1) (a) and (c) does not, of itself, invalidate the registration of the instrument after the coming into force of this Act.

(3) Subsection (1) (b) does not apply to a general instrument that was executed before the coming into force of sections 232 to 237 and the failure to comply with subsection (1) (b) does not, of itself, invalidate the registration of the general instrument after the coming into force of sections 232 to 237.

(4) Despite subsection (1), the registrar may authorize the registration of an instrument that does not meet the requirements of that subsection if the registrar considers that it would be proper to do so.

Floating charges on land

239   (1) An instrument that contains a floating charge on land must not be registered unless

(a) it is attached as a schedule to an approved form of mortgage where, in addition to the floating charge, the instrument also creates a mortgage of specific land, or

(b) [Not in force. Repealed 2006-33-1.]

(2) In the circumstances described in subsection (1) (a), the parties must, in the manner approved by the director, indicate that the mortgage contains a floating charge.

Suspension and alteration

240   The director may

(a) and (b) [Repealed 2004-66-113.]

(c) prohibit the use of any type of seal on an instrument to be registered, deposited or filed under this Act, if the director considers that the impression of the seal is not capable of being scanned or stored electronically or of being microfilmed.

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 fulfillment 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.

Part 17 — Transmission of Fee Simple and Charge

Division 1 — General

Registration of transmission before subsequent dealing

260   (1) In this section, "dealing" does not include

(a) a release by a personal representative of a mortgage of which the will-maker or intestate was the registered owner, or

(b) a release by a surviving joint tenant of a mortgage of which the surviving and deceased joint tenants were the registered owners.

(2) If an estate in fee simple, or a charge other than a judgment or a claim of lien under the Builders Lien Act, has become the subject of a transmission, the person entitled under it,

(a) before registering an instrument dealing with the estate in fee simple, and

(b) in the case of a charge,

(i) before registering an instrument dealing with the charge, or

(ii) before taking or continuing a proceeding to enforce the charge,

must apply to the registrar to be registered as the owner of the estate in fee simple or charge.

(3) The registrar, on

(a) being satisfied that a good safe holding and marketable title has been established by the applicant, and

(b) production of the duplicate indefeasible title, if any,

may register the title claimed by the applicant.

Conveyance under Court Order Enforcement Act or Builders Lien Act

261   On application for registration, accompanied by

(a) the conveyance to the purchaser of land sold under the Court Order Enforcement Act or the Builders Lien Act, the execution of which is proved to the satisfaction of the registrar, and

(b) the order of the court under which the sale is made,

the estate or interest in the land sold may be registered under this Act, and an existing absolute certificate of title, duplicate indefeasible title or certificate of charge in respect of that land is deemed to be cancelled as to that estate or interest.

Registration of land vested in Crown by statute

262   (1) If land the title to which is registered becomes vested in the Crown under an Act otherwise than as a result of tax sale proceedings, section 278 applies, and the registrar,

(a) on application by the minister charged with the administration of that Act, and

(b) on the production of a certificate of vesting signed by the minister and describing the land,

must register an indefeasible title to that land in the name of the Crown in right of the Province, and cancel any existing indefeasible title to the land, or effect registration by way of charge in the name of the Crown in right of the Province, as the case may be.

(2) Subsection (1) applies for the benefit of a statutory agency of the government in respect of land acquired by it under an Act.

Division 2 — On Death of Will-Maker or Intestate

Definitions

263   In Divisions (2), (3) and (4):

"certified copy" means a copy certified by the signature of the registrar of the court and sealed with the seal of the court;

"land" means an estate in fee simple.

Power and title of personal representative on registration

264   If an applicant becomes registered as personal representative of a deceased owner,

(a) in the case of land, the applicant is invested with all the title of the deceased owner in it, and

(b) in the case of a charge, the applicant is invested with all the rights and powers of the deceased owner,

and the title of the applicant relates back to and takes effect as and from the date of the death of the deceased.

Death before April 1, 1947

265   Except as provided in section 269, an application to register a transmission of land or charge consequent on the death of a will-maker or an intestate occurring before April 1, 1947 must not be dealt with by the registrar unless there is filed in the land title office

(a) a certified copy of the grant of probate or grant of administration issued from the court in the province that made or resealed the grant, and

(b) an office copy of that portion of Inventory X, Schedule A, of the Succession Duty Act, that correctly describes the land or charge affected.

(c) [Repealed 2018-37-19.]

Death after March 31, 1947

266   (1) An application to register a transmission of land or a charge consequent on the death of a will-maker or intestate occurring after March 31, 1947, but before January 1, 1959, must not be dealt with by the registrar unless there is filed in the land title office

(a) a certified copy of the grant of probate or grant of administration issued from the court in the province that made or resealed the grant, and

(b) [Repealed 2018-37-20.]

(c) an office copy of that portion of Inventory X, Schedule A, of the Probate Fee Act, R.S.B.C. 1979, c. 338, that correctly describes the land or charge affected.

(2) If the death occurred on or after December 31, 1958, but before April 1, 1963, the applicant must comply with subsection (1) (a) and file an office copy of that portion of Inventory X, Schedule A, of the Probate Fee Act, R.S.B.C. 1979, c. 338, that correctly describes the land or charge affected.

(3) If the death occurred after March 31, 1963, but before January 1, 1972, the applicant must comply with subsection (1) (a) and file an office copy of that portion of Inventory X, Schedule A, of the Succession Duty Act, that correctly describes the land or charge affected.

(4) If the death occurred after December 31, 1971, but before January 25, 1977, the applicant must comply with subsections (1) (a) and (3).

(5) If the death occurred after January 24, 1977, the applicant must comply with subsection (1) (a) and if application for grant or reseal of probate or grant of administration was filed with the registrar of the court in British Columbia

(a) before January 1, 1982, file an office copy of that portion of Inventory X, Schedule A, of the Probate Fee Act, R.S.B.C. 1979, c. 338, or

(b) after January 1, 1982, file an office copy of that portion of the declaration and disclosure document required by section 122 of the Wills, Estates and Succession Act,

that correctly describes the land or charge affected.

(6) The registrar may dispense with the filing of the document required in subsection (5) (b).

Discharge of mortgage

267   Sections 265 and 266 apply to an application to register a discharge of a mortgage executed by the personal representative of a deceased mortgagee.

When resealing may be dispensed with

268   If the net value of an estate in British Columbia does not exceed $50 000, the registrar may, in the case of hardship, economic or otherwise, dispense with the resealing in British Columbia of a grant of probate or grant of administration issued in another province.

Division 3 — On Death of Joint Tenant

Transmission re joint tenancies

269   An application to register a transmission of land or a charge consequent on the death of a joint tenant must not be dealt with by the registrar unless there is filed in the land title office

(a) a certified copy of the grant of probate or grant of administration issued from the court in the province that made or resealed the grant, or

(b) a certificate of death issued by the appropriate public officer.

Discharge of mortgage by surviving joint tenant

270   Section 269 applies to an application to register a discharge by a surviving joint tenant of a mortgage of which the surviving and deceased joint tenants were the registered owners.

Division 4 — On Foreclosure

Presumption as to regularity of foreclosure and cancellation proceedings

271   (1) In an application founded on a final order of foreclosure, the registrar, on production of a certified copy

(a) of the order nisi, if any, and

(b) of the final order for foreclosure in which the defendants are all the parties appearing on the records of the registrar as the owners of the fee simple in or a charge on the land priority to whose estate or charge is claimed by the applicant,

is entitled to presume the regularity of all intervening proceedings, and no person foreclosed by the order and named in it as a defendant, who is deprived of land or a charge by the registration of a new indefeasible title, has an action or claim against the assurance fund based on an alleged defect in the foreclosure proceedings.

(2) The presumption of regularity created by subsection (1) applies to all applications founded on a final order for the cancellation of an agreement for the sale of land or a subagreement for the sale of land, and no person, named as a defendant in the order,

(a) whose estate or interest is cancelled by the order, and

(b) who is deprived of land or a charge by a cancellation or other registration effected by the registrar pursuant to the order,

has an action or claim against the assurance fund based on an alleged defect in the cancellation proceedings.

(3) In this section, "assurance fund" means the applicable assurance fund under Part 19.1 or Part 20.

Division 5 — Tax Sales

Notice of tax sale as to each parcel sold

272   (1) If land is sold for taxes, the collector or other proper officer of the taxing authority, as the case may be, must forthwith after the tax sale file with the registrar a notice in writing signed by the collector setting out all of the following:

(a) that the land described in it has been sold for taxes;

(b) the date of the tax sale;

(c) the full name, occupation and address of the assessed owner;

(d) the amount for which the land was sold.

(2) On receipt of the notice, the registrar must make a reference to it in the register.

(3) One notice may cover a number of parcels that are registered collectively under one indefeasible title, but if the parcels are not so registered a separate notice is required in respect of each parcel.

Notice of redemption of tax sale land

273   (1) If land sold for taxes or subject to forfeiture is redeemed within the time limited for redemption, the collector or other proper officer of the taxing authority, as the case may be, must forthwith file with the registrar a notice in writing signed by the collector setting out that the land described in it has been redeemed and the date of the redemption.

(2) On receipt of the notice, the registrar must cancel the notice of sale or forfeiture and the reference to it in the register.

(3) One notice may cover a number of parcels that are registered collectively under one indefeasible title, but if the parcels are not so registered a separate notice is required in respect of each parcel.

Application to other Acts

274   Sections 272 and 273 apply to sales, forfeitures and redemptions of land in respect of taxes under

(a) [Repealed 2003-90-5.]

(b) [Repealed 2014-15-175.]

(c) Part 2 of the Drainage, Ditch and Dike Act, and

(d) Part 17 of the Local Government Act.

Registration of tax sale purchaser under Taxation (Rural Area) Act

275   (1) This Division applies to an application for registration on behalf of a purchaser under a tax sale under the Taxation (Rural Area) Act held after December 31, 1917.

(2) On the application under subsection (1), accompanied by the tax sale deed, the registrar

(a) must register the purchaser as owner of the land comprised in the deed and register an indefeasible title in the purchaser's favour, and

(b) must not

(i) take notice of an irregularity in the tax sale, or the proceedings relating to it, or

(ii) inquire into the regularity of the tax sale proceedings, or proceedings prior to or related to the assessment of the land.

(3) The applicant for registration under this section is not required to produce a former duplicate or absolute certificate to the land sold, but on registration of an indefeasible title under a tax sale deed, every indefeasible title, duplicate indefeasible title, absolute certificate of title or other certificate in respect of the land for which the indefeasible title is registered, is deemed to be cancelled as far as it relates to the land comprised in that indefeasible title.

Effect of registration of title derived from tax sale

276   (1) Despite any other Act, if land is sold for taxes, rates or assessments, the registration of the tax sale purchaser for an estate in fee simple purges and disencumbers the land of

(a) all the right, title and interest of every previous owner, or of those claiming under a previous owner, and

(b) all claims, demands, payments, charges, liens, judgments, mortgages and encumbrances of every nature and kind, whether or not registered under this Act,

that are subsisting immediately before the registration of the tax sale purchaser, except

(c) an easement registered against the land,

(d) a restrictive covenant, declaration of building scheme, or covenant under section 219 registered against the land,

(e) a statutory right of way registered as a charge against the land,

(f) the rights specified in section 23 (2) (a), (b), (e), (f), (h), (i) and (j), and

(g) a lien or mortgage of the Crown or an improvement district.

(2) A forfeiture and vesting of land in the Crown under section 39 of the Taxation (Rural Area) Act and the forfeiture of land under any other Act for nonpayment of taxes, rates or assessments does not extinguish

(a) an easement registered against the land,

(b) a restrictive covenant, declaration of building scheme or a covenant under section 219 registered against the land, or

(c) a statutory right of way registered as a charge against the land.

(3) The Crown is bound by subsection (2).

Provincial tax sale purchaser under repealed Acts

277   In the case of tax sales under the Taxation (Rural Area) Act to which this Division is not applied because of section 275 (1), proceedings for registration under tax sale deeds must be in accordance with the Acts repealed by the Land Registry Act, S.B.C. 1921, c. 26.

Land forfeited to or vested in Crown

278   (1) If land, the title to which has been registered,

(a) has been forfeited to the government for nonpayment of taxes, or

(b) becomes vested in the Crown for the use of the Province,

the Surveyor of Taxes or other proper officer must file with the registrar a certificate of forfeiture or vesting, as the case may be, signed by the Surveyor of Taxes or other proper officer.

(2) The certificate must set out a description of the land sufficient for the registrar to identify it in the register.

(3) A certificate of forfeiture or vesting filed under this section is satisfactory evidence to the registrar that the Crown is entitled to a good, safeholding and marketable title in fee simple to the land described in the certificate.

(4) On filing of a certificate of forfeiture or vesting under this section, the registrar must

(a) cancel every indefeasible title and duplicate indefeasible title relating to the land described in the certificate of forfeiture or vesting, and

(b) register a new indefeasible title to the land described in the certificate in the name of the Crown.

(4.1) If the certificate affects an absolute certificate of title, the registrar must make such entry in the records the registrar considers necessary to give notice of the interest of the Crown.

(5) The title of the Crown, on registration under this section is, subject to section 276, conclusive and is deemed to be the true and correct title from the time of registration, free from encumbrances, and is conclusive evidence that every application, notice, publication, proceeding, consent and act whatever that ought to have been made, given and done before the issue of the certificate by the collector or other proper officer has been made, given and done by the proper authority to the proper persons.

Tax sales held under Taxation (Rural Area) Act

279   Sections 272 to 275, 277 and 278 apply to a tax sale under the Taxation (Rural Area) Act held before January 1, 1971.

Application to the government

280   Section 278 applies to the registration of the title of the Crown on a forfeiture and vesting under the Taxation (Rural Area) Act.

Part 18 — Notice of Certain Conditions and Obligations

Forest Act

281   (1) If an indefeasible title has been registered and the land included in it is or becomes subject to a tree farm licence or woodlot licence entered into under the Forest Act, or an agreement entered into under section 21 of the Range Act, the minister responsible for the administration of the Ministry of Forests and Range Act may file a written notice to that effect with the registrar.

(2) The registrar must file the notice and endorse a note of it in the register.

(3) One notice may cover a number of parcels that are registered collectively under one indefeasible title, but if the parcels are not so registered a separate notice is required in respect of each parcel.

Part 19 — Caveats

Lodging caveat

282   (1) A person, in this Act referred to as the "caveator", claiming

(a) under an unregistered instrument which is incapable of immediate registration,

(b) by operation of law, or

(c) otherwise,

to be entitled to land the title to which is registered under this Act, may by leave of the registrar, granted on terms, if any, the registrar may consider proper, lodge a caveat with the registrar prohibiting registration of a dealing with the land either absolutely or in the manner or to the extent expressed in the caveat.

(2) A committee or the Public Guardian and Trustee acting under the Patients Property Act may lodge a caveat with the registrar if the committee or Public Guardian and Trustee certifies

(a) that he or she has been appointed committee or is the committee under the Patients Property Act, and

(b) that the land of a patient is or may be endangered.

(2.1) An attorney acting under an enduring power of attorney may lodge a caveat with the registrar if the attorney certifies

(a) that the attorney has the authority to act as attorney under Part 2 of the Power of Attorney Act, and

(b) that the land of the person for whom the attorney is acting is or may be endangered.

(3) Section 293 does not apply to a caveat lodged under subsection (2), but the registrar may withdraw the caveat

(a) on receiving a withdrawal notice under section 290, or

(b) on application by any person, if the registrar considers it proper to do so.

Right of registered owner to lodge caveat

283   (1) A caveator, being a registered owner, who provides evidence that

(a) an instrument properly executed by the caveator is no longer valid or operative, or

(b) an instrument not properly or validly executed by the caveator might be or has been tendered for registration,

may by leave of the registrar, granted on such terms, if any, as the registrar may consider proper, lodge a caveat with the registrar to the effect that a disposition of the land or charge, either generally or as specifically expressed in the caveat, must not be registered unless

(c) the consent of the caveator is given after notice demanding the caveator's consent has been served on the caveator, or

(d) the claimant under the instrument establishes the claimant's title in a court.

(2) Subsection (1) applies to a power of attorney executed by a registered owner.

(3) A caveat under this section must comply with section 286, except subsection (2) (b) of that section.

Power of court to issue injunction

284   (1) In this section, "order" includes injunction.

(2) The Supreme Court may,

(a) on the application of a person interested in land, or

(b) on application made on behalf of the owner of a future or contingent interest,

make an order prohibiting dealing with that land.

(3) The court may annex to the order terms and conditions it may consider proper, including an expiry date.

(4) The order may be lodged with the registrar, and, if lodged with the registrar, the registrar must deal with it in the same manner as a caveat.

(5) This section applies only to land registered under this Act.

Power of registrar to lodge caveat

285   (1) If, in the opinion of the registrar,

(a) an error has been made in a registration or in an indefeasible title or other instrument or document,

(b) a prohibition against dealing with land is necessary to prevent fraud,

(c) a person empowered to administer an enactment has produced satisfactory evidence of a contravention of the enactment and a prohibition is considered necessary to prevent improper dealing in land covered by an indefeasible title,

(d) land owned by or alleged to be owned by the Crown or a person under a disability is or may be improperly dealt with, or

(e) any other circumstances require it,

the registrar, on the registrar's own behalf or on behalf of the Crown or a person under a disability, may lodge a caveat to prohibit dealing with the land.

(2) The registrar, in the exercise of the registrar's discretion under subsection (1), may call for such evidence as the registrar considers necessary in the circumstances.

(3) A caveat lodged by the registrar does not lapse unless the caveat expressly so provides.

Form of caveat

286   (1) A caveat may be in the form approved by the director.

(2) A caveat must be verified by the affidavit of the caveator, or the caveator's solicitor or agent and must set out in numbered paragraphs the following:

(a) a description of the land against which the caveat is to be lodged;

(b) the nature of the estate or interest claimed;

(c) the grounds on which the claim is founded;

(d) an address within British Columbia at which notices may be served.

(3) This section does not apply to a caveat lodged by the registrar.

Duty of registrar on receipt of caveat

287   On the receipt of a caveat lodged under this or any other Act, the registrar must

(a) make an endorsement on it of the day and time of its receipt,

(b) enter an endorsement of it in the register, and

(c) forthwith send a copy of it to the person against whose title the caveat has been lodged.

Effect of caveat

288   (1) As long as a caveat lodged with the registrar remains in force, the registrar must not

(a) register another instrument affecting the land described in the caveat, unless the instrument is expressed to be subject to the claim of the caveator, or

(b) deposit a plan of subdivision or otherwise allow any change in boundaries affecting the land described in the caveat, unless consented to by the caveator.

(2) An instrument expressed to be subject to the claim of the caveator may be registered or deposited, unless the claim of the caveator, if successful, would, in the opinion of the registrar, destroy the root of title of the person against whose title the caveat has been lodged.

Proceedings for discharge of caveat

289   (1) An owner or other person claiming an estate or interest in land or a charge, in this Act referred to as the "caveatee", may, before the expiry of the caveat, apply to the Supreme Court and notify the caveator to attend before the court to show cause why the caveat should not be discharged.

(2) The court may,

(a) on proof that the caveator has been served with the notice, and

(b) on such evidence as the court may require,

make such order as the court may consider proper.

(3) If a question of right or title is required to be determined, the procedure must be as nearly as may be in conformity with the Supreme Court Civil Rules.

(4) If a caveat is lodged by the registrar, the application must be heard in the city in which the land title office in question is located.

Withdrawal of caveat

290   (1) A caveator may, by notice in writing, which may be in the form approved by the director, to the registrar, withdraw the caveat at any time, but the withdrawal of the caveat does not prejudice the power of the court to make an order as to payment by the caveator of the costs of the caveatee incurred before the receipt by the caveatee of the notice.

(2) The notice may be signed by the caveator or the caveator's personal representative, or, if the caveat was signed by a solicitor, by that solicitor.

Further caveat lodged after caveat has lapsed, been withdrawn or discharged

291   (1) After a caveat has lapsed or has been withdrawn or discharged a caveator must not, except as mentioned in this section, lodge another caveat in respect of the same matter.

(2) If a caveator has withdrawn the caveat, the registrar may, on terms the registrar considers proper, allow one further caveat to be lodged in respect of the same matter.

(3) Nothing in this section affects the right of the registrar to lodge a caveat under this Act.

Registration of withdrawal, lapse or discharge of caveat

292   On application to the registrar, together with such evidence as the registrar may require, the registrar must make an endorsement in the register of the withdrawal, lapse or discharge of a caveat.

Lapse of caveat

293   (1) A caveat lodged under this Act lapses and ceases to affect the title to land after the expiration of 2 months after the date it was lodged with the registrar, unless within that period the caveator commences an action to establish the caveator's title to the estate or interest claimed and registers a certificate of pending litigation.

(2) Despite subsection (1), if a caveatee, in accordance with the caveat serves, at least 21 days before the expiry of the 2 months referred to in subsection (1), a notice in the form approved by the director on the caveator or the caveator's solicitor or agent filing the caveat, as the case may be, to withdraw the caveat or take proceedings in court to establish the claim made in the caveat, the caveat lapses and ceases to affect the caveatee's title to the land after the expiration of 21 days after the date of service, unless within the 21 day period the caveator commences an action to establish the caveator's title to the estate or interest claimed and registers a certificate of pending litigation.

(3) This section does not apply to a caveat lodged by the registrar.

Compensation if caveat lodged wrongfully

294   (1) If a caveator wrongfully and without reasonable cause lodges or causes to be lodged with the registrar a caveat, the caveator is liable to pay to the person who sustains damage by it such compensation as the Supreme Court considers just.

(2) This section does not apply to a caveat lodged by the registrar.

Part 19.1 — Land Title and Survey Authority Assurance Fund

Definition

294.1   In this Part:

"court" means the Supreme Court;

"fund" means the assurance fund established under section 294.11 by the Land Title and Survey Authority.

Establishment and maintenance of assurance fund

294.11   (1) The Land Title and Survey Authority must establish and maintain an assurance fund for the purposes of this Part.

(2) The fund

(a) is the property of the Land Title and Survey Authority,

(b) must be accounted for separately from other property of the Land Title and Survey Authority,

(c) is not subject to any process of garnishment, attachment, execution or seizure, and

(d) is not subject to a trust in favour of a person who claims to have sustained a loss.

(3) Despite any Act, agreement or court order, a receiver must not exercise custody or control over the fund.

Application of this Part

294.12   No payment may be made from the fund in respect of a loss, damage or deprivation referred to in this Part occurring as a result of the deposit, filing or registration of an instrument or document before the date this section comes into force.

Remedies of person deprived of land

294.2   (1) A person, in this Part referred to as the "claimant",

(a) who is deprived of any estate or interest in land

(i) because of the conclusiveness of the register, in circumstances where, if this Act had not been passed, the claimant would have been entitled to recover the land from the present owner, and

(ii) in consequence of fraud or a wrongful act in respect of the registration of a person other than the claimant as owner of the land, and

(b) who is barred by this Act or by any other Act, or otherwise precluded from bringing an action

(i) for possession, or any other remedy for the recovery of land, or

(ii) for rectification of the register,

may, subject to subsections (2) and (3), proceed in court for the recovery of damages against the person by whose fraud or wrongful act the claimant has been deprived of the land.

(2) In a proceeding under subsection (1), the Land Title and Survey Authority must be joined as a nominal party defendant as a condition of recovering damages and costs from the fund, and the Land Title and Survey Authority has the right in the proceedings to all the defences available to the Land Title and Survey Authority or any other person for the purpose of protecting the fund.

(3) If the person liable for damages is dead, or cannot be found in British Columbia, a claimant may, instead of proceeding against that person, proceed in court for the recovery of damages and costs against the Land Title and Survey Authority as nominal defendant and recovering the amount of the damages and costs from the fund, and the Land Title and Survey Authority has in the proceedings all the rights and defences under subsection (2).

(4) If

(a) final judgment has been given against the person liable for damages under subsection (1) in a proceeding in which the Land Title and Survey Authority has been joined as a party defendant, and

(b) the court, on the application of the plaintiff supported by evidence satisfactory to the court, certifies to the Land Title and Survey Authority that the plaintiff has taken all reasonable steps to recover the amount of damages and costs awarded by the judgment from the person so liable, but the plaintiff has been unable to recover all or part of them,

on receipt of a certified copy of the judgment and the certificate of the court, the Land Title and Survey Authority must

(c) pay the amount of the damages and costs so awarded or the unrecovered balance of them, as the case may be, on account of the person liable for the damages or the person's personal representatives, and

(d) charge the amount to the fund.

(5) If the person bringing an action under subsection (3) recovers final judgment against the Land Title and Survey Authority, the registrar of the court must certify to the Land Title and Survey Authority the fact of the judgment and the amount of the damages and costs recovered.

(6) On receipt of a certificate under subsection (5), the Land Title and Survey Authority must pay the amount of the damages and costs on account of the person liable for the damages or the person's personal representative, and must charge the amount to the fund.

(7) A proceeding for the recovery of damages sustained through the deprivation of land may not be brought under this section

(a) against the Land Title and Survey Authority, or

(b) against the person by whose fraud or wrongful act the person entitled to the land has been deprived of it,

unless the proceeding is commenced within 3 years after the deprivation is discovered by the claimant.

(8) If a person is under a disability, the Limitation Act applies to this section.

Protection of purchaser in good faith and for value

294.21   (1) In this section, "transferee" means a transferee who, in good faith and for valuable consideration, acquires an estate or interest in land less than a fee simple estate.

(2) Despite anything to the contrary in this Act, no transferee is subject to a proceeding under this Part in respect of an estate or interest in land of which the transferee is the registered owner, for

(a) recovery of land,

(b) deprivation of land, or

(c) damages in respect of land

on the ground that the transferor

(d) may have been registered as owner through fraud, error or a wrongful act, or

(e) may have derived title from or through a person registered as owner through fraud, error or a wrongful act.

(3) [Repealed 2005-35-15.]

Fault of registrar

294.22   (1) Except in accordance with this section, no proceeding may be brought against the registrar or a person acting under the registrar's direction by a person sustaining loss or damages caused, solely or partially, as a result of an omission, mistake or misfeasance of the registrar, or a person acting under the registrar's direction, in the execution of their respective duties under this Act.

(2) A person sustaining loss or damages caused, solely or partially, as a result of an omission, mistake or misfeasance of the registrar, or a person acting under the registrar's direction, in the execution of their respective duties under this Act, may, subject to section 294.6 [limitation of liability of fund], proceed in court against the Land Title and Survey Authority as nominal defendant for the purpose of recovering the amount of the loss or damages and costs from the fund.

(3) Despite the Limitation Act, an action may not be brought against the Land Title and Survey Authority under this section unless the action is commenced within 3 years after the loss or damage is discovered by the claimant.

(4) If the person bringing an action under subsection (1) recovers final judgment against the Land Title and Survey Authority, the registrar of the court must certify to the Land Title and Survey Authority the fact of the judgment and the amount of the damages and costs recovered.

(5) The Land Title and Survey Authority must, on receipt of the certificate under subsection (4), pay the amount of the damages and costs, and must charge the amount to the fund.

Notice of actions against Land Title and Survey Authority

294.3   (1) A proceeding against the Land Title and Survey Authority, or in which the Land Title and Survey Authority is required to be joined as a party defendant under this Part, may not be commenced until the expiration of one month after a notice of the intended proceeding, setting out

(a) the particulars of the claim, and

(b) fully and fairly all the material facts of the matter,

has been served on the Land Title and Survey Authority and on the registrar.

(2) The Land Title and Survey Authority may, on application supported by an affidavit, grant relief in whole or in part from strict compliance with subsection (1).

Liability of plaintiff for costs

294.4   (1) A plaintiff in an action is liable to pay the full costs of the action if

(a) judgment is given in favour of the Land Title and Survey Authority as nominal defendant,

(b) the plaintiff discontinues the action, or

(c) the action is dismissed.

(2) The costs when taxed must be levied in the name of the Land Title and Survey Authority as nominal defendant by similar process or execution as in other actions.

Judgment against person liable

294.5   (1) If an amount has been paid by the Land Title and Survey Authority in respect of a judgment recovered under section 294.2, the court,

(a) on an application by the Land Title and Survey Authority without notice to any person, and

(b) on the production of a certificate signed by the Land Title and Survey Authority certifying that the amount has been paid in satisfaction of the judgment,

may order that judgment be entered for the amount so paid, together with the costs of the application, in favour of the Land Title and Survey Authority for the benefit of the fund against the person liable for damages and costs and on whose account the amount has been paid, or against the personal representatives of that person.

(2) A judgment so entered is final, and is enforceable by similar process or execution as in the case of other judgments.

Limitation of liability of fund

294.6   The fund or the Land Title and Survey Authority as nominal defendant is not under any circumstances liable for compensation for loss, damage or deprivation

(a) occasioned to or suffered by

(i) the owner of undersurface rights, or

(ii) an equitable mortgagee by deposit of the duplicate indefeasible title, whether or not accompanied by a memorandum of deposit,

(b) occasioned by

(i) the breach by a registered owner of a trust, whether express, implied, constructive or statutory,

(ii) land being included under an indefeasible title with other land through misdescription of boundaries or parcels of land,

(iii) the improper use of the seal of a corporation or by an act of an authorized signatory of a corporation who exceeds his or her authority,

(iv) the dissolution of a corporation, or its lack of capacity to hold and dispose of land, or

(v) the issue of a provisional certificate of title,

(c) if the land in question may have been included in 2 or more grants from the Crown,

(d) because of an error or shortage in area of a lot, block or subdivision or in volume of an air space parcel, according to a plan filed or deposited in the land title office,

(e) if the plaintiff, or the person through or under whom the plaintiff claims,

(i) was served with notice in any manner permitted by this Act, or

(ii) not being served with notice, had knowledge that the registrar or a person under the registrar's direction was about to commit the act through which the plaintiff claims to have suffered damages,

unless the person so served or having knowledge took and maintained the proper proceedings to establish the person's claim to the land, or to prevent that act on the part of the registrar or the person under the registrar's direction for service of a notice,

(f) in respect of the proportion of the loss, damage or deprivation caused or contributed to by the act, neglect or default of the plaintiff,

(g) if the loss, damage or deprivation arises out of a matter in respect of which the registrar is by any Act or law not required, either expressly or by necessary implication, to inquire, or

(h) occasioned by an act or omission of the registrar, or a person acting under the registrar's direction, in relation to the general index that is referred to in section 250 of the Strata Property Act including, without limitation,

(i) making an endorsement on the general index,

(ii) failing or delaying to file a document or to make an endorsement on the general index,

(iii) making an error in an endorsement on the general index, or

(iv) giving or omitting to give advice concerning the general index.

Recovery limited to value of land

294.61   (1) A person is not entitled to recover from the Land Title and Survey Authority as nominal defendant or the fund an amount for compensation, in respect of loss, damage or deprivation of land, greater than the value of the land at the time of the loss, damage or deprivation.

(2) In ascertaining the compensation, the value of buildings and other improvements erected or made subsequent to the loss, damage or deprivation must be excluded.

Payment from fund without action

294.7   The Land Title and Survey Authority, without a proceeding being brought, may admit or compromise a claim made under this Part against the fund, and may pay all or part of the claim.

Payment by Land Title and Survey Authority

294.8   The Land Title and Survey Authority must pay the amount of a claim or judgment in respect of which the fund is liable if there is not at that time a sufficient amount at the credit of the fund.

Withholding of payment until proceedings concluded

294.9   The Land Title and Survey Authority is not bound to make payment under this Part in the case of a final judgment until

(a) the time allowed for appeal from the judgment has expired, or

(b) the determination of all proceedings in the action, including appeals.

Part 20 — Government Assurance Fund

Definition

294.91   In this Part, "assurance fund" means the assurance fund continued under section 295 (1).

Maintenance of assurance fund

295   (1) The assurance fund existing in the Provincial Treasury is continued for the purposes of this Part, and together with all sums accrued or accruing on it must be invested by the minister charged with the administration of the Financial Administration Act in securities approved by the Lieutenant Governor in Council.

(2) If at any time the assurance fund is reduced to an amount below the sum of $50 000 by payment of claims or otherwise, sufficient money must be paid into the fund out of the consolidated revenue fund to maintain the fund at not less than $50 000.

Application of this Part

295.1   No payment may be made from the assurance fund in respect of a loss, damage or deprivation referred to in this Part occurring as a result of the deposit, filing or registration of an instrument or document on or after the date this section comes into force.

Remedies of person deprived of land

296   (1) In this Part, "court" means the Supreme Court.

(2) A person, in this Part referred to as the "claimant",

(a) who is deprived of any estate or interest in land

(i) because of the conclusiveness of the register, in circumstances where, if this Act had not been passed, the claimant would have been entitled to recover the land from the present owner, and

(ii) in consequence of fraud or a wrongful act in respect of the registration of a person other than the claimant as owner of the land, and

(b) who is barred by this Act or by any other Act, or otherwise precluded from bringing an action

(i) for possession, or any other remedy for the recovery of land, or

(ii) for rectification of the register,

may, subject to subsections (3) and (4), proceed in court for the recovery of damages against the person by whose fraud or wrongful act the claimant has been deprived of the land.

(3) In a proceeding under subsection (2), the minister must be joined as a nominal party defendant as a condition of recovering damages and costs from the assurance fund, and the minister has the right in the proceedings to all the defences available to the minister or any other person for the purpose of protecting the assurance fund.

(4) If the person liable for damages is dead, or cannot be found in British Columbia, a claimant may, instead of proceeding against that person, proceed in court for the recovery of damages and costs against the minister as nominal defendant and recovering the amount of the damages and costs from the assurance fund, and the minister has in the proceedings all the rights and defences under subsection (3).

(5) If

(a) final judgment has been given against the person liable for damages under subsection (2) in a proceeding in which the minister has been joined as a party defendant, and

(b) the court, on the application of the plaintiff supported by evidence satisfactory to the court, certifies to the minister charged with the administration of the Financial Administration Act that the plaintiff has taken all reasonable steps to recover the amount of damages and costs awarded by the judgment from the person so liable, but the plaintiff has been unable to recover all or part of them,

on receipt of a certified copy of the judgment and the certificate of the court, the minister charged with the administration of the Financial Administration Act must

(c) pay the amount of the damages and costs so awarded or the unrecovered balance of them, as the case may be, on account of the person liable for the damages or the person's personal representatives, and

(d) charge the amount to the assurance fund.

(6) If the person bringing an action under subsection (4) recovers final judgment against the minister, the registrar of the court must certify to the minister charged with the administration of the Financial Administration Act the fact of the judgment and the amount of the damages and costs recovered.

(7) On receipt of a certificate under subsection (6), the minister charged with the administration of the Financial Administration Act must pay the amount of the damages and costs on account of the person liable for the damages or the person's personal representative, and must charge the amount to the assurance fund.

(8) A proceeding for the recovery of damages sustained through the deprivation of land may not be brought under this section

(a) against the minister, or

(b) against the person by whose fraud or wrongful act the person entitled to the land has been deprived of it,

unless the proceeding is commenced within 3 years after the deprivation is discovered by the claimant.

(9) If a person is under a disability, the Limitation Act applies to this section.

Protection of purchaser in good faith and for value

297   (1) In this section, "transferee" means a transferee who, in good faith and for valuable consideration, acquires an estate or interest in land less than a fee simple estate.

(2) Despite anything to the contrary in this Act, no transferee is subject to a proceeding under this Part in respect of an estate or interest in land of which the transferee is the registered owner, for

(a) recovery of land,

(b) deprivation of land, or

(c) damages in respect of land

on the ground that the transferor

(d) may have been registered as owner through fraud, error or a wrongful act, or

(e) may have derived title from or through a person registered as owner through fraud, error or a wrongful act.

(3) [Repealed 2005-35-18.]

Fault of registrar

298   (1) A person sustaining loss or damages caused, solely or partially, as a result of an omission, mistake or misfeasance of the registrar, or a person acting under the registrar's direction, in the execution of their respective duties under this Act, may, subject to section 303, proceed in the Supreme Court against the minister as nominal defendant for the purpose of recovering the amount of the loss or damages and costs from the assurance fund.

(2) Despite the Limitation Act, an action may not be brought against the minister under this section unless the action is commenced within 3 years after the loss or damage is discovered by the claimant.

(3) If the person bringing an action under subsection (1) recovers final judgment against the minister, the registrar of the court must certify to the minister charged with the administration of the Financial Administration Act the fact of the judgment and the amount of the damages and costs recovered.

(4) The minister charged with the administration of the Financial Administration Act must, on receipt of the certificate under subsection (3), pay the amount of the damages and costs, and must charge the amount to the assurance fund.

Notice of actions against minister

299   (1) A proceeding against the minister, or in which the minister is required to be joined as a party defendant under this Part, may not be commenced until the expiration of one month after a notice of the intended proceeding, setting out

(a) the particulars of the claim, and

(b) fully and fairly all the material facts of the matter,

has been served on the minister and on the registrar.

(2) The minister may, on application supported by an affidavit, grant relief in whole or in part from strict compliance with subsection (1).

Liability of plaintiff for costs

300   (1) A plaintiff in an action is liable to pay the full costs of the action if

(a) judgment is given in favour of the minister as nominal defendant,

(b) the plaintiff discontinues the action, or

(c) the action is dismissed.

(2) The costs when taxed must be levied in the name of the minister as nominal defendant by similar process or execution as in other actions.

(3) Despite subsection (1), if, in the opinion of the minister, a point of law of a novel nature and of public importance arises in the proceedings, the minister may waive all of the costs, or a portion the minister considers just.

Actions against minister

301   An action against the minister, or in which the minister is joined as a party defendant, must be brought against the minister by the name of that office, and is not in any way affected and does not abate by a vacancy or change occurring in that office.

Judgment against person liable

302   (1) If an amount has been paid by the minister charged with the administration of the Financial Administration Act in respect of a judgment recovered under section 296, the Supreme Court,

(a) on an application by the minister without notice to any person, and

(b) on the production of a certificate signed by the minister charged with the administration of the Financial Administration Act certifying that the amount has been paid in satisfaction of the judgment,

may order that judgment be entered for the amount so paid, together with the costs of the application, in favour of the minister for the benefit of the assurance fund against the person liable for damages and costs and on whose account the amount has been paid, or against the personal representatives of that person.

(2) A judgment so entered is final, and is enforceable in the name of the minister by similar process or execution as in the case of other judgments.

Limitation of liability of assurance fund

303   The assurance fund or the minister as nominal defendant is not under any circumstances liable for compensation for loss, damage or deprivation

(a) occasioned to or suffered by

(i) the owner of undersurface rights, or

(ii) an equitable mortgagee by deposit of the duplicate indefeasible title, whether or not accompanied by a memorandum of deposit,

(b) occasioned by

(i) the breach by a registered owner of a trust, whether express, implied, constructive or statutory,

(ii) land being included under an indefeasible title with other land through misdescription of boundaries or parcels of land,

(iii) the improper use of the seal of a corporation or by an act of an authorized signatory of a corporation who exceeds his or her authority,

(iv) the dissolution of a corporation, or its lack of capacity to hold and dispose of land, or

(v) the issue of a provisional certificate of title,

(c) if the land in question may have been included in 2 or more grants from the Crown,

(d) because of an error or shortage in area of a lot, block or subdivision or in volume of an air space parcel, according to a plan filed or deposited in the land title office,

(e) if the plaintiff, or the person through or under whom the plaintiff claims,

(i) was served with notice in any manner permitted by this Act, or

(ii) not being served with notice, had knowledge that the registrar or a person under the registrar's direction was about to commit the act through which the plaintiff claims to have suffered damages,

unless the person so served or having knowledge took and maintained the proper proceedings to establish the person's claim to the land, or to prevent that act on the part of the registrar or the person under the registrar's direction for service of a notice,

(f) in respect of the proportion of the loss, damage or deprivation caused or contributed to by the act, neglect or default of the plaintiff,

(g) if the loss, damage or deprivation arises out of a matter in respect of which the registrar is by any Act or law not required, either expressly or by necessary implication, to inquire, or

(h) occasioned by an act or omission of the government, or an agent or employee of the government, in relation to the general index that is referred to in section 250 of the Strata Property Act including, without limitation,

(i) making an endorsement on the general index,

(ii) failing or delaying to file a document or to make an endorsement on the general index,

(iii) making an error in an endorsement on the general index, or

(iv) giving or omitting to give advice concerning the general index.

Recovery limited to value of land

304   (1) A person is not entitled to recover from the minister as nominal defendant or the assurance fund an amount for compensation, in respect of loss, damage or deprivation of land, greater than the value of the land at the time of the loss, damage or deprivation.

(2) In ascertaining the compensation, the value of buildings and other improvements erected or made subsequent to the loss, damage or deprivation must be excluded.

Payment from assurance fund without action

305   (1) The minister, without a proceeding being brought, may admit or compromise a claim made under this Part against the assurance fund, and may authorize payment of all or part of the claim.

(2) Despite subsection (1), the registrar, with the approval of the director, may admit or compromise a claim by payment of the claim or an amount not exceeding $5 000, whichever is less, and authorize payment from the assurance fund.

(3) The minister charged with the administration of the Financial Administration Act, on receipt of authorization from the minister or the director, as the case may be, must pay out of the assurance fund the amount so authorized to the person entitled to it.

Payment from consolidated revenue fund

306   The minister charged with the administration of the Financial Administration Act must pay from the consolidated revenue fund the amount of a claim or judgment in respect of which the assurance fund is liable if there is not at that time a sufficient amount at the credit of the assurance fund.

Withholding of payment until proceedings concluded

307   The minister charged with the administration of the Financial Administration Act is not bound to make payment under this Part in the case of a final judgment until

(a) the time allowed for appeal from the judgment has expired, or

(b) the determination of all proceedings in the action, including appeals.

Part 21 — Appeals

Duty of registrar to notify applicant of refusal of registration

308   (1) If the registrar refuses to proceed with an application, the registrar must forthwith serve written notice in the form approved by the director of the refusal, stating briefly the reasons and the registrar's requirements,

(a) in the case of an application that is submitted electronically, on the submitter of the application, and

(b) otherwise, on the applicant, or the solicitor or agent of the applicant,

and if a subsequent application is affected by the refusal, the registrar must similarly serve a notice on the subsequent submitter or applicant, as applicable.

(1.1) The notice required to be served under subsection (1) may be in electronic format.

(1.2) If a notice in electronic format is served by electronic means under section 315, the notice is deemed to be in writing for the purposes of subsection (1) of this section.

(2) If

(a) the requirements of the registrar are fulfilled, and

(b) the fees payable under this Act for the notice are paid

within 21 days after service of the notice, the application must be proceeded with.

(3) If

(a) the requirements of the registrar are not fulfilled, or

(b) the fees payable under this Act for the notice are not paid

within the period referred to in subsection (2), the refusal of the registrar is final, and the application, at the end of that period, becomes void and must be cancelled by the registrar unless the applicant applies under section 309.

(4) The registrar may, on request or on the registrar's own initiative, at any time before the lapse of the period referred to in subsection (2), extend the time for making the application under section 309 or for fulfilling the registrar's requirements, as the case may be.

(5) If the registrar refuses to grant an extension of time, an application in the nature of an appeal may be made to the Supreme Court, without notice to any person or on terms as to notice or otherwise as the court may consider proper.

(6) During an extension of time ordered by the court under subsection (5), the application to the registrar remains in full effect.

Appeal to court

309   (1) Within 21 days after a person described in section 308 (1) (a) or (b) receives a notice under section 308 (1), the applicant who made the application or on whose behalf the application was made may make an application in the nature of an appeal to the Supreme Court, supported by the person's affidavit and, if necessary, the affidavits of other persons, stating

(a) the material facts of the case, and

(b) that to the best of the information, knowledge and belief of the deponents, all facts and things material to the title have been fully and fairly disclosed.

(2) All parties affected or interested, including the registrar and a person directed to be served by the court, must be served with the court application, together with copies of all material and exhibits proposed to be used on the hearing.

(3) At least 10 days' notice must be given of the time and place of hearing and at that time and place all interested parties, whether served with the court application or not, may appear and be heard.

(4) The place of hearing must be the city in which the land title office is located.

(5) The court may make any order it considers proper as to the notification of other parties, and on the hearing may make such order as the circumstances of the case require and such order as it considers proper as to costs in respect of the parties appearing.

(6) If the refusal of the registrar to effect registration in accordance with the application made to the registrar is stated to be on the ground that the applicant's title must be declared under the Land Title Inquiry Act, the court may order that the proceedings under this section be governed by that Act.

Preservation of applications

310   (1) The application refused by the registrar under section 308 remains in full effect until the final disposition of the court application.

(2) If the application to the Supreme Court is dismissed, the application to the registrar is void and must forthwith be cancelled by the registrar unless an appeal is filed by the applicant and a stay of proceedings is obtained and evidence of it is filed with the registrar.

Appeals from decision of registrar

311   (1) If a person is dissatisfied with

(a) a summary rejection of an application by the registrar, or

(b) an act, omission, decision, direction or order of the registrar in respect of an application, other than a refusal under section 308,

that person may

(c) require the registrar forthwith to provide written reasons for refusal, and

(d) within 21 days after receiving the registrar's reasons, apply to the Supreme Court by way of appeal from the registrar's decision.

(2) Section 309 applies in respect to the application to the court and the proceedings on it.

Registrar to act on order of court

312   (1) Service on the registrar of an order of the court made on an application under this Part, or a certified copy of it, is sufficient authority for the registrar to act under the order.

(2) Subject to section 34, an order of a court affecting the title to land, or a certified copy of it, accompanied by an application for the registration of the order, on compliance with this Act, is sufficient authority for the registrar to act under the order.

Registrations made under order of court

313   The registration of an estate in fee simple or a charge made under an order of a court stands in the same position and has the same force as a corresponding registration made under an instrument other than an order of a court.

Power of registrar to state case

314   (1) If a question arises

(a) respecting the performance of a duty or the exercise of a function by this Act conferred or imposed on the registrar,

(b) as to a matter of law or fact arising on the examination of the title to land or as to the construction or legal validity or effect of an instrument or other document,

(c) as to the person entitled, or as to the extent or nature of the right, title, estate, interest, power or authority of a person or class of persons, or

(d) as to the manner in which an endorsement ought to be made on the register,

the registrar may state a case for the opinion of the Supreme Court, and the stated case must include

(e) a short statement of the facts,

(f) the registrar's reasons for referring the matter, and

(g) the names of the interested parties so far as the registrar knows or has been informed.

(2) The stated case must be filed in the court and an application without notice to any person must be made by the registrar to the court for directions respecting

(a) the parties to be served,

(b) the method of service,

(c) the time and place of hearing, and

(d) any other incidental matters.

(3) The court must allow a person affected by or interested in the matter to appear and may summon any other person to appear and give evidence or make a representation respecting the matter in question.

(4) The court, having regard to the parties appearing before it, whether summoned or not, may

(a) decide the question,

(b) direct proceedings to be instituted for that purpose, or

(c) direct the registrar to make such particular form of endorsement in the register as under the circumstances appears to be just.

Part 22 — Notices

Powers of registrar regarding preparation and service of notice

315   (1) If, under this Act, notice is required to be or may be served, in addition to a form of service allowed by an enactment, service may, at the discretion of the registrar, be made

(a) personally,

(a.1) by electronic means,

(b) by mail, or

(c) by any other manner of service ordered by the registrar as substituted service.

(2) Where in this Act a reference is made to service of a notice by the registrar, the registrar may direct that the service be effected by the applicant or some other person interested in the proceeding before the registrar, or the respective agent of the applicant and that person.

(3) The registrar may prepare the notice or may direct its preparation in a form approved by the registrar.

Personal service

316   Personal service must be proved by affidavit.

Service by mail

317   (1) Service by mail must be by registered mail unless otherwise directed by the registrar.

(2) In the case of registered mail, the envelope containing the notice must be stamped and addressed, and marked on the outside "Registered. To be returned to the Land Title Office, ............................................., B.C., if not delivered in 10 days."

(3) Unless a notice sent by registered mail is returned through the post office as undelivered, it is deemed to have been received by the person to whom it was addressed within 10 days, exclusive of the day of mailing.

(4) If

(a) registered mail is returned to the registrar,

(b) it comes to the registrar's attention that the notice has not reached the person to whom it was addressed, or

(c) postal service may be interrupted or is not available,

the registrar may dispense with service or require further notice to be served in another manner the registrar may order.

Service by electronic means

317.1   Service may be effected by electronic means in the prescribed manner.

Substituted service

318   (1) For the purpose of subsection (2), "solicitor" or "authorized agent" includes

(a) an attorney of the person to be served named in a power of attorney filed in the land title office or brought to the attention of the registrar, and

(b) a solicitor or agent who has acted for that person in other applications or proceedings in the land title office.

(2) If for any reason it is impractical to effect personal service or service by mail, whether or not there is evidence that

(a) the document will probably reach the person to be served,

(b) the document will probably come to the person's attention, or

(c) the person is evading service,

the registrar may order substituted service

(d) by personal service or by mail on the solicitor or authorized agent of the person to be served,

(e) by publication, for such time as the registrar considers sufficient, of a notice in a newspaper circulating in the area, whether in or out of British Columbia, where the person to be served had his or her last known place of business or residence, or in the area in which the land affected is located,

(f) by leaving the notice at the usual or last known place of residence of the person to be served,

(g) by posting the notice at places and for periods the registrar considers sufficient, or

(h) in the manner specified for giving notice to a party to be served in the instrument under which the rights of the party are derived.

(3) The registrar may direct that a notice may be given in any one or more or in all the methods specified in this section.

Service if person is dead

319   (1) If it appears that a person, in this section called the "deceased", shown on the register or in an instrument or document to be a proper person to be served with a notice is dead, service may be effected on the personal representative of the deceased.

(2) If the deceased has been dead for at least one year and

(a) the will of the deceased has not been proved, nor a grant of administration issued, or

(b) the personal representative has died and no successor has been appointed,

the notice may, with the approval of the registrar, be served on the persons who are beneficially entitled.

(3) If a will has not been probated and the provisions of it have been made known to the registrar, service may, with the approval of the registrar, be effected on the persons claiming under a devise in the will.

(4) If

(a) a will has not been probated, or

(b) there is an intestacy,

the registrar may, by order, name one or more of the persons beneficially entitled as the persons to be served as representatives of the whole class of beneficiaries.

(5) A service effected under this section has the same effect on the estate of the deceased and on all persons claiming under the deceased as if a duly appointed personal representative of the estate had been served.

Effect of service

320   A service or substituted service of a notice effected in accordance with this Part has the same effect as personal service of the notice on the person intended to be affected by it.

Rights of purchaser for value protected

321   A purchaser, mortgagee or other holder of a charge for valuable consideration is not affected by the omission to send, or the failure to receive, a notice directed to be given under this Act.

Part 23 — Special Surveys

Definitions

322   In this Part:

"block outline survey" means a survey in which special survey monuments are established at suitable points at or near certain or all street intersections or angles in street lines, or if no street exists, then at other suitable points;

"complete survey" means a survey that, in addition to the requirements for a block outline survey, also defines on the ground every angle of every parcel and is otherwise sufficient as a basis for the preparation of a plan of the land affected in compliance with section 67, or with only those deviations from the requirements of that section that the minister may consider proper under the circumstances of any particular case;

"land title office" means the land title office of the land title district in which the land to which the context applies is located;

"owner" includes the Crown;

"proper officer" means

(a) if the land to which the context applies is located within a municipality, the designated municipal officer, and

(b) if the land to which the context applies is located outside a municipality, the Surveyor of Taxes;

"registered" means registered in the books of the land title office, but when used with respect to the ownership of land held by the Crown includes the Crown whether so registered or not;

"special survey monument" means a monument of a design and character approved by the Surveyor General and lawfully set or established in connection with or in relation to a survey made under this Part or under an Act repealed by the Special Surveys Act, S.B.C. 1922, c. 70.

Minister may order special survey

323   (1) If

(a) an error appears in or doubt exists as to the accuracy of an existing survey or plan,

(b) a discrepancy exists or is thought to exist between the occupation of a parcel and a registered subdivision plan or other plan or description under which it is held,

(c) parcels in which land is held are not shown on a registered subdivision plan,

(d) doubt exists as to the true location of a highway or as to a boundary line between parcels which it is desirable to remove by defining it without dealing with the other boundary lines of contiguous parcels, or

(e) the minister, in his or her discretion, considers it advisable,

the minister,

(f) on the request of the council of the municipality within which the land affected is located, by resolution, undertaking to pay the costs of the special survey either directly or by way of advance,

(g) on the request of the registrar,

(h) on request of 2 or more registered owners of land affected, or

(i) without a request if the minister thinks proper,

may order a special survey of land to be made by a British Columbia land surveyor approved by the Surveyor General, and may require a survey to be made and a plan to be prepared in accordance with this Part.

(2) The minister may delegate to the Surveyor General the minister's powers and duties under this Part.

Apportionment of costs if land within municipality

324   (1) If land affected by the order for a special survey is located within a municipality, all money required to pay the costs and expenses of and incidental to the survey must be advanced out of the treasury of the municipality on vouchers approved by the Surveyor General.

(2) On the completion of the survey, unless the municipal council has passed a resolution that the costs and expenses must be charged directly against the municipality, the costs and expenses must be apportioned in proportion to the respective areas of the parcels comprised within the limits of the survey, and in respect of parcels consisting of highways must be charged against the municipality, and in respect of parcels other than highways must be charged against the respective registered owners of the parcels.

Apportionment of costs if land is in a rural area

325   (1) If land affected by the order for special survey is located in a rural area, all money required to pay the costs and expenses of and incidental to the survey must be advanced out of the consolidated revenue fund, on vouchers approved by the Surveyor General.

(2) On completion of the survey the costs and expenses must be apportioned in proportion to the respective areas of the parcels comprised within the limits of the survey, and in respect of parcels consisting of highways and Crown land must be charged against the government and paid out of the consolidated revenue fund, and in respect of parcels other than highways must be charged against the respective registered owners of the parcels.

(3) The order for the special survey must not take effect until the incurring of the costs and expenses has been approved by the Lieutenant Governor in Council.

Power to amend order if land subsequently becomes included within municipality

326   (1) If land affected by the order for a special survey is located in a rural area, and before the completion of the survey becomes included, either in whole or in part, within a municipality, the costs and expenses as to the area of land comprised in the municipality and their apportionment must be in accordance with section 324, and in respect of the land, if any, not included the costs and expenses and apportionment must be in accordance with section 325.

(2) The minister may order that the municipality pay to the government all money advanced out of the consolidated revenue fund under section 325 in respect of the land included within the municipality.

(3) A special survey to which section 324, 325 or this section applies may be continued without any request or undertaking by way of resolution of the council of the municipality affected.

Advancement of costs by municipality or owners

327   (1) If a special survey is directed in respect of any matter referred to in section 323 (d), the minister may by order require any municipality affected or the registered owners of the land affected to provide the costs and expenses of the survey or a proportionate part of it in advance as a condition to the institution of the survey.

(2) The minister may give directions the minister considers advisable concerning the apportionment of the costs and expenses of the survey.

Transmittal of copy of order to proper officer and registrar

328   (1) On making the order for a special survey, the minister must transmit a certified copy of the order to the proper officer of the municipality or district and to the registrar.

(2) After receipt of the copy the registrar must not allow the registration of any subdivision of any parcel of land comprised within the limits of the special survey until the plan of special survey has been finally received on deposit in the land title office, unless otherwise instructed by the minister.

Notice of special survey

329   (1) On receipt of the copy of the order for a special survey, the proper officer must give to the registered owner of each parcel comprised within the limits of the survey, and to each registered holder of a charge on it, a notice in writing stating the following:

(a) that the order has been made by the minister for a special survey of the land affected, describing it as in the order;

(b) the name of the registered owner of the parcel covered by the notice, and that the parcel is located within the area to be specially surveyed, and that the boundaries of the parcel will be determined by the survey;

(c) the description of the parcel covered by the notice;

(d) the name and address of the surveyor directed to make the survey;

(e) that any information in the possession of the person to whom the notice is given with regard to previous surveys or monuments in the area affected by the order should be given to the surveyor.

(2) The notice under subsection (1) may be given

(a) by personal service on the person to whom it is directed,

(b) by mailing it by letter post, postage prepaid and registered, addressed to the person to whom it is directed at the person's address as shown on any instrument or record by which the person is registered as owner of the parcel affected, or as holder of a charge on it, or at the person's address as last known to the official by whom the notice is given, or

(c) under any direction which may be given by the registrar for the substituted or other service of the notice by any method of service which the registrar is authorized to direct in respect of notices required to be given under this Act.

(3) The proper officer must keep a record of all notices given by the officer under this section by entering in a list the name of the registered owner of each parcel comprised within the limits of the survey, and showing opposite each name the names of the persons to whom notice was given in respect of that parcel and the date and method of service of each notice and, on the completion of giving the notices, the proper officer must transmit to the minister a certified copy of the record kept.

(4) The registrar, on the request of the proper officer, must provide the names of the registered owners of the land affected by the special survey and any other information required, and the registrar must charge fees the registrar sets in each case on the basis of a reasonable return to the land title office for the cost of providing the information.

Surveyor to act under minister

330   The surveyor in charge of the special survey must make the survey and plan under the guidance and instruction of the minister and within whatever period of time may be prescribed by the minister.

Preliminary procedure

331   The surveyor must proceed to retrace the existing outside boundaries of the land described in the order for the special survey, and must report on that to the minister either

(a) that the boundaries are well defined and there is no danger of contest arising with owners outside and adjacent to the special survey area, in which event the surveyor must proceed with the survey without further directions, or

(b) that the boundaries are uncertain and there is danger of a conflict, and, if the circumstances warrant, that a conflict may be avoided or minimized by including in the survey further adjacent land.

Supplemental order or direction of minister

332   On receipt of a report in the terms of section 331 (b) the minister may either

(a) make a supplemental order extending the boundaries of the special survey area to include the land, if any, recommended by the surveyor, and then the order must apply to that land as fully and effectually as if it had been included in the original limits of the special survey, or

(b) direct the surveyor to provide a plan of the external boundaries of the special survey area either as originally defined or as including the adjacent land recommended by the surveyor, or of that portion of the external boundaries as is in doubt, in which case the surveyor must provide a plan showing the adjacent parcels of land, the owners of which would be affected by the final adoption of the boundary lines recommended by the surveyor,

and in any event may amend the termination date of the period within which the survey is to be made if a period has been prescribed under section 330.

Procedure for fixing boundary of survey area

333   (1) On receipt of a plan provided under section 332 (b), the minister must deposit a copy with the proper officer and in the land title office, and the proper officer must give to the registered owner of each parcel adjacent to the boundary line shown on the plan, and to each registered owner of a charge on it, and to another person, as directed by the minister, a notice in writing stating that the plan has been deposited, and that the line as shown on it will be adopted as the boundary line between the special survey area and the adjacent land, and that the interests of the person to whom the notice is directed are affected by the survey, and setting a time and place for the hearing of any complaint that may be made against the adoption of the line as the boundary of the special survey area, and thereafter the procedure under section 344 and following sections, in regard to the filing of objections and hearing, must be followed as far as applicable and with the necessary changes, and the minister must, by supplemental order, fix as the boundary of the special survey area either the line recommended by the surveyor or any other line which on the evidence before him appears as the proper boundary.

(2) The line fixed finally determines the boundary between the land in the special survey area and adjacent land, and if any damages or compensation are awarded to the registered owners of land outside the special survey area they form part of and must be paid out of the same fund as the expenses of the survey.

Transmittal of copy of supplemental order to proper officer and registrar

334   (1) If a supplemental order is made under either section 332 or 333, a certified copy of it must be transmitted to the proper officer, who must give to registered owners of land in the added area the same notice as is called for by section 329.

(2) A certified copy of the supplemental order must also be transmitted to the registrar.

Guiding principles for surveyor

335   (1) In making the survey the surveyor must re-establish as nearly as possible the existing survey, but the surveyor may depart from existing boundaries in order to establish boundaries in agreement with occupation and improvements.

(2) The surveyor must endeavour to make adjustments that will reduce the total amount of compensation to a minimum and, without limiting the generality of the foregoing provisions, the surveyor may in particular distribute any shortage in area within a block or group of parcels, having regard to occupation and improvements, and may similarly allot a surplus to a registered owner willing to pay compensation, or create a separate parcel to be disposed of for the reduction of the cost and expenses of the survey.

Nature of survey

336   (1) The surveyor must limit the survey to a block outline survey where the survey would accomplish the object of the special survey, but where a block outline survey would not have that effect the surveyor must make an effective survey which may be in part a complete survey and in part a block outline survey, as the surveyor thinks advisable.

(2) The surveyor must, on written request of the registered owner of a parcel, preferred while the survey is in progress, make a complete survey of that parcel, and the additional cost occasioned by it must be borne by the registered owner and charged against the land affected on the completion of the survey.

Plans

337   (1) In preparing a special survey plan the surveyor must show on it the boundaries of all parcels with their dimensions, although the surveyor has not actually run the boundaries on the ground.

(2) Where lines have been run and monuments established the location of them must be shown on the plan.

Appointment of substituted surveyor

338   (1) The minister may, after a special survey has been ordered, appoint another surveyor approved by the Surveyor General in the place of the surveyor directed to make the survey, and may, by the order appointing the substituted surveyor, direct that as much of the special survey as had been made by the surveyor first appointed must be adopted and made use of by the substituted surveyor, and may then, or after the completion of the special survey, determine how and by whom the work of the surveyor first appointed is to be certified or otherwise authenticated.

(2) The special survey, although made by more than one surveyor, is, on its final approval, as valid and binding for all purposes as if made by the surveyor first appointed.

Report of surveyor

339   (1) On completion of the survey, the surveyor must prepare and deposit with the minister a plan in triplicate, together with 3 blue print copies of it on blue print cloth, and a report in triplicate, which must deal with the cost of the survey, the difficulties encountered, the evidence concerning the re-establishment of original and lost monuments, the system of survey employed, the degree of accuracy obtained and the nature of all monuments erected, and must provide other information bearing on the survey as may be of service in the consideration of the report and plan.

(2) The surveyor must include in the report in concise and tabulated form

(a) a list of all parcels comprised within the limits of the survey, with the names of the respective registered owners,

(b) a list of all parcels the boundaries of which appear as altered by the plan, with a statement showing how they are altered,

(c) a statement of the costs and expenses of the survey, showing the respective areas of parcels consisting of highways or Crown land, and of land of private owners, and an apportionment of the costs and expenses in accordance with sections 324, 325 and 326, and

(d) a statement containing an estimate of the damage or increased value of each parcel occasioned by the alterations affected by the plan, and showing in detail a just and equitable apportionment among the registered owners of the parcels affected, and the method adopted as the basis of the apportionment in each case.

Notice to registrar

340   On receipt of the surveyor's report, the minister must transmit one of the blue print copies of the plan and a copy of the report to the registrar, together with a notice stating that the special survey has been completed and the plan deposited by the surveyor under this Part.

Notice to corporate officer

341   The minister must also transmit to the corporate officer of the municipality or regional district in which the land affected is located one of the blue print copies of the plan and a copy of the report, together with a notice stating that the special survey has been completed and the plan deposited by the surveyor under this Part.

Notice of completion of survey

342   (1) On receipt of the notice from the minister, the proper officer must give to the same persons to whom notice is required to be given under section 329, and in the same manner as provided for the giving of notices under that section, a notice containing a copy of section 344, and stating that the special survey has been completed and that copies of the plan and the surveyor's report may be inspected in his or her office and in the land title office and that the interests of the persons to whom the notice is directed may be affected by the survey, and that a time and place will be set by the minister for hearing complaints and claims for compensation, and that notice of the time and place will appear in the Gazette and in a newspaper circulating in the area in which the land affected by the special survey is located.

(2) The proper officer must keep a record of all notices given by the officer under this section, in the same manner as provided for the keeping of a record under section 329, and must, on completion of the giving of notices required by this section, transmit to the minister a certified copy of the record.

Notice of hearing

343   The minister must publish in the Gazette and in a newspaper circulating in the area in which the land affected by the special survey is located a notice stating that the plan of special survey, accompanied by a report of the surveyor, has been deposited with the minister and will be submitted to the Lieutenant Governor in Council for approval under this Part and setting a time and place for the hearing of complaints against the survey plan or report, or claim for compensation that may be made by any person interested in the land affected by the survey.

Statement of complaint or claim

344   A person who wishes to complain against the special survey plan or report or to claim compensation must, not less than 7 days before the date set for the hearing, deliver to the minister a written statement setting out the nature and grounds of the complaint or claim.

Hearing by minister or other person appointed by him

345   The minister may hear the complaints or claims made under this Part, or may appoint some other person to conduct any hearing and to report on it.

Subpoena

346   (1) The minister or the person appointed to conduct the hearing, or, on the order of either of them, any person interested, may obtain and issue out of the Supreme Court a subpoena commanding the attendance for examination of a witness and the production by that witness of any document or plan at the time and place mentioned in the subpoena.

(2) Disobedience of a subpoena issued under subsection (1) is deemed to be a contempt of court, and is punishable in the same manner and to the same extent as in the case of subpoenas issued out of the Supreme Court in civil causes.

(3) The same fees are payable for subpoenas issued under this Part as in the case of subpoenas issued out of the Supreme Court in civil causes, and the witnesses are entitled to the same allowances for their attendance at the hearing as in cases of attendance under subpoena in the Supreme Court in civil causes.

Method of conducting hearing

347   (1) The minister or person appointed to conduct the hearing may in the hearing receive any evidence which he or she thinks proper to admit, and may take a view, and may examine on oath any person interested and such witnesses as appear before him or her, and may adjourn the hearing whether or not any of the persons interested are present at the time of the adjournment.

(2) At the conclusion of the hearing the person appointed to conduct the hearing must report to the minister the person's recommendations, together with the evidence and exhibits.

Power of minister to decide complaints and claims and make order

348   If no complaint or claim for compensation in writing has been delivered to the minister within the time allowed for the delivery of complaints and claims, then at any time after that, or if any complaint or claim has been delivered, then on or after the hearing of the complaint or claim, or on the report of the person appointed to conduct the hearing, or on further investigation or evidence, the minister may, by order,

(a) adopt or vary the reports of the surveyor and of the person appointed to conduct the hearing,

(b) decide the matter of any complaint or claim in a manner as to the minister appears just and equitable under all the circumstances,

(c) set the amount of compensation to which a complainant will be entitled because of the adoption of the special survey and plan,

(d) determine in conformity with the report of the surveyor, or person appointed to conduct the hearing or otherwise, the amounts of compensation to which persons other than the complainants are entitled,

(e) direct that the compensation awarded to one or more or to all claimants be paid by the municipality or by the Crown, or by the registered owner of any parcel receiving unequal benefit from the survey, and in the last mentioned case direct that the amount of compensation be paid to the municipality or the Crown to be paid out to the person entitled to it on payment of or after deduction of the person' share of the costs and expenses of the survey,

(f) direct that the compensation be paid by the municipality or the Crown as part of the expenses of the survey,

(g) specify the land within the special survey area which is to be charged with compensation paid under paragraph (f), and direct the manner in which the compensation is to be apportioned,

(h) determine the amount of costs and expenses of the special survey, including fees of a person appointed to perform a function under this Part, costs of serving notices, witness fees, advertising and other expenses in connection with the survey; and order to and by what persons and in what proportions or amounts the costs and expenses are to be chargeable and payable, and

(i) determine or direct any other matter necessary in connection with the survey, including alterations in the plan and in the markings on the ground, and the manner in which the title to any parcel may be vested or the parcel disposed of, and also the manner and the time within which fences, buildings and other structures may be torn down, removed or dealt with.

Principles for determining compensation

349   In determining all questions relating to compensation, the minister must be guided by the principle that as the survey was undertaken for the benefit of all registered owners within the special survey area, such registered owners should in proportion to the area of their respective parcels share any loss and any advantage occasioned by and accruing from the special survey, and that if for the general benefit or for the preservation of individual improvements the surveyor has reduced the area of any parcel, the registered owner should receive compensation from the registered owner benefited or from a general fund formed by payments from the registered owners benefited, as the case may be, and that any registered owner who has been benefited should contribute an adequate amount to the general fund or pay it to the registered owner who has suffered loss, as the case may be.

Approval of survey and plan by Lieutenant Governor in Council

350   At any time after the minister has disposed of the complaints against the special survey and claims, if any, and without further notice to the parties interested, the Lieutenant Governor in Council may by order in council, embodying in it the order made by the minister under section 348,

(a) confirm the order and findings of the minister made under section 348,

(b) approve of the special survey and plan or any part of it,

(c) declare the special survey and plan, or such portion of it as the Lieutenant Governor in Council may approve of, to be the true and correct survey and plan of the land affected,

(d) declare that all boundaries and lines fixed by the special survey and plan are the true boundaries and lines, whether of highways, rivers or creeks, when the rivers or creeks are defined on the plan by measurements or lines in a manner as to be capable of absolute location on the ground, or as between adjoining owners or between adjoining parcels, and whether or not the boundaries and lines were before that the true boundaries and lines, and

(e) declare, with reservations as are expedient, that the plan approved must be substituted for all former plans or surveys of the land affected which have before that been registered, or for the corresponding portions of those former plans or surveys.

Power to vest land

351   (1) The Lieutenant Governor in Council may by the same or by a subsequent order vest in the Crown or the municipality, as the case may be, land which is by the special survey added to any previously existing highway, and may in the same manner vest in the registered owner of any previously existing parcel any land which is by the special survey added to that parcel, or if the Crown is the owner of the parcel may vest in the Crown the land added, or in the same manner may make any further vesting or other order necessary to carry out the order of the minister.

(2) An order vesting land under this section is not an expropriation under the Expropriation Act.

Notice of order in council approving of survey

352   (1) A notice of the order in council approving of the special survey and plan must be published in the Gazette, and when published is conclusive evidence of the order in council and of the approval of the survey and plan, and of the regularity of all proceedings leading up to the making of the order in council.

(2) Except insofar as it may be set aside or varied on appeal under this Part, the order in council must not be set aside on any ground.

(3) The order in council, unless appealed from, takes effect on being registered at or after the expiration of 20 days from the date of publication of the notice in the Gazette, and if appealed from takes effect in accordance with the final judgment given on appeal on being registered together with a certified copy of the final judgment.

(4) On the taking effect of the order in council the special survey and plan as finally approved are final and binding on all persons.

Appeal

353   (1) Any decision, order or direction of the minister given or made under this Part and embodied in the order in council approving the special survey and plan is subject to an appeal to the Court of Appeal.

(2) The Court of Appeal must decide the matter brought before it on appeal as it considers just and equitable, and the decision of the Court of Appeal is subject to appeal in the same manner as decisions of that court on appeal from a final judgment in civil causes.

(3) On every appeal the court appealed to may award compensation to any party to the appeal as the court thinks proper, and may direct by whom it must be paid, and may vary or amend the decision, order or direction appealed from, and may direct the special survey and plan to be amended by the minister in accordance with the decision on appeal, and may, if it thinks necessary, refer the whole matter back to the minister in order that the judgment of the court may be embodied in a new report and submitted to the Lieutenant Governor in Council, and may award costs and direct that they must be paid by a party to the appeal, or that they must form part of the costs of the survey.

(4) Evidence must not be given or heard on an appeal under this section other than that given or heard before the minister at the time the decision, order or direction appealed from was given or made.

Entry of appeal

354   (1) The appeal must be entered for hearing in the court, and notice of the appeal delivered at the office of the minister and to the registrar, and served on all persons whose interests are directly affected, within 20 days from the date of publication in the Gazette of the notice of the order in council as provided in this Part.

(2) An appeal of which notice has been served on the minister and registrar does not abate because of it not having been served on other persons directly affected, but the court may, on terms it thinks just, allow an adjournment and direct any person affected to be served, and may specify the method of service.

Registration

355   (1) A certified copy of the order in council, together with the plan of special survey, must be at once transmitted by the clerk of the Executive Council to the registrar, and on the expiration of 20 days from the date of publication in the Gazette of the notice of the order in council as provided in this Part without any appeal being taken, the registrar must register it in the manner provided in this Part.

(2) If an appeal is taken, the minister must, on the giving of final judgment in the appeal, transmit a certified copy of the judgment to the registrar, and if the judgment refers the matter back to the minister and a further order in council is passed, the clerk of the Executive Council must transmit a certified copy of the order to the registrar.

(3) The registrar, on receipt of the final judgment or the order in council, as the case may be, must, subject to any further appeal, register it, together with the plan, in the manner provided.

Method of registration

356   (1) Registration is effected by endorsing on the order in council and on the judgment, if any, the following memorandum signed by the registrar and impressed with the official seal of the land title office, and the memorandum is conclusive evidence of the registration of the instruments and of the time of registration:

The within document, together with the plan of the special survey referred to, was registered .................. [month, day, year]. Filed as No. ...................., documents filed, and plan deposited as No. .................... , plans deposited.

..................................................

Registrar

(2) An endorsement of the registration of the order in council and special survey plan and judgment, if any, must be made against the indefeasible title of every parcel of land affected by the special survey by noting the following information:

Special Survey Plan No. ............................ and order in council approving same (and judgment) filed as No. ......................., and registered ....................... [month, day, year].

(3) The registrar must, when necessary, correct indefeasible titles in accordance with the order in council and special survey plan, and duplicate indefeasible titles must, on request, be delivered to the registrar for similar correction.

Effect of registration

357   (1) On registration of the order in council and plan, the plan of special survey becomes the official plan of the land comprised within the limits of the plan or part of it approved, and is binding on all persons, and all amounts of compensation, costs and expenses which by the terms of the order are charged against the registered owner of any parcel shown on the plan become a lien on that parcel respectively in favour of the government or the municipality, or the person entitled to receive it, as the case may be, and are assessable and collectable in the manner provided.

(2) If the plan shows an increase in the area of a parcel, as compared with the original or previously existing survey or plan covering that parcel, the plan as registered operates as a conveyance to the registered owner of that parcel of the area added to that parcel by the taking effect of the plan of special survey free of all charges to which it may have been previously subject, but subject to all charges which exist against the parcel of which it becomes a part, unless a contrary intention is expressed in the order in council with which the plan is registered.

Notice of registration

358   On registration of the order in council and plan, the registrar must notify the proper officer that the order and plan have been registered, and must forward to him a copy of the order and a blue print of the plan as registered, which copy and blue print the minister must supply to the registrar for that purpose.

Assessment within municipalities

359   (1) If the land affected is located within a municipality, and amounts of costs, expenses or fees have been charged by the terms of the order in council against the registered owners of parcels shown on the plan, the council of the municipality must by bylaw specially assess those parcels for the amounts charged against them respectively, and the following provisions apply to the special assessment:

(a) the amounts assessed are payable in one payment or by annual instalments extending over a period not exceeding 10 years, as the council may prescribe;

(b) in setting the amount of annual instalments a sum sufficient to cover interest on deferred payments at a rate not exceeding 8% per year must be added;

(c) the council may prescribe terms and conditions on which any person whose parcel is specially assessed may commute by a payment in cash the annual instalments imposed on it;

(d) every general or special Act applicable to the collection and recovery of taxes in the municipality and the proceedings which may be taken in default of payment apply to the special assessment and all amounts payable under it.

(2) If compensation has been ordered to be paid to the municipality, the municipality may assess the parcels on which it is by this Part made a lien for the amount of the compensation, in the manner provided in subsection (1) for the assessment of the amounts of costs, expenses and fees.

Assessment in rural area

360   (1) If the land affected is located in a rural area, and amounts of costs, expenses or fees have been charged by the terms of the order in council against the registered owners of any parcels shown on the plan, the Surveyor of Taxes must specially assess those parcels for the amounts charged against them respectively, and the following provisions apply to the special assessment:

(a) the amounts assessed are payable in one payment, or, if directed by the Lieutenant Governor in Council, may be made payable by annual instalments extending over a period not exceeding 10 years;

(b) in setting the amount of annual instalments a sum sufficient to cover interest on deferred payments at a rate not exceeding 8% per year must be added;

(c) the Lieutenant Governor in Council may prescribe terms and conditions on which any person whose parcel is specially assessed may commute by a payment in cash the annual instalments imposed on it;

(d) any Act applicable to the collection and recovery of Provincial taxes imposed on land and proceedings which may be taken in default of payment apply to the special assessment and all amounts payable under it.

(2) If compensation has been ordered to be paid to the Crown, the Surveyor of Taxes may assess the parcels on which it is by this Part made a lien for the amount of the compensation, in the same manner as provided in subsection (1) for the assessment of the amounts of costs, expenses and fees.

Duty of surveyor to destroy conflicting monuments

361   (1) On receipt of notice from the minister of the taking effect of the order in council approving of a special survey under this Part, the surveyor who completed the survey must remove all survey posts, stakes or monuments standing or being on the land comprised within the limits of the survey prior to the special survey, and which are liable to lead to confusion in connection with the special survey.

(2) If for any reason any existing post, stake or monument has been used or adopted by the surveyor as the post, stake or monument of the special survey, the surveyor must obliterate all marks on the post, stake or monument, except the marks placed on it or adopted by the surveyor in the making of the special survey.

Recovery of compensation and costs

362   If the order of the minister embodied in the order in council registered directs an amount of compensation to be charged to and payable by any person, the amount may be recovered by action in any court of competent jurisdiction as for a debt due to the person to whom it is directed to be paid, and the court may order a sale of the land affected to enforce the lien given by section 357.

Removal of special survey monuments

363   (1) A person must not, unless acting under the written authority of the Surveyor General, pull down, deface, alter, remove or cover up or render inaccessible any special survey monument.

(2) If in the carrying out of public or private works it is found necessary to remove or cover up or render inaccessible any special survey monument, the person carrying on the works may give the Surveyor General notice in writing that it is necessary to remove the special survey monument, and the Surveyor General must at once take the steps the Surveyor General deems necessary for ensuring the correct re-establishment of the special survey monument on the completion of the works, either at the place where it formerly stood or at another place the Surveyor General directs, and the entire cost and expenses incurred by the Surveyor General in connection with the removal and re-establishment of a special survey monument must be paid to the Surveyor General by the person at whose instance the removal of it is made, and may be recovered by action in any court as for a debt due to the government.

(3) If the special survey monument is re-established at a place other than where it formerly stood, the Surveyor General must by notice in writing direct the registrar to make all notations on the registrar's records necessary to show the removal and re-establishment of that special survey monument.

Power of Lieutenant Governor in Council to correct errors

364   The Lieutenant Governor in Council may by order on the application of the municipal council of any municipality to which the plan of a special survey relates, after notice to all parties affected, and on terms and conditions the Lieutenant Governor in Council deems proper, amend a plan and a duplicate or copy of it, and may also by order correct a clerical error or omission appearing in the plan of any special survey, and in a copy or duplicate of it.

Offence and penalty

365   (1) A person who wilfully covers up or renders inaccessible a special survey monument in contravention of section 363 is liable on conviction to a penalty of not less than $50 and not more than $500.

(2) A person who employs a servant or worker who while in the person's employ wilfully covers up or renders inaccessible a special survey monument in contravention of this section is liable on conviction to a penalty of not less than $250 and not more than $500.

Part 24 — Registration of Title to Indian Lands

Definitions and interpretation

366   (1) In this Part:

"band" means a body of Indians that,

(a) under an Act of Canada, is established as a legal entity with the capacity of a natural person and is the successor to a band as defined in the Indian Act (Canada), and

(b) has been prescribed by the Lieutenant Governor in Council to be a designated band for the purpose of applying the Torrens system to Indian land;

"council" means the governing body of a band;

"Indian land" means land reserved for the Indians within the meaning of section 91 (24) of the Constitution Acts, 1867 to 1982;

"patent" means an instrument, not being a statute or regulation of Canada, by which the Crown in Right of Canada grants to a band an estate in fee simple in Indian land or confirms that an estate in fee simple in Indian land is vested in a band, and, for the purposes of this definition, the reference to the Crown in Right of Canada must be read as including a reference to any officer of the Department of Indian and Northern Affairs or its statutory predecessor, in whose name a title in fee simple to Indian land is registered under this Act;

"Torrens system" means this Act and all other enactments and laws of British Columbia that, from time to time, relate to the registration of title to, rights in, claims against and estates and interests in land whether legal or equitable, and the creation, conveyancing, transmission, inheritance, devolution and enforcement of them.

(2) In this Part, a reference to a certificate of encumbrances is a reference to a certificate prepared by a public officer of Canada in a form satisfactory to the registrar, and certifying to the satisfaction of the registrar that

(a) as of the date of the certificate the subsisting estates and interests described in it represent all of the rights, claims, estates and interests to which the fee simple estate in the land described in the certificate is subject and that no other rights, claims, estates or interests exist,

(b) if the Indian land is sought to be registered under section 370, all rights, claims, estates and interests then registered under this Act have priority over any other rights, claims, estates and interests in land described in the certificate,

(c) a plan of the land described in the application is attached to it, and

(d) with respect to each subsisting estate or interest, the plan identifies the areas affected by them.

(3) The plan referred to in subsection (2) (c) must be based on a survey that complies with this Act, rules made under section 385 (5) and any standards set by the Surveyor General for a survey plan intended for deposit under this Act.

Filing of patent

367   (1) A patent may, subject to this section, be filed in the proper land title office.

(2) The patent must not be filed unless and until the following have occurred:

(a) Canada has, by enactment,

(i) conferred on the band or its council the power to make laws authorizing the registration, in accordance with the Torrens system, of estates or interests in Indian land of the band, and for that purpose to make laws applying the Torrens system to that land, and

(ii) disapplied, in respect of the Indian land of the band that is or becomes registered under this Act, provisions of Acts of Canada that the Lieutenant Governor in Council, by regulation, specifies to be incompatible with the Torrens system;

(b) the band or its council, pursuant to the constitution of the band, has enacted a law in a form prescribed by the Lieutenant Governor in Council

(i) applying the Torrens system to the Indian land of the band that is or becomes registered under this Act, and

(ii) providing that, on the enactment by the band or its council of a further law authorizing an application for registration of an indefeasible title under this Act to Indian land of the band, the application may be made in respect of the Indian land described in that further law;

(c) the patent or a copy certified by the Clerk of the Privy Council for Canada to be a true copy of the patent, together with the certificate and plan referred to in paragraph (d) (ii), are transmitted by Canada directly to the proper land title office for filing, and they have been filed in that office under subsection (3);

(d) the patent is accompanied by

(i) a certificate of a public officer of Canada in a form satisfactory to the registrar and certifying to the satisfaction of the registrar that the land described in the patent represents all of the land transferred in fee simple to the band under the enactment that directed the patent to be issued, and

(ii) a plan of the land described in the patent based on a survey, that complies with this Act and the rules made under section 385 (5), on which a certificate of a public officer of Canada has been endorsed certifying, to the satisfaction of the registrar, that the land shown in the plan represents all of the land described in the patent;

(e) the patent preserves, excepts and reserves to and for the benefit of

(i) the Province, and

(ii) persons duly authorized by the Province

all rights, estates and interests held by, or reserved to, or arising in favour of, or exercisable by

(iii) the Province, or

(iv) persons duly authorized by the Province

in respect of the lands described in the patent, including all such rights, estates and interests that are held, reserved, or exercisable or that arise under or because of the following:

(v) the order of the Lieutenant Governor in Council, approved on July 29, 1938 (order in council 1036/38) as modified by the order of the Lieutenant Governor in Council, approved on May 13, 1969 (order in council 1555/69);

(vi) the order of the Governor General of Canada in Council, approved on February 3, 1930 (P.C. 208) and the memorandum of agreement entered into between the Government of the Dominion of Canada and the Government of British Columbia, set out in the Schedule to the Constitution Act, 1930;

(vii) any other federal or provincial order in council, enactment or instrument issued before the issue of the patent;

(f) the band named in the patent as transferee has been prescribed by the Lieutenant Governor in Council as a designated band for the purpose of applying the Torrens system to Indian land;

(g) the Lieutenant Governor in Council is satisfied, on the report of the minister, that the requirements of paragraphs (a) to (f) have been met, and the Lieutenant Governor in Council has consented to the filing of the patent.

(3) The consent of the Lieutenant Governor in Council under subsection (2) (g) is proof to the registrar that the requirements of subsection (2) have been met, and the registrar must, on the giving of that consent, file the patent and the certificate and plan referred to in subsection (2) (d) that accompanies the patent and must make a note of the filing in the records in the manner required by the director.

(4) The filing of a patent under this section does not, of itself, constitute registration of an indefeasible title to the fee simple estate created or confirmed by the patent, but the filing is sufficient proof to the registrar that the band to which the patent granted the land has established a good, safeholding and marketable title, subject only to

(a) in the case of land, the title to which is not registered under this Act at the time of filing, such other rights, estates and interests as are described in a certificate of encumbrances filed in support of an application under section 368 and that become registered under this Act, or

(b) in the case of land, the title to which is registered under this Act at the time of filing, such other rights, estates and interests as are entered, noted or endorsed on the register or are subsequently described in a certificate of encumbrances and that become registered under this Act, and

(c) in either case, such other rights, estates and interests as are referred to in subsection (2) (e) or section 23 (2) (a).

Application for registration of Indian land — general

368   (1) If a patent grants or confirms Indian land in fee simple to a band, the band may apply to be registered as owner of an indefeasible title in fee simple to all or part of the land, subject to the estates and interests in the land described in the certificate of encumbrances.

(2) An application under this section must not be received by the registrar unless

(a) it is accompanied by a copy of a law of the band or its council authorizing the application that is in the form prescribed by the Lieutenant Governor in Council and is certified by a person designated as the authorized signatory of the band,

(b) it is accompanied by a certificate of encumbrances in respect of the land affected by the application, and

(c) a patent granting or confirming the Indian land in fee simple to the band has been filed under section 367.

(3) The registrar may waive the requirement under section 366 (2) (c) for a plan if the application relates to land already described by a plan on deposit in the land title office at the time of the application and the registrar is of the opinion that no further plan or description of the land is necessary for the purpose of registering an indefeasible title to it.

(4) In addition to the instruments referred to in this section, the registrar may require such further evidence as the registrar considers necessary to determine priorities among the subsisting estates and interests and the areas of the land affected by them.

(5) Subject to section 370 (4), an estate or interest that

(a) subsists at the time of an application under section 369 or 370, and

(b) is not described in the certificate of encumbrances filed in support of the application

must not be registered.

(6) Subsection (5) must not be construed as preventing or requiring the registration of rights of the Province referred to in section 23 (2) (a) or section 367 (2) (e), but those rights are valid and enforceable whether or not they are registered under this Act.

(7) The registrar must not register a title claimed by the band in an application to which section 369 or 370 applies if the certificate of encumbrances filed in support of the application is dated earlier than the date the application is made, until the applicant files a further certificate of encumbrances dated no earlier than the date the application is made.

(8) To the extent necessary to give effect to the application, the registrar may dispense with a requirement under section 156 (1) or (2).

Where application affects unregistered Indian land

369   (1) If an application under section 368 relates to Indian land the title to which, at the time of the application, has not been registered under this Act, the registrar must, subject to this section, register the title claimed by the band.

(2) If, on examination of the application, the registrar is of the opinion that an estate or interest referred to in the certificate of encumbrances

(a) affects other unregistered land not included in the application, or

(b) cannot, immediately on registration of the title claimed, be registered in compliance with section 73,

the registrar may defer consideration of the application until the applicant applies to register any further instruments that the registrar considers necessary to register the estate and interest as a charge in compliance with section 73.

(3) If the registrar considers that an application to which this section applies raises a question of priorities, the registrar may, on notice to the applicant and to any other person the registrar deems necessary, defer registration of the title and the charge until the question has been resolved

(a) by the court,

(b) by agreement among the persons affected, or

(c) in any other manner satisfactory to the registrar.

(4) In the circumstances described in subsection (2), the registrar may cancel the application and give notice of its cancellation to the applicant.

(5) If the certificate of encumbrances filed in support of the application describes a subsisting estate or interest to which the fee simple estate in the land described in the application is or may be subject, the registrar must, on receipt of the application, file a caveat against it and, until the caveat is cancelled or expires, the title applied for or any estate or interest in the land must not be registered.

(6) The registrar may, after the caveat is filed, order the applicant to serve, on each owner of an estate or interest described in the certificate of encumbrances, a notice of the application under section 368, and the notice must

(a) contain a description of the land,

(b) state that the owner may, subject to this Act, apply for registration of the estate or interest as a charge, and

(c) be accompanied by a true copy of this section and of the certificate of encumbrances,

and unless the applicant has, before the expiration of the caveat, filed proof, satisfactory to the registrar, of the date on which the notice was personally served or, if the registrar has ordered another method of service, that the notice was served in accordance with that other method, the registrar must cancel the application.

(7) The owner of an estate or interest described in the certificate of encumbrances may, despite the caveat, apply for registration of the estate or interest as a charge.

(8) The registrar must cancel a caveat filed under subsection (5) if, in respect of each and every subsisting estate and interest described in the certificate of encumbrances that gave rise to the caveat, one of the following events has occurred:

(a) an application to register it as a charge has been made by the owner of it and the registrar considers that the charge may be properly registered;

(b) a public officer of Canada duly authorized to do so has delivered to the registrar a certificate signed by the public officer stating that the estate or interest described in the certificate of encumbrances and identified in the certificate no longer affects the land;

(c) a person to whom a notice respecting a particular estate or interest has been given has delivered to the registrar a surrender or quit claim of the person's estate or interest that is sufficient to extinguish it.

(9) A caveat filed under this section by the registrar expires, unless it has been earlier cancelled under subsection (8), on the later of the following dates:

(a) the date that is 180 days after the date the caveat was filed;

(b) the date that is 180 days after the date when a notice referred to in subsection (6) has in accordance with that subsection been served on all the persons on whom the notice was directed to be served.

(10) An estate or interest described in the certificate of encumbrances must not be registered as a charge

(a) if the description of the land affected by the instrument creating the charge is not, in the opinion of the registrar, sufficient to identify the land in the records,

(b) in contravention of section 73,

(c) if an indefeasible title to the whole of the land affected by the charge is not then registered, or

(d) if the estate or interest is otherwise not capable of registration.

(11) The priority of an estate or interest referred to in subsection (5) in respect of which registration has been applied for before the cancellation or expiration of the caveat filed under this section must, subject to a contrary intention appearing from the instrument creating the estate or interest, be according to the date of execution of that instrument and not according to the date and time of the application for registration of it as a charge.

(12) Section 28 applies in respect of an estate or interest referred to in subsection (5) in respect of which application for registration has not been made before the expiration of the caveat filed under this section.

If application affects registered Indian land

370   (1) If an application under section 368 relates to Indian land, the title to which is, at the time of the application, already registered under this Act, the registrar must, subject to this section, cancel the previously registered title and register a new title in the name of the band.

(2) The registrar must not register the title claimed in the application unless the registrar is satisfied that the land described in the patent includes all of the land covered by the previously registered title and the certificate of encumbrances filed in support of the application satisfies the requirements of section 366 (2) (b).

(3) If, in the opinion of the registrar, an application to which this section applies is affected by an estate or interest described in the certificate of encumbrances that is not then entered, noted or endorsed in the register,

(a) section 369 (5) to (10) applies with respect to that estate or interest, and

(b) on registration of the estate or interest, its priority must be determined in accordance with section 28.

(4) An interest or estate that is entered, noted or endorsed on the previously registered title at the time of the application under section 368 is not affected by the absence of any reference to it in the patent or certificate of encumbrances or, where there is a reference to it, by any inconsistency between that reference and the register.

(5) This section does not operate to permit a subdivision of the land covered by the previously registered title otherwise than in compliance with this Act.

(6) The registrar must not register any dealings in Indian land that, on the coming into force of this section, is already registered under this Act, until a new title to that land is registered under subsection (1).

(7) Subsection (6) does not

(a) apply to a dealing by the owner of an estate or interest that is registered as a charge on the previously registered title, or

(b) operate to prevent the registration of a judgment, claim of lien under the Builders Lien Act, caveat, certificate of pending litigation or other involuntary charge.

Other laws not to affect Torrens system

371   (1) For the purpose of applying the Torrens system to Indian land the registrar is not under any duty to take notice of, act on, inquire into or give effect to any enactment of Canada or to any law of a band or its council that

(a) relates to the registration of title to, rights in, claims against or estates or interests in land, whether legal or equitable, or the creation, conveyancing, transmission, inheritance, devolution or enforcement of them,

(b) creates a trust or fiduciary duty in the band to hold land for the use and benefit of itself and its members, or

(c) expressly or by necessary implication requires the registrar to perform a duty or exercise a power that the registrar would not otherwise be required to perform or exercise with respect to the land if it were not Indian land.

(2) Nothing in subsection (1) is to be construed or operates to prevent

(a) the exercise by the Province or by persons duly authorized by the Province, or

(b) effect being given to,

any right, estate or interest referred to in section 367 (2) (e).

(3) An estate or interest in land claimed or asserted by any person claiming to be the beneficial owner of land under a trust or fiduciary duty referred to in subsection (1) (b) must not be registered under this Act.

(4) If a band or its council

(a) amends all or part of a law required by section 367 (2) (b) or 368 (2) (a) without first receiving the written approval of the minister, or

(b) repeals all or part of a law referred to in paragraph (a),

the registrar must

(c) lodge a caveat against all indefeasible titles to Indian land of that band,

(d) not register any other instruments affecting the Indian land of that band, and

(e) not accept any application to register any other instrument affecting the Indian land of that band,

and any application affecting the Indian land of that band that is then pending is void.

Execution of instruments

372   (1) For the purpose of applying the Torrens system to Indian land and to dealings in other land of a band to which section 373.1 applies, an instrument executed by or on behalf of a band or its council is conclusively deemed to be properly executed if

(a) the seal of the band or its council is affixed to the instrument in the presence of a person described as an authorized signatory, and

(b) execution is proved in the same manner as is provided in section 46, in cases of execution by a corporation.

(2) An instrument executed and proved in compliance with subsection (1) constitutes conclusive proof to the registrar that the requirements of the constitution of the band and laws of the band or its council relating to the execution of the instrument and the disposition contemplated by it have been fulfilled.

(3) If an instrument executed by or on behalf of a band is presented for registration under this Act, the registrar need not act on, inquire into or give effect to the constitution of the band or to any law of the band or its council, or make any inquiry into the capacity of either of them or make any other inquiry into whether or not

(a) the constitution of the band or any law of the band or its council is in force,

(b) the transaction contemplated by the instrument was duly authorized in accordance with the constitution of the band or the laws of the band or its council,

(c) all rules and procedures established by the band or its council respecting the disposition of an estate or interest in land have been complied with, or

(d) the band subsists as a legal entity.

Liability limited

373   In addition to the limits of liability established under sections 294.6 and 303, neither the assurance fund under Part 19.1, nor the assurance fund under Part 20, nor the Land Title and Survey Authority nor the minister is, under any circumstances, liable for compensation for loss, damage or deprivation

(a) occasioned to or suffered by a person entitled to an estate or interest in Indian land that subsisted at the time an application under section 368 is made, as a result of the operation of this Part,

(b) occasioned to or suffered by Canada, a band, a member of the band or any other person under a trust or fiduciary duty affecting Indian land existing at the time Indian land is conveyed by the Crown or because of a breach of that trust or fiduciary duty,

(c) occasioned by an ultra vires or unlawful act of the band or its council, by any lack of capacity on the part of the band or its council to hold or dispose of land, or by the improper use of the seal of either of them, or

(d) occasioned by or suffered in consequence of an amendment or repeal of all or part of a law referred to in section 367 (2) (b), 368 (2) (a) or 373.1 (1) unless the amendment or repeal has been approved by the minister in writing.

Not in force. Repealed.

373.1   [Not in force. Repealed 2006-33-1.]

Part 24.01 — Treaty Lands

Application of Act to treaty lands

373.11   This Act, as modified by Schedule 1, applies in relation to

(a) the registration of treaty lands, and

(b) registered treaty lands.

Part 24.1 — Nisa'a Lands and Categories A and B Lands

Division 1 — Treatment of Nisa'a Lands and Institutions

Effect of indefeasible title to Nisa'a Lands

373.2   (1) An indefeasible title to a parcel of Nisa'a Lands, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against the Crown and all other persons, that the person named in the title is indefeasibly entitled to an estate in fee simple to the land described in the indefeasible title, subject to the following:

(a) the subsisting conditions, provisos, restrictions, exceptions and reservations, including royalties, set out in the Nisa'a certificate that relates to that parcel;

(b) a charge, tax, rate or assessment of the Nisa'a Nation at the date of the application for registration imposed or made a lien or that may after that date be imposed or made a lien on the parcel of land;

(c) a charge, rate or assessment of a Nisa'a Village at the date of the application for registration imposed or that may after that date be imposed on the parcel of land, or which had before that date been imposed for local improvements or otherwise and that was not then due and payable;

(d) a right of expropriation under a Nisa'a law.

(2) The matters to which an indefeasible title to a parcel of Nisa'a Lands is subject under subsection (1) are in addition to any other matters to which that title is subject under section 23 (2), as that section applies to that parcel under the Nisa'a Final Agreement.

Assignment of distinguishing letter by registrar

373.21   If a letter is assigned or an indefeasible title is registered under section 66 in respect of a parcel of Nisa'a Lands, the duty of the registrar under section 66 (5) to advise the taxing authority includes the duty to advise the Nisa'a Lisims Government.

Requirements as to subdivision in respect of Nisa'a Lands

373.22   (1) In applying section 75 (1) (c) or (d) to Nisa'a Lands, the reference to "rural area" must be read as a reference to Nisa'a Lands other than Nisa'a Village Lands.

(2) The approving officer, in considering the sufficiency of a highway shown on a plan with respect to Nisa'a Lands, has the same duty to consider the matters set out in section 75 (3) as the approving officer has under that section with respect to other lands.

Controlled access highways

373.23   Section 80 (b) does not apply to Nisa'a Lands.

Tender of plan for examination and approval

373.3   (1) Section 83 does not apply to Nisa'a Lands.

(2) A subdivision plan in respect of a parcel of Nisa'a Lands must be tendered for examination and approval by the approving officer as follows:

(a) if the land affected is within Nisa'a Lands, other than Nisa'a Village Lands, to the chief administrative officer of the Nisa'a Lisims Government;

(b) if the land affected is within Nisa'a Village Lands, to the chief administrative officer of the applicable Nisa'a Village Government.

(3) The subdivision plan must be accompanied by the following:

(a) the applicable fees established under Nisa'a law;

(b) a certificate

(i) that all taxes assessed on the subdivided land have been paid, and

(ii) if local improvement taxes, rates or assessments are payable by instalments, that all instalments owing at the date of the certificate have been paid;

(c) if the approving officer considers that there is reason to anticipate that the land may be resubdivided and requires this information, a sketch showing that the parcels into which the land is subdivided can conveniently be further subdivided into smaller parcels;

(d) if the approving officer requires this information, profiles of every new highway shown on the plan and such necessary topographical details as may indicate engineering problems to be dealt with in opening up the highways, including environmental impact or planning studies.

Matters to be considered by approving officer on application for approval

373.31   (1) The approving officer may refuse to approve a subdivision plan in respect of a parcel of Nisa'a Lands if the cost to the Nisa'a Nation or the applicable Nisa'a Village of providing public utilities or other works or services would be excessive.

(2) The matters for which the approving officer may refuse to approve a subdivision plan in respect of a parcel of Nisa'a Lands under subsection (1) are in addition to any other matters for which the approving officer may refuse approval under section 86 (1) (c), as that section applies to that parcel under the Nisa'a Final Agreement.

Matters to be considered in respect of land within Nisa'a Lands

373.32   (1) Section 87 does not apply to Nisa'a Lands.

(2) Without limiting section 85 (3), in considering an application for subdivision approval in respect of a parcel of Nisa'a Lands, the approving officer may refuse to approve the subdivision if the approving officer considers that the subdivision does not conform to Nisa'a law.

Acceptable descriptions of land

373.33   (1) The registrar may, in respect of a parcel of Nisa'a Lands, accept a description referred to in section 99 (1) (a) or a plan referred to in section 99 (1) (b) if the parcel

(a) is being transferred to the Nisa'a Nation or a Nisa'a Village for highway purposes, or

(b) is being transferred, leased or donated for public purposes to the Nisa'a Nation or to a Nisa'a Village.

(2) The cases in which the registrar may accept the description or plan referred to in subsection (1) are in addition to the cases in which the registrar may accept the description or plan under section 99 (1), as that section applies to a parcel of Nisa'a Lands under the Nisa'a Final Agreement.

Dedication by reference or explanatory plan

373.4   (1) The Nisa'a Nation or a Nisa'a Village has the same power to deposit a reference plan as the Crown has under section 102.

(2) The reference plan or explanatory plan need not be signed under section 102 (3) but must be signed by the approving officer appointed under section 77.3.

(3) The deposit of the plan by the registrar operates as a dedication by the Nisa'a Nation or the applicable Nisa'a Village to the public of the land shown on the plan as a highway.

(4) Section 102 (2) and (5) applies to the deposit of a plan under this section.

Dedication and vesting

373.41   (1) Section 107 (1) does not apply in respect of a parcel of Nisa'a Lands.

(2) Despite subsection (1), the deposit of a subdivision, reference or explanatory plan showing a portion of Nisa'a Lands as covered by water and as lying immediately adjacent to a lake, river, stream or other body of water not within land covered by the plan, and designated on the plan to be returned to the government, operates in the manner set out in section 107 (1) (c) to (e).

(3) The deposit of a subdivision, reference or explanatory plan showing a portion of Nisa'a Lands as a highway, park or public square, that is not designated on the plan to be of a private nature, operates

(a) as an immediate and conclusive dedication by the owner to the public of that portion of the land shown as a highway, park or public square for the purpose indicated on or to be inferred from the words or markings on the plan,

(b) to vest in the Nisa'a Nation or the applicable Nisa'a Village, subject to any Nisa'a law, title to the highway, park or public square, except any mineral resources, as defined in the Nisa'a Final Agreement, that are registered in the name of a person other than the owner, and

(c) to extinguish the owner's common law property, if any, in that portion of Nisa'a Lands.

Designation of plans in respect of submerged lands

373.42   Section 108 (1) applies to Nisa'a Lands only if the land designated on the plan referred to in that section is submerged lands within the meaning of the Nisa'a Final Agreement.

Repealed

373.43   [Repealed 2018-37-24.]

Deposit of statutory right of way plan

373.44   (1) Section 115 (1) and (2) does not apply to Nisa'a Lands.

(2) The Nisa'a Nation or a Nisa'a Village may apply to the registrar to deposit a statutory right of way plan in respect of land acquired for a highway, and the registrar, if satisfied that the application and plan are in order, must assign to the plan a serial deposit number.

(3) Concurrently with or following the deposit of the statutory right of way plan, the chief administrative officer of the Nisa'a Nation or the Nisa'a Village may file with the registrar a certificate in the form approved by the director certifying that all or part of the land in the statutory right of way plan has been established as a highway and the title vested in the Nisa'a Nation or the Nisa'a Village in compliance with Nisa'a law.

(4) Section 115 (3) to (5) applies to the deposit of a statutory right of way plan under this section.

(5) If there is a statutory right of way through unsurveyed Nisa'a Lands owned by the Nisa'a Nation or a Nisa'a Village, it is acceptable to the registrar if a sufficient number of angular and linear measurements are shown on the statutory right of way plan to define the limits of the land affected by the statutory right of way.

Nisa'a law to be filed if closing road or public square

373.5   (1) A law made by the Nisa'a Lisims Government for closing a Nisa'a road or public square that is not within Nisa'a Village Lands must be filed in the land title office, and the registrar must register an indefeasible title of the land in the name of the Nisa'a Nation.

(2) A law made by a Nisa'a Village Government for closing a Nisa'a road or public square that is within Nisa'a Village Lands must be filed in the land title office, and the registrar must register an indefeasible title of the land in the name of the Nisa'a Village.

(3) In the case of the closing of a Nisa'a road or public square by the Nisa'a Lisims Government or a Nisa'a Village Government, the registrar may accept a reference plan, or an explanatory plan, or a description by apt descriptive words.

Definitions for applying Part 8

373.51   The following definitions are for the purposes of applying Part 8 to Nisa'a Lands:

"local authority" means

(a) in relation to Nisa'a Lands other than Nisa'a Village Lands, the Nisa'a Lisims Government, and

(b) in relation to Nisa'a Village Lands, the applicable Nisa'a Village Government;

"municipality" means Nisa'a Village Lands;

"regional district" means Nisa'a Lands other than Nisa'a Village Lands.

Cancellation of plans

373.52   (1) In applying section 124 in respect of Nisa'a Lands

(a) the reference to applicable subdivision and zoning bylaws in section 124 (1) (b) (i) must be read as a reference to the applicable Nisa'a laws relating to subdivision and zoning,

(b) the petitioner must file the report required under section 124 (2) only if any part of the public area affected by the petition is a secondary provincial road as defined in the Nisa'a Final Agreement, and

(c) the petitioner must request a report under section 124 (3) (b) only if any part of the public area affected by the petition is a secondary provincial road as defined in the Nisa'a Final Agreement.

(2) In applying section 125 (2) in respect of a plan of Nisa'a Lands, the petitioner referred to in that section

(a) must serve a copy of the petition and a notice of the hearing on,

(i) if the land affected by the petition is Nisa'a Lands, other than Nisa'a Village Lands, the chief administrative officer of the Nisa'a Lisims Government, and

(ii) if the land affected by the petition is Nisa'a Village Lands, the chief administrative officer of the applicable Nisa'a Village Government,

(b) need not comply with section 125 (2) (c) and (d) unless the petition relates to a secondary provincial road, as defined in the Nisa'a Final Agreement, and

(c) need not comply with section 125 (2) (e).

(3) The requirement to serve under subsection (2) of this section is in addition to any other requirement under section 125 (2) as that section applies under the Nisa'a Final Agreement.

(4) In applying section 126 (b) in respect of a plan of Nisa'a Lands, the petitioner referred to in that section must post the petition and any other documents, for 4 consecutive weeks before the date set for hearing, at one or more of the following places:

(a) if the land affected by the petition is Nisa'a Lands other than Nisa'a Village Lands, the principal administration building of the Nisa'a Lisims Government on Nisa'a Lands;

(b) if the land affected by the petition is Nisa'a Village Lands, the principal administration building of the applicable Nisa'a Village Government on Nisa'a Village Lands.

(5) Section 131 (1) (c) and (e) does not apply to Nisa'a Lands.

(6) In applying section 133 to Nisa'a Lands

(a) the Nisa'a Nation has the same power to oppose the cancellation or alteration of the boundaries of all or part of a public area that is a Nisa'a road as the minister charged with the administration of the Transportation Act has in respect of all or part of a public area that is an arterial highway, and

(b) the minister charged with the administration of the Highway Act may oppose the cancellation or alteration of boundaries of all or part of a public area, only if that public area is a secondary provincial road as defined in the Nisa'a Final Agreement and is an arterial highway.

(7) In applying section 137 to Nisa'a Lands, the registrar has the same power under section 137 (1) (a) to cancel the lines dividing 2 or more contiguous parcels owned by the Nisa'a Nation or a Nisa'a Village as the registrar has in respect of 2 or more parcels owned by the Crown.

Air space

373.53   (1) Section 142 does not apply in respect of Nisa'a Lands.

(2) If the title to all or part of a highway is vested solely in the Nisa'a Nation or a Nisa'a Village, the chief administrative officer of the Nisa'a Nation or Nisa'a Village, as the case may be, may apply to register the title to all or part of the highway in the Nisa'a Nation or Nisa'a Village, and, on registration, the Nisa'a Nation or Nisa'a Village may create air space parcels and deal with them in accordance with this Act.

(3) If the title to all or part of a highway is vested solely in the Nisa'a Nation or a Nisa'a Village, the Nisa'a Lisims Government or the Nisa'a Village Government, as the case may be, may, by Nisa'a law, authorize an application to be made for the registration of the Nisa'a Nation's or Nisa'a Village's title to all or part of the highway and, on registration, the Nisa'a Nation or Nisa'a Village may create air space parcels and deal with them under this Act.

(4) For the purpose of this section, an indefeasible title may be registered for all or part of a highway.

Rights of owner of surface

373.6   Section 179 (2) does not apply in respect of Nisa'a Lands.

Registration of debt owing to Nisa'a Nation or Nisa'a Village

373.61   There may be registered, in the same manner as a charge is registered, a debt owing to the Nisa'a Nation or a Nisa'a Village against the land of a debtor to either of them, but no debt owing to either of them affects the land of the debtor unless it is registered.

Statutory right of way

373.62   A person has the same power to create a statutory right of way in respect of Nisa'a Lands under section 218 in favour of

(a) the Nisa'a Nation as the person has in respect of the Crown under section 218 (1) (a),

(b) a Nisa'a Corporation as the person has in respect of a Crown corporation under section 218 (1) (a), and

(c) a Nisa'a Village as the person has in respect of a municipality under section 218 (1) (b).

Registration of covenant as to use and alienation

373.63   A covenant in respect of a parcel of Nisa'a Lands may be created, enforced and registered under section 219 in favour of the Nisa'a Nation, a Nisa'a Village or a Nisa'a Corporation to the same extent that a covenant may be created, enforced and registered under that section in favour of the Crown.

Registration of land vested under Nisa'a law

373.64   (1) If land the title to which is registered becomes vested in the Nisa'a Nation or a Nisa'a Village under Nisa'a law otherwise than as a result of tax sale proceedings, the registrar,

(a) on application by the chief administrative officer of the Nisa'a Lisims Government or the applicable Nisa'a Village Government, and

(b) on the production of a certificate of vesting signed by the chief administrative officer and describing the land,

must register an indefeasible title to that land in the name of the Nisa'a Nation or applicable Nisa'a Village, and cancel any existing indefeasible title to the land, or effect registration by way of charge in the name of the Nisa'a Nation or applicable Nisa'a Village.

(2) Section 278 applies to the registration of land under this section.

Notice of tax sale or redemption of tax sale land

373.7   (1) The collector or other proper officer of the Nisa'a Lisims Government or a Nisa'a Village Government, as the case may be, has the same duty to file a notice with the registrar

(a) in respect of a parcel of Nisa'a Lands sold for taxes under a Nisa'a law as the collector or other proper officer of a taxing authority has in respect of other land under section 272 (1), and

(b) in respect of a parcel of Nisa'a Lands sold for taxes or subject to forfeiture under a Nisa'a law as the collector or other proper officer of a taxing authority has in respect of other land under section 273 (1).

(2) Section 272 (2) and (3) applies in respect of a notice required under subsection (1) (a) of this section and section 273 (2) and (3) applies in respect of a notice required under subsection (1) (b) of this section.

Effect of registration of title derived from tax sale

373.71   In applying section 276 (1) in respect of Nisa'a Lands, the purging and disencumbering of the land under section 276 (1) (a) and (b) does not result in a purging and disencumbering of the rights specified in section 373.2 (1) (a), (b) and (d).

Power of registrar to lodge caveat

373.72   If, in the opinion of the registrar, a person empowered to administer a Nisa'a law has produced satisfactory evidence of a contravention of that law and a prohibition is considered necessary to prevent improper dealing in a parcel of Nisa'a Lands covered by an indefeasible title, the registrar has the power to lodge a caveat under section 285 to prohibit dealing with that land.

Division 2 — First Registration of Title to Nisa'a Lands

Plan required with application for first registration

373.73   (1) An application under paragraph 5 of the Land Title Chapter of the Nisa'a Final Agreement must be accompanied by a plan of the land affected by the application that

(a) is based on a survey prepared by a British Columbia land surveyor or, if the survey is conducted before the date on which the Nisa'a Final Agreement takes effect, on a survey prepared by a Canada land surveyor, and

(b) [Repealed 2004-21-65.]

(c) is signed by the Surveyor General.

(2) If the plan meets the requirements of subsection (1) (a), the Surveyor General must sign the plan.

(3) The signature of the Surveyor General on a plan referred to in subsection (1) constitutes conclusive evidence to the registrar that

(a) the land shown on the plan forms part of Nisa'a Lands,

(b) no part of the land described in the plan is submerged land other than a part that is, by appropriate labels and boundary outlines, designated as submerged lands, and

(c) the plan does not conflict with any other plan on deposit in the land title office.

(4) An indefeasible title to a fee simple estate in any portion of Nisa'a Lands does not include submerged land whether or not the submerged land is shown on a plan referred to in subsection (1) and every indefeasible title to a portion of Nisa'a Lands must be construed accordingly.

Conclusive evidence of good safe holding and marketable title

373.8   A Nisa'a certificate constitutes conclusive evidence to the registrar that the person named in the certificate as the owner of the land described in the certificate is entitled to a good safe holding and marketable title in fee simple in respect of that land.

Additions to Nisa'a Lands

373.81   (1) If land is to be added to Nisa'a Lands under paragraph 9 or 11 of the Lands Chapter of the Nisa'a Final Agreement and, at the time of the addition, an indefeasible title to the land to be added is registered under this Act, the minister responsible for aboriginal affairs must file a certificate in the land title office in respect of the land to be added.

(2) A certificate referred to in subsection (1) must

(a) contain a description of the land sufficient for the registrar to identify it in the records, and

(b) state that the land has been added to Nisa'a Lands in accordance with the Nisa'a Final Agreement.

(3) On receiving a certificate under this section, the registrar must endorse a notation in the proper register stating that the land forms part of Nisa'a Lands and may be subject to conditions, provisos, restrictions, exceptions and reservations, including royalties, in favour of the Nisa'a Nation.

(4) A certificate filed under this section is conclusive evidence to the registrar that the addition was made in accordance with the Nisa'a Final Agreement.

Execution of instruments in respect of Nisa'a Lands

373.82   (1) For the purpose of applying the Torrens system, as defined in Part 24, to Nisa'a Lands, an instrument executed by or on behalf of the Nisa'a Nation or a Nisa'a Village is conclusively deemed to be properly executed if

(a) the seal of the Nisa'a Nation or applicable Nisa'a Village is affixed to the instrument in the presence of a person described as an authorized signatory, and

(b) execution is proved in the same manner as is provided in section 46, in cases of execution by a corporation.

(2) An instrument executed and proved in compliance with subsection (1) constitutes conclusive evidence to the registrar that the requirements of Nisa'a law relating to the execution of the instrument and the disposition contemplated by it have been fulfilled.

(3) If an instrument executed by or on behalf of the Nisa'a Nation or a Nisa'a Village is presented for registration under this Act, the registrar need not act on, inquire into or give effect to Nisa'a law or make any inquiry into the capacity of either of them or make any other inquiry into whether or not

(a) any Nisa'a law is in force,

(b) the transaction contemplated by the instrument was duly authorized in accordance with Nisa'a law,

(c) all rules and procedures established by the Nisa'a Lisims Government or Nisa'a Village Government respecting the disposition of an estate or interest in land have been complied with, or

(d) the Nisa'a Nation or Nisa'a Village subsists as a legal entity.

(4) In addition to the limits of liability established under sections 294.6 and 303, neither the assurance fund under Part 19.1, nor the assurance fund under Part 20, nor the Land Title and Survey Authority nor the minister is, under any circumstances, liable for compensation for loss, damage or deprivation occasioned by an ultra vires or unlawful act of the Nisa'a Lisims Government or Nisa'a Village Government or by the improper use of the seal of either of them.

Division 3 — Registration of Categories A and B Lands

Requirements for first registration of Categories A & B Lands

373.9   (1) An application for the registration of an indefeasible title to all or any portion of Category A Lands or Category B Lands must be accompanied by

(a) a plan of the land affected by the application, which plan meets the requirements of subsection (2), and

(b) a certificate of the minister responsible for aboriginal affairs that meets the requirements of subsection (3).

(2) The plan referred to in subsection (1) (a) must

(a) be based on a survey prepared by a British Columbia land surveyor,

(b) comply with the General Survey Instruction Regulation, B.C. Reg. 33/96, and

(c) be signed by the Surveyor General.

(3) The certificate referred to in subsection (1) (b) must

(a) state that the land shown on the plan referred to in subsection (1) (a) forms part of Category A Lands or Category B Lands,

(b) set out the conditions, provisos, restrictions, exceptions and reservations, including royalties, to which the land is subject, and

(c) state that the plan does not conflict with any other plan on deposit in the land title office.

(4) A certificate that meets the requirements of subsection (3) constitutes conclusive evidence to the registrar of the matters set out in the certificate.

(5) On receiving a plan and certificate under this section, the registrar must endorse a notation in the proper register stating that the land may be subject to conditions, provisos, restrictions, exceptions and reservations, including royalties, in favour of the Nisa'a Nation.

(6) An indefeasible title to a fee simple estate in any portion of Category A Lands or Category B Lands does not, unless the certificate referred to in subsection (3) provides otherwise, include submerged land and every indefeasible title to a portion of Category A Lands or Category B Lands must be construed accordingly.

Effect of indefeasible title to Categories A & B Lands

373.91   (1) An indefeasible title to a parcel of Category A Lands or Category B Lands, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against the Crown and all other persons, that the person named in the title is indefeasibly entitled to an estate in fee simple to the land described in the indefeasible title subject to the subsisting conditions, provisos, restrictions, exceptions and reservations, including royalties, set out in the certificate referred to in section 373.9 that relates to that parcel.

(2) The matters to which an indefeasible title to a parcel of Category A Lands or Category B Lands is subject under subsection (1) are in addition to any other matters to which that title is subject under section 23 (2), as that section applies to that parcel under the Nisa'a Final Agreement.

(3) Section 23 (4) does not apply in respect of Category A Lands and Category B Lands.

Part 24.2 — Cancelling Registration of Reserve Lands Registered to Canada

Cancelling registration of reserve lands registered to Canada

373.92   (1) In this section:

"band" has the same meaning as in the Indian Act (Canada);

"federal minister" means the Minister of Indian Affairs and Northern Development for Canada and includes a person to whom that minister has delegated in writing the minister's powers or functions under this section;

"reserve lands" means lands within a reserve as defined in section 2 (1) of the Indian Act (Canada).

(2) If Canada is the registered owner of the estate in fee simple in a parcel of reserve lands, on application by the federal minister, accompanied by a certificate that is signed by the federal minister, sets out a description of the parcel sufficient for the registrar to identify it in the register and certifies that

(a) the parcel is free of registered charges or the holder of any registered charge has consented to the cancellation, and

(b) the band council of the band for whose use and benefit Canada holds the estate has consented on behalf of that band to the cancellation,

the registrar must cancel the registration of the indefeasible or absolute title to the parcel together with the registration of any charge against or endorsement made on that indefeasible title.

(3) A certificate under subsection (2) constitutes conclusive evidence to the registrar of the matters certified in it.

(4) On cancelling an indefeasible or absolute title under subsection (2), the registrar must call in and cancel any duplicate indefeasible title that has been issued in respect of the title.

(5) For certainty, if registration is cancelled under subsection (2), this Act ceases to apply to the parcel.

Part 25 — Miscellaneous

Record of names

374   (1) The registrar must store in the records the names of registered owners of indefeasible titles, absolute fees and charges, with a reference opposite each name to the serial number under which the estate or interest of the owner is registered.

(2) Despite subsection (1), the registrar must not enter in the records referred to in subsection (1) a particular class of charge or the names of a person or class of persons designated by the director.

Record of registered land

375   (1) The registrar may store in the records, arranged under appropriate headings, information required by the director respecting all registered land.

(2) The registrar may, with the consent of the director, include in the records under subsection (1) information respecting unregistered land owned by the government.

Pending applications

376   Where that part of the register relating to a parcel is stored by electronic means, a pending application must be noted against the indefeasible title to the parcel to which the application relates, and the note must include

(a) the serial number of the pending application, assigned under section 153 (1) (b), and

(b) other information respecting that application as determined by the director.

Searching of records

377   (1) The register and any other official records of the land title office are open to inspection and search by any person on reasonable conditions the registrar may impose.

(2) If the registrar considers that the state of business in the registry requires, the registrar may process applications for a search in a different order from that in which the applications were made.

(3) The registrar may direct

(a) the manner of conducting a search, and

(b) that a search be accompanied by an application in the form directed by the registrar.

(4) A search may be

(a) a general search of the register showing the title to the land that is comprised in one indefeasible title,

(b) a special search confined to a single instrument,

(c) a name search to ascertain the land registered in the name of a person, or

(d) if permitted by the registrar, a search for pending applications against the title to the land that is comprised in the indefeasible title.

(5) An application for a search must state the nature of the search required and must be made in person by the applicant or by the applicant's solicitor or agent.

(6) The director may by regulation exempt

(a) a class of charge, or

(b) the names of a particular person or class of persons

from the application of a search under subsection (4) (c).

(7) On a general search, the applicant is entitled to search any record not shown in the register that may affect the title of land covered by the search.

Registrar to provide certificates

378   (1) The registrar must, on application, provide

(a) a state of title certificate showing the subsisting title on the register and all pending applications,

(b) a certificate of name search showing the lands or the registration number of lands registered in the name of a person, except in respect of the charges or persons exempted under section 377 (6),

(c) a certified abstract of title,

(d) a certified extract from the register or other record, and

(e) a certified copy of an instrument deposited, filed, kept, lodged or registered in the land title office.

(2) The registrar may, on application, provide a search of title in another form or manner and on terms and conditions that may be prescribed by the regulations.

Certificate as evidence

379   (1) A certificate, abstract, extract or copy provided by the registrar must be received in all courts in British Columbia as proof of

(a) the facts set out in the certificate,

(b) the contents of the register or records of which it purports to be an abstract or extract, or

(c) the instrument of which it purports to be a copy,

without proof of the official seal of the land title office or the signature or official position of the registrar.

(2) A copy, certified by the registrar, of an instrument deposited, filed, lodged, kept, received or registered, affecting land in a registrar's district, must be received by another registrar in the same manner and with the same effect as if the original were produced, without proof of the official seal of the land title office or the signature or official position of the registrar by whom it purports to be signed.

Lost or destroyed instruments

380   (1) If the registrar

(a) is required to produce a record, and

(b) is unable to do so because it has been lost, mislaid or destroyed,

the registrar must give to the court or person making the requisition a written certificate to that effect, signed by the registrar, and the registrar may produce, instead of the record, such documentary evidence relating to the record as is available in the land title office.

(2) The evidence must be accepted as compliance with the requisition and as conclusive proof of the nature and contents of the record that has been lost, mislaid or destroyed.

Rights of officers of taxing authorities

381   (1) An officer or employee of a taxing authority who is authorized by the registrar is entitled,

(a) without charge, and

(b) for the purpose of assessment or taxation and incidental matters,

to search the records of the land title office.

(2) If the state of business of the land title office permits, the registrar may, on payment of the fee established by bylaw of the Board of Directors, supply the taxing authority with the information required.

Powers and duties of registrar

382   (1) The registrar may, for the purposes of this Act,

(a) administer oaths, or instead of administering an oath require a person examined by the registrar to make and subscribe an affidavit of the truth of the statement made by the person in an examination,

(b) take evidence, under oath or otherwise, affecting title or facts necessary to enable the registrar to decide whether or not the provisions of this Act have been complied with,

(c) on such evidence as the registrar considers sufficient, correct errors in entries made or supply entries omitted under the provisions of this Act or of a previous Act respecting the registration of titles to land, but in making corrections the registrar must not erase or render illegible the original entry, and the registrar must, in correcting or supplying an entry, sign it and insert the date of the correction, and every correction so made and every omission so supplied has the same validity and effect as if the error had not been made or the entry omitted, except in respect of a registration or filing that may have been entered in the records of the office prior to the time of correcting the error or supplying the omitted entry, and

(d) summon a person whose evidence in respect of a matter pending before the registrar may be material

(i) to appear and give evidence on oath respecting the matter, and

(ii) to produce an instrument, document or evidence affecting title

before the registrar or before another person appointed as special examiner by order of the registrar.

(2) The order of the registrar, signed by the registrar and under the official seal of the land title office, is sufficient authority for the person named in the order to administer oaths to and to take the evidence of all persons summoned by the registrar under subsection (1) (d).

(3) The evidence, when taken by the special examiner, must be transmitted to the registrar, and is of the same effect as if it had been taken before the registrar.

Registrar to cancel or correct instruments, etc.

383   (1) If it appears to the registrar that

(a) an instrument has been issued in error or contains a misdescription, or

(b) an endorsement has been made or omitted in error on a register or instrument,

whether the instrument is in the registrar's custody or has been produced to the registrar under summons, the registrar may, so far as practicable, without prejudicing rights acquired in good faith and for value,

(c) cancel the registration, instrument or endorsement, or

(d) correct the error in or supply the entry omitted on the register or instrument or an endorsement made on it, or in a copy of an instrument made in or issued from the land title office.

(2) In correcting an error the registrar must not erase or render illegible the original words.

(3) The registrar must affix the registrar's signature to the correction and the date on which the correction was made or the endorsement supplied.

(4) Subsections (2) and (3) do not apply to a correction made to records stored by electronic means.

(5) A register or instrument so corrected, and an endorsement so corrected or supplied, has validity and effect as if the error had not been made or the entry omitted.

(6) A cancellation of an instrument or endorsement made under this section has validity and effect from the time the instrument was issued or the endorsement was made.

Public Agency Accommodation Act amendments

383.1   (1) Without limiting any other power of the registrar under this or any other enactment, the registrar may amend any part of the register to reflect the transfer and vesting effected by section 2 (1) of the Public Agency Accommodation Act.

(2) In making an amendment under subsection (1), the registrar must not erase or render illegible the original words.

(3) The registrar must affix the registrar's signature to the amendment and the date on which the amendment was made.

(4) Subsections (2) and (3) do not apply to an amendment made to records stored by electronic means.

(5) Without limiting section 2 (2) (c) of the Public Agency Accommodation Act, an amendment under this section is valid and effective from the time section 2 of the Public Agency Accommodation Act comes into force.

Homeowner Protection Act amendments

383.2   (1) Without limiting any other power of the registrar under this or any other enactment, the registrar may amend any part of the register to reflect

(a) the transfer to and vesting in the British Columbia Housing Management Commission of restrictive covenants registered under section 219 of this Act effected by section 54 (2) (c) of the Budget Measures Implementation Act, 2010, and

(b) the transfer to and vesting in the government of all interests in land registered in the name of the Homeowner Protection Office, except restrictive covenants registered under section 219 of this Act, effected by section 56 (2) (a) of the Budget Measures Implementation Act, 2010.

(2) In making an amendment under subsection (1), the registrar must not erase or render illegible the original words.

(3) The registrar must affix the registrar's signature to the amendment and the date on which the amendment was made.

(4) Subsections (2) and (3) do not apply to an amendment made to records stored by electronic means.

(5) Without limiting section 54 (3) or 56 (2) (c) of the Budget Measures Implementation Act, 2010, an amendment under this section is valid and effective as of April 1, 2010.

Preservation of registry records and plans

384   (1) If

(a) a record of the land title office, from use or age, is becoming obliterated or unfit for future use, or

(b) in the opinion of the registrar, convenience of reference requires,

the registrar may cause the record, or a selected portion of it, to be copied in a record of similar description.

(2) The copied record, together with a certificate of the registrar at the end of it to the effect that the recopied record is a true copy of the original record, must for all purposes be accepted and received as the original record.

(3) Despite this section but subject to section 166, the original record must be preserved among the records of the land title office.

(4) If necessary for its preservation, the registrar may cause

(a) a record which is out of repair and unfit for use to be repaired or rebound, or

(b) a plan deposited or filed to be repaired, copied or mounted.

Records of Land Title and Survey Authority

384.1   (1) The records are transferred to and vest in the Land Title and Survey Authority.

(2) The Land Title and Survey Authority must not destroy or dispose of the records except in accordance with this Act or section 3 of the Land Title and Survey Authority Act.

(3) The records are not subject to

(a) any process of attachment, execution or seizure, or

(b) a trust in favour of a person who claims to have sustained a loss.

(4) Despite any Act, agreement or court order, a receiver must not exercise custody or control over the records.

(5) If a provision of an agreement to which the Land Title and Survey Authority is a party limits access to or the use of records in a manner that is inconsistent with this Act, the provision is not enforceable against the Authority.

Power to make regulations

385   (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:

(a) respecting a matter to be brought before a court under this Act;

(b) establishing a scale of fees on applications and other proceedings authorized by this Act;

(c) respecting procedure and practice under this Act insofar as any other Act, Provincial or federal, or a regulation made under such Act, relates to or affects the title to land;

(d) respecting the form of and the manner in which the registers and certificates relating to titles are kept or provided, or in which applications under this Act relating to land are made and dealt with, and, if required, modifying the provisions of this Act in that respect;

(e) despite this Act, directing the registrar to dispense with or to suspend for any period the issue of duplicate indefeasible titles, or to provide for their issue in certain circumstances;

(f) [Repealed 2004-66-136.]

(g) limiting the number of persons who may be named as registered owners in fee simple in one indefeasible title;

(h) permitting land to be described by reference to an indefeasible title number;

(i) [Repealed 2004-66-136.]

(j) defining the meaning and legal effect of a word or phrase used in the regulations;

(k) varying the hours a registrar must keep the land title office open to the public for the transaction of business;

(l) providing for or facilitating the computerization of the land title system;

(m) declaring that a designated class of owners in fee simple registered in the absolute fees register are entitled to have indefeasible titles registered to them on compliance with the conditions set out in the regulations;

(n) [Repealed 2004-66-136.]

(o) prescribing the effect of an approved form of instrument, if the effect of it is not stated in this Act;

(p) to (r) [Repealed 2004-66-136.]

(s) prescribing the manner of effecting service by electronic means for the purposes of section 317.1 and the method of proving that service.

(3) The Lieutenant Governor in Council may make regulations permitting or requiring the registration and governing the procedure for registration of the title to and dealings with an estate or interest in land less than the fee simple, including statutory rights of way that, before or after this Act comes into force, may be granted or created

(a) by the Crown in right of British Columbia;

(b) by the Crown in right of Canada;

(c) by a public officer, ministry or department of the Province or Canada; or

(d) by a municipality or regional district

under an enactment.

(4) The regulations referred to in subsection (3) may

(a) classify the various estates or interests in any manner,

(b) apply separate provisions to separate classes,

(c) make registration compulsory or permissive,

(d) extend all or part of this Act to the registration,

(e) specify the offices in which the registration is to be effected,

(f) provide that registered judgments must form a charge on all estates or interests of the judgment debtor registered under the regulation so made, and

(g) in the case of statutory rights of way, set the value per kilometre of right of way for the purpose of payment of fees on the registration of the title to the statutory right of way.

(5) The Association of British Columbia Land Surveyors may make rules under section 75 of the Land Surveyors Act respecting the conduct of surveys referred to in this Act and the form and content of plans to be filed, registered or deposited under this Act.

Fees

386   (1) There must be paid to the registrar,

(a) in respect of the matters in the regulations, the respective fees prescribed or other fees the Lieutenant Governor in Council may establish by regulation, and

(b) in respect of services provided by the registrar, the Surveyor General or persons under the direction of the registrar or Surveyor General, the respective fees the Board of Directors may establish by bylaw.

(2) The registrar must pay all fees received by the registrar, except fees established by the Board of Directors, into the consolidated revenue fund.

(3) Payment of fees must be made at the time

(a) an application is tendered to the registrar,

(b) an instrument is filed with him, or

(c) a request is made for the performance by the registrar of an act or duty,

otherwise the application or instrument must not be received or the request complied with.

(3.1) Payment of fees required by this section in respect of the registration of an electronic application, electronic instrument or electronic plan application, as those terms are defined in Part 10.1, may be made by electronic means in accordance with the regulations made under subsection (3.2).

(3.2) The Board of Directors may make regulations respecting the manner in which payment of fees by electronic means is to be made under subsection (3.1).

(4) The Lieutenant Governor in Council may prescribe fees for

(a) the conduct of a search of the records contained in the registry, whether or not the search is conducted by persons under the registrar's direction, and

(b) the obtaining of a copy of any record contained in the registry, whether or not the copy is obtained with the assistance of persons under the registrar's direction.

(4.1) Without limiting subsection (1) (b), the Board of Directors may establish, by bylaw, fees for matters referred to in subsection (4).

(5) Payment of fees prescribed under subsection (4) or established under subsection (4.1) must be made at the time the search is conducted or the copy obtained.

(6) If an application is refused or withdrawn, the registrar must refund the balance of fees over and above the amount properly payable.

(7) [Repealed 2004-66-138.]

(7.1) The government is exempt from paying any fees payable under this section.

(8) If, in the minister's opinion, it is in the public interest to do so, the minister may

(a) exempt any person from the payment of all or part of any fee authorized under this Act, except a fee established by the Board of Directors, or

(b) order that all or part of a fee received by a registrar, except a fee established by the Board of Directors, be reimbursed to a designated person who paid it.

(9) If an order is made under subsection (8) (b), the minister charged with the administration of the Financial Administration Act must pay to the designated person the amount of the fee to be reimbursed.

(10) The minister may remit to the administrator under the Property Transfer Tax Act all or part of a fee paid under this Act if the fee or part is to be refunded under the Property Transfer Tax Act to the person who paid it.

Fees specified in Schedule 2

386.1   (1) There shall be paid to the registrar in respect of a matter mentioned in Column 1 of Schedule 2

(a) the fee set out opposite that matter in Column 2 of Schedule 2, and

(b) any fee set by bylaw of the Board of Directors in respect of that matter.

(2) Subsection (1) does not limit the ability of

(a) the Lieutenant Governor in Council to prescribe or establish fees, or

(b) the Board of Directors to establish, by bylaw, fees

under sections 385 and 386 for matters other than the matters mentioned in Schedule 2.

(3) Section 386 (2), (3) and (6) to (10) applies to the fees specified in Schedule 2.

Fees payable despite other enactments

386.2   Despite any enactment but subject to sections 386 (7.1) and 386.1 (3), section 34 of Schedule 1 and the operating agreement, as defined in the Land Title and Survey Authority Act, if a provision of another enactment provides that no fee is payable under this Act, sections 386 and 386.1 prevail insofar as those sections require the payment of a fee established by the Board of Directors.

Offence of fraud

387   (1) A person commits an offence who

(a) wilfully makes a false declaration or a false acknowledgement or certification under Part 5, or

(b) fraudulently procures, or assists in fraudulently procuring, or is privy to the fraudulent procurement of an order of the court affecting the title to land, or of a fraudulent entry on the register, or a fraudulent alteration or erasure of an entry on the register.

(2) An order of the court affecting the title to land procured by fraud, an act consequent on the order and an endorsement, alteration or erasure made as a consequence of the fraud or the order is void as between all parties or privies to the fraud.

Offence of false representation

388   (1) A person commits an offence if the person, as principal or agent in an application to register title to land or in a transaction relating to land that is or is proposed to be registered, knowingly and with intent to deceive,

(a) makes a material false statement or representation,

(b) suppresses or conceals from a court, or the registrar, or a person employed by or assisting the registrar, a material document, fact, matter or information, or

(c) is a party to anything mentioned in paragraph (a) or (b).

(2) An act or thing done or obtained by means of anything mentioned in subsection (1) (a) or (b) is void, except in respect of a purchaser in good faith and for valuable consideration.

Application of Offence Act

389   Section 5 of the Offence Act does not apply to

(a) this Act, or

(b) the regulations.

Penalties

390   If

(a) a person contravenes section 387 or 388, and

(b) the act or matter constituting the contravention is not punishable under the Criminal Code,

the person, in addition to every other penalty or punishment to which the person may by any Act or law be liable, is liable to the penalties provided in the Offence Act.

Conviction not to affect liability

391   No proceeding or conviction in respect of an act declared to be an offence under this Act affects a right or remedy to which a person may be entitled against the person who committed the act.

Contaminated land

392   (1) In this section, "waste management director" means a director as defined in the Environmental Management Act.

(2) If because of contamination of land by a special waste a person entering or using the land is exposed to a danger to health, a waste management director may file in the land title office in which the title to that land is registered a notice under this section.

(3) The notice must contain the legal description of the land affected, must specify the nature of the contamination and must state the estimated period that the danger will persist.

(4) On receipt of a notice under subsection (2), the registrar must endorse particulars of the notice on the title to the land affected.

(5) If a waste management director is satisfied that a danger referred to in subsection (2) no longer exists, the waste management director must deliver a notice to that effect to the registrar, and the registrar must cancel the endorsement made on the title.

(6) No liability attaches to any person because of anything done or omitted to be done under this section unless it was done or omitted in bad faith.

Transitional

393   Despite the repeal of the Land Registry Act, R.S.B.C. 1960, c. 208,

(a) absolute fee registers that are closed by order of the Lieutenant Governor in Council, except as to undersurface rights, must remain closed, but all entries in them have the same force and validity as they had on the coming into force of this Act,

(b) in respect of mines, minerals and undersurface rights, the absolute fee registers must, subject to section 179, remain open for the transfer of those mines, minerals and undersurface rights which, before June 1, 1921, had been registered in the absolute fee, but entries in respect of mines, minerals or undersurface rights created after or unregistered on May 31, 1921 must not be registered in the absolute fee, but must be registered as provided in this Act,

(c) the register of charges existing on May 31, 1921 must remain open for the registration of charges on land, including mines, minerals and undersurface rights that are registered in the absolute fee, and

(d) the provisions of the repealed Act respecting evidence or procedure relating to registration of absolute fees contained in the repealed Act remain in force and govern future registrations relating to registration of absolute fees, but if, in respect of a matter, the repealed Act is amplified, extended or proceedings under it facilitated by this Act, the proceedings may be commenced or continued under this Act.

Transitional — removal of notations made under the Forest Land Reserve Act

394   A registrar may cancel, with or without an application, a notation that was endorsed on the title of land under section 12.1 of the Forest Land Reserve Act before the repeal of that Act.

Schedule 1

Application of Act to Treaty Lands

Part 1 — Treatment of Treaty Lands

Definitions

1   (1) In this Schedule:

"chief administrative officer" means the officer or employee of a treaty first nation designated by the treaty first nation for the purposes of exercising the powers, and performing the duties, under this Schedule of a chief administrative officer of a treaty first nation;

"public area" has the same meaning as in Part 8 of this Act;

"treaty first nation corporation", in relation to a treaty first nation, means a corporation incorporated under federal or provincial law, all the shares of which are owned legally and beneficially by

(a) the treaty first nation,

(b) a settlement trust of which the treaty first nation is the sole beneficiary,

(c) another treaty first nation corporation of the treaty first nation, or

(d) a combination of these entities.

(2) Despite the definition of "rural area" in section 1 of this Act, for the purpose of applying this Act in relation to treaty lands, as this Act applies under the final agreement of the treaty first nation, references to "rural area" do not include treaty lands

(a) in sections 77.1 and 77.2 of this Act,

(b) in Part 23 of this Act, and

(c) if the treaty first nation has enacted a law excluding treaty lands from the rural area for the purposes of section 75 (1) or 99 (2) of this Act, in the specified provision.

Effect of indefeasible title to treaty lands

2   (1) An indefeasible title to a parcel of treaty lands, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against the Crown and all other persons, that the person named in the title is indefeasibly entitled to an estate in fee simple to the land described in the indefeasible title, subject to the following:

(a) the subsisting conditions, provisos, restrictions, including restrictions on alienation, exceptions and reservations, including royalties, set out in a certificate of the treaty first nation under section 25 (3) or 27 (1) (a) (ii) (A) of this Schedule, as the case may be, relating to that parcel;

(b) a charge, tax, rate or assessment of the treaty first nation that at the date of the application for registration is imposed or made a lien, or that may after that date be imposed or made a lien, on the parcel of land;

(c) a right of expropriation under a law of the treaty first nation.

(2) The matters to which an indefeasible title to a parcel of treaty lands is subject under subsection (1) are in addition to any other matters to which that title is subject under section 23 (2) of this Act, as that section applies to the parcel under the final agreement of the treaty first nation.

Notation respecting treaty lands

3   (1) If the indefeasible title to a parcel of treaty lands is registered under this Act, the registrar must endorse a notation in the register stating

(a) that the land forms part of the treaty lands of the applicable treaty first nation under its final agreement,

(b) that the land may be subject to conditions, provisos, restrictions, exceptions and reservations, including royalties, in favour of that treaty first nation, and

(c) if section 28 of this Schedule applies in relation to the treaty lands, that the section applies.

(2) If a parcel referred to in subsection (1) ceases to be treaty lands in accordance with the final agreement of the treaty first nation, the registrar must cancel the notation under subsection (1) in relation to the parcel.

(3) If the registrar receives notice under section 28 (4) or (5) of this Schedule indicating that section 28 (1) of this Schedule no longer applies in relation to a parcel referred to in subsection (1) of this section, the registrar must cancel the notation under subsection (1) (c) of this section in relation to the parcel.

Assignment of distinguishing letter by registrar

4   If a letter is assigned or an indefeasible title is registered under section 66 of this Act in respect of a parcel of treaty lands, the duty of the registrar under section 66 (5) of this Act to advise the taxing authority includes the duty to advise the treaty first nation.

Requirements as to subdivision in respect of treaty lands

5   In considering the sufficiency of a highway shown on a plan with respect to treaty lands and to be dedicated to the treaty first nation, the approving officer has the same duty to consider the matters set out in section 75 (3) of this Act as an approving officer has under that section with respect to highways being dedicated to the Crown.

Tender of plan for examination and approval

6   (1) Section 83 of this Act does not apply in relation to treaty lands.

(2) A subdivision plan in respect of a parcel of treaty lands must be tendered for examination and approval by the approving officer.

(3) The subdivision plan must be accompanied by the following:

(a) the applicable fees established under the laws of the treaty first nation;

(b) a certificate of each applicable taxing authority, including the treaty first nation, certifying

(i) that all taxes assessed on the subdivided land have been paid, and

(ii) if local improvement taxes, rates or assessments are payable by instalments, that all instalments owing at the date of the certificate have been paid;

(c) if the approving officer considers that there is reason to anticipate that the land may be resubdivided and requires this, a sketch showing that the parcels into which the land is subdivided can conveniently be further subdivided into smaller parcels;

(d) if the approving officer requires these, profiles of every new highway shown on the plan and such necessary topographical details as may indicate engineering problems to be dealt with in opening up the highways, including environmental impact or planning studies.

Matters to be considered by approving officer on application for approval

7   The approving officer may refuse to approve a subdivision plan in respect of a parcel of treaty lands if

(a) the approving officer may refuse the approval under section 86 (1) (c) of this Act, as that section applies to that parcel under the final agreement of the treaty first nation, or

(b) the cost to the treaty first nation of providing public utilities or other works or services would be excessive.

Matters to be considered in respect of treaty lands

8   (1) Section 87 of this Act does not apply in relation to treaty lands.

(2) Without limiting section 85 (3) of this Act, in considering an application for subdivision approval in respect of a parcel of treaty lands, the approving officer may refuse to approve the subdivision if the approving officer considers that the subdivision does not comply with the laws of the treaty first nation.

Acceptable descriptions of land

9   (1) If a parcel of treaty lands is being transferred, leased or donated to a treaty first nation for highway or other public purposes, the registrar may accept

(a) a metes and bounds description or an abbreviated description, with or without a reference plan or an explanatory plan, or

(b) a reference plan or an explanatory plan, with or without a metes and bounds description.

(2) The cases in which the registrar may accept the description or plan referred to in subsection (1) are in addition to the cases in which the registrar may accept the description or plan under section 99 (1) of this Act, as that section applies to a parcel of treaty lands under the final agreement of the treaty first nation.

Dedication by reference or explanatory plan

10   (1) Section 102 (1), (3) and (4) of this Act does not apply in relation to treaty lands.

(2) A treaty first nation has in relation to its treaty lands the same power to deposit a reference plan under section 102 (1) of this Act, or in the circumstances described in section 102 (2) of this Act, an explanatory plan, as the Crown has under those provisions in relation to Crown lands.

(3) The reference plan or explanatory plan must be signed by the approving officer.

(4) The deposit of the plan by the registrar operates as a dedication by the treaty first nation to the public of the land shown on the plan as a highway.

Dedication and vesting

11   (1) For the purposes of this section:

"geothermal resource" has the same meaning as in the Geothermal Resources Act;

"mineral" and "placer mineral" have the same meanings as in the Mineral Tenure Act;

"petroleum" has the same meaning as in the Petroleum and Natural Gas Act;

"provincial highway" means a highway designated on a plan as a highway that, on deposit of the plan, will vest in the Crown in right of the Province or in the BC Transportation Financing Authority.

(2) Except in relation to provincial highways, section 107 (1) of this Act does not apply in relation to treaty lands.

(3) Despite subsection (2), the deposit of a subdivision, reference or explanatory plan showing a portion of treaty lands as covered by water and as lying immediately adjacent to a lake, river, stream or other body of water not within land covered by the plan, and designated on the plan to be returned to the government, operates in the manner set out in section 107 (1) (c) to (e) of this Act.

(4) The deposit of a subdivision, reference or explanatory plan showing a portion of treaty lands as a park or public square or as a highway, other than a provincial highway, and not designated on the plan to be of a private nature, operates

(a) as an immediate and conclusive dedication by the owner to the public of that portion of the land shown as a highway, park or public square for the purpose indicated on or to be inferred from the words or markings on the plan,

(b) subject to a law of the treaty first nation, to vest in the treaty first nation title to the highway, park or public square, except to any of the following that are registered in the name of a person other than the owner:

(i) minerals or placer minerals;

(ii) coal;

(iii) petroleum;

(iv) gases;

(v) geothermal resources, and

(c) to extinguish the owner's common law property, if any, in that portion of treaty lands.

(5) An indefeasible title must not be registered for a highway, park or public square dedicated and vested under this section.

Repealed

12   [Repealed 2018-37-28.]

Deposit of statutory right of way plan

13   (1) Section 115 (1) and (2) of this Act does not apply in relation to treaty lands.

(2) A treaty first nation may apply to the registrar to deposit a statutory right of way plan in respect of land acquired for a highway, and the registrar, if satisfied that the application and plan are in order, must assign to the plan a serial deposit number.

(3) Concurrently with or following the deposit of the statutory right of way plan, the chief administrative officer of a treaty first nation may file with the registrar a certificate in the form approved by the director certifying that all or part of the land in the statutory right of way plan has been established as a highway and the title vested in the treaty first nation in compliance with its law.

Treaty first nation law cancelling the dedication of road or public square to be filed

14   (1) A law enacted by a treaty first nation cancelling the dedication under this Act of all or part of a highway or public square must be filed in the land title office.

(2) The registrar may accept a reference plan, an explanatory plan or a description by apt descriptive words for the purposes of a law described in subsection (1).

(3) If a law is filed under subsection (1), the registrar must register in the name of the treaty first nation the indefeasible title of the land in respect of which the dedication is cancelled.

Definitions for applying Part 8

15   For the purposes of applying Part 8 of this Act in relation to treaty lands,

(a) a reference to "local authority" must be read as a reference to the treaty first nation, and

(b) a reference to "regional district" in relation to "land" must be read as a reference to a treaty first nation in relation to its treaty lands.

Cancellation of plans

16   (1) For the purpose of applying section 124 of this Act in relation to treaty lands,

(a) the reference in section 124 (1) (b) (i) to "applicable subdivision and zoning bylaws" must be read as a reference to the applicable laws of the treaty first nation relating to subdivision and zoning, and

(b) the petitioner must request and file the report required under section 124 (2) only if any part of the public area affected by the petition is vested in the Crown in right of the Province or the BC Transportation Financing Authority for highway purposes.

(2) For the purpose of applying section 125 (2) of this Act in relation to a plan in respect of treaty lands, the petitioner referred to in that section

(a) need not comply with section 125 (2) (e), and

(b) for greater certainty, must serve a copy of the petition and notice of the hearing on the treaty first nation.

(3) For the purpose of applying section 126 (b) of this Act in relation to a plan in respect of treaty lands, the petitioner referred to in that section must post the petition and any other documents, for 4 consecutive weeks before the date set for hearing, at the principal administration building of the treaty first nation.

(4) Section 131 (1) (c) and (e) of this Act does not apply in relation to treaty lands.

(5) For the purpose of applying section 133 of this Act in relation to the treaty lands of a treaty first nation,

(a) the treaty first nation has the same power to oppose the cancellation or alteration of the boundaries of all or part of a public area as the minister charged with the administration of the Transportation Act has in respect of all or part of a public area that is an arterial highway or a public area outside a municipality, and

(b) the minister charged with the administration of the Transportation Act may oppose the cancellation or alteration of boundaries of all or part of a public area only if

(i) an estate or interest in that public area is vested in the Crown in right of the Province or the BC Transportation Financing Authority for highway purposes, or

(ii) the public area intersects or is adjacent to an area in which the Crown in right of the Province or the BC Transportation Financing Authority is vested with an estate or interest for highway purposes in circumstances described in the final agreement as circumstances in which British Columbia has the right to regulate highway matters in relation to treaty lands.

(6) For the purpose of applying section 137 of this Act in relation to treaty lands, the registrar has the same power under section 137 (1) (a) to cancel the lines dividing 2 or more contiguous parcels owned by the treaty first nation as the registrar has in respect of 2 or more contiguous parcels owned by the Crown.

Air space parcels in respect of highways

17   (1) Section 142 of this Act does not apply in relation to treaty lands.

(2) If the title to all or part of a highway is vested solely in a treaty first nation, the chief administrative officer of the treaty first nation may apply to register the title to all or part of the highway in the treaty first nation, and, on registration, the treaty first nation may create air space parcels and deal with them in accordance with this Act.

(3) For the purpose of this section, an indefeasible title may be registered for all or part of a highway.

Rights of owner of surface

18   Section 179 (2) of this Act does not apply in relation to treaty lands.

Registration of debt owing to treaty first nation

19   There may be registered against the treaty lands of a treaty first nation that are registered in the name of a debtor of the treaty first nation, in the same manner as a charge is registered, a debt owing to that treaty first nation, but no debt owing to that treaty first nation affects the land of the debtor unless the debt is registered.

Statutory right of way

20   A person has the same power to create a statutory right of way in respect of treaty lands in favour of

(a) the treaty first nation as the person has in respect of the Crown under section 218 (1) (a) of this Act, and

(b) a treaty first nation corporation of the treaty first nation as the person has in respect of a Crown corporation under section 218 (1) (a) of this Act.

Registration of covenant as to use and alienation

21   A covenant in respect of a parcel of treaty lands may be created, enforced and registered under section 219 of this Act in favour of

(a) the treaty first nation, or

(b) a treaty first nation corporation of the treaty first nation

to the same extent that a covenant may be created, enforced and registered under that section in favour of the Crown.

Registration of land vested under treaty first nation law

22   (1) If treaty lands the title to which is registered become vested in a treaty first nation under a law of the treaty first nation, the registrar,

(a) on application by the chief administrative officer, and

(b) on the production of a certificate of vesting signed by the chief administrative officer and describing the land,

must register an indefeasible title to that land in the name of the treaty first nation, and cancel any existing indefeasible title to the land, or effect registration by way of charge in the name of the treaty first nation.

(2) Section 278 of this Act applies to the registration of land under this section and for this purpose a reference to "the Crown", "the government" or "the Province" must be read as a reference to the treaty first nation.

Power of registrar to lodge caveat

23   If, in the opinion of the registrar,

(a) a person empowered to administer a law of a treaty first nation has produced satisfactory evidence of a contravention of that law, and

(b) a prohibition is necessary to prevent improper dealing in a parcel of the treaty lands of the treaty first nation covered by an indefeasible title,

the registrar has the power to lodge a caveat under section 285 of this Act to prohibit dealing with that land.

Special surveys of treaty lands

24   For the purposes of applying Part 23 of this Act in relation to treaty lands,

(a) "proper officer" means an individual appointed as the proper officer by the treaty first nation, and if no individual has been appointed, the treaty first nation,

(b) a treaty first nation has the same power to request a special survey of its treaty lands, and the same obligations with respect to making the request, as the council of a municipality has under section 323 (1) (f) of this Act in respect of a special survey of lands within the municipality,

(c) a treaty first nation has the same powers and obligations in relation to paying the costs and expenses of and incidental to a special survey of its treaty lands as a municipality has under sections 324 and 327 in respect of such costs and expenses for a special survey of lands within the municipality, and

(d) a treaty first nation or its proper officer, as applicable, is entitled to be given the notices, copies of orders and other documents in respect of a special survey of its treaty lands that a municipality or the proper officer of a municipality is entitled to be given in respect of a special survey of lands within the municipality.

Part 2 — Registration of Title to Treaty Lands

Registration on effective date — evidence of good safe holding and marketable title

25   (1) If a final agreement requires registration of indefeasible titles to parcels of the treaty first nation's treaty lands on the date the final agreement is effective,

(a) in relation to treaty lands that immediately before the effective date were federal Crown lands, a certificate of a federal minister certifying that, on the effective date, the treaty first nation named in the certificate as the owner in fee simple is the owner of the estate in fee simple of the parcel described in the certificate, or

(b) in relation to treaty lands not referred to in paragraph (a), a certificate of the minister charged with the administration of the Treaty Commission Act certifying that, on the effective date, the treaty first nation named in the certificate as the owner in fee simple is the owner of the estate in fee simple of the parcel described in the certificate,

constitutes conclusive evidence to the registrar that the treaty first nation named in the certificate as the owner of the land described in the certificate is entitled to a good safe holding and marketable title in fee simple in respect of that land subject only to the charges set out in a certificate under subsection (2) and the conditions, provisos, restrictions, exceptions and reservations set out in a certificate under subsection (3).

(1.1) If a final agreement requires that a registered parcel, the indefeasible title of which is not to be registered in the name of the treaty first nation on the date the final agreement is effective, be designated on that effective date as treaty lands of the treaty first nation, a certificate that

(a) is signed by the minister charged with the administration of the Treaty Commission Act,

(b) is filed on that effective date,

(c) contains a description of the parcel sufficient for the registrar to identify it in the records, and

(d) certifies that

(i) the parcel forms part of the treaty lands of that treaty first nation,

(ii) the registered owner of the indefeasible title of the parcel and any holders of encumbrances registered against that title have consented to the parcel being treaty lands of that treaty first nation, and

(iii) section 50 of the Land Act does not apply in respect of the parcel,

constitutes conclusive evidence to the registrar of the matters certified.

(2) If an application for registration under this section is accompanied by

(a) a certificate of a federal minister, the minister charged with the administration of the Treaty Commission Act and the head of the treaty first nation certifying that, on the date the final agreement is effective, the land to which the certificate relates is subject to the charges set out in the certificate, and

(b) registrable instruments for each charge set out in the certificate,

the certificate constitutes conclusive evidence to the registrar that the land described in the certificate is subject to those charges.

(3) If an application for registration under subsection (1) or for designation under subsection (1.1) is accompanied by a certificate of the treaty first nation certifying that, on the date the final agreement is effective, the land to which the certificate relates is subject to the conditions, provisos, restrictions, including restrictions on alienation, exceptions and reservations, including royalties, set out in the certificate, the certificate constitutes conclusive evidence to the registrar that the land described in the certificate is subject to those conditions, provisos, restrictions, exceptions and reservations.

(4) If registration under this section is the first registration of an indefeasible title to the land, the application must be accompanied by a plan of the land affected by the application that has been prepared by a British Columbia land surveyor and signed by the Surveyor General.

(5) If the Surveyor General is satisfied a plan referred to in subsection (4) complies with the Surveyor General's instructions for the survey, the Surveyor General must sign the plan.

(6) The signature of the Surveyor General on a plan referred to in subsection (4) constitutes conclusive evidence to the registrar that

(a) the land shown on the plan forms part of the treaty lands, and

(b) no part of the land described in the plan is below the natural boundary, as defined in the Land Act, other than a part that is, by appropriate labels and boundary outlines, designated as such.

(7) On receiving a certificate under subsection (1),

(a) in the case of a first registration of an indefeasible title to the land, if the registrar is satisfied that the boundaries of the land are sufficiently defined by the plan referred to in subsection (4), the registrar must

(i) register the indefeasible title to the land in the name of the treaty first nation, and

(ii) if subsection (2) applies in respect of the land, register against that title the charges set out in the certificate, and

(b) in the case of parcels previously registered, the registrar must

(i) cancel any existing indefeasible titles to the land,

(ii) register the indefeasible title to the land in the name of the treaty first nation, and

(iii) if subsection (2) applies in respect of the land, register against that title the charges set out in the certificate that are not already registered against the title.

(8) On receiving a certificate under subsection (1.1), the registrar must, in respect of the parcel, endorse in the register the notation described in section 3 (1).

Approving officer approval not required

25.1   (1) For the purpose of registering the indefeasible title to treaty lands under section 25,

(a) sections 83 and 91 of the Act do not apply in relation to subdivision or reference plans that include those treaty lands and are required for that registration, and

(b) a plan referred to in paragraph (a) must be certified by the minister charged with the administration of the Treaty Commission Act as a plan to which this section applies.

Plan required with application by treaty first nation for first registration

26   (1) An application by a treaty first nation for registration of an indefeasible title to a parcel of its treaty lands for which no indefeasible title is registered at the time of application must be accompanied by

(a) a plan of the land affected by the application that has been prepared by a British Columbia land surveyor and signed by the Surveyor General,

(b) a certificate of the treaty first nation that complies with section 27 (1) of this Schedule,

(c) registrable instruments for all charges, including charges in respect of a debt owed to the treaty first nation, to which the parcel is subject, and

(d) if section 28 of this Schedule applies in respect of the registration, a certificate of transfer that complies with that section.

(2) If the Surveyor General is satisfied a plan referred to in subsection (1) (a) complies with the Surveyor General's instructions for the survey, the Surveyor General must sign the plan.

(3) The signature of the Surveyor General on a plan referred to in subsection (1) (a) constitutes conclusive evidence to the registrar that

(a) the land shown on the plan forms part of the treaty lands, and

(b) no part of the land described in the plan is below the natural boundary, as defined in the Land Act, other than a part that is, by appropriate labels and boundary outlines, designated as such.

(4) On receiving an application that complies with subsection (1), if the registrar is satisfied that the boundaries of the land are sufficiently defined by the plan referred to in subsection (1) (a), the registrar must register the indefeasible title to the land in the name of the person named in the certificate referred to in subsection (1) (b), subject only to the charges set out in that certificate.

Conclusive evidence of good safe holding and marketable title

27   (1) A certificate of a treaty first nation for the purposes of section 26 (1) (b) of this Schedule must

(a) certify that, on the date of the certificate,

(i) the person named in the certificate as the owner in fee simple is the owner of the estate in fee simple of the parcel, and

(ii) the certificate sets out all

(A) subsisting conditions, provisos, restrictions, including restrictions on alienation, exceptions and reservations, including royalties, contained in the original or any other conveyance or disposition from the treaty first nation, whether in favour of the treaty first nation or another person, and

(B) charges, including charges in respect of debts owed to the treaty first nation,

to which the estate in fee simple of the parcel is subject, and

(b) be signed not more than 7 days before the date of registration.

(2) A certificate of a treaty first nation under subsection (1) constitutes conclusive evidence to the registrar that the person named in the certificate as the owner of the land described in the certificate is entitled to a good safe holding and marketable title in fee simple in respect of that land subject only to the charges set out in the certificate.

Certificate of transfer

28   (1) This section applies in relation to a parcel of the treaty lands of a treaty first nation if a final agreement authorizes the treaty first nation to make laws providing that its treaty lands are not to be registered in a name other than the treaty first nation without a certificate of transfer issued by the treaty first nation.

(2) The registrar may not register the indefeasible title to a parcel of the treaty lands of a treaty first nation in a name other than the treaty first nation if the registrar has notice under subsection (5) that a law described in subsection (1) applies to the parcel, unless the application is accompanied by a certificate of the treaty first nation certifying that

(a) the certificate is issued in accordance with the laws of the treaty first nation, and

(b) the person named in the certificate as transferee of the parcel is a permitted transferee under those laws.

(3) A certificate under subsection (2) must set out the date the certificate ceases to be valid and the registrar may not accept that certificate for the purposes of that subsection unless it is tendered on or before that date.

(4) A certificate under subsection (2) constitutes conclusive evidence to the registrar that the person named in the certificate is a permitted transferee of the land described in the certificate.

(5) A notice under subsection (2) identifying parcels of treaty lands to which a law described in subsection (1) applies, or no longer applies, must

(a) be in writing,

(b) identify the parcels by setting out a legal description sufficient for the registrar to identify those parcels in the records, and

(c) specify the date on which the law applies, or no longer applies, to the parcels.

(6) On or before the effective date of the repeal of a law described in subsection (1) in relation to which a treaty first nation has given notice under subsection (2), the treaty first nation must give written notice to the registrar of the repeal that

(a) identifies the parcels of treaty lands to which the repeal applies by setting out a legal description sufficient for the registrar to identify those parcels in the records, and

(b) specifies the date on which the repeal comes into force.

Additions to and deletions from treaty lands

29   (1) If a parcel of land is to be added to or deleted from the treaty lands of a treaty first nation, and, at the time of the addition or deletion, an indefeasible title to the parcel to be added or deleted is registered under this Act, the minister charged with the administration of the Treaty Commission Act must file a certificate in the land title office in respect of the land to be added or deleted.

(2) A certificate referred to in subsection (1) must

(a) contain a description of the land sufficient for the registrar to identify it in the records,

(b) state that the land has been added to or deleted from the treaty lands of the treaty first nation in accordance with its final agreement, and

(c) if in relation to a deletion from treaty lands, identify the new taxing authority.

(3) A certificate filed under this section is conclusive evidence to the registrar that the addition or deletion was made in accordance with the final agreement of the applicable treaty first nation.

Execution of instruments in respect of treaty lands

30   (1) For the purpose of applying this Act in relation to treaty lands, an instrument executed by or on behalf of the treaty first nation is conclusively deemed to be properly executed if

(a) the execution of the instrument by an authorized signatory of the treaty first nation is witnessed by an officer who is not a party to the instrument, and

(b) the execution is proved under section 44 of this Act as if the treaty first nation were a corporation.

(2) Despite subsection (1), a certificate under section 28 (1) of this Schedule is conclusively deemed to be properly executed if it is signed by an authorized signatory of the treaty first nation.

(2.1) Despite subsection (1), an instrument executed on behalf of a treaty first nation before the effective date of the treaty first nation's final agreement is conclusively deemed to be properly executed if

(a) the final agreement provides that on the effective date specified individuals will form the first government of the treaty first nation,

(b) the instrument is executed by a specified individual for that treaty first nation and witnessed by an officer who is not a party to the instrument, and

(c) the execution is proved in accordance with subsection (2.2).

(2.2) If an instrument is executed by a specified individual under subsection (2.1),

(a) the signature of the officer witnessing the execution is a certification by the officer that the individual appeared before, and acknowledged to, the officer that he or she is a specified individual, and

(b) the signature witnessed by the officer is the signature of the individual who made the acknowledgement.

(3) An instrument executed and proved in compliance with subsection (1), (2) or (2.2), as applicable in relation to the instrument, constitutes conclusive evidence to the registrar that the requirements of the laws of the treaty first nation relating to the execution of the instrument and the transaction or dealing contemplated by it have been fulfilled.

(4) If an instrument executed by or on behalf of a treaty first nation is presented for registration or filing under this Act, the registrar need not act on, inquire into or give effect to the laws of the treaty first nation or make any inquiry into the capacity of the treaty first nation or make any other inquiry into whether or not

(a) any law of the treaty first nation is in force,

(b) the transaction or dealing contemplated by the instrument was duly authorized in accordance with the laws of the treaty first nation,

(c) all rules and procedures established by the treaty first nation respecting the disposition of an estate or interest in land have been complied with, or

(d) the treaty first nation subsists as a legal entity.

(5) In addition to the limitations of liability established under sections 294.6 and 303 of this Act, none of the following are, under any circumstances, liable for compensation for loss, damage or deprivation occasioned by an ultra vires or unlawful act of a treaty first nation:

(a) the assurance fund under Part 19.1 of this Act;

(b) the assurance fund under Part 20 of this Act;

(c) the Land Title and Survey Authority;

(d) the minister.

(6) In this section:

"Indian band" means an Indian band as defined in the Indian Act (Canada);

"officer" has the same meaning as in Part 5;

"specified individual", in respect of a treaty first nation, means an individual occupying with the Indian band that will cease to exist by operation of the treaty first nation's final agreement, a position the occupant of which will be a member of that treaty first nation's first government under that final agreement.

Part 3 — Cancelling Registration of Treaty Lands

Cancelling registration of treaty lands

31   (1) If a treaty first nation or a treaty first nation corporation is the registered owner of the estate in fee simple in a parcel of the treaty first nation's treaty lands and that parcel is free of encumbrances except those in favour of the treaty first nation, on application of the treaty first nation accompanied by

(a) any duplicate indefeasible title issued in respect of the parcel, and

(b) evidence satisfactory to the registrar of the consent of the registered owner of the parcel,

the registrar must cancel the registration of the indefeasible title, and the duplicate indefeasible title, to the parcel together with the registration of any interest, the benefit of which was appurtenant to that indefeasible title.

(2) For certainty, if registration is cancelled under subsection (1), this Act ceases to apply to the parcel.

Part 4 — Treaty First Nation Fee Simple Lands

Definition

32   In this Part, "treaty first nation fee simple lands" means lands that on the effective date of a treaty first nation's final agreement

(a) will be owned in fee simple by the treaty first nation in accordance with the final agreement, and

(b) will not form any part of the treaty lands of that treaty first nation.

Approving officer approval not required

33   For the purpose of registering the indefeasible title to treaty first nation fee simple lands in the name of the treaty first nation on the effective date of the treaty first nation's final agreement,

(a) sections 83 and 91 of the Act do not apply in relation to subdivision or reference plans that include those treaty first nation fee simple lands and are required for that registration, and

(b) a plan referred to in paragraph (a) must be certified by the minister charged with the administration of the Treaty Commission Act as a plan to which this section applies.

Part 5 — Fee Exemptions

Exemptions from fees

34   Despite sections 386 and 386.1 of the Act, no fee under this Act or the bylaws of the Land Title and Survey Authority is payable by Canada, the treaty first nation or any other person in relation to any of the following:

(a) the first registration of indefeasible title to a parcel in the name of the treaty first nation if the parcel is, under the final agreement,

(i) vested in the treaty first nation on the effective date, or

(ii) a parcel that under that final agreement may be added after that effective date to the treaty lands of that treaty first nation;

(b) the first registration of an instrument granting an estate or interest in treaty lands if the estate or interest is required under the final agreement to be registered in the land title office;

(c) the deposit of any plan, or a certificate under this Schedule, in relation to a matter referred to in paragraph (a) or (b);

(d) the issuance of a State of Title Certificate in relation to a matter referred to in paragraph (a) or (b);

(e) the filing of a certificate under section 25 (1.1).

Schedule 2

Definitions

1   In this Schedule:

"original fee", in relation to a pending application, means the fee payable under section 386.1 (1) (a) when the application is tendered;

"specified family order" means

(a) an order respecting child support or spousal support under the Family Law Act, or

(b) a maintenance order within the meaning of the Family Maintenance Enforcement Act.

ItemColumn 1
Matter
Column 2
Fee
 1Indefeasible Title
To
$39.37
(a) register an indefeasible title,
(b) issue a duplicate indefeasible title under section 176 or provisional indefeasible title under section 193,
(c) endorse a change of name under section 191 (2), or
(d) cancel interior lot lines under section 137 and register an indefeasible title to the resulting parcel.
 2Charges
(1) To
$39.37 for each action described regardless of the number of indefeasible titles affected by the action 
(a) register a charge, or anything in the same manner as a charge,
(b) lodge a caveat, or an order referred to in section 284,
(c) file a notice of tax sale under section 272,
(d) register a transfer, transmission, modification, extension, renewal or postponement of anything registered under Item 2 (1), or
(e) endorse a change of name under section 191 (3).
Exceptions
(2) To do anything under Item 2 (1) in respect of
NIL
(a) a specified family order, or
(b) a claim of lien, or a certificate of pending litigation, under the Builders Lien Act.
3General Filing, Amendment or Change of Address
(1) To
$15.75
(a) file an instrument or other document not provided for in this schedule, or
(b) make an amendment or other endorsement not provided for in this schedule on the register or another record.
Exceptions
(2) To file a change of address.
NIL
4Cancellation of a Charge
(1) To
$15.75 for each action described regardless of the number of indefeasible titles affected by the action
(a) cancel the registration of a charge, or of anything registered in the same manner as a charge,
(b) withdraw a caveat or make an endorsement of the withdrawal, lapse or discharge of a caveat, or
(c) file a notice of redemption under section 273.
Exceptions
(2) To cancel registration of
NIL
(a) a specified family order,