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 the individual's 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 the individual 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 the authorized signatory's 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 the individual's 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 the attorney's name and must indicate on the instrument that the attorney 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 the individual's 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 the individual's seal to the instrument, or

(b) if the individual is acting under a power of attorney, the individual affixed the individual's 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 the person's 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.