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 the signatory's 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.