HOMESTEAD ACT

[RSBC 1996] CHAPTER 197

Contents

1 — Definitions

1 In this Act:

"homestead" means land, whether leasehold or freehold, together with erections or buildings, with their rights, members and appurtenances, registered as a homestead; and an erection or building on a homestead, whether or not affixed to the soil, must be taken to be land and part of the homestead;

"registrar" means a registrar under the Land Title Act.

2 — Recovery of taxes and rent protected

2 Nothing in this Act exempts property from sale for taxes or from distress for rent.

3 — Registration of homestead

3 (1) To register a homestead, the owner of the property to be registered as a homestead must

(a) register the title under the Land Title Act, according to the nature and extent of his or her estate or interest in it, and

(b) lodge a notice of registration in Form 1, or to similar effect, in the land title office of the district in which the homestead is located, accompanied by a schedule of instruments evidencing the owner’s title to the homestead, and if the owner of a homestead declares his or her assets to be

(i) not less than $2 500, an affidavit to the effect mentioned in Form 2, or

(ii) not greater than the value of the homestead, the homestead being of less value than $2 500, an affidavit to the effect mentioned in Form 3.

(2) The registrar must register the homestead, if satisfied that the owner has prima facie title to it, but without notice of registration and declaration duly made and filed with the registrar, the registrar must not register the homestead.

(3) An affidavit in the form or to the effect of Form 2 or Form 3 may be made before the registrar, or a person entitled by law to receive affidavits.

4 — Protection from seizure or sale

4 After it has been registered a homestead, is free from forced seizure or sale by any process for, or on account of, a debt or liability incurred after the registration of the homestead, but if the homestead is, at the time of the suing out of process, of a greater value than $2 500, only as much of the homestead is liable to seizure or sale as exceeds $2 500.

5 — Nature of and limitations on estate in homestead

5 (1) A person claiming the benefit of this Act for a homestead, at the time of registration or at any time after registration, may limit a homestead in favour of those persons and for those estates and subject to those uses, trusts and purposes to which land can now be limited according to the nature and incidents of it.

(2) If no special limitation is made, the homestead enures to the owner, for whose benefit it is registered for an absolute estate in it, according to the nature of it, subject to the right of the surviving spouse.

6 — Descent of homestead on intestacy

6 (1) If a person who holds a homestead dies intestate, leaving a surviving spouse and minor children, the homestead passes to the surviving spouse, to be held during the minority of the children, or while the surviving spouse remains unmarried.

(2) The exempted property must not be sold during the minority, or while the surviving spouse remains unmarried, to pay a debt contracted by the deceased person after the registration of the homestead.

(3) If any person who holds a homestead dies intestate

(a) leaving a surviving spouse and no children, the surviving spouse is entitled to the homestead absolutely, or

(b) leaving children only him or her surviving and no surviving spouse, the property belongs to the children absolutely in equal shares divisible on the youngest child reaching 19 years of age.

7 — Abandonment or alienation of homestead

7 (1) Nothing in this Act prevents the person for whose benefit a homestead is registered from abandoning, alienating, mortgaging or otherwise parting with, limiting or encumbering his or her interest in it, regard being had to the nature, quality and incidents of it, and of his or her power to dispose of it.

(2) Despite subsection (1), if the owner of a homestead is married, the owner must not during coverture abandon, alienate, mortgage, part with, limit or encumber it, except with the consent of his or her spouse, if the spouse is a resident of British Columbia.

(3) A consent under subsection (2) must be given by an instrument executed and attested as provided in the Land Title Act for the attestation of instruments.

(4) If the spouse is not a resident of British Columbia the consent is not required.

8 — Form of abandonment

8 (1) A homestead, and the benefits and privileges conferred on a person under this Act for a homestead, may be abandoned by a document, which may be in Form 4, executed by the persons interested in it.

(2) The document must be filed in the land title office, and the registration of the homestead must be cancelled in the form used to cancel charges.

9 — Power of court

9 (1) On the return of any process at law or in equity, if a question arises in whole or in part touching any matter provided for by sections 1 to 8, the court out of which process issued must dispose of the question between the parties interested in it, by way of summons and order in a summary way.

(2) Despite subsection (1), any matter of fact must, at the request of an interested party, be tried with or without a full jury of 8 persons.

(3) For any matters other than matters of fact, the court may make an order for partition and sale of any portion of a homestead that is greater than $2 500 in value, and generally, as to costs and other matters, with a view to the final adjustment of any question between the parties, as the court sees fit.

(4) In the case of the sale of a portion of the homestead of a value greater than $2 500, due regard must be had to the choice and preference of the owner and parties interested in the portion reserved from sale.

(5) In the case of the sale of the property comprising a homestead over the value of $2 500, the court ordering the sale may order the sale of all or part of the property, if occasion requires, for the fair realization of its value, and to make an order for the due investment of the residue by purchase of other homestead property, or by distribution among persons interested in it, after deducting the sums due the creditors, as the court sees fit.

10 — Duty of registrar

10 (1) A registrar must keep proper books, in which all notices of registration of homesteads, abandonments and declarations must be recorded.

(2) The books kept by a registrar must include

(a) indexes referring to the registration, abandonment and other dealings with homesteads under this Act, and

(b) a nominal list of all persons claiming the benefits of homesteads under this Act, with the descriptions of the homesteads claimed.

(3) A registrar has the custody of all original notices of registration and abandonment and declarations.

(4) A registrar must deal with other documents affecting homesteads as in other cases of land registered in the land title office.

11 — List of homesteads may be inspected free of charge

11 (1) The nominal list of persons claiming the benefits of homesteads must be open to inspection by the public free of charge.

(2) All other documents lodged with a registrar relating to the registration or abandonment of and other dealings with homesteads may be inspected by the public on payment of the proper fees.

12 — Fees

12 (1) A registrar is entitled to take the fees specified in Form 5 for matters and things done and performed or permitted by the registrar under this Act.

(2) All fees must be paid to the Minister of Finance and Corporate Relations and form part of the consolidated revenue fund.

13 — False declaration vitiates registration

13 The registration of a homestead under this Act is void and of no effect, and all the benefits of this Act are forfeited, if a declaration of matters required or permitted to be declared is false to the knowledge of the person effecting the registration, or on whose behalf the homestead is registered.

Schedule

Form 1

Notice of Registration

I, A.B., of ............................................., give notice that I wish to register [Lot .........., Section .........., ................. District, or other description in full], being [tenure, freehold or leasehold], as a homestead, under the Homestead Act. [And if specially limited, add: And I declare that it is limited as in the attached deed].

Form 2

For a Homestead of Any Value If the Owner
Declares Assets Not Less Than $2 500

Canada:

Province of British Columbia:

County of ....................................................

I, A.B., of ........................................................., swear that over and above all debts and liabilities to which I am now liable, wherever they have been incurred, I have assets of not less than $2 500.

Sworn before me at ........................................... [month, day, year].

Form 3

For a Homestead of Less Value Than $2 500, If the Owner Declares
Assets Not Greater Than the Value of the Homestead

Canada:

Province of British Columbia:

County of .............................................

I, A.B., of ...................................................................., swear that over and above all debts and liabilities to which I am now liable, wherever they have been incurred, I have assets not less than $ [insert the value of the homestead registered]. And I, A.B., swear that, to the best of my knowledge and belief, the homestead registered is not greater than $ [insert the value of the homestead] in value.

Sworn before me at ............................................ [month, day, year].

Form 4

Abandonment of Homestead

I, ..........................................................., of ............................................................, abandon all homestead rights in the following property registered as a homestead: [describe the property].

Dated ...................................... [month, day, year].

.................................................. (Signed) L.S.

[If the consent of the spouse is required, it may be given by the spouse’s execution of this or a separate attested instrument.]

Form 5

Fees to Be Taken by Registrars