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LAND TITLE ACT – Continued
[RSBC 1996] CHAPTER 250

Part 5 – Attestation and Proof of
Execution of Instruments

Definitions

41 In this Part:

"corporation" includes Her Majesty;

"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 acknowledgment.

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 acknowledgment.

(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 under section 8 (1) of the Power of Attorney Act, the individual had, at that time, no knowledge of the mental infirmity of the transferor, or

(B) if the power of attorney is an enduring power of attorney under section 8 (1) of the Power of Attorney Act, the individual had, at that time, no knowledge of the termination of his or her authority by the operation of section 8 (2) of that Act, 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 acknowledgment.

(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 under section 8 (1) of the Power of Attorney Act, the individual had, at that time, no knowledge of the mental infirmity of the transferor, or

(B) if the power of attorney is an enduring power of attorney under section 8 (1) of the Power of Attorney Act, the individual had, at that time, no knowledge of the termination of the authority of the corporate attorney by the operation of section 8 (2) of that Act, 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 acknowledgment.

(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.

Representation agreement

47.1 (1) This Part and section 51 apply to an instrument executed by a representative under a representation agreement made under section 9 of the Representation Agreement Act as though the representation agreement were an enduring power of attorney.

(2) For the purposes of subsection (1), the following references in this Part and in section 51 are to be read as follows:

(a) a reference to a power of attorney or to an enduring power of attorney as a reference to a representation agreement;

(b) a reference to an attorney as a reference to a representative;

(c) a reference to the Power of Attorney Act or to a provision of that Act as a reference to the Representation Agreement Act or to the corresponding provision of that Act, as the case may be.

(3) In addition to certifying the matters set out in section 45 (1) or 46 (1), as applied by this section, the signature of the officer witnessing the execution of an instrument by a representative is a certification by the officer that the representative appeared before and acknowledged to the officer that

(a) the authority conferred by the representation agreement is not suspended under section 12 (8) of the Representation Agreement Act,

(b) no provision of the representation agreement is cancelled under section 28 of the Representation Agreement Act,

(c) the representation agreement has not ended for any of the reasons set out in section 29 of the Representation Agreement Act,

(d) no provision of the representation agreement affecting property is suspended or cancelled under section 19.1 of the Patients Property Act, and

(e) any changes to the representation agreement affecting the authority given to a representative under section 9 (1) (g) of the Representation Agreement Act have been filed with the registrar under this Act or a copy, certified under section 51 (4) as applied by section 51 (4.1) of this Act to be a true copy of those changes, has been so filed.

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.

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Copyright (c) 2001: Queen's Printer, Victoria, British Columbia, Canada