Indefeasibility Flashcards
Land title act s23(2-4) - (1996) (as amended in nov 2005)
Effect Of Indefeasible title
23(2) Indefeasible title is conclusive evidence that the person named in the title is indefeasibly entitled to an estate in fee simple to the land described in the title subject to the following:
Subsisting conditions, provisions, restrictions exceptions and reservations including royalties, contained in the original grant or any other grand or disposition from the crown
Federal or provincial tax
Municipal charge by a public body having taxing powers over area in which land is located
Lease or agreement for lease not exceeding 3 years if there is actual occupation under the lease
A highway, public right of way, watercourse, right of water or public easement
Right of expropriation or to an escheat under an act
Caution, caveat, charge, claim of builders lien… lots of stuff….. Or other matter noted or endorsed on the title that may be noted or endorsed after the date of the registration of title.
Right of a person to show that the land is by wrongful description of boundaries or parcels, improperly included in the title
Right of a person deprived of land to show fraud in which registered owner has participated in to any degree
Restrictive condition right of reverter or obligation imposed by the Forest Act that is endorsed on the title.
(3) After an indefeasible title is registered an adverse title to or in deregation of the registered owner is not acquired by length of possession
(4) Despite ss(3) in the case of only the first indefeasible title registered, it is void against the title of a person aderesely in actual possession of and rightly enetiled to the land included in the indefeasible title at the time registration was applied for and continues to be in possession
Land title act s24 - (1996) (as amended in nov 2005)
S24 All existing methods acquiring a right in or over land by prescription are abolished and without limiting that abolition, the common law doctrine of prescription and lost modern grant are abolished
Land title act s25.1 - (1996) (as amended in nov 2005)
- 1 (1) registration of a void instrument does not acquire any estate or interest in the land
(2) if instrument is void a transferee who (a) is named in instrument (b) in good faith and for consideration purports to acquire the estate, is deemed to have acquired it upon registration of the isntrument.
(3) registered instrument is void a transferee who (a) is named in it (b) is on the date that this section comes into force, the registered owner and (c) in good faith and for consideration pruports to acquire the estate is deemed to have axquiredd on registration of that instrumnet.
Land title act s29 - (1996) (as amended in nov 2005)
S29 - Effect of notice of unregistered Interest
(1) Registered owner includes a person who made an application for registration and becomes registered owner as a result of the application
(2) Except in the case of fraud, a person who is contracting to take from a registered owner a (a) transfer of land (b) charge on land or transfer or assignment 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 not exceeding 3yrs if there is actual occupation under the agreement (e) the title of a person against which the indefeasibility title is void under s 23(4)
(3) subject to s49 of the Personal Property Security Act, a person contracting to take from registered owner an estate or interest in land is not affected by a financing statement registered under that act whether or not there is express, implied or constructive notice or knowledge
(4) the fact that a person is contracting with to take from registered owner had knowledge of a financing statement under the PPSA or that the person could have obtained the knowledge by searching the personal property registry under the act is not evidence of fraud or bad faith for the purpose of ss(3).
Creelman v. Hudson Bay Insurance (1920) (J.C.P.C.)
Ratio: If land is registered, defect in title is corrected and third party obtains good title
Gibbs v. Messer (1891) (J.C.P.C.)
Ratio: deferred indefeasibility = errors outside the register (e.g. a transfer acquired from a forger or from a fictitious person through forgery) do not give indefeasible title. However, the resulting errors in the register do not prejudice subsequent bona fide and for value purchaser (or mortgagee in Australia) and so the subsequent purchaser (mortgagee) does get indefeasible rights
Frazer v. Walker (1967) (J.C.P.C.)
Didn’t expressly overrule Gibbs (and Gibbs perhaps lives on in the special case of a fictitious person) although this case probably has practically overruled Gibbs.
Ratio: A person’s name, once entered into the registry, even though it came from a void instrument, gains indefeasible interest immediately, and so only those claims listed as exceptions in the legislation are then allowed (such as showing fraud/forgery on the part of the newly listed person, but M in this case was not involved themselves in the fraud/forgery)
Pacific Savings v. Can-Corp (1982) (B.C.C.A.)
The Land Title Act does not bestow conclusive indefeasible title on the registered owner – courts may order that some other person is properly entitled to the title.
nothing can lift the curtain except for in personam claims
The mortgagee, as a party to the original dispute, had not obtained indefeasibility until their dispute was resolved. But such orders could not prejudice the rights of bona fide purchasers for value (so if the new purchaser had registered before the lis pendens, the curtain would have been drawn and they would have obtained indefeasible title).
Ratio: Indefeasibility is to protect bona fide purchasers for value, not just registered owners
Central Station v. Shangri-La (1979) (B.C.S.C.)
Ratio: S.29, protects a purchaser from unregistered interests if they did not know of that interest at the time of completion of the transaction = time at which became contractually bound to buy the land (even if they then became aware of the interest prior to registration).
So actual notice after completion (but before registration) is not fraud since continuing to registration is just normal course of business
Me-N-Ed’s Pizza v. Franterra (1975) (B.C.C.A.)
Ratio:S.29 protects against unregistered interests, but not if acknowledges and acted upon
Constructive notice
(more carelessness than intent or willfull blindness. If you had been reasonable in making inquiries then you WOULD HAVE had notice. )
Modern trend is to say that there has got to be some notion of actual fraud and so some notion of actual notice (constructive notice not enough)
But many cases have used constructive notice
Better to say it is not enough because it is just carelessness.
History of Alienation
Inter Vivos:
1290 Quia emptores made fee simple freely alienable inter vivos by replacing subinfeudination with substitution.
1327 Tennants in chief given right to sell interests but paid fine to crown.
1660 abolition of tenures act got rid of the fine for Tenants in chief. Alienability was then fully established.
Testamentary:
Originally only personalty could be disposed of by will.
Use got around this
1535 statute of uses got rid of this ability to get around, but wasnt popular.
1540 statut of wills allowed lands under socage and 2/3 held under knight service to be passed by will.
1660 Abolition of tenures act now specifies who gets what if die intestate, and if none possible it escheats to crown.
Livery of Seisn to modern Deeds
Public ceremony for alienation of rght of possession or of title. Necessary to grant any freehold estate. Written evidence of such livery was made compulsory by 1667 statute of frauds. With statute of uses, could avoid ceremony.
Real Property act of 1845 simplified methods so could transfer by grant (deed). Had to be signed sealed delivered. This is what came to canada (not livery).
Torrens/Registration system
BC fully adopted in 1870. Avoids the need for searching titles. Register establishes all interests in land.
Developed in england 18th C
BC Land Title Act s23(2)
Registration reflects completely/mirrors the situation and so draws curtain over previous errors.
indefeasible title is conclusive evidence at law and equity against crown and all others, of title to an estate in fee simple (but there are exceptions -
(d)lease up to 3 years with occupation
(g) claim of builders lien
(i) Fraud, forgery that registered owner participated in (or that the person through whom they derived their title participated in) — might include constructive fraud ie wilfull blindness)
