Land Title Act
The Land Title Act
is the primary statute regulating how the rights to land are bought and sold in
the province. It is a massive piece of
legislation, currently having some 393 sections. The Act falls primarily under the administration of the Minister of Sustainable Resource Management.
The Act sets out the law for registering and transferring
titles and other interests in land.
British Columbia uses the “Torrens system” – a system whereby all records
related to a single property are registered in a single government office (at
the Land Titles Office). This means
that any member of the public can find out who has a legal interest in a
particular piece of property. The one
major exception to this rule is aboriginal rights and title,
which are a type of interest in land that pre-exist the property rights dealt
with in the Land Title Act; as a result, they will not generally be registered
under the Land Title Act.
The Act sets out rules for a range of wide-ranging issues
about land ownership, such as registration and cancellation of titles,
mortgages, subdivision of land, rules of disposition on death in cases of
testacy and intestacy, tax sales, certificates of pending litigation, and
statutory rights of way. It is
beyond the scope of this Guide to describe all of the various rules and
procedures set out under this legislation.
Different types of property ownership
The Land Title Act
sets out some of the rules around different types of property ownership. See the Guide page on Common
Law Rights for information about the rights that private property owners
can assert in the courts.
Some types of property rights and other tools dealt with
under the Act that may be relevant to watershed protection advocates include:
·
Private (Fee Simple) Ownership;
·
Conservation Covenants;
·
Restrictive Covenants; and
·
Notice of Pollution.
All of these types of tools or interests must be registered
at the Land Title Office.
In addition, the Land Title Act sets out the rules for the
subdivision of land – the first step in opening undeveloped lands up for development. Subdivision is
dealt with on a separate page of the Guide.
The most secure, and broadest, type of property ownership
recognized under the Land Title Act is called “fee simple title.” Basically, a fee simple title grants the
owner the right to use and dispose of the land at will – provided that the use
complies with federal, provincial and local government laws and provided that
the property owner’s use does not interfere with others use of their land.
Since a property owner can generally control what happens on
their land, he or she can ensure that good environmental management
occurs. Conversely, if the property
owner does not care about good management, then it may be difficult to find a
law that stops them.
Although the most secure of property rights, even fee simple
rights can be interfered with through statutes that allow a government (or
other interest) to “expropriate”, or force the sale of, the property. In addition, the Mineral
Tenure Act allows the owner of the rights to minerals under a person’s
property to force the property to sign a lease to allow access to mining
operations.
Land can be given or sold with conditions. However, for the most part these conditions
will not result in permanent protection of the environment unless they result
in an interest in land that can be registered under the Land Title Act. There are
rules about how long conditions that are attached to a gift can apply and
contracts for the purchase of land will not bind future owners of the
land.
Of the different interests in land under the Land Title Act,
the most useful conservation planning tool is the “covenant as to use and
alienation” – better known as a conservation covenant. Under the Act, a landowner and a “covenant
holder” can agree to register with the Land Title Office a written agreement in
which the landowner agrees that certain features of the property will be
permanent protected. Once registered,
the covenant “runs with the land” so that the covenant holder can also require
future land owners to protect the property, as required in the covenant
agreement.
Covenants are an effective tool because they can be tailored
to the specific ecological assets of a particular piece of land and to the
specific conservation objectives of the parties. They can apply to a whole piece of land, or just to a part that
has ecological values in need of protection.
Under the Act, a wide range of provisions can be included in a
covenant. For example, a covenant could
bind a landowner:
·
never to subdivide the parcel, or to subdivide it only
in a certain way;
·
never to cut down a certain tree;
·
to leave an identified wetland untouched by development
of any kind;
·
to never erect a building or other structure within a
designated area or within 100m of the banks of a designated stream; or
·
to undertake certain management practices in respect of
a forest.
And so on. Note that
a covenant may be positive or negative in nature and may include one or more
provisions “...that land or a specified amenity in relation to it be protected,
preserved, conserved, maintained, enhanced, restored or kept in its natural or
existing state in accordance with the covenant and to the extent provided in
the covenant”. “Amenity” is also
defined broadly, and includes “any natural, historical, heritage, cultural,
scientific, architectural, environmental, wildlife or plant life value relating
to the land …”
A conservation group can be a covenant holder, ensuring the
permanent protection of the features of a property protected by the
covenant. Conservation covenants
involve ongoing responsibilities not just for the landowner who becomes
responsible to abide by the terms of the covenant, but also for the covenant
holder, which becomes responsible for inspecting and monitoring the landowner’s
compliance. The registration of a
covenant may also bring with it tax consequences. For that reason, because there are potentially
significant responsibilities and consequences, a lawyer should be consulted in
every case.
A “restrictive covenant” is narrower than a conservation
covenant. It guarantees that the owner
of the land (or future owners) will refrain from carrying on certain activities
on the land. Unlike conservation
covenants, a restrictive covenant must require a person to refrain from doing a
certain thing (it cannot require positive obligations, particularly from future
property owners). Restrictive covenants
are only available where the covenant holder owns land which is directly
affected by activities on the land that is covered by the covenant. For example, restrictive covenants were
often used to ensure that a piece of land is kept available as park space for
use by nearby property owners.
Section 392 of the Act allows a waste management director
under the Waste Management Act to register a notice in the
Land Title Office to alert buyers or others that serious pollution exists on a
property. Once the waste management
director is satisfied that the danger no longer exists, he or she may file a
notice to cancel the endorsement on the title.
Related Guide Pages:
·
Land Title Act – Subdivisions
·
Common Law Rights
·
Ownership of Private Lands
For more information about the Land Title Act:
·
An electronic copy of the Land Title Act
·
Greening
Your Title: A Guide to Best Practices for Conservation Covenants by Anne
Hillyer and Judy Atkins (West Coast Environmental Law, 2000)
·
Protecting British
Columbia’s Wetlands: A Citizen’s Guide,
chapter 3 “Options for Protecting Privately Owned Wetlands” by Linda Nowlan
and Bill Jeffries (West Coast Environmental Law, 1996)
·
Legal Options
for Protecting Urban Streams: Workshop Background Paper by Linda Nowlan
(West Coast Environmental Law, 1996)
