Signature of all owners required to transfer part of a strata corporation’s common property for highway dedication
November 7, 2017
BY Kevin Zakreski
In British Columbia (Minister of Transportation and Infrastructure) v Registrar, Victoria Land Title Office, 2017 BCSC 1999, the BC Supreme Court took on an issue that “has arisen in the past” with the hopes that “a determination here would clarify the requirements for the future.”
The case involved the level of approval required to allow a transfer of strata corporation’s common property to be registered in the land title office. It had its origins in a project by the Minister of Transportation and Infrastructure for British Columbia “to improve safety along an 11-kilometre section of the Trans-Canada Highway at the Malahat Summit on Vancouver Island.” The ministry needed a portion of strata corporation’s common property “for purposes of a highway stabilization slope that is part of the Project.” The strata corporation agreed “to dedicate the [portion of its common property] to the public as highway for valuable consideration.” This agreement was approved at a general meeting by a resolution passed by a 3/4 vote.
The Minister submitted the required electronic documents and a true copy of the certificate regarding the 3/4 vote to the Land Title Office on May 19, 2017 in order to effect deposit of Plan EPP69388. When accepted by the Land Title Office, the effect would be to dedicate the land shown on this plan as arterial highway pursuant to section 107 of the Land Title Act, and section 44.1 of the Transportation Act, SBC 2004, c. 44.
In response, the registrar issued a notice declining to register, citing section 253 of the Strata Property Act in support. Section 253 (1) of that act provides that “[a] disposition of common property by way of any of the following is a subdivision of land and Part 7 of the Land Title Act applies to that subdivision”:
- a transfer of a freehold estate;
- a lease for a term exceeding 3 years;
- an interest that confers or may confer a right to acquire a freehold estate or a lease exceeding 3 years.
The relevant provision from part 7 of the Land Title Act (section 97) holds that “[a] subdivision plan must be signed by each owner of the land subdivided.”
The minister argued before the court that the dedication of land for a highway isn’t a transfer of a freehold estate, so section 80 (2) of the Strata Property Act (which allows for a “disposal” of common property by means of a 3/4 vote) should apply instead of section 253. The court rejected this argument:
The flaw in the appellant’s position is its focus on the characterization of what it obtained, i.e. a dedication; rather than, whether the disposition of common property from the strata owners to the appellant is a “transfer of a freehold estate.” In other words, the appellant’s position does not account for how a dedication arises.
A key fact is that the appellant applied to deposit the reference plan under section 107 of the LTA. The dedication sought is a statutory highway dedication, not a dedication based on the common law. The statutory dedication provides the Crown with a property interest, the Crown is vested with the “title to the highway” under s. 107(d). That title depends, necessarily, on eliminating the freehold title formerly held by the owners who transferred lands for highway purposes under s. 107. Thus, it follows that a freehold estate is transferred and therefore, the deposit of a plan under s. 107 requires compliance with Part 7 of the LTA. The disposition, constitutes a subdivision and a subdivision plan requires the signature of all owners. The depositing of a reference plan which is the case here, does not permit avoidance of the requirement for the signature of all owners. Section 103 requires the same signatures on reference plans.
The argument that the transfer of the common property cannot be a “transfer” because the “prescribed form of transfer for transfers of a freehold estate” does not apply to s. 107 dedications is not persuasive as s. 185(2)(b) makes clear that the Registrar may accept another form of transfer outside of the prescribed form.
Also, the reference to taxation statutes is not of assistance in the interpretation question here. As pointed out by the respondent, the Property Transfer Tax Act’s definition of “taxable transaction” provides that the tax is only triggered by the transfer of “an estate in fee simple referred to in section 23(2) of the Land Title Act.” The estate referenced in that section is a registered indefeasible title. Though in the present case the Crown is vested with a freehold interest, by virtue of s. 107(3) it is not vested with an indefeasible title.
In the result, the appeal from the registrar’s decision was dismissed.