In our real estate practice, we routinely review and advise clients on matters related to titles of properties they are purchasing, selling or seeking to develop. This is the first article in a series of articles that will focus on the various types of registrations (also known as “charges”) that we find regularly on titles.
One of the most common charges we come across on titles throughout British Columbia is called a “Statutory Right of Way” or “SRW” for short. In a general sense, these registrations are in place to facilitate the provision of utility or other works to a property and they are registered in favour of an approved entity or agency. While quite common, it can be important to determine specifically what registrations exist as well as the impacted area of the property and the rights and obligations associated with that area (if a specific area is defined).
The section of the Land Title Act that permits the registration of SRWs against a title is section 218 which provides as follows (some portions removed for brevity):
218 (1) A person may and is deemed always to have been able to create, by grant or otherwise in favour of
(a) the Crown or a Crown corporation or agency,
(b) a municipality, a regional district, the South Coast British Columbia Transportation Authority, a local trust committee under the Islands Trust Act or a local improvement district,
(c) a water users’ community, a public utility, a pulp or timber, mining, railway or smelting corporation, or a pipeline permit holder as defined in section 1 (2) of the Oil and Gas Activities Act, or
(d) any other person designated by the minister on terms and conditions that minister thinks proper,
an easement, without a dominant tenement, to be known as a “statutory right of way” for any purpose necessary for the operation and maintenance of the grantee’s undertaking, including a right to flood.
(3) Registration of an instrument granting or otherwise creating a statutory right of way
(a) constitutes a charge on the land in favour of the grantee, and
(b) confers on the grantee the right to use the land charged in accordance with the terms of the instrument, and the terms, conditions and covenants expressed in the instrument are binding on and take effect to the benefit of the grantor and grantee and their successors in title, unless a contrary intention appears.
(4) A person who executes an instrument in which a statutory right of way is created is not liable for a breach of a covenant in the instrument occurring after the person has ceased to be the owner of the land.
(5) This section is retroactive in its application and applies to all statutory rights of way, whenever created.
(6) A recital in a grant or reservation of a statutory right of way that it “is necessary for the operation and maintenance of the grantee’s undertaking”, or a statement to that effect in the application to register the statutory right of way, is sufficient proof to the registrar of that fact.
It is quite common to see SRWs registered against properties in favour of providers of utilities such as electricity, gas, and telecommunications, as well as services such as water and sewer. You may also see SRWs registered for items like pedestrian walkways and geothermal heat systems. While some SRWs will cover a specific, defined area and have an associated reference plan, other registrations will be in effect against the property as a whole.
When investigating title to a property, it can be important to determine what works may be located on a particular property and to ensure that a property holder’s intentions with the property will not be impacted by those works. For example, if a purchaser is buying a property and wants to have a pool constructed, the purchaser (with assistance) must determine whether there are any works in the area that the pool would be located and ensure there are no rights of chargeholders that would interfere with the intended plan of constructing a pool.
In some cases, it can be difficult to determine where the SRW is located particularly if the SRW was registered a long time ago and there have been subsequent subdivisions of the properties resulting in the current form. In many cases, the SRW notation on title will remain against the resulting titles unless steps are specifically taken to have the notation removed from those titles that it no longer applies to. Tracing through historical plans can sometimes be necessary to determine whether the property is impacted by the current registration.
Stay tuned for our next article covering covenants.
Author: Una Gabie
This information is general in nature only. You should consult a lawyer before acting on any of this information. This information should not be considered as legal advice. To learn more about your legal needs, please contact our office at (250) 448-2637 or any of our lawyers practicing real estate law at the following: Una Gabie: email@example.com Jennette Vopicka: firstname.lastname@example.org Danielle (Dani) Brito: email@example.com Jane Otterstrom: firstname.lastname@example.org Sasha Platz: email@example.com