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 third 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. For information on statutory right of ways please see our blog which can be found here: https://touchstonelawgroup.com/title-registrations-statutory-rights-ways/. For information on covenants please see our blog which can be found here: https://touchstonelawgroup.com/title-registrations-covenants/.

Undersurface rights registrations are frequently historical charges registered many, many years ago and relate to rights of other parties to the subsurface rights beneath the surface of the property represented by the title. The documents are frequently quite old but can be ordered from the Land Title and Survey Authority online or by securing the documents from the Land Title Office directly.

These types of rights held by others can take various forms including freehold rights, Crown grant and mineral titles with each having different terms and legislation associated with them.  With respect to the review of title, notations may require further investigation to determine whether there are any substantive rights associated with the notification or whether further investigation with the relevant government authorities is warranted. Additional undersurface rights may be imposed and administered under the Mineral Tenures Act in British Columbia.

The most common reservation we would see on titles would be exceptions from the Crown grant that initially created a title to the property (or to a predecessor property that has subsequently been subdivided to create the property in its current state).  In their more current form, these types of charges would generally cover exceptions for items such as gold, silver and oil and gas which would be reserved for the benefit of the Crown.

The provisions of the Land Title Act that set out the registration of these types of charges are as follows:

179   (1)Except as provided in the Strata Property Act and in Part 9, the owner of the surface of land is alone entitled to be or remain as registered owner of the fee simple, and the owner of a part of land above or below its surface who is not also the owner of the surface is only entitled to register that person’s estate or interest as a charge.

(2)If no Crown grant of the surface has been registered, the registrar may enter the Crown in the register as owner of the surface.

(3)If the title of an owner to certain minerals or to certain timber or to an undivided interest in them is registered in the register of absolute fees and the owner applies to become the registered owner of other minerals or other timber in the same land or a further undivided interest in the minerals or timber, the registrar must

(a)consolidate the ownership of the minerals or timber or the interests in them, and register the title to them as a single charge in the register of indefeasible fees, subject to registered charges, if any, affecting that title, and

(b)cancel the entry in the register of absolute fees, together with any outstanding absolute certificate of title.

And:

181   (1)On an application to register a person as owner in fee simple of land under an instrument by which

(a)an estate or interest in the land transferred remains in the transferor,

(b)a restrictive covenant is entered into by the transferee for the benefit of other land registered in the name of the transferor, or

(c)a condition, exception, reservation, easement, statutory right of way or other right in or on the land covered by the application is imposed, reserved or created that, despite this section, could be registered as a charge under section 197,

the existing indefeasible title must be cancelled and the estate or interest remaining in, and the rights reserved to the transferor or imposed or created must, on application, be registered as a charge against the new indefeasible title.

(2)The applicant for the registration of the fee simple is authorized to make, on behalf of a transferor, any application necessary to give effect to subsection (1).

As with all charges on title, it is important to consider the nature of the property, the owner’s interests and plans with respect to the land, and the registrations on title to determine the extent of investigation necessary.  In the purchase context, this due diligence should be completed prior to conditions being removed on the purchase so the prospective purchaser is fully aware of the implications of these registrations on their future ownership.

Stay tuned for our next article in this series on restrictive 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: