In BC, each property’s title is registered with the BC Land Title Office which includes a list of any and all charges that are actively registered against that property. What is a “charge”? Put simply, a charge is a legal instrument registered on title that notes some form of third-party interest, rule or entitlement that applies to the property. It might be a claim of right to a portion of the value of that property via debt (including mortgages or builders liens) or it might be a claim restricting how that property is used (such as building schemes, covenants, or easements).
When you own property in BC, you own that property subject to the charges registered on title. This is why it is important you have the title to any property you are considering purchasing reviewed by a lawyer to ensure you are aware of the charges on title, and have assessed whether your interests and intentions for the property will be impeded.
As communities evolve over time, certain charges on title may no longer be required or may become irrelevant. Even though these charges no longer protect a certain purpose, they can hinder your use and enjoyment of your property. Let’s say you want to build a carriage house in your backyard, but there is an old easement on title allowing a neighbor to access over your property. Even if the neighbor no longer uses the easement and hasn’t for a long time, the easement might restrict your ability to build on that easement area of your property.
What can you do about it?
There are a number of ways to have a charge cancelled and discharged from title. First, check if there is an expiration date. If the charge contains an expiration date that has since passed, the Land Title Office will remove the charge for “effluxion of time” – which is just a fancy way to say that the charge is too old and is no longer enforceable. However, if there is not an expiration date noted in the charge, the party for whose benefit the charge was originally registered (called the “charge holder”) will need to consent to the charge being cancelled and discharged from title.
Using our example from above with the easement and the carriage house, the person (or persons) who need to consent to the discharge would be the neighbors who benefit from the easement and are named in the easement instrument.
Depending on the circumstances, there may be numerous parties who would need to consent to a discharge, and sometimes it isn’t practical to get them one by one, or the charge holders may otherwise refuse to provide consent. If this is the case, there are still options available to you to have the charge removed by applying to court. In order to determine if a charge should be modified or removed from title, the court will consider the following factors under section 35(2) of the Property Law Act, which provides that a charge may be modified or discharged if:
- the registered charge or interest is obsolete;
- your reasonable use of your property will be impeded, without practical benefit to others;
- the charge-holders have expressly or impliedly agreed to it being modified or cancelled;
- modification or cancellation will not injure charge-holder; or
- the charge is invalid, unenforceable or expired.
Whether such an application will be successful of course depends on the specific circumstances and the strength of the evidence placed before the court.
If you wish to investigate whether a charge on title to your property can be removed or if you otherwise have any questions about your options to remove a charge from title to your property, please get in touch with Dani Marshall at dmarshal[email protected] or 250-979-2524.