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TITLE - Boundaries - Resolving ambiguous legal descriptions

Tuesday, November 26, 2019 @ 6:21 AM  

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Appeal by the Attorney General of British Columbia from an order made pursuant to a judicial investigation of title. The respondents sought a declaration of title regarding a parcel of land they purchased in 1997. When the grant was initially made by the Crown to Cartwright in 1899, the legal subdivisions that made up section 8 had not been surveyed and no proper survey plan identified the boundaries of subdivisions 7 and 8. The Crown and Cartwright had intended to convey land on which an existing hotel was situated. The trial judge found the initial Crown grant made to Cartwright mistakenly described the land as legal subdivision 8, while the Crown intended to convey, and Cartwright intended to receive, land that was in fact partly within legal subdivision 7. He ordered the respondents to have a survey of the conveyed parcel conducted to be submitted to the Registrar of Land Titles in the expectation that the legal description of the land conveyed would be corrected.

HELD: Appeal dismissed. There was no basis to interfere with the trial judge’s findings of fact. There was no error in the trial judge’s conclusion that the Crown intended to grant the land that included the hotel and improvements and that the land it intended to convey was incorrectly described. The legal description of the land granted was mistaken. The respondents’ claim was not for rectification of contract but for a declaration as to title arising from a judicial investigation of title. Their claim was not barred by operation of a limitation period.

Hamilton and Squario v. British Columbia (Attorney General), [2019] B.C.J. No. 1936, British Columbia Court of Appeal, E.A. Bennett, D.C. Harris and R. Goepel JJ.A., October 17, 2019. Digest No. TLD-November252019005