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REGISTRATION OF DOCUMENTS - Lis pendens or certificate of pending litigation - Vacating of

Tuesday, July 20, 2021 @ 5:49 AM  

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Appeal by Beach from orders discharging certificates of pending litigation (“CPL”) registered by her against property owned by the respondents. The property was once owned by the appellant’s parents. In 1997, the parents sold the property to the respondents. After the death of her parents, the appellant, as executrix of their estates, brought an action against the respondents in 2016 to invalidate the 1997 sale agreement and a later settlement agreement. The action was struck out. The appellant filed a CPL against the property shortly after commencing the action. After the action was struck, this CPL was removed based on hardship. The respondent wife wanted to buy out the husband’s interest in the property pursuant to a marital settlement but could not obtain financing while the CPL was in place. After the wife obtained financing, the appellant placed a second CPL on the property. This was discharged in 2019 on the ground the appeal from the order striking out her action did not qualify as a “proceeding” within the meaning of s. 215 of the Land Title Act that could serve as the basis for the reinstatement of the CPLs.

HELD: Appeals dismissed. The judge did not err in discharging the initial CPL based on hardship and inconvenience to the respondents. The decision to cancel a CPL under s. 256 of the Land Title Act was a discretionary one that attracted deference. There was no basis on which findings of hardship and inconvenience to the respondents were made in error. There was no reason to interfere with the judge’s conclusion that an undertaking to pay damages was appropriate as alternate security based on the strength of the appellant’s claim. Once the CPL was removed based on hardship, there did not appear to be any basis in law for the reinstatement of the CPL. The judge did not err in finding that an appeal proceeding alone was not sufficient to warrant registration of a new CPL under s. 215 of the Land Title Act.

Beach Estate v. Beach, [2021] B.C.J. No. 1332, British Columbia Court of Appeal, L.A. Fenlon, G.B. Butler and J.C. Grauer JJ.A., June 18, 2021. Digest No. TLD-July192021003