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INTERESTS IN LAND - Equitable interests - Resulting trusts

Wednesday, August 18, 2021 @ 5:31 AM  


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Appeal by the wife from an order that found the respondents, the husband’s judgment creditors, had priority to surplus funds remaining from the foreclosure sale of the husband’s property. The property was purchased by the husband and wife in 1988 as their family home. In 2006, title was transferred to the wife’s name alone. In 2010, the wife transferred title to the husband. She claimed an unregistered one-half beneficial interest in the property. The respondents held a judgment registered against title to the property in 2014. The property was sold in 2016. After payment of higher ranking creditors, $312,831 remained, which was insufficient to satisfy the respondents’ judgment.

HELD: Appeal allowed. The chambers judge misapplied the Land Title Act by effectively equating a judgment creditor to the position of a person who had relied on the register in acquiring their indefeasible interest in the land, which would allow a judgment creditor to obtain greater recovery than even the judgment debtor could derive. Section 86(3)(a) of the Court Order Enforcement Act gave a pre-existing resulting trust priority to a registered judgment. The matter was remitted for determination regarding whether the wife held a valid resulting trust.

Chichak v. Chichak, [2021] B.C.J. No. 1555, British Columbia Court of Appeal, M.E. Saunders, G.J. Fitch, G.B. Butler JJ.A., July 16, 2021. Digest No. TLD-August162021005