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TITLE - Establishing title

Tuesday, January 15, 2019 @ 8:44 AM  


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Appeal by the plaintiff from a summary trial judgment dismissing its action for breach of contract. The appellant had agreed to purchase the respondent’s shares in a company that owned riverside land on which a mobile park was situated. After the transaction closed, the appellant discovered that the natural boundary of the river had changed over time exposing new land that was not included on the reference plan deposited in the Land Title Office. The respondent had used this accreted land for the mobile home park. The appellant was first informed that the accredited land was Crown land and commenced the present action. The appellant was subsequently informed that the land was not Crown land. Shortly before the scheduled hearing date, the appellant applied to the Surveyor General to endorse a new reference plan for the property which was granted, and the Surveyor General confirmed that the new land had accreted and updated the reference plan. The appellant argued that the company did not have title to the accreted land prior to updating the reference plan and that the appellant did thus not receive an unencumbered good and marketable title to the whole of the property as promised in the contract. The summary trial judge found that the company owned the accreted land at the effective date of the contract as the riparian owner.

HELD: Appeal dismissed. The company had good and marketable title to, or legal and beneficial ownership of, the accreted land under the common law as the riparian owner. The scheme for applying to the Surveyor General to certify an updated reference plan did not oust or modify these common law principles. Section 95(1) of the Land Title Act supported the conclusion that the riparian owner acquired title to land as it accreted, even before the reference plan was updated. The Surveyor General’s certificate did not bestow title to the land but provided sufficient proof of it for the purposes of the Land Title Office. A warranty as to good and marketable title was not a warranty that the land was suitable for a particular use. In this case, the appellant did not need to update the reference plan until it sought to develop the property or change its use.

0640453 B.C. Ltd. v. Tristar Communities Ltd., [2018] B.C.J. No. 6782, British Columbia Court of Appeal, N.J. Garson, G. Dickson and J.J.L. Hunter JJ.A., December 4, 2018. Digest No. TLD-January142019004