ertificates of Pending Litigation: What Are They, and When Can They Be Claimed? What is a Certificate of Pending Litigation? Disputes over land are common. In some cases, these disputes can be resolved without going to court. However, it is sometimes necessary for a person to resort to litigation to enforce his or her rights. Under the Land Title Act, a person who claims an “estate or interest in land” (or who is permitted by some other legislation to do so) can register a “certificate of pending litigation” against title to that land. This certificate, commonly referred to as a “CPL”, is a notice that appears on title which announces to the public that the land is subject to a legal proceeding. Before 1996, a CPL was known as a “lis pendens” (which is the Latin for “suit pending”). There a number of circumstances in which a person might claim an “estate or interest in land”, such as: a purchaser seeking to enforce a contract for the sale of land where the vendor refuses to close; a previous owner alleging that his or her name has been fraudulently removed from title; and a person seeking the return of land which he or she paid for but registered in the name of another person (for example, a parent purchasing land for a child). It is important to note that simply filing a CPL does not give the claiming party an interest in the land. Rather, that party is still required to prove his or her claim. In the vast majority of cases, an owner does not learn of the CPL until after it has been registered. Practically speaking, a CPL prevents the owner or owners from dealing with, selling or transferring the land while it remains on title. For example, larger financial institutions usually will not set up a new mortgage or even renew an existing mortgage until the CPL is removed. There are three ways a CPL can be removed from title: the legal proceeding is resolved, the claiming party agrees to remove it, or, before the proceeding is resolved, the court orders that it be removed. A CPL can be a powerful tool in real property litigation. However, a party hoping to claim a CPL should ensure there is a proper claim for an “estate or interest in land”, or that he or she is explicitly permitted under other legislation to claim one. What constitutes “an estate or interest in land”? In Amero v. Fehner-Lee, 2012 BCSC 1411, I applied on behalf of an owner – the “applicant” – for the cancellation of two CPLs registered against her property by the plaintiff (the “respondent”). Mr. Justice Bowden’s judgment makes clear that it is not enough to claim a share of the sale proceeds – rather, it is a precondition that there be a claim to an interest in the actual land.
Posted on: Fri, 08 Nov 2013 18:50:23 +0000
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