Litigation – Filing and Removing a Certificate of Pending Litigation
What is a Certificate of Pending Litigation and How it is Removed?
What is a Certificate of Pending Litigation?
A certificate of pending litigation (CPL) is available to a party to a proceeding where that party claims an estate or interest in land. The party may register a CPL against the land in the land titles office in the same manner as a charge is registered. The CPL burdens the land and warns the public of the pending litigation.
What is the Effect of a Certificate of Pending Litigation?
Once the CPL has been properly registered on the land, the Registrar of the land titles office must not make any entry in the register that has the effect of charging, transferring or otherwise affecting the land described in the certificate until registration of the certificate is cancelled.
How to Remove a Certificate of Pending Litigation?
- S.252(1) of the BC Land Title Act states: “If a certificate of pending litigation has been registered and no step has been taken in the proceeding for one year, any person who is the registered owner of or claims to be entitled to an estate or interest in land against which the certificate has been registered may apply for an order that the registration of the certificate be cancelled”.
- S.253 of the BC Land Title Act states: “If an action in respect of which a certificate of pending litigation is registered has been discontinued, the registrar must cancel the registration”.
- S.254 of the BC Land Title Act states: “If an action in respect of which a certificate of pending litigation is registered has been dismissed, the registrar must cancel the registration as provided in the regulations”. This section is of course subject to any appeals that the parties to the action may bring.
- S.255 of the BC Land Title Act allows for the cancellation of a CPL by a written request from the party who filed the CPL or a written request from the solicitor of the party who filed the CPL.
- S.256 of the BC Land Title Act provides another way of cancelling a CPL which is based on the hardship and inconvenience suffered by the owner of the land which is subject to the CPL. If the owner can prove that they are experiencing a particular hardship and inconvenience by virtue of the CPL, the court has the ability to cancel the CPL.
To summarize, once a CPL has been registered against a particular piece of land the BC Land Title Act supplies five different ways in which that CPL can be cancelled.
In addition to a CPL being cancelled through the BC Land Title Act, a CPL can be removed on the basis of having been improperly applied or filed (NextGen Energy Watervliet TWP, LLC v. Bremner, 2017 BCSC 2096).
A valid CPL requires the plaintiff in the hypothetical action to claim an interest in land. The plaintiff must demonstrate that there is an arguable case or a triable issue. If there is a prima facie case for an interest in land on the pleadings, a CPL may be registered, and the court should not embark upon a consideration of the merits of the claim (Quigley v. Robison, 2009 BCSC 1296 (B.C. S.C.) at para. 27). If the owner of the lands who have been burdened by the CPL can show that the plaintiff has no merits to his or her claim, the CPL can be cancelled.