In the recent case of RodRozen Designs Inc. v. 0977198 B.C.
Ltd., 2016 BCSC 834, Mr. Justice Bowden of the Supreme Court
of British Columbia considered whether RodRozen Designs Inc.
("RodRozen") was entitled to register a Certificate of
Pending Litigation ("CPL") against a parcel of land in
West Vancouver, BC (the "Property").
The dispute arose out of a Memorandum of Understanding
("MOU") entered into between RodRozen and B.C. Ltd.,
whereby B.C. Ltd. agreed to purchase the Property and finance the
construction of a house on the Property and RodRozen agreed to
design and manage the construction. The Property would then be sold
and any profits would be split equally between them. The MOU was
set to expire on September 7, 2015.
The construction was completed on June 10, 2015 and the Property
was listed the following month. However, no offers were received.
The parties agreed to extend the MOU until the end of September
2015. The price was reduced but still no offers were received. The
Property was delisted so that a new home warranty could be
purchased, and the MOU expired.
RodRozen commenced an action seeking an order that the Property
be sold and the profits split. RodRozen filed a CPL against the
Property. B.C. Ltd. challenged RodRozen's right to file the
Justice Bowden reviewed s. 215(1) of the Land Title
Act, R.S.B.C. 1996, c. 250 ("LTA") which
215(1) A person who has commenced or is a party to a proceeding,
and who is
(a) claiming an estate or interest in land, or
(b) given by another enactment a right of action in respect of
may register a certificate of pending litigation against the
land in the same manner as a charge is registered.
Justice Bowden quoted from the recent decision of Jacobs v.
Yehia, 2015 BCSC 267 where it was stated that "the mere
fact that a claim relates to land does not convert it into a claim
for a proprietary interest" in the land for the purposes of s.
215(1) of the LTA. Justice Bowden drew a distinction
between cases where a would-be purchaser seeks to enforce the sale
of property, and the present situation where the order sought is
for the property to be sold in the marketplace. In the former
situation, the would-be purchaser is seeking a proprietary interest
in the real property, whereas in the latter case only the profits
of sale are being sought. On this basis, Justice Bowden found that
RodRozen was not entitled to the CPL and ordered it cancelled under
s. 256 and s. 257 of the LTA.
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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