As the economy continues to put pressure on the construction industry in BC, we are seeing a sharp increase in parties trying to file Certificates of Pending Litigation (commonly called a “CPL”) against properties.
The problem? In many cases, the party seeking the CPL has no legal right to register one.
Under the Land Title Act, s. 215(1), R.S.B.C. 1996, c. 250 (the “LTA”), a CPL may only be registered “in any proceeding where the right asserted in the proceeding is a claim of an interest in land”. That’s a narrow doorway — and it excludes a lot of claims that litigants (and their lawyers) keep trying to push through.
Despite the clear wording in the LTA and the abundance of jurisprudence on this issue, the courts have had to deal with a flood of CPL applications in the last couple of years. Counsel are becoming increasingly creative in presenting their client’s claims as “interests in land”, when they are not. The most common example of this is where parties file CPLs for a simple debt claim. The courts have consistently held that a breach of contract or simple debt — even if the debtor owns property — does not create an interest in land on its own and cannot support a CPL. For example, in Bilfinger Berger (Canada) Inc. v. Greater Vancouver Water District, 2014 BCCA 26, the court clarified that money owed in relation to the construction on a property is only a debt claim and does not give rise to an interest in the property itself, which in turn does not give the claimant a right to a CPL.
Takeaway: If you believe your claim may give rise to an interest in land, talk to a lawyer before rushing to register a CPL. We aren’t magicians — but we can make sure your claim is framed properly and that you don’t end up wasting time and money on a CPL that’s bound to be struck.
If you are faced with a CPL filed against your property, call us to discuss your options.
For further information, reach out to us about your CPL questions.
About Synthesis Legal | Port Moody Lawyer | Civil Litigation Firm
By: Steven Shergill