If you have an unregistered interest in land and the land has transferred ownership through a will, you might be waiting a considerable amount of time to enforce that interest. The plaintiff learned this lesson the hard way in the recent case that was heard by the Supreme Court of British Columbia in Massot v. Shewchuk.
Plaintiff had an arrangement to graze livestock but was given cash under a will instead
The deceased owned a property in Cherryville, British Columbia. During the deceased’s life, the plaintiff had a long-standing arrangement of 20 years whereby he was permitted to graze livestock on the deceased’s property.
In 2019, the deceased made a will that appointed one of the defendants as the executor of his estate. This will gave $20,000 to the plaintiff, $1,000 each to two charities, with the residue of the estate distributed to the two defendants.
Property passed to the defendants who sought to have the plaintiff’s livestock removed
The deceased subsequently passed away and as the Cherryville property formed part of the residue of the estate, it passed to the defendants. It was transferred to them after the executor obtained a probate order from the Court.
The executor’s lawyer wrote to the plaintiff asking that he remove his livestock from the property. When the plaintiff refused, a dispute ensued. After the police were called, the plaintiff removed his livestock and farming equipment.
Plaintiff approached the court claiming he had an interest in the property
The plaintiff then started Court proceedings, arguing that he had an interest in the defendants’ property.
The plaintiff’s key argument was that he had a verbal agreement with the deceased to occupy the property for the purpose of grazing his livestock there. After his death, the plaintiff claimed that the executor confirmed and adopted this agreement by telling him “we don’t want anything to change. You can keep your cows here for as long as you want.”
The defendants applied to have the claim dismissed.
The deceased’s will was valid
As a preliminary matter, Justice Hori decided that the deceased’s will was valid as there was no evidence of a previous will. Further, in any event, the deceased’s will specifically stated that it revoked any previous wills.
Additionally, the plaintiff was not a member of the deceased’s family, so he would not benefit under the intestacy rules if the deceased did not have a valid will. He also could not apply to vary the will under section 60 of the Wills, Estates and Succession Act because he was not the will-maker’s spouse or child.
An unregistered instrument does not pass estate
Regarding the alleged agreement with the deceased to occupy the property, this was never registered against the land title to the property.
The normal rule is that an agreement or licence to occupy property that is not registered cannot bind a subsequent owner. This is clear from section 20 of the British Columbia Land Title Act, which states:
“(1) Except as against the person making it, an instrument purporting to transfer, charge, deal with or affect land or an estate or interest in land does not operate to pass an estate or interest, either at law or in equity, in the land unless the instrument is registered in compliance with this Act.
(2) An instrument referred to in subsection (1) confers on every person benefited by it and on every person claiming through or under the person benefited, whether by descent, purchase or otherwise, the right
(a) to apply to have the instrument registered, and
(b) in proceedings incidental or auxiliary to registration, to use the names of all parties to the instrument, whether or not a party has since died or become legally incapacitated.”
As a result of the rule in section 20(1), the plaintiff cannot enforce an agreement with the deceased against the defendants.
There was also no agreement to occupy the property with the defendants
Justice Hori also decided that the plaintiff did not have an agreement with the defendants to occupy the property to allow his livestock to graze.
The executor denied commenting to the plaintiff about the continued use of the property. In any event, his Honour decided that the words the plaintiff alleged the executor used did not establish an agreement. At the time of the alleged statement, the executor also had no authority to make an agreement relating to the property because he did not have court authority to administer the estate and he did not own the property.
Finally, even if a licence or agreement had existed at some point in time, the executor had revoked it through the letter from his lawyer.
Short-term leases may be able to bind subsequent owners
The plaintiff claimed that he had a lease arrangement allowing him to use the property. There were several problems with this argument.
Section 20(3) of the Land Title Act states that the rule in section 20(1) does not apply to a lease or agreement for lease for a term not exceeding three years if there is actual occupation under the lease or agreement. This means that some unregistered short-term leases can bind subsequent owners. However, this provision did not help the plaintiff because of the long-term nature of his occupation.
Plaintiff did not have an enforceable long-term lease or new lease with the defendants
Firstly, the plaintiff claimed he could only occupy a part of the property, but not the whole thing including the residence. Justice Hori described the effect of section 73.1 of the Land Title Act as being that a lease of part of a property, while not unenforceable as between the parties to the lease, cannot be enforced against third parties who are not privy to the terms of the lease agreement. This means that if the plaintiff had a long-term lease with the deceased, it was unenforceable.
Secondly, his Honour decided that the plaintiff had not agreed with the defendants on the essential terms of a lease agreement.
The Court dismissed the plaintiff’s claim.
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