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Direction to Land Surveyors No. 18 (September 26, 2022)

This Direction to British Columbia Land Surveyors was originally published as a “Policy and Procedure” paper on the LTSA website. After consideration, it was felt that the content is better suited as a Direction to Land Surveyors. Content from the original “Policy and Procedure” paper has been edited to reflect current practice regarding s. 58.

Purpose

This document outlines a procedure for using s. 58 of the Land Act to dispose of road (technically being provincial public highway) that was created by Crown grant. For clarity, this procedure applies only to highways established pursuant to paragraph (e) of the Transportation Act’s definition of “highway”: “in the case of a road, colouring, outlining or designating the road on a record in such a way that section 13 or 57 of the Land Act applies to that road”.

Historically, s. 58 of the Land Act allowed the minister under that Act, as represented by Ministry of Forests (FOR) to dispose of roads created by Crown grants. Following the enactment of the Transportation Act in 2004, the ability of FOR to use s. 58 to dispose of roads shown on Crown grant tracings was, in practice, eliminated.

The Transportation Act provides that provincial public highways are owned by the BCTFA and administered by MOTI. Provincial public highway includes roads created by Crown grant – the same roads which were formally administered by FOR. Because FOR no longer controls these roads, they can no longer dispose of them using s. 58.

Since the enactment of the Transportation Act, roads created by Crown grant are still disposed of by the Province, but the means used to dispose of them are administratively more cumbersome than the process provided by s. 58. However, s. 58 of the Land Act is not obsolete. The authority in that provision can still be used if BCTFA transfers ownership of roads created by Crown grant to MOTI and MOTI transfers administrative control of those roads to FOR.

Note that BCTFA and MOTI can transfer ownership and administration of road to FOR using an internal government transfer document. The transfer document is titled: “Province of British Columbia (Transfer of Discontinued and Closed Provincial Public Highway Lands to the Minister Responsible for the Land Act)”. An example of the Province’s transfer document can be requested from the SG Operations department.

Abbreviations

BCTFA” means the British Columbia Transportation Financing Authority

FOR” means the Ministry of Forests

LTO” means the Land Title Office

MOTI” means the Ministry of Transportation and Infrastructure

Background

Section 58 of the Land Act: Disposal of road created by Crown grant

Under s. 13 and s. 57 of the Land Act, roads can be created when land is Crown granted. Section 13 provides that in a disposition of Crown land, land which is designated as road in the granting instrument or on an attached map or plan (colloquially known as a Crown grant tracing) doesn’t pass to the grantee. Similarly, s. 57 provides that if a map or plan attached to a Crown grant shows a road coloured, outlined or designated in a colour other than red, the road is excluded from the grant unless there is an express contrary provision otherwise.

Section 58 of the Land Act provides the minister under that Act with an efficient means of disposing of roads created by Crown grant. Section 58 provides that on application from a land owner, the minister may endorse a declaration that road shown on a Crown grant and coloured other than red is no longer needed by the government. The minister endorses the declaration by signing the plan accompanying the application. Depositing the endorsed plan in the LTO transfers to the land owner the road shown on the Crown grant which is coloured other than in red. Section 58 is reproduced below:

58(1) If doubt exists … whether it is in the public interest that the part coloured other than in red need be retained by the government, a person proposing to subdivide may apply to the minister for a declaration of intention about that part.

(2) The application must be accompanied by a print of the proposed plan of subdivision.

(3) On receiving a plan certified by the registrar as being otherwise acceptable for deposit, the minister may, if the minister considers it advisable, endorse a declaration on the plan that the land is included in the grant or need not be retained by the government.

(4) The deposit in the land title office of an endorsed plan vests title to the land referred to in the declaration in the owner of the land covered by the plan without an instrument of transfer.

(5) If the title to the land contained in the plan is subject to a registered charge, the charge is deemed to be modified by including the land described in the declaration.”

The minister has delegated to the Surveyor General this authority to endorse a plan. Section 58 is limited to a subdivision of land, so it cannot be used if the final plan will be a reference plan  simply consolidating the road with the adjacent title.

The disposal power provided by s. 58 can be used to facilitate the exchanging of land between the Crown and a land owner when both parties prefer that road be located elsewhere on the landowner’s property, so long as the final plan is a subdivision plan. The existing road exclusion would be subject to the s. 58 certificate and the new road location would be dedicated on the final plan.

Enactment of Transportation Act

In 2004, the Transportation Act was enacted. The Act has several defined terms related to highways, including “highway” and “provincial public highway”.

The definition of “highway” describes several ways in which a public way can become a highway, including by application of s. 13 or s. 57 of the Land Act.  As defined by the Act, “highway” means:

“a public street, road, trail, lane, bridge, trestle, tunnel, ferry landing, ferry approach, any other public way or any other land or improvement that becomes or has become a highway by any of the following:

(e) in the case of a road, colouring, outlining or designating the road on a record in such a way that section 13 or 57 of the Land Act applies to that road.”

The term “provincial public highway” means any highway that is a rural highway (i.e. a highway outside of a municipality), an arterial highway or a highway referred to in s. 35(2)(f) of the Community Charter (land on which Provincial works are located). As derived from the Act’s definitions, provincial public highway includes road in rural areas that was created under s. 13 or 57 of the Land Act.

Thus, after the Transportation Act came into force, provincial public highways created by s. 13 or s. 57 of the Land Act are owned by BCFTA and under the administrative control of MOTI. The minister under the Land Act can no longer use s. 58 to dispose of a road shown on a Crown grant tracing, unless ownership of the road is returned to government and administrative authority for the road is returned to the minister.

MOTI continues to dispose of roads, although the process that MOTI has historically used is more expensive and time consuming than dispositions using s. 58 of the Land Act. A land surveyor must be hired to prepare a plan to define the extent of the highway to be closed. Completing the survey is essentially a high transaction cost with no enduring value, as the highway to be closed will in almost all circumstances be consolidated with the surrounding property. Other expenses are associated with MOTI administering the land transfer process (e.g. raising title to the land under the closed highway and transferring the land).

Process: Disposing of Provincial Public Highways Through Section 58 of the Land Act

REMEMBER: This process only applies to highways that were established through a Crown grant deletion as provided by paragraph (e) of the Transportation Act’s definition of “highway”: “in the case of a road, colouring, outlining or designating the road on a record in such a way that section 13 or 57 of the Land Act applies to that road.”

Section 58 of the Land Act can be used to transfer the subject highway to the surrounding property owner as part of a subdivision plan. It cannot be used to only transfer ownership of the subject highway to the adjacent owner on a reference plan.

If the subject highway is part of a land exchange (value for value), BCTFA will usually accept that no compensation is payable.  If the subject highway is being closed and transferred to an adjacent land owner without a land exchange, then BCTFA may request compensation. Discussions between BCTFA and a land owner about compensation will occur before a closed highway is transferred to FOR.

The following process outlines how s. 58 of the Land Act can be used to dispose of provincial public highway that was created by Crown grant.

  1. The land surveyor should reach out to MOTI and the Surveyor General to discuss the proposal and find out if s. 58 is an appropriate method to use for the situation.
  2. If those preliminary discussions indicate that s. 58 may be appropriate, the land surveyor will submit an application to the Surveyor General. Correspondence with MOTI should be included in the application package.
  3. The Surveyor General will advise MOTI and FOR that the application has been received.
  4. District staff of MOTI will consult with FOR regional or district staff.
  5. MOTI regional staff will consider the proposal and either agree to transfer the land to the owner of the subject parcel, agree to exchange land, or decide to reject the proposal.
  6. Once the Surveyor General is notified that a preliminary proposal has been accepted by MOTI and FOR, the Surveyor General will review materials and either provide preliminary approval to the land surveyor or reject the application.
  7. MOTI, FOR and the owner of the subject lands, as agreed between them, determine who will manage the transfer process and decide whether a lawyer or notary public needs to be retained to hold money in trust or to prepare any ancillary documents.
  8. The land surveyor will conduct the appropriate survey and prepare a subdivision plan. The subdivision plan will contain a certificate pursuant to section 58 of the Land Act.
    As the cost of survey and plan preparation can be a significant amount, all parties must agree upon the timing of the survey and plan preparation. In other words, it may be appropriate to complete Steps 6 and 7 before substantial survey work and plan preparation is completed.
  9. MOTI closes the provincial public highway by a Gazette Notice with appropriate public notification where required by MOTI policy and/or Transportation Act The Gazette Notice can refer to the tracing attached to the Crown grant.
  10. Administration and control of the closed highway is transferred to FOR pursuant to section 106 of the Land Act.
    1. Administration and control is transferred using the internal government transfer document titled: “Province of British Columbia (Transfer of Discontinued and Closed Provincial Public Highway Lands to the Minister Responsible for the Land Act)”. An example of this document can be requested from the SG Operations department.
    2. The document is signed by legal signing authorities for BCTFA, MOTI, and FOR. Signing the document has the following legal effect:
      1. Right and title to land under the closed highway is transferred from BCTFA to MOTI.
      2. MOTI transfers administration and control of the closed highway to FOR.
      3. FOR accepts administration and control for the closed highway.
  11. The plan is submitted to the Surveyor General by the person identified in Step 7 to manage the transfer process.  The Surveyor General or a Deputy signs the section 58 Land Act certificate on the plan application form.
  12. The plan is registered in the LTO by the person identified in Step 7 to manage the transfer process. Depositing the plan has the following legal effects:
    1. Pursuant to s. 58(4) of the Land Act, title to the closed road vests in the owner of the adjacent lands.
    2. If the transfer is for the purpose of a land exchange, the newly dedicated highway vests in the Crown pursuant to s. 107(1) of the Land Title Act.