Statutory Presumption of Indefeasible title

British Columbia with its Torrens land title system as a statutory Presumption of Indefeasible Title that can be rebutted by  a resulting trust .Statutory Presumption

 

The following extract is taken from Mac v Mak 2016 BCSC 1140:

 

[107]     The starting point is the presumption of indefeasible title, as set out in s. 23(2) of the Land Title Act, R.S.B.C. 1990, c. 250.  The presumption is that the registered title accurately reflects the party’s actual ownership interest.

[108]     Both Mary and Sally Mak are listed as the owners of the Mahon property with the Land Title Office.  Therefore, the presumption of indefeasible title applies.  This presumption was explained in Lindquist v. Waring, 2007 BCSC 205 at para. 48

…The Torrens land registration system in this province creates a statutory presumption of indefeasible title in a registered owner of property and places the onus on the party seeking to rebut this presumption to provide evidence that the registered owner holds their interest in trust for that party or another. This presumption is codified in s. 23(2) of the Land Title Act as follows:

23(2) An indefeasible title, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against the Crown and all other persons, that the person named in the title as registered owner is indefeasibly entitled to an estate in fee simple to the land described in the indefeasible title …

[109]     The presumption of indefeasible title can be rebutted by the presumption of resulting trust: Chuang v. Wong, 2012 BCSC 233 at para. 9; Schouten Estate v. Swagerman-Schouten, 2014 BCSC 2320 at para 2.  It can also be rebutted by the presumption of advancement or the enforcement of an agreement between the parties in order to prevent an unjust enrichment if the face of a title is upheld: Skender v. Skender, 2005 BCSC 418 at para. 13.  The onus is on the party seeking to displace the statutory presumption of indefeasible title.

The Presumption of Resulting Trust

[110]     If a gratuitous transfer is made to independent adult children, the presumption of resulting trust may apply: Pecore v. Pecore, 2007 SCC 17.  The court must examine all of the relevant evidence to determine the transferor’s intention regarding the property transfer: Schouten Estate at para. 5.  If established, the onus is then on the transferee to rebut the presumption and prove that the gift was intended: Pecore at para. 24.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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