assignment property law act

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Version as at 23 December 2023

The Parliamentary Counsel Office has made editorial and format changes to this version using the powers under subpart 2 of Part 3 of the Legislation Act 2019.

Note 4 at the end of this version provides a list of the amendments included in it.

This Act is administered by the Ministry of Justice .

• The Parliamentary Counsel Office
• www.govt.nz

• Practical Law

Legal assignment

Practical law uk glossary 9-107-6754  (approx. 3 pages).

• Only the benefit of an agreement may be assigned.
• The assignment must be absolute.
• The rights to be assigned must be wholly ascertainable and must not relate to part only of a debt.
• The assignment must be in writing and signed under hand by the assignor.
• Notice of the assignment must be received by the other party or parties for the assignment to take effect.
• General Contract and Boilerplate
• Security and Quasi Security

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• The Fijian Constitution
• Consolidated Laws
• Laws as Published
• Omitted & Repealed Laws
• Publications & Sales
• [PL 1] s 1 Short title
• [PL 2] s 2 Interpretation
• [PL 3] s 3 Application of Act and savings
• [PL 4] s 4 Formalities of deed
• [PL 5] s 5 Execution of instruments by or on behalf of corporations
• [PL 6] s 6 Receipt for consideration money
• [PL 7] s 7 Persons taking who are not parties
• [PL 8] s 8 Description of deeds
• [PL 9] s 9 Exercise of powers
• [PL 10] s 10 Appointments
• [PL 11] s 11 Leases need not be by deed
• [PL 12] s 12 Construction of expressions and as to time in contracts etc
• [PL 13] s 13 Uses not necessary
• [PL 14] s 14 Estates tail abolished
• [PL 15] s 15 Freehold in future may be created
• [PL 16] s 16 Creation by deed of estate in chattel real
• [PL 17] s 17 When contingent remainders capable of taking effect
• [PL 18] s 18 Rights of entry etc
• [PL 19] s 19 Certain expressions to be words of purchase, rule in Shelley’s case abolished
• [PL 20] s 20 Restriction on executory limitations
• [PL 21] s 21 Abolition of restraint upon anticipation
• [PL 22] s 22 Presumption of survivorship
• [PL 23] s 23 Equitable waste
• [PL 24] s 24 No merger by operation of law
• [PL 25] s 25 Partial release of land from rent
• [PL 26] s 26 Corporations may hold as joint tenants
• [PL 27] s 27 Disclaimer of powers
• [PL 28] s 28 Intermediate income of contingent or executory gifts
• [PL 29] s 29 Receipts for income by married infants
• [PL 30] s 30 “Heirs” and other words interpreted
• [PL 31] s 31 “Heirs of the body” and other words interpreted
• [PL 32] s 32 Appointments valid notwithstanding objects excluded
• [PL 33] s 33 Transfer by person of property to himself or herself
• [PL 34] s 34 Application
• [PL 35] s 35 Interpretation
• [PL 36] s 36 The perpetuity period
• [PL 37] s 37 Capacity to procreate or bear a child
• [PL 38] s 38 Wait and see rule
• [PL 39] s 39 Power of court to make declaration as to validity of limitations
• [PL 40] s 40 Invalid age contingencies
• [PL 41] s 41 Class gifts
• [PL 42] s 42 Order of applying rules
• [PL 43] s 43 Unborn spouses
• [PL 44] s 44 Dependent limitations
• [PL 45] s 45 Options
• [PL 46] s 46 Application of the rule to possibilities of reverter, rights of entry and resulting trusts
• [PL 47] s 47 Powers of appointment
• [PL 48] s 48 Accumulations of income
• [PL 49] s 49 Rule in Whitby v Mitchell abolished
• [PL 50] s 50 Superannuation funds etc
• [PL 51] s 51 Alienation with intent to defraud creditors
• [PL 52] s 52 Voluntary transfer of land with intent to defraud purchaser
• [PL 53] s 53 Purchase in good faith of reversion not to be set aside for undervalue only
• [PL 54] s 54 Payment of consideration money to barrister and solicitor
• [PL 55] s 55 Benefit of covenants relating to land
• [PL 56] s 56 Burden of covenants relating to land
• [PL 57] s 57 Effect of covenant with 2 or more jointly
• [PL 58] s 58 Covenants and agreements made by a person with himself or herself and others
• [PL 59] s 59 Covenants to be joint and several
• [PL 60] s 60 Implied covenants may be negatived
• [PL 61] s 61 Benefit of covenant for title
• [PL 62] s 62 Covenants implied in transfer by way of sale etc
• [PL 63] s 63 Covenant between transferee and transferor implied in transfer subject to a mortgage
• [PL 64] s 64 Covenant implied in transfer of a lease
• [PL 65] s 65 Further covenant implied in transfer of a lease
• [PL 66] s 66 Covenant implied in transfer by trustee or mortgagee
• [PL 67] s 67 Mortgage of a lease to include tenant’s fixtures
• [PL 68] s 68 Covenants etc implied in all mortgages
• [PL 69] s 69 Transferee of land subject to mortgage personally liable to mortgagee
• [PL 70] s 70 Effect of advance on joint account etc
• [PL 71] s 71 Security for further advances
• [PL 72] s 72 Repayment of mortgages
• [PL 73] s 73 Mortgagor may require mortgagee to transfer instead of discharging
• [PL 74] s 74 Encumbrancee to have the like right
• [PL 75] s 75 Mortgagee may, after default, enter into possession
• [PL 76] s 76 Further powers of mortgagee as to receipt of rent etc
• [PL 77] s 77 Mortgagor in default
• [PL 78] s 78 Notice not required when money payable on demand
• [PL 79] s 79 Mortgagee may sell
• [PL 80] s 80 Restriction on power of variation in case of land
• [PL 81] s 81 Application of purchase money
• [PL 82] s 82 Mortgagee may appoint receiver
• [PL 83] s 83 Mortgagee of leasehold liable for rent after entry
• [PL 84] s 84 Mortgagee’s receipts, discharges etc
• [PL 85] s 85 Sections 68 to 83 to apply only in case of mortgage by deed
• [PL 86] s 86 Equitable mortgages and charges
• [PL 87] s 87 Restriction on consolidation
• [PL 88] s 88 Retrospective operation of Part 8
• [PL 89] s 89 Termination of tenancies
• [PL 90] s 90 Covenants implied in leases
• [PL 91] s 91 Powers in lessor
• [PL 92] s 92 Implied covenant in a sublease
• [PL 93] s 93 Effect of licence to assign
• [PL 94] s 94 No fine for licence to assign
• [PL 95] s 95 Assignment by trustee or liquidator etc
• [PL 96] s 96 Merger of reversion not to affect remedies
• [PL 97] s 97 Rent and benefit of lessee’s covenants to run with reversion
• [PL 98] s 98 Obligation of lessor’s covenants to run with reversion
• [PL 99] s 99 Apportionment of conditions on severance etc
• [PL 100] s 100 Restriction on effect of waiver
• [PL 101] s 101 Personal representatives not personally liable for covenants
• [PL 102] s 102 Tenant not prejudiced by assignment before notice
• [PL 103] s 103 Abolition of interesse termini, and as to reversionary leases and leases for lives
• [PL 104] s 104 Effect of extinguishment of reversion
• [PL 105] s 105 Restrictions on and relief against forfeiture of leases
• [PL 106] s 106 Easement in gross permitted
• [PL 107] s 107 Access or use of light or air
• [PL 108] s 108 Court may authorise entry for erecting or repairing buildings etc
• [PL 109] s 109 Power of court to grant special relief in cases of encroachment
• [PL 110] s 110 Relief in cases of mistake as to boundaries or identity of land
• [PL 111] s 111 Recovery of payments made under mistake of law
• [PL 112] s 112 Payments made under mistake of law or fact not always recoverable
• [PL 113] s 113 Assignment of debts and choses in action
• [PL 114] s 114 Execution by attorney in his or her own name
• [PL 115] s 115 Continuance until notice of death or revocation received
• [PL 116] s 116 Irrevocable power of attorney for value
• [PL 117] s 117 Power of attorney made irrevocable for fixed time
• [PL 118] s 118 Application to corporations
• [PL 119] s 119 In action for partition court may direct land to be sold
• [PL 120] s 120 Proceeds of sale, how applied
• [PL 121] s 121 Costs in partition suits
• [PL 122] s 122 Division of chattels
• [PL 123] s 123 Interpretation
• [PL 124] s 124 Income apportionable in respect of time
• [PL 125] s 125 Time when apportioned part payable
• [PL 126] s 126 Recovery of apportioned parts
• [PL 127] s 127 Exceptions and application
• [PL 128] s 128 Service of notices in case of registered land
• [PL 129] s 129 Service of notices in other cases

• assignments basic law

Assignments: The Basic Law

The assignment of a right or obligation is a common contractual event under the law and the right to assign (or prohibition against assignments) is found in the majority of agreements, leases and business structural documents created in the United States.

As with many terms commonly used, people are familiar with the term but often are not aware or fully aware of what the terms entail. The concept of assignment of rights and obligations is one of those simple concepts with wide ranging ramifications in the contractual and business context and the law imposes severe restrictions on the validity and effect of assignment in many instances. Clear contractual provisions concerning assignments and rights should be in every document and structure created and this article will outline why such drafting is essential for the creation of appropriate and effective contracts and structures.

The reader should first read the article on Limited Liability Entities in the United States and Contracts since the information in those articles will be assumed in this article.

Basic Definitions and Concepts:

An assignment is the transfer of rights held by one party called the “assignor” to another party called the “assignee.” The legal nature of the assignment and the contractual terms of the agreement between the parties determines some additional rights and liabilities that accompany the assignment. The assignment of rights under a contract usually completely transfers the rights to the assignee to receive the benefits accruing under the contract. Ordinarily, the term assignment is limited to the transfer of rights that are intangible, like contractual rights and rights connected with property. Merchants Service Co. v. Small Claims Court , 35 Cal. 2d 109, 113-114 (Cal. 1950).

An assignment will generally be permitted under the law unless there is an express prohibition against assignment in the underlying contract or lease. Where assignments are permitted, the assignor need not consult the other party to the contract but may merely assign the rights at that time. However, an assignment cannot have any adverse effect on the duties of the other party to the contract, nor can it diminish the chance of the other party receiving complete performance. The assignor normally remains liable unless there is an agreement to the contrary by the other party to the contract.

The effect of a valid assignment is to remove privity between the assignor and the obligor and create privity between the obligor and the assignee. Privity is usually defined as a direct and immediate contractual relationship. See Merchants case above.

Further, for the assignment to be effective in most jurisdictions, it must occur in the present. One does not normally assign a future right; the assignment vests immediate rights and obligations.

No specific language is required to create an assignment so long as the assignor makes clear his/her intent to assign identified contractual rights to the assignee. Since expensive litigation can erupt from ambiguous or vague language, obtaining the correct verbiage is vital. An agreement must manifest the intent to transfer rights and can either be oral or in writing and the rights assigned must be certain.

Note that an assignment of an interest is the transfer of some identifiable property, claim, or right from the assignor to the assignee. The assignment operates to transfer to the assignee all of the rights, title, or interest of the assignor in the thing assigned. A transfer of all rights, title, and interests conveys everything that the assignor owned in the thing assigned and the assignee stands in the shoes of the assignor. Knott v. McDonald’s Corp ., 985 F. Supp. 1222 (N.D. Cal. 1997)

The parties must intend to effectuate an assignment at the time of the transfer, although no particular language or procedure is necessary. As long ago as the case of National Reserve Co. v. Metropolitan Trust Co ., 17 Cal. 2d 827 (Cal. 1941), the court held that in determining what rights or interests pass under an assignment, the intention of the parties as manifested in the instrument is controlling.

The intent of the parties to an assignment is a question of fact to be derived not only from the instrument executed by the parties but also from the surrounding circumstances. When there is no writing to evidence the intention to transfer some identifiable property, claim, or right, it is necessary to scrutinize the surrounding circumstances and parties’ acts to ascertain their intentions. Strosberg v. Brauvin Realty Servs., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998)

The general rule applicable to assignments of choses in action is that an assignment, unless there is a contract to the contrary, carries with it all securities held by the assignor as collateral to the claim and all rights incidental thereto and vests in the assignee the equitable title to such collateral securities and incidental rights. An unqualified assignment of a contract or chose in action, however, with no indication of the intent of the parties, vests in the assignee the assigned contract or chose and all rights and remedies incidental thereto.

More examples: In Strosberg v. Brauvin Realty Servs ., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998), the court held that the assignee of a party to a subordination agreement is entitled to the benefits and is subject to the burdens of the agreement. In Florida E. C. R. Co. v. Eno , 99 Fla. 887 (Fla. 1930), the court held that the mere assignment of all sums due in and of itself creates no different or other liability of the owner to the assignee than that which existed from the owner to the assignor.

And note that even though an assignment vests in the assignee all rights, remedies, and contingent benefits which are incidental to the thing assigned, those which are personal to the assignor and for his sole benefit are not assigned. Rasp v. Hidden Valley Lake, Inc ., 519 N.E.2d 153, 158 (Ind. Ct. App. 1988). Thus, if the underlying agreement provides that a service can only be provided to X, X cannot assign that right to Y.

Novation Compared to Assignment:

Although the difference between a novation and an assignment may appear narrow, it is an essential one. “Novation is a act whereby one party transfers all its obligations and benefits under a contract to a third party.” In a novation, a third party successfully substitutes the original party as a party to the contract. “When a contract is novated, the other contracting party must be left in the same position he was in prior to the novation being made.”

A sublease is the transfer when a tenant retains some right of reentry onto the leased premises. However, if the tenant transfers the entire leasehold estate, retaining no right of reentry or other reversionary interest, then the transfer is an assignment. The assignor is normally also removed from liability to the landlord only if the landlord consents or allowed that right in the lease. In a sublease, the original tenant is not released from the obligations of the original lease.

Equitable Assignments:

An equitable assignment is one in which one has a future interest and is not valid at law but valid in a court of equity. In National Bank of Republic v. United Sec. Life Ins. & Trust Co. , 17 App. D.C. 112 (D.C. Cir. 1900), the court held that to constitute an equitable assignment of a chose in action, the following has to occur generally: anything said written or done, in pursuance of an agreement and for valuable consideration, or in consideration of an antecedent debt, to place a chose in action or fund out of the control of the owner, and appropriate it to or in favor of another person, amounts to an equitable assignment. Thus, an agreement, between a debtor and a creditor, that the debt shall be paid out of a specific fund going to the debtor may operate as an equitable assignment.

In Egyptian Navigation Co. v. Baker Invs. Corp. , 2008 U.S. Dist. LEXIS 30804 (S.D.N.Y. Apr. 14, 2008), the court stated that an equitable assignment occurs under English law when an assignor, with an intent to transfer his/her right to a chose in action, informs the assignee about the right so transferred.

An executory agreement or a declaration of trust are also equitable assignments if unenforceable as assignments by a court of law but enforceable by a court of equity exercising sound discretion according to the circumstances of the case. Since California combines courts of equity and courts of law, the same court would hear arguments as to whether an equitable assignment had occurred. Quite often, such relief is granted to avoid fraud or unjust enrichment.

Note that obtaining an assignment through fraudulent means invalidates the assignment. Fraud destroys the validity of everything into which it enters. It vitiates the most solemn contracts, documents, and even judgments. Walker v. Rich , 79 Cal. App. 139 (Cal. App. 1926). If an assignment is made with the fraudulent intent to delay, hinder, and defraud creditors, then it is void as fraudulent in fact. See our article on Transfers to Defraud Creditors .

But note that the motives that prompted an assignor to make the transfer will be considered as immaterial and will constitute no defense to an action by the assignee, if an assignment is considered as valid in all other respects.

Enforceability of Assignments:

Whether a right under a contract is capable of being transferred is determined by the law of the place where the contract was entered into. The validity and effect of an assignment is determined by the law of the place of assignment. The validity of an assignment of a contractual right is governed by the law of the state with the most significant relationship to the assignment and the parties.

In some jurisdictions, the traditional conflict of laws rules governing assignments has been rejected and the law of the place having the most significant contacts with the assignment applies. In Downs v. American Mut. Liability Ins. Co ., 14 N.Y.2d 266 (N.Y. 1964), a wife and her husband separated and the wife obtained a judgment of separation from the husband in New York. The judgment required the husband to pay a certain yearly sum to the wife. The husband assigned 50 percent of his future salary, wages, and earnings to the wife. The agreement authorized the employer to make such payments to the wife.

After the husband moved from New York, the wife learned that he was employed by an employer in Massachusetts. She sent the proper notice and demanded payment under the agreement. The employer refused and the wife brought an action for enforcement. The court observed that Massachusetts did not prohibit assignment of the husband’s wages. Moreover, Massachusetts law was not controlling because New York had the most significant relationship with the assignment. Therefore, the court ruled in favor of the wife.

Therefore, the validity of an assignment is determined by looking to the law of the forum with the most significant relationship to the assignment itself. To determine the applicable law of assignments, the court must look to the law of the state which is most significantly related to the principal issue before it.

Assignment of Contractual Rights:

Generally, the law allows the assignment of a contractual right unless the substitution of rights would materially change the duty of the obligor, materially increase the burden or risk imposed on the obligor by the contract, materially impair the chance of obtaining return performance, or materially reduce the value of the performance to the obligor. Restat 2d of Contracts, § 317(2)(a). This presumes that the underlying agreement is silent on the right to assign.

If the contract specifically precludes assignment, the contractual right is not assignable. Whether a contract is assignable is a matter of contractual intent and one must look to the language used by the parties to discern that intent.

In the absence of an express provision to the contrary, the rights and duties under a bilateral executory contract that does not involve personal skill, trust, or confidence may be assigned without the consent of the other party. But note that an assignment is invalid if it would materially alter the other party’s duties and responsibilities. Once an assignment is effective, the assignee stands in the shoes of the assignor and assumes all of assignor’s rights. Hence, after a valid assignment, the assignor’s right to performance is extinguished, transferred to assignee, and the assignee possesses the same rights, benefits, and remedies assignor once possessed. Robert Lamb Hart Planners & Architects v. Evergreen, Ltd. , 787 F. Supp. 753 (S.D. Ohio 1992).

On the other hand, an assignee’s right against the obligor is subject to “all of the limitations of the assignor’s right, all defenses thereto, and all set-offs and counterclaims which would have been available against the assignor had there been no assignment, provided that these defenses and set-offs are based on facts existing at the time of the assignment.” See Robert Lamb , case, above.

The power of the contract to restrict assignment is broad. Usually, contractual provisions that restrict assignment of the contract without the consent of the obligor are valid and enforceable, even when there is statutory authorization for the assignment. The restriction of the power to assign is often ineffective unless the restriction is expressly and precisely stated. Anti-assignment clauses are effective only if they contain clear, unambiguous language of prohibition. Anti-assignment clauses protect only the obligor and do not affect the transaction between the assignee and assignor.

Usually, a prohibition against the assignment of a contract does not prevent an assignment of the right to receive payments due, unless circumstances indicate the contrary. Moreover, the contracting parties cannot, by a mere non-assignment provision, prevent the effectual alienation of the right to money which becomes due under the contract.

A contract provision prohibiting or restricting an assignment may be waived, or a party may so act as to be estopped from objecting to the assignment, such as by effectively ratifying the assignment. The power to void an assignment made in violation of an anti-assignment clause may be waived either before or after the assignment. See our article on Contracts.

Noncompete Clauses and Assignments:

Of critical import to most buyers of businesses is the ability to ensure that key employees of the business being purchased cannot start a competing company. Some states strictly limit such clauses, some do allow them. California does restrict noncompete clauses, only allowing them under certain circumstances. A common question in those states that do allow them is whether such rights can be assigned to a new party, such as the buyer of the buyer.

A covenant not to compete, also called a non-competitive clause, is a formal agreement prohibiting one party from performing similar work or business within a designated area for a specified amount of time. This type of clause is generally included in contracts between employer and employee and contracts between buyer and seller of a business.

Many workers sign a covenant not to compete as part of the paperwork required for employment. It may be a separate document similar to a non-disclosure agreement, or buried within a number of other clauses in a contract. A covenant not to compete is generally legal and enforceable, although there are some exceptions and restrictions.

Whenever a company recruits skilled employees, it invests a significant amount of time and training. For example, it often takes years before a research chemist or a design engineer develops a workable knowledge of a company’s product line, including trade secrets and highly sensitive information. Once an employee gains this knowledge and experience, however, all sorts of things can happen. The employee could work for the company until retirement, accept a better offer from a competing company or start up his or her own business.

A covenant not to compete may cover a number of potential issues between employers and former employees. Many companies spend years developing a local base of customers or clients. It is important that this customer base not fall into the hands of local competitors. When an employee signs a covenant not to compete, he or she usually agrees not to use insider knowledge of the company’s customer base to disadvantage the company. The covenant not to compete often defines a broad geographical area considered off-limits to former employees, possibly tens or hundreds of miles.

Another area of concern covered by a covenant not to compete is a potential ‘brain drain’. Some high-level former employees may seek to recruit others from the same company to create new competition. Retention of employees, especially those with unique skills or proprietary knowledge, is vital for most companies, so a covenant not to compete may spell out definite restrictions on the hiring or recruiting of employees.

A covenant not to compete may also define a specific amount of time before a former employee can seek employment in a similar field. Many companies offer a substantial severance package to make sure former employees are financially solvent until the terms of the covenant not to compete have been met.

Because the use of a covenant not to compete can be controversial, a handful of states, including California, have largely banned this type of contractual language. The legal enforcement of these agreements falls on individual states, and many have sided with the employee during arbitration or litigation. A covenant not to compete must be reasonable and specific, with defined time periods and coverage areas. If the agreement gives the company too much power over former employees or is ambiguous, state courts may declare it to be overbroad and therefore unenforceable. In such case, the employee would be free to pursue any employment opportunity, including working for a direct competitor or starting up a new company of his or her own.

It has been held that an employee’s covenant not to compete is assignable where one business is transferred to another, that a merger does not constitute an assignment of a covenant not to compete, and that a covenant not to compete is enforceable by a successor to the employer where the assignment does not create an added burden of employment or other disadvantage to the employee. However, in some states such as Hawaii, it has also been held that a covenant not to compete is not assignable and under various statutes for various reasons that such covenants are not enforceable against an employee by a successor to the employer. Hawaii v. Gannett Pac. Corp. , 99 F. Supp. 2d 1241 (D. Haw. 1999)

It is vital to obtain the relevant law of the applicable state before drafting or attempting to enforce assignment rights in this particular area.

Conclusion:

In the current business world of fast changing structures, agreements, employees and projects, the ability to assign rights and obligations is essential to allow flexibility and adjustment to new situations. Conversely, the ability to hold a contracting party into the deal may be essential for the future of a party. Thus, the law of assignments and the restriction on same is a critical aspect of every agreement and every structure. This basic provision is often glanced at by the contracting parties, or scribbled into the deal at the last minute but can easily become the most vital part of the transaction.

As an example, one client of ours came into the office outraged that his co venturer on a sizable exporting agreement, who had excellent connections in Brazil, had elected to pursue another venture instead and assigned the agreement to a party unknown to our client and without the business contacts our client considered vital. When we examined the handwritten agreement our client had drafted in a restaurant in Sao Paolo, we discovered there was no restriction on assignment whatsoever…our client had not even considered that right when drafting the agreement after a full day of work.

One choses who one does business with carefully…to ensure that one’s choice remains the party on the other side of the contract, one must master the ability to negotiate proper assignment provisions.

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The Law of Assignment (3rd Edition)

Marcus smith, nico leslie.

This book is the leading text on the law relating to intangible property or choses in action. Its clear and approachable structure covers all forms of intangible property (debts, rights under contract, securities, intellectual property, leases, rights/causes of action, and equitable rights), considering the nature of intangible property, how it comes into being, and how it is transferred or assigned. The first part of the book analyses the general principles regarding intangibles and their transfer, and the second examines the practical considerations relating to particular types of intangibles, securities, insurance contracts, leases, and intellectual property under the law. This new edition includes new chapters on powers of attorney and factoring, areas particularly important to legal practice. Other significant developments include the expansion of the chapter on leases to include leasing of chattels, and more material on securities, especially regarding the operation of settlement systems.

Bibliographic Information

Affiliations are at time of print publication..

Marcus Smith, author

Nico Leslie, author

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• Foreword to The Third Edition
• Foreword to the Second Edition
• Foreword to the First Edition
• Preface to The Third Edition
• Preface to the First Edition
• Summary Contents
• Detailed Contents
• Table of Cases
• Statutory Instruments
• Netherlands
• United States
• Conventions
• Regulations
• International Conventions
• List of References
• List of Authority Abbreviations
• Preliminary Material
• Part III.01
• [66.249.64.20|185.80.151.41]
• 185.80.151.41

Property Law Act

[rsbc 1996] chapter 377, definitions.

1   In this Act, the following words and phrases have the meanings assigned to them in the Land Title Act :

"encumbrance" ;

"instrument" ;

"lease or agreement for lease for a term not exceeding 3 years where there is actual occupation under the lease or agreement" ;

"register" ;

"registered owner" ;

"registrar" ;

"statutory right of way" ;

"transfer" ;

"transferee" .

Rights in completing sale of land

2   In a contract for the sale of land and in an action on it, unless otherwise agreed, the rights and obligations of the vendor and purchaser are regulated by the following rules:

(a) recitals of facts, statements and matters, and descriptions of parties in instruments or statutory declarations over 20 years old at the date of the contract are, unless the contrary is proved, sufficient evidence of their truth;

(b) the inability of a vendor to give a purchaser a legal covenant to produce and furnish copies of documents of title is not an objection to the title if the purchaser has, on the completion of the contract, an equitable right to the production of the copies that affirmatively prove the purchaser's title.

Summary application to court

3   (1) A vendor or purchaser of an interest in land may apply in a summary way to the Supreme Court about a requisition, an objection, a claim for compensation or any other question, relating to the contract, except a question affecting its existence or validity.

(2) The court must make the order it considers proper, by reference to a registrar or otherwise, and must order how and by whom the costs of the application will be paid.

Vendor to deliver registrable instrument

4   A person making an agreement, or assignment of an agreement, for sale of land, if the purchase price is payable by instalments or at a future time, must deliver to the person buying the land an instrument in a form, executed by the parties, that allows the title of the purchaser under the instrument to be registrable under the Land Title Act .

Transferor to deliver registrable instrument

5   (1) A person transferring land in fee simple must deliver to the transferee a transfer registrable under the Land Title Act .

(2) A person who, as landlord or intended landlord, makes a lease or agreement for a lease, other than a lease or agreement for a term not exceeding 3 years where there is actual occupation under the lease or agreement, must, unless the contrary is agreed in it, deliver an instrument creating the lease or agreement to the tenant or intended tenant in form registrable under the Land Title Act .

Vendor or transferor to register own title

6   (1) A person who transfers land, or who makes an agreement, or assignment of an agreement, for the sale of land by which the purchase price is payable by instalments or at a future time, must register the person's own title in order that a person to whom all or part of the land is transferred and a person claiming under the agreement or assignment can register their instrument under the Land Title Act .

(2) An action must not be brought on the agreement or assignment referred to in subsection (1) by a person who fails to comply with this section.

Transferor to provide registrable description

7   (1) In this section, "transferor" includes a landlord obliged to deliver an instrument under section 5.

(2) A transferor, in an instrument executed by the transferor, or on the transferor's behalf, must describe the parcel of land intended to be transferred or otherwise dealt with, so that the title to the parcel is registrable under the Land Title Act .

(3) A transferor must also provide and deposit any further conveyance, other instrument or plan that is required by the registrar.

(4) If a transferor, after demand in writing, fails for 30 days to comply with this section, a person entitled or applying to be registered may obtain the necessary description or plan and, unless the parties have agreed otherwise, may recover the expense of obtaining them, including the expenses of a necessary survey, in a court of competent jurisdiction from the transferor.

Disposition of interests and rights

8   (1) The following interest and rights may be disposed of:

(a) a contingent, executory or future interest in land or a possibility coupled with an interest in land, whether or not the object of the gift, the limitation of the interest or the possibility is ascertained;

(b) a right of entry on land, immediate or future, vested or contingent.

(2) A right of entry affecting land, exercisable on breach of condition or for any other reason, may be made exercisable by any person and the persons claiming under the person.

(3) For the avoidance of doubt, the exercise of a right of entry under subsection (2) is subject to the Limitation Act .

Right of first refusal

9   A right of first refusal to land, also known as a right of refusal or right of pre-emption, created before or after this section comes into force is an equitable interest in land.

Certain interests prohibited or permitted

10   (1) An estate in fee simple must not be changed into a limited fee or fee tail, but the land, whatever form of words is used in an instrument, is and remains an estate in fee simple in the owner.

(2) A limitation which, before June 1, 1921, would have created an estate tail transfers the fee simple or the greatest estate that the transferor had in the land.

(3) This Act does not prevent the creation of a determinable fee simple or a fee simple defeasible by condition subsequent.

(4) A possibility of reverter or a right of entry for condition broken may be registered under the Land Title Act against the title to the land affected in the same manner as a charge.

Tenancy in common

11   (1) In this section, "transferred" includes a vesting by declaration of trust or order of court.

(2) If, by an instrument executed after April 20, 1891, land is transferred or devised in fee simple, charged, or contracted to be sold by a valid agreement for sale in which the vendor agrees to transfer the land to 2 or more persons, other than personal representatives or trustees, they are tenants in common unless a contrary intention appears in the instrument.

(3) If the interests of the tenants in common are not stated in the instrument, they are presumed to be equal.

Spouses separate

12   Spouses must be treated as 2 persons for the purposes of acquisition of land under a disposition made, or coming into operation, before or after this section comes into force.

Remedy of co-owner

13   In addition to the owner's other rights and remedies, an owner who, because of the default of another registered owner, has been called on to pay and has paid more than the owner's proportionate share of the mortgage money, rent, interest, taxes, insurance, repairs, a purchase money instalment, a required payment under the Strata Property Act or under a term or covenant in the instrument of title or a charge on the land, or a payment on a charge where the land may be subject to forced sale or foreclosure, may apply to the Supreme Court for relief under section 14 against the other registered owners, one or more of whom is in default.

Actions of account

13.1   (1) Actions in the nature of the common law action of account may be brought and maintained by one joint tenant or tenant in common against the other as bailiff for receiving more than comes to that person's just share or proportion, and against the executor or administrator of the joint tenant or tenant in common.

(2) The registrar or other person appointed by the court to inquire into the account

(a) may administer an oath and examine the parties touching the matters in question, and

(b) is entitled, for taking the account, to receive the allowance that the court orders from the party that the court may direct.

Court may order lien and sale

14   (1) On hearing an application under section 13, the court may do one or more of the following:

(a) order that the applicant has a lien on the interest in land of the defaulting owner for the amount recoverable under subsection (2);

(b) order that if the amount recoverable under subsection (2) is not paid by the defaulting owner, within 30 days after the date of service of a certified copy of the order on the defaulting owner or within another period the court considers proper, the defaulting owner's interest in the land be sold under the Supreme Court Civil Rules governing sales by the court;

(c) make a further or other order, including an order that the applicant may purchase the interest in the land of the defaulting owner at the sale.

(2) The amount recoverable by the applicant is the amount the defaulting owner would, at the time the application is made or repayment is tendered, have been liable to contribute to satisfy the defaulting owner's share of the original debt if it had been allowed to accumulate until that time.

(3) If there is a sale under this section, the transfer to the purchaser must be executed by the registrar of the court, and, on registration, passes title to the interest in land sold.

(4) Surplus money received from the sale must be paid into court to the credit of the defaulting owner.

Transfer of land by instrument

15   (1) Land may be transferred in freehold only by an instrument expressed to transfer the land, but it is not necessary to use the word grant or any other term of art.

(2) A transfer of land may pass the possession or right to possession without actual entry.

(3) This section is subject to the Land Title Act .

Execution without seal

16   (1) An instrument purporting to transfer, charge or otherwise deal with land or to transfer, release or otherwise deal with a charge need not be executed under seal.

(2) The fixing of a corporate seal to an instrument has the same effect as if the instrument were executed by an individual without a seal unless the provisions of the instrument, by express words or by necessary implication, include an intent by the parties to it that the instrument is to take effect as a deed.

Interpretation of an instrument

17   In a transfer, contract, will, court order and other instrument affecting land executed, made or coming into operation after October 30, 1979, unless the context otherwise requires,

(a) "month" means calendar month,

(b) "person" includes a corporation,

(c) the singular includes the plural and vice versa, and

(d) a reference to any gender includes a reference to any other gender.

Rules for transfer and ownership to oneself

18   (1) A person may transfer land to themselves in the same manner as to another person, and, without restricting that power, a joint tenant may transfer the joint tenant's interest in land to themselves.

(2) A trustee or personal representative may transfer land to themselves in the trustee's or personal representative's personal capacity.

(3) A transfer by a joint tenant to themselves of the joint tenant's interest in land, whether in fee simple or by a charge, has and is deemed always to have had the same effect of severing the joint tenancy as a transfer to a stranger.

(4) A registered owner may make a transfer directly to themselves jointly with another, and registered owners may make a direct transfer to one or more of their number either alone or jointly with another.

(5) An owner in fee simple or an owner of a registered lease or sublease may grant to themselves an easement, a restrictive covenant, or a party wall agreement as defined in section 223.1 of the Land Title Act over land that the owner owns for the benefit of other land that the owner owns in fee simple, or of which the owner is the owner of a registered lease or sublease, but a grant under this subsection must be consistent with the interests held by the owner as grantor and grantee at the time of the grant.

(6) A corporation that owns land in fee simple and is a member of the class of persons named in section 218 of the Land Title Act , may grant or reserve a statutory right of way over the land to itself.

(7) Common ownership and possession of the dominant and servient tenements does not extinguish an easement.

(8) Common ownership and possession of the burdened and the benefited land does not extinguish a restrictive covenant.

(9) Common ownership and possession of the burdened and the benefited land does not extinguish a party wall agreement as defined in section 223.1 of the Land Title Act .

Words of transfer

19   (1) In the transfer of an estate in fee simple, it is sufficient to use the words "in fee simple" without making specific reference to the transferee's heirs.

(2) A transfer of land to a person without words limiting the interest transferred, or to a corporation sole by the corporation sole's corporate designation without the words "successors" passes the fee simple or the greatest estate or interest in the land that the transferor has power to transfer, unless the transfer expressly provides that a lesser estate or a particular interest is being transferred.

(3) A voluntary transfer need not be expressed to be for the use or benefit of the transferee to prevent a resulting trust.

(4) Subsections (1) and (2) do not prevent an instrument from operating by way of estoppel.

20   (1) In this section and sections 21 to 24, "agreement for sale" means an agreement for sale as defined in section 16 (1) of the Law and Equity Act .

(2) In sections 23 and 24, "residential mortgage" or "residential agreement for sale" means a mortgage or agreement for sale, registered against the residence where the borrower resides, that was granted, entered into or assumed for the purpose of permitting the borrower

(a) to acquire the residence,

(b) to make improvements to the residence,

(c) to make expenditures for family or household purposes, or

(d) to refinance for any of the purposes referred to in paragraphs (a) to (c).

(3) In subsection (2), reference to the borrower is a reference to

(a) the mortgagor or purchaser under the agreement for sale, or

(b) if the mortgage has been assumed or the purchaser's interest in the agreement for sale has been transferred, the person who assumed the mortgage or the person to whom the purchaser's interest was transferred.

(4) A reference in sections 23 and 24 to the "personal covenant" or "covenants" is deemed to be a reference to all covenants, terms and conditions in the mortgage or agreement for sale, and where those sections provide that liability in respect of the personal covenant or covenants ceases, liability ceases with respect to all those covenants, terms and conditions in the mortgage or agreement for sale.

Implied covenant in a mortgage or agreement for sale

21   (1) In an instrument transferring

(a) an estate in fee simple in land subject to a mortgage, or

(b) the purchaser's interest in an agreement for sale

that is entered into or made after November 30, 1988, there is implied, unless the parties have otherwise agreed in writing, a covenant by the transferee with the transferor to make payments under the mortgage or agreement for sale in accordance with its terms, and to indemnify the transferor against liability to pay the principal sum, interest, any other money secured and liability on any express or implied covenants of the mortgagor or purchaser.

(2) If, in a transfer of an interest referred to in subsection (1),

(a) the amount secured by the mortgage or agreement for sale was not credited to the transferee in calculating the net proceeds payable on completion of the transfer, or

(b) the transfer is in substance a gift,

the obligation to pay and indemnify under subsection (1) does not arise.

Direct action against current owner

22   (1) In this section, "current owner" means

(a) the current registered owner in fee simple of land whose title was acquired subject to a mortgage, or

(b) if the purchaser's interest under an agreement for sale has been transferred, the current registered owner of that interest.

(2) A person who, under a mortgage or agreement for sale, is liable, or has been required to indemnify a person who is liable, is entitled to recover the amount of the person's liability from the current owner.

(3) A mortgagee or vendor under an agreement for sale is entitled to

(a) recover from the current owner any amount due and owing under the mortgage or agreement for sale, and

(b) enforce, against the current owner, all covenants, terms and conditions in the mortgage or agreement for sale

as though the current owner had entered into those covenants to make payments or to observe or perform the covenants, terms and conditions referred to in paragraph (b).

(4) Subsections (2) and (3) do not apply if the current owner establishes that the current owner, or a person from or through whom the current owner derived the current owner's right or title to the property, was not

(a) obligated to indemnify the current owner's transferor, or

(b) directly liable to the mortgagee or vendor

in respect of the liability under the mortgage or agreement for sale.

(5) The liability of a current owner under subsections (2) and (3) is limited to that amount that the current owner is under an obligation to pay or indemnify the current owner's transferor in respect of liability under the mortgage or agreement for sale.

(6) This section does not abrogate any rights or remedies that a mortgagee, a vendor under an agreement for sale or a person with a right of indemnity may otherwise have or pursue.

Extinguishment of liability under the personal covenant

23   (1) Despite section 21 (1), a person who

(a) transfers an estate in fee simple in land subject to a residential mortgage, or

(b) transfers a purchaser's interest under a residential agreement for sale,

ceases to be liable under the personal covenant in the mortgage or agreement for sale, unless the mortgagee or vendor under the agreement for sale gives, within 3 months after the existing term has expired, written notice to the person, making a demand for payment of the sum secured.

(2) Subsection (1) applies despite any provision of the mortgage or agreement for sale that provides that all amounts outstanding at the end of the term are payable without a demand.

(3) Despite section 21 (1), a person who

(a) transfers an estate in fee simple in land subject to a residential mortgage that is, under the terms of the mortgage, payable on demand, or

(b) transfers a purchaser's interest under a residential agreement for sale that is, under the terms of that agreement, payable on demand,

ceases to be liable under the personal covenant in the mortgage or agreement for sale, unless the mortgagee or vendor under the agreement for sale gives, within 3 months after that mortgagee or vendor has received written notice from the person of the transfer, written notice to the person, making a demand for payment of the sum secured.

(4) A waiver of the benefit contained in subsections (1) and (3) is of no effect unless it is entered into by the original parties to the mortgage or agreement for sale after the transfer or assignment referred to in subsections (1) and (3).

No personal liability if new purchaser approved by lender

24   (1) Despite section 21 (1), if a mortgagee under a residential mortgage or a vendor under a residential agreement for sale gives written approval under this section to a person to whom

(a) the mortgagor transfers an estate in fee simple in land subject to the mortgage, or

(b) the purchaser transfers the purchaser's interest in the agreement for sale,

that mortgagor or purchaser ceases to be liable on all covenants contained in the mortgage or agreement for sale.

(2) A mortgagor or purchaser under an agreement for sale who wishes to obtain approval for the purposes of subsection (1) must, not later than 3 months after the transfer, make a request to the mortgagee or vendor.

(3) The mortgagee or vendor may require the person seeking approval to provide

(a) reasonable financial information respecting the transferee or proposed transferee, and

(b) a reasonable fee to cover the costs of obtaining a credit report and handling costs.

(4) A mortgagee or vendor under an agreement for sale must not unreasonably refuse to grant the mortgagee's or vendor's approval under this section.

(5) If a mortgagee or vendor under an agreement for sale fails to give approval under this section, the mortgagor or purchaser may, by way of a petition proceeding or, if Rule 17-1 of the Supreme Court Civil Rules applies, a requisition proceeding, apply to the Supreme Court, and the court may, if it finds that the approval has been unreasonably withheld, grant the approval, and that approval is valid as though it were given by the mortgagee or vendor.

Benefit of restrictive covenant

25   If the benefit of a restrictive covenant about building on or the use of land is annexed or purports to be annexed by an instrument to other land, the benefit, unless expressly agreed otherwise, is deemed to be annexed to the whole and to each and every part of that other land capable of benefiting from the restrictive covenant.

Power to subdivide and dedicate

26   If an instrument gives a personal representative or a trustee, or a power of attorney gives an attorney, power to dispose of land, that person may, unless the instrument or power expressly precludes it, subdivide the land and dedicate to the public a part of it necessary to obtain the approval of the approving officer under the Land Title Act , and to complete the subdivision.

Attorneys cannot sell to themselves

27   A sale, transfer or charge to or in favour of themselves named in a power of attorney, of land owned by the principal and purporting to be made under the power of attorney, is not valid unless the power of attorney expressly authorizes it or the principal ratifies it.

Validity of sale, transfer or charge by attorney to self

27.1   (1) In this section:

"agreement" means an enduring power of attorney made under Part 2 of the Power of Attorney Act ;

"attorney" means a person named in an enduring power of attorney as an attorney.

(2) A sale, transfer or charge to or in favour of an attorney by the attorney of land owned by the adult who made an agreement, and purporting to be made under the agreement, is not valid unless the sale, transfer or charge is expressly authorized by that agreement.

Further advances by mortgagee

28   (1) In this section, "further advance" includes a first advance.

(2) Despite the Land Title Act , after October 30, 1979, further advances made by a registered owner of a mortgage contemplated by and in accordance with the mortgage rank in priority to mortgages and judgments registered after the mortgage that contemplates the further advances was registered if

(a) the subsequent registered mortgagees or judgment holders agree in writing to the priority of the further advances,

(b) at the time the further advances are made, the registered owner of the mortgage has not received notice in writing of the registration of the subsequent mortgage or judgment from its owner or holder,

(c) at the time the further advances are made, the subsequent mortgage or judgment has not been registered, or

(d) the mortgage requires the registered owner of the mortgage to make the further advances.

(3) If a mortgage is expressed to be made to secure a current or running account, it is not deemed to have been redeemed merely because

(a) advances made under it are repaid, or

(b) the account of the mortgagor with the mortgagee ceases to be in debit,

and the mortgage remains effective as security for further advances and retains the priority given by this section until the mortgagee has delivered a registrable discharge of the mortgage to the mortgagor but, if the mortgagor is not indebted or in default under the mortgage, the mortgagee must, on the mortgagor's request and at the mortgagor's expense, execute and deliver to the mortgagor a registrable discharge of the mortgage.

(4) Except as provided in this section, a right to tack in respect of mortgages of land is abolished but priority acquired before October 31, 1979 for further advances under a mortgage is not affected.

(5) This section applies to mortgages of land made after October 30, 1979.

Mortgage subject to registered interests

29   A registered owner in fee simple whose title is subject to a registered right or option to purchase, or a registered owner of a right to purchase who has created or given a subright to purchase that is registered, unless otherwise expressly agreed in the instruments creating the right, option or subright, may mortgage the registered owner's interest in the land, subject to the prior registered interests.

Effect of mortgage by purchaser

30   Until it is discharged, a mortgage by a purchaser or subpurchaser of the purchaser's or subpurchaser's interest under an agreement for sale of land or subagreement for sale of land charges the present and future interest in land acquired by the purchaser or subpurchaser under the agreement or subagreement, unless otherwise expressly provided in the mortgage.

Consolidation of mortgages

31   (1) A mortgagor seeking to redeem a mortgage of property is entitled to do so without paying money due under a separate mortgage made by the mortgagor or by a person through whom the mortgagor claims, solely charging property not comprised in the mortgage the mortgagor seeks to redeem.

(2) This section is subject to a contrary intention expressed in the mortgages or any of them and does not apply if all the mortgages were made before October 31, 1979.

(3) Except as provided in this section, the doctrine of consolidation is abolished.

Enforcement of personal covenant

32   After the making of an order absolute for foreclosure or for cancellation of an agreement for sale, a mortgagee or vendor

(a) has no right to enforce the personal covenant of the mortgagor or the purchaser to pay, and

(b) may not issue execution on a judgment taken on the covenant to pay unless by process of law the order absolute is set aside or reopened.

Statement from mortgagee

33   (1) Despite an agreement to the contrary, a mortgagor is entitled to receive from a mortgagee, on written request delivered to the mortgagee,

(a) a statement of the amount payable under the mortgage to obtain its discharge, and if appropriate, of the amounts of principal, interest, any other sums payable and any cost of the discharge,

(b) a statement of the balance payable under the mortgage on a date stated in the request, with particulars of the amounts of principal remaining unpaid, interest due and accrued and any other sums secured by the mortgage, and

(c) if the mortgagor is entitled to a discharge, a discharge of the mortgage executed in a form registrable under the Land Title Act and otherwise a statement in writing of the terms on which the mortgagee will give a discharge, including, if appropriate, particulars of the money payable for principal, interest and any other sums.

(2) The mortgagee's statement must be given free of charge.

Right to enter and repair

34   (1) The owner of a parcel of land on which there is a building, structure, improvement or work may apply to the Supreme Court for an order permitting the owner to enter adjoining land to carry out repair or work if

(a) the building, structure, improvement or work is so close to the boundary of the adjoining land that repair or work on the part of the building, structure, improvement or work that adjoins the boundary cannot be carried out without entering the adjoining land, and

(b) the consent of the owner of the adjoining land to the entry is refused or cannot reasonably be obtained.

(2) An order under subsection (1) must state the following:

(a) the period of time and purpose for the permission;

(b) that the owner who obtains the order must compensate the adjoining owner for damage caused, in the course of carrying out repair or work under the order, by the owner who obtains the order, or by anyone employed or engaged by or on behalf of the owner who obtains the order, in an amount to be determined by the court if the owners cannot agree;

(c) other terms the court considers reasonable.

Court may modify or cancel charges

35   (1) A person interested in land may apply to the Supreme Court for an order to modify or cancel any of the following charges or interests against the land, whether registered before or after this section comes into force:

(a) an easement;

(b) a land use contract;

(c) a statutory right of way;

(d) a statutory building or statutory letting scheme;

(e) a restrictive or other covenant burdening the land or the owner;

(f) a right to take the produce of or part of the soil;

(g) an instrument by which minerals or timber or minerals and timber, being part of the land, are granted, transferred, reserved or excepted.

(2) The court may make an order under subsection (1) on being satisfied that the application is not premature in the circumstances, and that

(a) because of changes in the character of the land, the neighbourhood or other circumstances the court considers material, the registered charge or interest is obsolete,

(b) the reasonable use of the land will be impeded, without practical benefit to others, if the registered charge or interest is not modified or cancelled,

(c) the persons who are or have been entitled to the benefit of the registered charge or interest have expressly or impliedly agreed to it being modified or cancelled,

(d) modification or cancellation will not injure the person entitled to the benefit of the registered charge or interest, or

(e) the registered instrument is invalid, unenforceable or has expired, and its registration should be cancelled.

(3) The court may make the order subject to payment by the applicant of compensation to a person suffering damage in consequence of it but compensation is not payable solely for an advantage accruing by the order to the owner of the land burdened by the registered instrument.

(4) The court must, as it believes advisable and before making an order under subsection (2), direct

(a) inquiries to a municipality or other public authority, and

(b) notices, by way of advertisement or otherwise, to the persons who appear entitled to the benefit of the charge or interest to be modified or cancelled.

(5) An order binds all persons, whether or not parties to the proceedings or served with notice.

(6) The registrar, on application and the production of an order made or a certified copy of it must amend the registrar's records accordingly.

Encroachment on adjoining land

36   (1) For the purposes of this section, "owner" includes a person with an interest in, or right to possession of land.

(2) If, on the survey of land, it is found that a building on it encroaches on adjoining land, or a fence has been improperly located so as to enclose adjoining land, the Supreme Court may on application

(a) declare that the owner of the land has for the period the court determines and on making the compensation to the owner of the adjoining land that the court determines, an easement on the land encroached on or enclosed,

(b) vest title to the land encroached on or enclosed in the owner of the land encroaching or enclosing, on making the compensation that the court determines, or

(c) order the owner to remove the encroachment or the fence so that it no longer encroaches on or encloses any part of the adjoining land.

Damages for loss of bargain due to defective title

37   A court may award damages for loss of a bargain against a person who cannot perform a contract to dispose of land because of a defect in the person's title.

Effect of merger on subleases

38   (1) If a reversion expectant on a lease is surrendered or merged, the interest which as against the lessee confers the next vested right to the land is deemed the reversion for the purposes of preserving the same incidents and obligations as would have affected the original reversion had it not been surrendered or merged.

(2) This section applies to surrenders or mergers effected before or after this Act comes into force.

Citizenship

39   (1) A person who is not a Canadian citizen has the same capacity to acquire and dispose of land in British Columbia as if the person were a Canadian citizen.

(2) A person must not be disturbed in the possession or precluded from the recovery of land in British Columbia merely because of the citizenship or lack of citizenship of some person from or through whom the person may derive title.

Vendor disclosure

40   If a vendor of real property fails to provide a site disclosure statement to a purchaser under section 40 (6) of the Environmental Management Act , the purchaser may exercise any remedies under the common law or under the regulations.

Regulations for section 40

41   The Lieutenant Governor in Council may make regulations respecting the remedies of a purchaser under section 40.

Residential real estate — right of rescission

42   (1) A purchaser of residential real property may rescind the contract of purchase and sale for the property by serving written notice of the rescission on the seller within the prescribed number of days after the date that the acceptance of the offer was signed.

(2) Subsection (1) does not apply to a contract of purchase and sale to which section 21 of the Real Estate Development Marketing Act applies.

(3) Subsection (1) does not apply if title to the residential real property has been transferred from the seller to the purchaser.

Regulations for section 42

43   The Lieutenant Governor in Council may make regulations for the purposes of section 42, including regulations as follows:

(a) respecting waivers of the right of rescission and the circumstances in which that right may or may not be waived;

(b) respecting service of a notice of rescission;

(c) respecting an amount to be paid by the purchaser to the seller if the purchaser exercises the right of rescission;

(d) respecting the timing of the payment of the deposit under a contract of purchase and sale despite any provision of the contract to the contrary;

(e) establishing procedures for the payment of the deposit under a contract of purchase and sale;

(f) respecting the return of the deposit paid under a contract of purchase and sale if the purchaser exercises the right of rescission, including

(i) establishing whether

(A) all of the deposit is to be returned, or

(B) a portion of the deposit is to be returned and the remaining portion is to be paid to the seller,

(ii) providing for the calculation of the portion of the deposit to be returned, and

(iii) establishing a dispute resolution process in relation to the return of the deposit;

(g) exempting, from the application of section 42 (1), with or without conditions,

(i) a class of residential real property,

(ii) a class of purchaser, or

(iii) a class of contract of purchase and sale;

(h) defining a word or expression used but not defined in section 42;

(i) for any other matter for which regulations are contemplated by section 42.

Copyright © King's Printer, Victoria, British Columbia, Canada

Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

An assignment of a legal claim occurs when one party (the “assignor” ) transfers its rights in a cause of action to another party (the “assignee” ). 1 Footnote Black’s Law Dictionary 136 (9th ed. 2009) (defining “assignment” as “the transfer of rights or property” ). The Supreme Court has held that a private litigant may have standing to sue to redress an injury to another party when the injured party has assigned at least a portion of its claim for damages from that injury to the litigant. The Supreme Court in the 2000 case Vermont Agency of Natural Resources v. United States ex rel. Stevens held that private individuals may have Article III standing to bring a qui tam civil action in federal court under the federal False Claims Act (FCA) on behalf of the federal government if authorized to do so. 2 Footnote 529 U.S. 765, 768, 778 (2000) . The FCA imposes civil liability upon “any person” who, among other things, knowingly presents to the federal government a false or fraudulent claim for payment. 3 Footnote 31 U.S.C. § 3729(a) . To encourage citizens to enforce the Act, in certain circumstances, a private individual, known as a “relator,” may bring a civil action for violations of the Act. Such plaintiffs sue under the name of the United States and may receive a share of any recovered proceeds from the action. 4 Footnote Id. § 3730(d)(1)–(2) . Under the FCA, the relator is not merely the agent of the United States but an individual with an interest in the lawsuit itself. 5 Footnote Vt. Agency of Nat. Res. , 529 U.S. at 772 ( “For the portion of the recovery retained by the relator . . . some explanation of standing other than agency for the Government must be identified.” ) (citing 31 U.S.C. § 3730 ).

Ordinarily, if the relator’s financial interest in the outcome of the case were merely a byproduct of the suit itself, there would be no injury sufficient for standing. 6 Footnote Id. at 772–73 ( “An interest unrelated to injury in fact is insufficient to give a plaintiff standing. . . . A qui tam relator has suffered no [invasion of a legally protected right]—indeed, the ‘right’ he seeks to vindicate does not even fully materialize until the litigation is completed and the relator prevails.” ) (citations omitted). The Supreme Court has held that a litigant’s interest in recovering attorneys’ fees or the costs of bringing suit by itself normally does not confer standing to sue. E.g. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998) ( “The litigation must give the plaintiff some other benefit besides reimbursement of costs that are a byproduct of the litigation itself.” ); Diamond v. Charles, 476 U.S. 54, 70–71 (1986) ( “[T]he mere fact that continued adjudication would provide a remedy for an injury that is only a byproduct of the suit itself does not mean that the injury is cognizable under Art. III.” ). In Stevens , however, the Supreme Court recognized a distinction that confers standing upon qui tam plaintiffs in FCA cases. Justice Antonin Scalia, writing for the Court, determined that assignments of claims are distinguishable from cases in which a litigant has a mere financial interest in the outcome of the suit because the assignee-plaintiff actually owns a stake in the dispute as a legal matter. 7 Footnote Vt. Agency of Nat. Res. , 529 U.S. at 773 . Justice Scalia drew support for this distinction from the long-standing historical practice of the government assigning a portion of its damages claim to a private party and allowing that party to assert the injury suffered by the federal government as a representative of the United States. 8 Footnote Id. at 774, 778 The Court noted the “long tradition of qui tam actions in England and the American colonies,” 9 Footnote Id. concluding that “Article III’s restriction of the judicial power to ‘Cases’ and ‘Controversies’ is properly understood to mean ‘cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.’” 10 Footnote Id. Although the Court held that the relator had standing to sue under the qui tam provision, it ultimately determined that the plaintiff could not maintain the action against a state agency for allegedly submitting false grant claims to the EPA because states were not “persons” subject to liability under the False Claims Act. Id. at 787 .

Eight years after deciding Stevens , the Supreme Court again found that an assignee of a claim had standing, even when the assignee had promised to remit all of the money it recovered in the proceedings to the assignor. 11 Footnote Sprint Commc’ns Co. v. APCC Servs., Inc. , 554 U.S. 269 , 271 (2008) . In Sprint Communications Co. v. APCC Services, Inc. , payphone operators had assigned their legal claims for money owed to them by long-distance communications carriers to third-party collection agencies. 12 Footnote Id. at 271–72 . The agencies were authorized to bring suit on behalf of the payphone operators and promised to pay all of the proceeds of the litigation to the payphone operators for a fee. 13 Footnote Id. at 272 . The Court held that these collection agencies had standing to pursue the operators’ claims because of the long history of courts’ acceptance of such claims. 14 Footnote Id. at 273–75 . The Court noted that “federal courts routinely entertain suits which will result in relief for parties that are not themselves directly bringing suit. Trustees bring suits to benefit their trusts; guardians ad litem bring suits to benefit their wards; receivers bring suit to benefit their receiverships; assignees in bankruptcy bring suit to benefit bankrupt estates; executors bring suit to benefit testator estates; and so forth.” Id. at 287–88 . Assignment was sufficient to transfer the injury to the collections agencies, and the injury to the operators that had been transferred to the collection agencies would be redressed by a favorable judicial decision, even if the agencies would subsequently pay all of the proceeds to the operators. 15 Footnote Id. at 286–87 ( “[I]f the [collection agencies] prevail in this litigation, the long-distance carriers would write a check to [them] for the amount of dial-around compensation owed. What does it matter what the [agencies] do with the money afterward?” ).

The Stevens and Sprint cases could have broader implications for Article III standing doctrine, as they suggest a way in which the constitutional limitations on standing may be bypassed through the assignment of rights to a third party. 16 Footnote See also ArtIII.S2.C1.6.4.3 Particularized Injury. For instance, if Congress enacts a federal statute recognizing an injury to the federal government that otherwise satisfies Article III’s requirements, it may assign a portion of its claim to a private party, thereby potentially giving that plaintiff standing to sue as a representative of the United States. 17 Footnote See Vt. Agency of Nat. Res. , 529 U.S. at 773 . This is essentially the operation of the False Claims Act. 18 Footnote 31 U.S.C. §§ 3729–3733 . However, it is unclear whether every such statute would necessarily resolve all Article III standing concerns. In Stevens and Sprint , the Court gave significant weight to the lengthy history of courts recognizing the types of assignments at issue when determining that the litigants in those cases had standing to sue. 19 Footnote See id. at 774, 778 ; Sprint Commc’ns Co. , 554 U.S. at 273–75 . Moreover, there may be a number of concerns about the constitutionality and practicality of using assignments to delegate core government functions (e.g., criminal prosecutions) to private parties when courts have not historically recognized claims based on such assignments, including concerns about interference with the Executive Branch’s Article II powers and prosecutorial discretion. 20 Footnote See Heather Elliott , Congress’s Inability to Solve Standing Problems , 91 B.U. L. Rev. 159 , 195–204 (2011) (questioning whether Congress’s assignment of claims to citizen suitors in order to confer standing would be constitutional or practical).

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