Can a claimant prevent the application of the statutory presumption in a real estate transaction?

A claimant may prevent the application of the statutory presumption by proving that it would be contrary to an agreement between the parties or the intentions of the parties to uphold the registered title, and that if the title is upheld, there would be unjust enrichment to the other party at the claimant’s expense. See Lindquist v. Waring 2007 BCSC 205 (Bruce J.) at para 49.

It is well known that, in order to establish a cause of action for unjust enrichment, the plaintiff must prove three essential elements, namely: a) That she conferred benefits on the defendant by making contributions to his real or personal property, which amounted to an enrichment; b) That she incurred a corresponding deprivation in the sense that she was not compensated (or not adequately compensated) for her contributions; and c) That there is no juristic reason why the plaintiff should not be compensated. See generally Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980.

It is the intention of the parties at the time the property was purchased that is generally most relevant. See Skender v. Skender 2005 BCSC 418 (Dorgan J.) at paras. 12 – 17; Lindquist v. Waring at para 52. Both monetary and non-monetary contributions of a claimant towards the acquisition, maintenance and improvement of the property in question must be assessed in deciding whether the claimant has established entitlement to a share of the equity in the property. See Lindquist v. Waring at para. 60.