What is the test for having clear title under the Land Title Act?

British Columbia, Canada


The following excerpt is from Campbell v. Frolek, 1997 CanLII 3761 (BC CA):

It gives rise to a question which was left open by the judgment in Norfolk v. Aikens (1989), 1989 CanLII 245 (BC CA), 41 B.C.L.R. (2d) 145 (B.C.C.A.): When I said that the defendant in this case did not yet have clear title, I meant precisely that. She had neither paid the mortgagee the amount due it nor applied to register the discharge. A title is, undoubtedly, "clear" of an encumbrance when the Registrar, in the words of the Land Title Act, R.S.B.C. 1979, c. 219, s. 220, has "[endorsed] the register with a note of cancellation". It may be "clear" if the encumbrancer has been paid off whether or not the encumbrancer has delivered a discharge. It may be "clear" when application is made to register a discharge whatever may be the remaining obligations between the parties to the encumbrance. These are nice questions which I leave for another day.

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