Can I File a Certificate of Pending Litigation on Our Home in BC?

If you fear your spouse will sell or mortgage the family home before property is divided, you may be looking for a way to put a warning on the title. In British Columbia, one tool for this is a certificate of pending litigation.

This article explains in general terms when one can be registered, what it does, and what other protections exist. Whether it suits your situation depends on the facts, so it is worth speaking to a lawyer before you act.

This article covers the law of British Columbia.

What a certificate of pending litigation is

A certificate of pending litigation is a notice registered against a property's title in the land title office. It tells anyone searching the title that a court case claims an interest in that land. In practice it can make a sale or mortgage difficult while the case is ongoing.

Title does not decide who keeps the house. The family home is family property regardless of whose name is on title, and it is shared equally unless an agreement or significant unfairness applies. That is why a spouse who is not on title may still have something to protect.

When you can register one

Under the Land Title Act, a party to a Family Law Act property division proceeding may register a certificate of pending litigation against any interest in land whose title could change as an outcome of the proceeding. More generally, a party to a proceeding may register one if they are claiming an estate or interest in land, and the Land Title and Survey Authority states that a Family Law Act proceeding must use Form 33 (Family Law Act).

The main requirements are:

• A proceeding must already have been started. A certificate cannot be registered on the strength of a worry alone.
• The proceeding must claim an interest in land, and the claim must be proprietary.
• You must be a spouse, which under the Act includes married spouses and some common-law partners, and a former spouse is included.

Limits and risks

A mere damages claim is not enough. The court can cancel a certificate if the pleading does not support an interest in land. If your claim is really about money rather than the property itself, a certificate may not be available.

The wording of your claim matters, so the court documents should be prepared with care. How a cancellation is applied for, and how quickly, is a question for a lawyer. Also keep in mind that a certificate is a notice, not a division order. The home is still divided by agreement or by a court order, and the court makes a division order only on a spouse's application.

Other ways to protect the home and other property

A certificate only covers land. Other tools in the Family Law Act may help, depending on the situation.

A spouse who disposes of property other than in good faith may also face consequences. The court can divide family property unequally where a spouse substantially reduced value or disposed of or converted property other than in good faith.

What to do next

• Do a title search to confirm who is registered as owner and whether any mortgages exist.
• Gather proof of the home's ownership history and your contributions.
• Do not wait if you are worried about a sale: ask a lawyer whether a proceeding should be started now.
• Be mindful of limitation periods. A property proceeding generally must be started within 2 years of the divorce order for married spouses, or the separation date for spouses in a marriage-like relationship.
• Keep records of any threats or steps your spouse has taken to sell or borrow against the property.

Frequently asked questions