Certificate of Pending Litigation on the Family Home in British Columbia

If you are afraid your spouse will sell or mortgage the family home before property is divided, you may have heard of a certificate of pending litigation. It is a notice on the land title that a court case claims an interest in the property.

This article explains when it can be used in British Columbia, what it needs, and what else may protect the home. Whether it suits your situation depends on the facts, so a lawyer should confirm before you act.

This article covers the law of British Columbia.

The home and your rights

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. A home owned before the relationship remains excluded property, but its increase in value is shared.

On separation each spouse holds an undivided half interest in family property as a tenant in common, unless an agreement or order says otherwise. The court makes a division order only on a spouse's application.

When a certificate can be registered

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

There are limits:

• A proceeding must already have been started that claims an interest in land.
• The claim must be proprietary, and a mere damages claim is not enough.
• The court can cancel the certificate if the pleading does not support an interest in land.

You also need to be a spouse. A person is a spouse if married, or if they have lived in a marriage-like relationship for a continuous period of at least 2 years. Having a child together does not by itself make a couple spouses for property division.

Other ways to protect the home

On a spouse's application, the court must make an order restraining the other spouse from disposing of the disputed property unless that spouse shows the claim will not be defeated or adversely affected. It can be made before the other spouse receives notice, and it can be changed, suspended or terminated.

If you have a written property agreement, a spouse who is party to it may file a notice of agreement against land in the land title office. Transfers or mortgages then require cancellation or postponement of the notice.

Where living arrangements are the issue, the court may give a spouse exclusive occupation of a family residence for a specified period. That order is temporary, does not transfer ownership, and can be changed. It also does not create a proprietary interest.

How a certificate is removed

A certificate is not permanent. As noted above, the court can cancel one if the pleading does not support an interest in land. The exact steps and forms for removal, including how an owner applies and what a court will require, depend on the case, so ask a lawyer rather than relying on a general summary.

If the home is sold or divided, the court can order a transfer, compensation, a sale, security or debt indemnities to give effect to the division. Mortgage lenders keep their rights against the borrower, because a division between spouses does not bind a lender. A certificate also does not mean you will keep the home.

What to do next

• Get a copy of the title for the home to see who is registered and whether any mortgage exists.
• Confirm whether you qualify as a spouse and the date of separation.
• Check your deadline. A property claim generally must be started within 2 years of the divorce judgment for married spouses, or of separation for spouses in a marriage-like relationship.
• Speak to a lawyer about whether to start a proceeding that claims an interest in land, and whether a restraining order is also needed.
• Before you move out, sign a transfer or renew a mortgage, ask a lawyer how it could affect your situation, because the answer depends on the facts.

Frequently asked questions