Estate Litigation and Family Law: Certificates of Pending Litigation
In both family law matters and estate litigation disputes, as well as in some civil matters, certificates of pending litigation are important tools through which plaintiffs and claimants can secure their potential claims against real property which is registered in the name of the opposing party. Section 215 of the Land Title Act, provides the following:
215 (1) A person who has commenced or is a party to a proceeding, and who is
(a) claiming an estate or interest in land, or
(b) given by another enactment a right of action in respect of land,
may register a certificate of pending litigation against the land in the same manner as a charge is registered, and the registrar of the court in which the proceeding is commenced must attach to the certificate a copy of the pleading or petition by which the proceeding was commenced, or, in the case of a certificate of pending litigation under Part 5 of the Court Order Enforcement Act, a copy of the notice of application or other document by which the claim is made.
If a certificate of pending litigation has been placed on a piece of property, the owner can apply to the Court under s. 256 of the Land Title Act, which provides as follows:
256 (1) A person who is the registered owner of or claims to be entitled to an estate or interest in land against which a certificate of pending litigation has been registered may, on setting out in an affidavit
(a) particulars of the registration of the certificate of pending litigation,
(b) that hardship and inconvenience are experienced or are likely to be experienced by the registration, and
(c) the grounds for those statements,
apply for an order that the registration of the certificate be cancelled.
(2) An owner whose indefeasible title or charge is registered subject to a certificate of pending litigation under section 217 (2) (a) or (c) (ii) may, on setting out in an affidavit
(a) that the pleading or petition by which the proceeding was commenced or notice of application attached to the certificate contains no allegation that the owner is not a purchaser in good faith and for valuable consideration,
(b) that the owner applied to register the owner’s indefeasible title or charge before the certificate was received by the registrar, and
(c) particulars of dates and times of receipt, application and registration of the owner’s application and the certificate,
apply for an order that the registration of the certificate be cancelled.
(3) An application under this section must be made to the court in which the proceeding was commenced and must be brought
(a) as an application in that proceeding, if the applicant is a party to the proceeding, or
(b) by petition, if the applicant is not a party.
If you are involved in litigation and have questions with respect to the appropriateness of a certificate of pending litigation, contact the Kushner Law Group today to schedule a consultation.