| There are
five basic types of subdivisions:
Fee Simple Subdivision
A land estate in which the owner is entitled to the entire property
with unconditional power of disposition except as limited
by the original grant or contained in any other grant or disposition
from the Crown. A fee-simple subdivision results in a separate indefeasible
title for each lot created under the Land Title Act.
Strata
A development where fee simple land is divided into multiple units,
with all unit owners having a right to use common elements. Under the
category of strata properties, there are three subtypes, as follows:
Bare land Strata
This is a strata subdivision where no buildings currently exist. Some
parcels of it will be held individually, while others will be considered
common area.
Building strata
The strata plan for a building not previously occupied does not need
the approval of the Approving Officer or other approving authority.
See Section 241(1) of the Strata Property Act.
The strata plan for a building that has been previously occupied requires
the approval of the approving authority (the regional board, for land
not located in a municipality).
Phased strata
A phased strata plan involves the development of strata lots on one
or more separate parcels of land in two or more phases. A strata plan
is deposited for each separate phase. Upon deposit in the local Land
Title Office, the land in the relevant phase is subdivided from the
remainder of the lands yet to be developed. Successively developed
phases are automatically consolidated upon deposit of the phase strata
plan, and the strata corporation for each new phase is automatically
consolidated with the strata corporation governing previous phases.
The system provides the owner developer with a degree of flexibility
by enabling them to decide whether or not to proceed with each successive
phase. It also aims to ensure that adequate provisions are made for
any common facilities to be provided in the development.
In certain types of development, such as major base development on
ski hills, there must be an acceptable standard for the public approach road
and adequate parking within the development. It is also important to
ensure that legal access is provided to each phase being created and
maintained to the remainder of the lands yet to be developed. Alternative
access for emergency vehicles should also be a consideration.
Cooperative Association / Shared Interest
Under the Real Estate Development Marketing Act, developers
can sell shares in a land-owning company. The company share method of
land ownership is called a cooperative association.
If a developer offers shared interest in land for sale or lease, Section
8 of the Real Estate Development Marketing Act takes effect and
the Approving Officer's approval is required. The plan should meet the
requirements of the Bare Land Strata Regulations BC Reg. 75/79
and policies governing strata subdivision.
Indian Reserves
On Indian Reserves, the subdivision of land lies under federal jurisdiction
unless it conforms to Part 24 of the Land Title Act.
A federal order-in-council is required before the roads come under
provincial jurisdiction.
In recent years, Indian and Northern Affairs Canada have undertaken
subdivision on Indian reserves, thereby formally recording tribal subdivision.
These subdivisions may show some roads, but they are not public roads.
The Provincial Approving Officer does not generally approve these plans.
For more information, see Indian Reserves
Leases
Leases exceeding three years or with an option to extend past three
years are considered subdivisions under Section 74 of the Land Title
Act and must be approved by an Approving Officer.
The Agricultural Land Commission or local government, if delegated the authority, may require a lifetime lease
covenant. This type of lease is a charge upon the property and expires
when the leaseholder or owner dies. The charge is not released automatically
upon the death of the leaseholder, but must be released by the
Agricultural Land Commission. See also Covenants.
A lease registered at the Land Title Office is subject to the same
Land Title Act requirements as a fee simple lot. However, access
via alternative methods (described under “Alternatives to Public Roads)
may be more applicable than with fee simple lots.
Other types of subdivision occasionally encountered include the following:
Air Space Parcels
An owner of land not only owns the surface but also the space above and below.
Although upper and lower limits for a standard parcel of land are not clearly
defined or delineated on a plan, the courts have generally accepted that these
ownership rights extend above and below the surface as necessary for the ordinary
use and enjoyment of the land.
The definition of an air space parcel in Section 138 of the Land Title
Act is “ a volumetric parcel, whether or not occupied in whole or in part
by a building or other structure, shown as such in an air space plan”. This
would include clearly defined upper and lower limits and side boundaries that
are marked on the air space plan as shown in Figure 1. The purpose of creating
air space parcels is for the occupation of the volumetric space by a permanent
structure, such as a building or overpass, or to preclude anyone else from
using the volume of space, such as a flight path for an airport runway. The
aerial walkways linking department stores to their parking lots across the
street in downtown Vancouver are examples of very simple air space parcels.
An air space parcel may consist wholly of air space, or air space and land,
or possibly air space, land and water. Subject to practical constraints and
certain rules and regulations, an air space parcel may take any shape and
become very complex. If an air space parcel were used to legally separate
two or more components of a multi-use development, the boundaries would follow
the configuration of that component of the development.
Figure 1 EXAMPLE OF AN AIR SPACE PLAN
Source: Butler, Grant B.C.L.S. Proposed
B.C. Hydro Burnaby Office Complex Southpoint air space parcels, 1991.
Accreted Land
Accretion is the growth in size of a land area, usually by the gradual and
imperceptible accumulation of land by natural causes, such as out of the sea
or a river. Under common law, the property owner owns the accreted land but
has to gain title to it.
Sections 94 to 96 of the Land Title Act allow property owners to
gain title to accretions by subdivision plan if the Minister of Sustainable
Resource Management consents. This is a simpler procedure than that prescribed
by the Land Titles Inquiry Act, which is used if the Minister opposes.
Adding the accretion to one existing lot by consolidation does not require
the approval of the Ministry of Transportation. If a subdivision to create
two or more lots is proposed at the same time, however, it is treated as an
ordinary subdivision. Note that such properties may be subject to a risk
of flooding or other associated hazards.
The Minister of Sustainable Resource Management certifies the accretion after
the plan has gone to the Registrar of the Land Title Office.
Subdivision by Description
Section 99(a) of the Land Title Act provides for the Registrar to
accept subdivisions by description only. A parcel can be subdivided only once
using a description or explanatory plan. Only one new lot and a remainder
can be created. There cannot be any road dedication.
The following also apply:
- If a covenant is required, a Section 219 notation must be added to the
Form H236
- The applicant should be encouraged to check wording and acceptability
of description with the Registrar before final submission to the Approving
Officer.
Subdivision of Land for Relatives
Under Section 946 of the Local Government Act (O.I.C. 996 B.C. Regulation
189/89), a person may subdivide to produce a lot on which a separate residence
will be constructed for a relative. The minimum size of the lot is one hectare
unless the Medical Health Officer approves a smaller lot, which can be no
less than 2500 m2. If the property is assessed as farmland, the
remainder may not be reduced below two hectares.
Other bylaw provisions apply to subdivisions both in and outside the Agricultural
Land Reserve (ALR). Land in the ALR is treated differently from land outside
it. (See also Farmland) |
