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Pre-2007 “Subdividing” Leases Unenforceable

By Neil Kornfeld, QC (posts)

The British Columbia Court of Appeal has ruled on the question of whether section 73.1 of the Land Title Act has retrospective application: Idle-O-Apartments Inc. v. Charlyn Investments Ltd. 2010 BCCA 460 – Reasons for Judgment Dated October 19, 2010.

The same court earlier ruled that a lease for over three years for a portion of land (as opposed to a portion of a building) is unenforceable: International Paper Industries Ltd. v. Top Line Industries Inc. (1996), 20 B.C.L.R. (3d) 41 (C.A.)

That ruling was fixed by the Legislature enacting section 73.1 which says that notwithstanding section 73 a lease that would otherwise not be enforceable under section 73, is enforceable between the parties. What the court of appeal has now said is that the saving provisions of section 73.1 only apply to leases made after section 73.1 was enacted on May 31, 2007.

In Idle-O-Apartments, the court held that that there is nothing in the wording of section 73.1 that expressly provides for retrospective application. In the absence of any express intent to apply legislation retroactively or retrospectively, legislation is construed as so applying only “by necessary implication required by the language of the Act”:
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