Legal Descriptions of Land – “Plan” Ahead

Clients frequently ask about what sort of legal description the registrar at the Land Title Office will accept in a particular case, whether it is in relation to a subdivision of land, or the creation of an interest in land such as a statutory right-of-way or a lease. While historically the use of the “metes and bounds” method of legal description may have been an acceptable alternative to the use of a survey plan, and while it may seem a tantalizing and inexpensive shortcut to the use of a survey plan, the reality is that the method has fallen out of favour in modern times and is rarely, if ever, accepted by the registrar. The same is true, for the most part, with respect to other corner-cutting methods such as abbreviated descriptions and sketch plans.

A plan prepared and certified by a British Columbia land surveyor is the preferred, and generally the only acceptable method of depicting an area of land to be titled or where an interest is taken over an existing titled property. There are several types of survey plans, ranging from the relatively simple to the highly complex, with corresponding differences in cost. This article provides a brief overview of various methods of legal description and their appropriate use.

Metes and Bounds
As noted at the outset, this method is rarely if ever accepted in modern times. Briefly, a “metes and bounds” description is a purely written description of an area of land, “metes” referring to measurements, and “bounds” referring to boundaries.

Although such descriptions can vary in length, some being fairly brief and some being quite long (see the Schedule to the BC Interpretation Act defining the area of the province for a true head-scratcher), they all have one thing in common – they are often not very clear, especially to the lay person. Furthermore, they cannot provide the accuracy and certainty offered by a survey plan.

The first rule in describing land is to make the description unambiguous. That is why the registrar discourages metes and bounds descriptions. If you are even considering using metes and bounds, talk to your lawyer or your land surveyor first, and they should consult with the Land Title Office as to the suitability of this option.

Abbreviated Descriptions
An abbreviated description is, as its name suggests, an abbreviated or shorthand type of description, sometimes confused with a metes and bounds description. An example might be “The West 3 Metres of Lot 1, Fictional District, Plan 12345”, in relation to a road widening strip being taken under a statutory right of way. Under ideal circumstances, such as where the lot features perpendicular boundary lines with no jogs or curves, the registrar may accept such an abbreviated description. However, the registrar is not required to accept such an abbreviated description, and even if the registrar does, he or she may require an explanatory plan to be filed as well.

Prior to proceeding on the basis of an abbreviated description, it is essential to speak to your lawyer or land surveyor.

Sketch Plans
Sketch plans are plans drawn to scale that do not have to be prepared by a land surveyor, sometimes permitted by the registrar to describe the lease of all or part of a building. The legislation only allows the registrar to exercise his or her discretion to accept a sketch plan in cases of hardship or economic loss. In practical reality, this means the sketch plan will very rarely, if ever, be an option for local governments. If you need further assurance before ruling out a sketch plan, speak to your lawyer or land surveyor.

Explanatory Plans
An explanatory plan is a legal plan prepared by a land surveyor and registered in the Land Title Office. What distinguishes it from other types of survey plans is that it does not require a field survey or the placement of survey markers on the property concerned. An explanatory plan is based upon existing survey plans and land title records. The ability to create an explanatory plan, where circumstances permit, can often result in significant cost savings in comparison to plans that require field work.

There are, however, only certain circumstances in which an explanatory plan is an available option. A useful guideline is to consider whether a layperson would be able to locate the boundary of the interest created without the benefit of survey markers being placed on the property. Among other things, an explanatory plan will only be acceptable if the boundary lines being created do not feature excessive curves or jogs or involve a natural boundary (such as a watercourse), if the “parent” plan upon which the explanatory plan is based is not a metes and bounds or abbreviated description or an explanatory plan itself, and if the registrar is satisfied that a field survey is not required.

What this means in practical terms is another repetition of a common theme: speak to your lawyer or land surveyor, and if necessary they will consult with the registrar. Whether or not the circumstances are appropriate for the use of an explanatory plan is a question that should be addressed in every individual case.

Reference Plans
Reference plans, like subdivision plans, do require a field survey and the placement of survey markers on the ground. What distinguishes a reference plan from a subdivision plan is that in many circumstances a reference plan does not have to go through the full subdivision approval process. There are, however, some factors that must be borne in mind when you are contemplating whether a reference plan is appropriate.

First, the registrar has the discretion to decide whether a reference plan is appropriate. Typically a reference plan may be permitted where only a single parcel or area of land is being described. Examples may include the consolidation of two or more adjoining lots into one, the re-establishment of lot boundaries, the creation of an easement or right of way, and the transfer or lease of a parcel to a public body such as a municipality or the Crown.

Second, case law in British Columbia has made it clear that the registrar has discretion to consider the issue of legal access to a parcel created by a reference plan, notwithstanding that a reference plan may not require the approval of the subdivision approving officer. In fact, the courts encourage it. This promotes consistency, and prevents the use of reference plans as a means to avoid providing legal access. Even when a parcel is being transferred, leased or donated to a local government for public purposes under section 99(1)(h) of the Land Title Act, legal access may be an issue.

The appropriateness of a reference plan should be discussed with your lawyer or land surveyor.

Subdivision Plans
Subdivision plans are typically used for situations where one or more parcels of land are being divided into several smaller parcels. They require the full array of field work by a land surveyor, as well as approving officer approval and are therefore generally the most expensive. The subdivision process as a whole is typically a lengthy and costly one, often requiring submission of preliminary plans to approving agencies for review, provision of lot servicing (for example water, sewer, hydro, drainage, etc.), and sometimes rezoning to accommodate the new parcels.

Conclusion
In conclusion, it is fitting to note the most basic underlying reason for the necessity of a survey plan when describing a legal interest in land. The reason is that a legal interest in land is only as certain and enforceable as the physical definition of it. Lawyers take great care to ensure that the language creating legal interests, and the rights they entail, is as certain as possible. It only makes sense to ensure that the physical definition of where those rights apply is as certain as possible as well.

Michael Hargraves

This article was published in Fall 2008 and may be superseded by changes in the law at a later date. It is for general information only. Specific legal advice should be obtained from a qualified lawyer.