BC Realtor Guide to Lis Pendens, Encroachments & Adverse Possession (2026)
A certificate of pending litigation (CPL) can freeze a property sale indefinitely — even when the underlying claim has no merit. An undetected encroachment can collapse financing, delay completion, or expose your client to an expensive boundary dispute. This guide covers CPLs, encroachments, adverse possession, and prescriptive easements: the four title issues that most frequently blindside BC realtors.
⚠️ Title Search Is Not Enough
A clean title search does not reveal encroachments (which require a survey), prescriptive easements (which may not be registered), or adverse possession claims in progress. Even a CPL filed the day before completion can kill your deal. Advise buyers to obtain title insurance and a current survey certificate. Sellers should search title before listing.
1. Certificates of Pending Litigation (CPL) in BC
A certificate of pending litigation— still colloquially called a “lis pendens” (Latin: “suit pending”) — is a notice filed on title under section 215 of the BC Land Title Act (LTA). It signals that a legal proceeding is underway that could affect ownership of the property.
The practical effect is devastating for a sale: most buyers and lenders will not complete a purchase with a CPL on title. The property is effectively frozen until the litigation resolves or the CPL is discharged.
Who Can File a CPL?
Any party who commences a court proceeding claiming an interest in land may apply to file a CPL. Common claimants include:
| Claimant Type | Basis for CPL | BC Frequency |
|---|---|---|
| Purchaser under failed contract | Specific performance claim — buyer alleges seller breached a purchase agreement | Very common |
| Co-owner / joint tenant | Partition and sale proceedings under the Property Law Act | Common |
| Separated spouse | Family Property Act division claim | Very common |
| Judgment creditor | Fraudulent conveyance or creditor claim against owner | Common |
| Builder / contractor | Substantive claim in addition to builder's lien | Moderate |
| Trust claimant | Constructive trust / unjust enrichment claim | Moderate |
| Mortgagee / lender | Foreclosure proceedings (judicial sale) | Moderate |
| Neighbouring owner | Boundary, encroachment or easement dispute | Less common |
How a CPL Is Filed
Filing is straightforward — a party files a Notice of Civil Claim in BC Supreme Court, then applies to register the CPL at the Land Title Office. The LTO does not adjudicate the merit of the claim; it simply registers the notice. The owner is not always notified before filing, though most rules of court require prompt service.
Critical Timing Risk
A disappointed buyer whose offer was rejected can file a specific performance claim and register a CPL overnight. This can paralyze a subsequent sale even if the original offer was validly rejected. Sellers who are switching buyers or dealing with a subject-removal dispute are at highest risk.
2. Discharging a CPL — Four Paths
Discharging a CPL before completion is almost always necessary. There are four ways to accomplish this, with very different timelines and costs:
1. Consent Discharge
FastestThe claimant agrees to remove the CPL. Requires a court filing to formally cancel it. This happens most often when the parties settle the underlying dispute.
2. Court Order (s.216 LTA)
Most CommonThe owner applies to BC Supreme Court to cancel the CPL. The court will cancel it if the claim has no merit (no 'triable issue') or if adequate security is paid into court in lieu.
3. Undertaking to Court / Security
PragmaticInstead of discharging, the parties agree the sale can complete with sale proceeds held in trust pending litigation. Requires all parties' agreement and often a court order.
4. Litigation Resolution
Last ResortThe underlying lawsuit proceeds to judgment or settlement. This path is only viable when no one is in a hurry and the parties cannot agree on discharge.
Realtor Obligations When a CPL Is Discovered
When a title search reveals a CPL, your immediate obligation is to disclose it to all parties and consult legal counsel. Do not proceed to completion with a CPL on title without written consent from your clients and legal advice confirming the approach. BCFSA expects realtors to understand that a CPL creates material risk.
Script: Advising a Seller Client About a CPL
“There's a certificate of pending litigation registered on title — it means someone has filed a lawsuit claiming an interest in your property. We can't complete the sale until this is resolved. Your lawyer needs to review this immediately. Depending on whether the claim has merit, we may be able to get it removed by the court in a few weeks, or we may need to negotiate a discharge. We should also advise the buyers of the delay.”
3. Encroachments — When Structures Cross Boundaries
An encroachment occurs when a structure — fence, deck, garage, building overhang, retaining wall, or driveway — crosses a property boundary onto an adjacent lot or municipal road allowance. Encroachments are invisible on title but become visible on a survey. They affect not just the sale but also building permits, strata compliance, and future renovations.
When Are Survey Certificates Required in BC?
BC does not require a current survey for most residential purchases — but lenders often do, and buyers should always consider it. Standard practice:
| Property Type | Survey Typically Required? | Notes |
|---|---|---|
| Detached house — conventional lot | Often by lender | Some lenders accept existing survey if <5 years old and no changes |
| Detached house — rural or acreage | Yes — strongly recommended | Boundary disputes, easements, and encroachments common on large parcels |
| Strata unit (condo or townhouse) | Usually not required | Strata plan defines unit boundaries; lenders rarely require |
| Bare land strata | Recommended | Lot boundaries defined by strata plan; fences and outbuildings often encroach |
| Duplex or half-duplex (stratified) | Recommended | Party wall and boundary disputes frequent |
| New construction | Yes — compliance survey required for final draw | Lender requires confirmation structure is within property lines |
5 Options When a Survey Reveals an Encroachment
Remove the encroaching structure
— Minor encroachmentsThe simplest resolution — the encroaching party removes the fence, deck, or structure before completion. Works well for fences and small decks but impractical for garages or building overhangs.
Register a formal easement or licence
— Permanent structuresThe neighbouring owner grants a statutory right of way or building scheme permitting the encroachment to continue. Registered at the Land Title Office, binding on successors in title. Preferred for permanent structures.
Purchase the affected strip of land
— Driveway / garage encroachmentsThe encroaching owner buys the small strip of neighbouring land through a boundary adjustment or lot line adjustment approved by the municipality. Requires subdivision approval and survey plan filing.
Price adjustment / holdback
— Minor encroachments with willing buyerBuyer accepts the encroachment risk in exchange for a price reduction. An amount is held in trust pending resolution. Lenders often won't accept this without title insurance.
Title insurance
— Risk transfer when fix impractical before closingA title insurance policy can cover known encroachments that are disclosed and accepted. The insurer pays to defend against future claims or to resolve the encroachment. Not a fix — a risk transfer.
Municipal Road Allowance Encroachments
Many older BC homes have fences, landscaping, or even structures built on the municipal road allowance (the strip of land between the property boundary and the street). This is technically municipal land. Encroachments on road allowances may require:
- ▸A municipal encroachment agreement (annual licence from the municipality)
- ▸Removal if the municipality ever needs the land for road widening or utility work
- ▸Disclosure to the buyer — especially if a fence or hedge appears to be within the lot but is actually on municipal land
4. Adverse Possession in BC — The 10-Year Rule
Adverse possession(colloquially “squatter's rights”) is the legal doctrine by which a person who uses another's land openly, continuously, and without permission for a statutory period can claim title to that land. In BC, the governing limitation period under the Limitation Act (SBC 2012) is 10 years.
Does Adverse Possession Apply to Registered Land in BC?
This is the critical question — and the answer is nuanced. BC operates under the Torrens land title system, which confers indefeasibility of title on a registered owner (LTA s.23). This means that in most cases, adverse possession cannot defeat the title of a registered owner.
| Scenario | Adverse Possession Risk | Notes |
|---|---|---|
| Modern registered land (post-1860s) | Very low | Torrens indefeasibility protects registered owner; adverse possession generally cannot succeed |
| Unregistered interests / Crown grants pre-Torrens | Possible | Some very old holdings not fully integrated into Torrens; legal advice essential |
| Boundary strips not registered to anyone | Possible | Small strips between lots sometimes have no registered owner; adverse possession claims viable |
| Stratas and condos | Not applicable | Strata plans define unit boundaries; adverse possession has no application |
| Rural parcels with historical informal use | Low but worth checking | Survey confusion on older rural properties; informal fences may have historical use claims |
Elements Required to Establish Adverse Possession
Even where adverse possession is theoretically available, claimants must prove all of:
Actual possession
Physical use of the land consistent with its character — farming, fencing, building, grazing
Open and notorious
Use is visible and obvious — not hidden or secretive
Exclusive
Claimant uses the land exclusively, not shared with the paper title owner
Continuous
Uninterrupted use for the full 10-year limitation period
Without permission
Must be adverse to the owner — a licence or permission defeats the claim
With intent to possess
Claimant must intend to possess the land as owner, not as licensee or tenant
5. Prescriptive Easements — Acquired Rights of Way
A prescriptive easementis an easement (a right to use someone else's land for a specific purpose) acquired by long-continued use rather than by grant. The most common examples in BC are:
- ▸A driveway across a neighbour's land used for 20+ years to access a property (right of way)
- ▸A footpath across a rural property used by neighbouring residents for decades
- ▸A water pipe crossing a lot to supply a neighbouring property (utility right of way)
- ▸A shared driveway where informal use has created a de facto right of way
The 20-Year Rule
BC courts have historically recognized prescriptive easements where use has continued for 20 yearswithout the landowner's permission. The doctrine derives from common law. Unlike adverse possession, prescriptive easements can affect registered land and may constitute latent defects even if not registered on title.
Latent Defect Warning for Sellers
If a seller knows that a neighbour has been using a portion of their property for decades — crossing through the yard, using a shared driveway, or running water lines — they must disclose this as a potential prescriptive easement claim. Failure to disclose a known latent defect is grounds for post-completion claims and BCFSA complaints.
How to Break Prescriptive Easement Acquisition
Landowners who discover a neighbour may be acquiring a prescriptive easement can interrupt the limitation period by:
Grant a written licence
A formal licence for use interrupts the 'without permission' element — prescription cannot run during a permitted use
Post notices / gate the access
Physical blockage or 'No Trespassing' notices interrupt the continuous use period
Register an objection on title
Filing a legal objection or commencing litigation resets the limitation clock
6. Realtor Due Diligence Checklist
Use this checklist when listing or representing a buyer on any BC property:
For Listing Agents
For Buyer Agents
7. Title Insurance and Title Disputes
Title insurance protects buyers and lenders against many title-related issues, including CPLs that were registered but not discovered, encroachments, survey errors, and certain adverse claims. In BC, the two major providers are FCT (First Canadian Title) and Stewart Title.
| Issue | Covered by Standard Title Insurance? | Notes |
|---|---|---|
| CPL not discovered on title search | Yes | Title insurer defends or pays claim |
| Encroachment by adjacent owner | Yes (unknown at purchase) | Known encroachments may require specific endorsement or exclusion |
| Encroachment onto adjacent owner | Yes (unknown at purchase) | Insurer pays cost of resolving or defending |
| Adverse possession claim filed post-purchase | Yes | Insurer defends the claim |
| Prescriptive easement claim post-purchase | Yes (if unknown) | Must not have been known or disclosed at purchase |
| Existing registered easement | No | Registered easements are known — not a title defect |
| Zoning non-compliance / unpermitted work | Varies — check policy | Some policies include; others exclude by default |
💡 Practitioner Tip
Always recommend title insurance to buyers in writing. If a client declines, document that they declined on your advice. Title insurance costs $250–$500 for a typical BC residential purchase and provides lifetime coverage. The cost of defending even a minor encroachment dispute without title insurance can easily exceed $10,000.
Frequently Asked Questions
What is a certificate of pending litigation (CPL) in BC?
A CPL (formerly called a lis pendens) is a court order registered on title under BC's Land Title Act s.215 that notifies the world a legal claim affecting the property is pending. It does not transfer ownership but prevents the owner from selling or mortgaging the property without either the claimant's consent or a court order cancelling it.
How long does a CPL stay on title in BC?
A CPL stays on title until the underlying litigation resolves, the parties agree to cancel it, or a court orders its cancellation. There is no automatic expiry — a CPL can remain for years. An owner can apply to court to have it cancelled if the claimant's claim has no merit or they can provide adequate security (s.216 LTA).
Can adverse possession extinguish title in BC?
Yes, but only for unregistered interests and only for registered land that has not been subject to the Land Title Act's indefeasibility provisions. BC's Limitation Act (2012) has a 10-year limitation period. However, for most modern registered land, the Land Title Act indefeasibility means adverse possession claims are extremely difficult and rarely succeed. Properties under Torrens title are largely protected.
What happens when a survey reveals an encroachment in BC?
When a survey reveals an encroachment (a fence, deck, structure, or building that crosses a property boundary), the affected owners must negotiate a resolution before or at completion. Options include: the encroaching party removes the structure, the parties grant a formal easement or licence, the encroaching party purchases the affected strip of land, or the parties agree to a boundary adjustment by strata plan amendment or subdivision. Title insurance may cover the cost of resolving minor encroachments.
What is a prescriptive easement in BC and how does it affect a sale?
A prescriptive easement arises when someone has used another's land openly, continuously, and without permission for 20 years. In BC, a neighbour who has driven across your client's land for decades may have acquired a legal right of way. If not registered on title, it remains a latent defect. Sellers must disclose known prescriptive easements, and buyers should conduct due diligence by inquiring about historical use patterns before completing.
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