Certificate of Pending Litigation Survives a Uniqueness Challenge

The Dispute

A purchaser agreed in 2021 to buy a residential property in British Columbia for more than two million dollars, intending to live there with her sister and her mother, who used a wheelchair. The purchase agreement, later amended several times, required the vendor to install either a platform chair lift or a platform stair lift so the mother could reach an upper floor. The wording was ambiguous, and the sale did not close. The purchaser says the lift was never installed; the vendor blames engineering or regulatory obstacles, and which was the real cause was not clear at the hearing. The purchaser sued for, among other relief, specific performance, and took steps to protect her claim against the title while the lawsuit was pending. The vendor moved to strip that protection before the claim went further.

The Parties’ Positions

The vendor applied to cancel the certificate of pending litigation the purchaser had registered against the property, a filing that keeps notice of a lawsuit on title so a claimant’s interest is not defeated by a sale to someone else. Section 215 of the Land Title Act permits a certificate only where the underlying claim discloses an interest in land, and the vendor argued this one did not. To succeed on specific performance, the vendor said, the purchaser had to show the property was unique, and the only person for whom it was unique was the mother, who needed the lift and was not a party to the contract. Nothing about the purchaser’s own position, on that argument, set the property apart from any comparable home.

The purchaser, acting through ATAC LAW, resisted the application, opposing cancellation of the certificate and maintaining that her claim for specific performance remained properly before the court.

The Court’s Decision

The Supreme Court of British Columbia held that whether a property is unique is decided as of when the parties entered the contract, and that the onus of showing a property is not unique falls on the party attacking a certificate of pending litigation, here the vendor. Drawing on the Court of Appeal’s reasoning in Ali v. 656527 B.C. Ltd., the court noted that a home’s uniqueness can rest on a combination of features rather than one standout attribute, assessed both objectively and from the purchaser’s own point of view. On that basis, the court held the vendor had not discharged the onus of showing the property was not unique to this purchaser. The accessibility provision might yet be found, at trial, to be the feature that made the property unique to her, or other features could combine with it to the same effect, and an interlocutory application was not the place to resolve which. The pleadings disclosed an interest in land, the certificate was maintainable, and the application to cancel it was dismissed. Costs were ordered in the cause.

Key Lessons for Residential Purchasers and Vendors

• A certificate of pending litigation tied to a specific performance claim can survive an early challenge, because uniqueness is tested only on the pleadings at that stage and the party attacking the certificate carries the onus of disproving it.
• Uniqueness for specific performance is measured as of the date the contract was signed, and can rest on a combination of features rather than one standout attribute.
• An argument that only a family member, not a party to the contract, needed a particular feature did not defeat the purchaser’s own claim to uniqueness on these pleadings.
• Draft any conditional obligation in a purchase agreement, such as an installation requirement tied to a buyer’s family circumstances, precisely enough that it does not become the battleground of a dispute if the sale fails to close.

The outcome of this application turned on the pleadings and the record before the court on an interlocutory motion. It resolved only whether the certificate of pending litigation could stand, not the underlying claim for specific performance, and a differently pleaded application may be decided differently.

ATAC LAW acts for purchasers and vendors in residential real estate disputes, including specific performance claims and certificate of pending litigation applications.

This matter was conducted by James Un, a senior associate lawyer at ATAC LAW, who acted for the purchaser on the application.