Executive Summary: Key Legal and Evidentiary Issues

• Defendants sought cancellation of certificates of pending litigation (CPLs) under s. 215 of the Land Title Act, arguing plaintiffs' claims do not constitute an interest in land.

• Plaintiffs alleged the Developer breached purchase agreements for 37 strata lots in the Creekside Terrace Development and concealed that units were ready for occupancy.

• Central dispute concerned whether claims for specific performance and proprietary estoppel meet the statutory threshold of "claiming an estate or interest in land."

• Defendants contended that seeking specific performance alone does not constitute a claim for an interest in land and that proprietary estoppel was improperly pleaded.

• Plaintiffs relied on established jurisprudence confirming CPLs are appropriate where a plaintiff seeks specific performance of a contract for the sale of land.

• The Court determined it should not consider evidence on this application and ought to refrain from analyzing the merits of the claim.

Background of the Creekside Terrace Development

The dispute centers on a residential strata development in Surrey, British Columbia, known as Creekside Terrace, located on a parcel of land municipally described as 6388 King George Boulevard, Surrey. The defendant 1022081 B.C. Ltd. ("Nominee") was registered on title to the development land on December 30, 2014, holding title as the bare trustee for the beneficial owners, 0821034 B.C. Ltd. and Ansu Development Ltd. (together, the "Beneficial Owners"). The City of Surrey issued a development permit on November 6, 2017. On December 6, 2017, the Nominee and the Beneficial Owners (together, the "Developer") filed a disclosure statement as defined in the Real Estate Development Marketing Act. The Developer subsequently began to market strata units. Between November 23, 2017, and December 16, 2017, the Developer entered into contracts to sell 32 strata lots to plaintiffs in this action, or to persons who subsequently assigned the contract to a plaintiff in this action.

Delays and new disclosure requirements

On or about September 2018, the Developer ceased marketing the strata lots. The Creekside Terrace Development experienced delays. The Developer asserts that, in 2019 and 2020, amendments were made to the REDMA that included the introduction of a mandatory Condo and Strata Assignment Integrity Register effective from January 1, 2019, which required the Developer to file a new disclosure statement. On or about October 15, 2020, the Developer filed a new disclosure statement with the Superintendent of Real Estate for the Creekside Terrace Development. Following the filing of the 2020 Disclosure Statement, the Developer contacted the purchasers under the existing contracts and assignments to provide them with the option of either rescinding their existing contracts in accordance with the REDMA, or terminating them and entering into new contracts of purchase and sale in the form attached to the Disclosure Statement. Between December 31, 2020, and March 11, 2021, the Developer and 32 plaintiffs who had agreements to purchase strata lot units in 2017 entered into agreements to cancel their existing contracts and enter into new contracts for the sale of those 32 strata units. Between March 27, 2021, and April 7, 2021, the Developer entered into contracts with five plaintiffs or assignees of a plaintiff to sell strata units in the Creekside Terrace Development.

Contractual terms regarding completion

All the Purchase and Sale contracts are in writing and are substantially the same. The contracts provide that completion shall take place when the Vendor notifies the Purchaser or their solicitor or notary that the City of Surrey is expected to grant written permission to occupy the Strata Lot, provided that such day will be at least thirty (30) days after the date of such notice. The estimated Completion Date was July 2022. The contracts included an "Outside Date" clause providing that if the Completion Date had not occurred by July 2022, then either party may by written notice to the other cancel the Purchase Agreement, whereupon the Purchaser would be entitled to have the Deposit returned and both parties would be released from their obligations. The Vendor may, at its option, elect to extend the Outside Date for two (2) separate periods of six (6) months.

Occupancy permits and termination

The City of Surrey granted occupancy permits for the strata lots in two phases: on November 1, 2024, for strata lots 1-40, and December 18, 2024, for strata lots 41-76. The Developer failed, according to the plaintiffs, to set dates for closing the sales of the strata units after receiving permission to occupy the units from the City of Surrey. Instead, the plaintiffs plead, the Developer concealed from the plaintiffs that the units were ready to be occupied. In or about August 2025, the Developer issued notices to the plaintiffs purporting to terminate their contracts pursuant to clause 5 of the contracts on the basis that completion had not occurred by July 2022.

The litigation and CPL registration

The plaintiffs filed this action on September 26, 2025, alleging that the Developer breached its contract to sell 37 strata units to the plaintiffs. The plaintiffs plead proprietary estoppel and also seek specific performance. They obtained CPLs in respect of 34 of the strata units. Notably, the other three units had been transferred by the Developer before the action commenced.

Legal framework for CPLs

Section 215(1)(a) of the Land Title Act provides that a person who has commenced or is a party to a proceeding and is claiming an estate or interest in land may register a certificate of pending litigation on the property which is the subject of the litigation. A CPL is an extraordinary pre-judgment mechanism that protects a valid claim to an interest in land until the issue before the court can be determined on its merits. It is improper to use the CPL procedure merely to gain a tactical advantage in litigation or as leverage to secure a financial claim against the defendant where no interest in land has been claimed.

Defendants' arguments

The defendants argued that the plaintiffs have not claimed or pleaded a legal equitable interest in land but rather seek orders to enforce contractual rights. They submitted that specific performance is an equitable remedy available for breach of contract in appropriate circumstances, but that seeking an order for specific performance on its own does not constitute a claim for an interest in land. They further asserted that the elements of proprietary estoppel are improperly pleaded in this case.

Plaintiffs' arguments

The plaintiffs began their submissions by asserting that the modern system of filing certificates of pending litigation comprises a legislative refinement of the common law doctrine of lis pendens. They submitted that no reported decision in British Columbia has ever questioned the proposition that a CPL was properly filed where a plaintiff sought specific performance of the sale of land or that such relief was available. The plaintiffs relied on the BC Court of Appeal's reasoning in Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd., 2014 BCCA 388, that where specific performance is being sought, it is for the applicant to satisfy the court that it is plain and obvious the person seeking specific performance would not succeed on that claim at trial. Regarding proprietary estoppel, the plaintiffs relied on the Supreme Court of Canada's reasons in Cowper-Smith v. Morgan, 2017 SCC 61, where the Court stated that it has commonly been understood in Canada that proprietary estoppel is concerned with interests in land.

The ruling and outcome

The Court agreed with the plaintiffs that their claim encompasses a claim to an interest in land. Justice Morellato found that the plaintiffs' claim for specific performance essentially embodies a claim against the land itself and, as such, is a claim to an interest in land requiring notice by way of a CPL. The plaintiffs seek to enforce the transfer of property to them of the land comprising the strata lots, effectively claiming proprietary rights or equitable interest that allows the plaintiffs, as buyers, to obtain title to the land and not just monetary compensation. The Court also agreed that the plaintiffs' proprietary estoppel claim constitutes a cause of action for a right to property and, in particular, the strata lots in question. The defendants' application was dismissed, and the plaintiffs are entitled to their costs. Whether the plaintiffs will ultimately be successful on their pleadings at trial in seeking specific performance of the purchase and sale agreements or establishing a proprietary estoppel remains to be seen, as these are not issues before the Court at this juncture. No specific monetary amount was determined at this stage.