206 THE ADVOCATE
VOL. 80 PART 2 MARCH 2022
“if a gift of land in a will to 2 or more beneficiaries contemplates a physical
division of the parcel by subdivision or otherwise, the gift takes effect as a
gift to the beneficiaries as tenants in common in proportion to their interests,
unless a contrary intention appears in the will”.21 That makes sense for
land that is not yet subdivided but for which subdivision is contemplated.
What if subdivision, contemplated in the will, is impossible at the time of
death because of local government zoning bylaws? Would the gift be contrary
to s. 73 of the LTA? Section 73(1) provides:
Except on compliance with this Part, a person must not subdivide land
into smaller parcels than those of which the person is the owner for the
purpose of
(a) transferring it, or
(b) leasing it, or agreeing to lease it, for life or for a term exceeding
3 years.22
In International Paper Industries Ltd. v. Top Line Industries Inc.,23 the B.C.
Court of Appeal considered a lease of a portion of land, contrary to s. 73 of
the LTA. The land had never been subdivided to allow for the lease of the
portion of the parcel. At the time of entering into the lease, neither the landlord
nor the tenant was aware of s. 73. At the end of the term, the tenant
tried to renew the lease. The landlord raised a number of objections, including
one not raised before: the lease was unenforceable or void because of
non-compliance with s. 73.
The chambers judge concluded that the lease was enforceable as a personal
contract and that the rights and obligations created by it were binding
on the parties. He concluded that there had been a valid renewal of the
lease. However, the Court of Appeal overturned that ruling and concluded
that s. 73 “precludes the Tenant from enforcing personal or proprietary
rights”.24 Section 73 was subsequently amended by the addition of s. 73.1,
which provides that the lease is not unenforceable between the parties to
the lease by reason only that the lease “does not comply with this Part”.25
I do not think that the gift of Terra, where subdivision is impossible, contravenes
s. 73. It is a valid gift pursuant to s. 45 of WESA. The subdivision
does not occur automatically with the gift. If the beneficiaries subsequently
treat Terra as being subdivided by their actions, they may be faced with the
issue raised by s. 73.
What if Terra is an unsubdivided portion of a larger parcel? Would the gift
be contrary to s. 73 of the LTA and would International Paper apply? I do not
think the gift itself would be invalid. The beneficiary of the whole, larger
parcel would be entitled to be the registered owner of that parcel. The beneficiary
of the unsubdivided portion would presumably have some claim (in