To understand what a resulting trust is, it is necessary to first understand what a trust is. Some people might not know that there are two forms of property ownership: legal ownership and beneficial ownership. It is because of these dual forms of property ownership that trusts can exist.  

When a person holds legal ownership of a property, it is their name that appears on formal title or registered documents. They are the person who has authority to deal with the property, though there are often limits on that authority if they are not also the beneficial owner. A beneficial owner, on the other hand, has the right to enjoy the property’s value and benefits even if their name is not on title (i.e. someone else is the legal owner). Because the beneficial owner is entitled to the property’s value and benefits, they are often described as the “true” owner.

Generally, the legal and beneficial owner will be the same person. Under British Columbia’s land title system, the registered (or legal) owner of a property is presumed to be the beneficial owner as well (Land Title Act, R.S.B.C. 1996, c. 250, s. 23). That presumption is referred to as the “presumption of indefeasible title” and is the starting point in any dispute over beneficial ownership of property.

Sometimes, however, the legal and beneficial owner of property are different people. In those scenarios, the legal owner holds the property in “trust” for the beneficial owner. There are several ways in which this trust relationship is established. One such way is a resulting trust.

The Resulting Trust

The resulting trust is a manifestation of the maxim, “equity presumes bargains, not gifts.” It is a legal presumption that allocates the burden of proof in disputes over beneficial ownership of property when that property was transferred gratuitously, meaning for nothing in return.

If a person receives property but provides no consideration or value for it, the law presumes that person holds the property in a resulting trust for the transferor. In effect, the presumption of resulting trust displaces the presumption of indefeasible title and shifts the burden of proof to the transferee to establish that the transfer was a gift. If the transferee cannot establish that the transfer was a gift, the resulting trust is established and the transferee must return the property to the transferor.

This displacing of presumptions is an important point. It is the transferor who at the first instance must rebut the presumption of indefeasible title by showing that the transferee gave no consideration or value for the property and only then will the presumption of resulting trust be engaged. Ultimately the transferor’s intention is the overriding consideration, but due to the evidentiary challenges with proving intention, particularly when the subject transfer happened many years past, disputes over beneficial ownership of property can often turn on the applicable presumption.

Whether you are a transferor looking to recover property or a transferee looking to retain it, it is important to obtain legal advice early. Resulting trust disputes are often won or lost on the available evidence, the applicable legal presumptions, and the ability to prove what was intended at the time of the transfer. A litigation lawyer can help assess the strengths and weaknesses of your claim or defence, identify the evidence needed to advance your position, and develop a strategy for resolving the dispute.

This article is for general information only and is not legal advice.

Article by: Doug Conolly and Robert Goddard

The post Resulting Trusts: When Title Does Not Tell the Whole Story appeared first on McQuarrie Legal Services.

McQuarrie’s family law team has successfully defended a mother’s right to remain in Canada with her children at the British Columbia Supreme Court, the British Columbia Court of Appeal and now the Supreme Court of Canada.

The Beri v Sachdeva litigation concerns a Hague Convention on the Civil Aspects of International Child Abduction, made application by a father seeking the return of his two children from British Columbia to California. The parents married in India in 2011 and have two children, who were born in India. The family moved to California in May 2021. On August 26, 2024 the mother fled to British Columbia with both children.

As result, custody and guardianship of the children will remain with the mother in British Columbia.

The post Case Win: Multi-Jurisdiction Family Law Victory appeared first on McQuarrie Legal Services.

Chris J. Bettencourt – Real Estate Law

Sarando Matheos – Insurance Law

Dan A. T. Moseley – Corporate and Commercial Litigation

Greg P. van Popta – Real Estate Law

Sepideh Alimirzaee – Insurance Law (Ones to Watch)

Adam Van Noort – Corporate Law (Ones to Watch)

Best Lawyers recognition is based on a peer-review process that gathers feedback from members of the legal profession regarding the professional abilities of their colleagues.

Best Lawyers: Ones to Watch recognizes lawyers who are earlier in their careers for professional excellence in private practice.

We appreciate the trust our clients place in us and value the respect of our peers in the legal community. Congratulations to the lawyers recognized in the 2027 edition.

McQuarrie – Providing Exceptional Legal Services in Surrey & the Fraser Valley Since 1967

Since 1967, McQuarrie has provided exceptional legal services in Surrey and the Fraser Valley. McQuarrie is a multi-practice firm that is optimally sized to meet the needs of a diverse range of business, individual, and institutional clients.

From business law and land development to insurance denial and estates, McQuarrie delivers innovative, result-driven legal solutions. We believe trust is the foundation of every good client-lawyer relationship and we value the trust and confidence that clients have placed in our firm.

We work hard to earn that confidence by understanding the diverse needs of our clients and responding to those needs with careful preparation, attention to detail and proactive, practical solutions.

The post Six McQuarrie Lawyers Recognized as Best Lawyers Award Recipients 2027 appeared first on McQuarrie Legal Services.

British Columbia’s new Construction Prompt Payment Act is intended to address this problem by setting clear payment deadlines and creating a faster way to resolve certain payment disputes.

The Act has been passed, but is not yet in force. The Province must still finalize the regulations and establish the system that will oversee the new dispute-resolution process.

Clear Deadlines for Payment

The new system will require a contractor to give an owner a “proper invoice.” In simple terms, this means an invoice that includes the information required by the Act and the parties’ contract.

An owner who believes an invoice is missing required information will have seven days to raise that concern. If the owner does not respond within that time, the invoice will generally be treated as “proper”.

Once a proper invoice is received:

• the owner must generally pay the contractor within 28 days;
• the contractor must then pass payment on to its subcontractors within the required timeframe; and
• payment must continue down the construction chain within short deadlines.

The goal is to prevent money from becoming unnecessarily delayed at one level of a project while subcontractors and suppliers wait to be paid.

What Happens When Payment Is Disputed?

An owner will still be able to dispute all or part of an invoice. However, the owner will need to provide a written notice of non-payment within 14 days of the invoice date.

That notice must explain:

• how much is not being paid; and
• why payment is being withheld.

This means that simply delaying payment while a concern is investigated may no longer be an option. Payment issues will need to be identified, documented, and communicated quickly.

A Faster Way to Resolve Disputes

The Act also introduces a process called interim adjudication.

This process will allow certain construction payment disputes to be decided much faster than a typical court case or arbitration. It may be used for disputes involving issues such as:

• whether an invoice meets the required standard;
• whether payment was made on time;
• the value of work or materials;
• notices of non-payment; and
• payment for change orders.

An adjudicator will review the dispute and issue a decision within a short period of time. That decision must generally be followed unless the parties later resolve the matter through a court proceeding, arbitration, or agreement.

Changes to Builders’ Lien Rules

The legislation will also make several changes to B.C.’s existing builders’ lien system.

One important change is that the holdback period will be reduced from 55 days to 46 days. The Act will also remove a type of claim commonly known as a “Shimco lien,” which is a separate lien claim against the statutory holdback.

Looking Ahead

B.C.’s new prompt payment regime will create a major change in how construction payments are managed. The most important difference is not simply that payment will be required sooner. It is that owners, contractors, and subcontractors will have much less time to identify and respond to payment problems.

Businesses that prepare early will be better positioned to avoid missed deadlines, reduce disputes, and manage projects smoothly once the Act comes into force.

McQuarrie’s construction and dispute-resolution lawyers can assist owners, developers, contractors, subcontractors, and other industry participants with reviewing their contracts and preparing for the new prompt payment requirements.

This article is for general information only and is not legal advice.

Article by: Doug Conolly and Armaan Kahlon

The post B.C.’s New Prompt Payment Law: What the Construction Industry Should Know appeared first on McQuarrie Legal Services.

Disturbance damages are meant to put the owner, as much as money can, in the position they would have been in if the acquisition had not occurred. These damages can arise in both residential and business contexts, and they are assessed separately from compensation for the land or the leasehold interest itself. In some cases, disturbance damages can represent a significant portion of a property’s overall compensation claim.

For homeowners, disturbance damages may include reasonable moving expenses, temporary accommodation costs, and other expenses directly related to relocation. In some cases, owners may also incur costs tied to purchasing a replacement property, such as legal fees, land transfer taxes, mortgage penalties, or increased financing costs.

For business owners and commercial tenants, disturbance damages can be more complex. A taking may result in relocation costs, business interruption losses, loss of goodwill, loss of tenant improvements, expenses associated with securing replacement premises, and the cost of adapting and outfitting a new location for continued operations. Legal, appraisal, accounting, and other professional fees may also form part of a claim.

Owners should not assume that the initial compensation offer reflects their full entitlement. The scope of a disturbance damage claim will often depend on the owner’s unique circumstances, making it important to seek professional advice to ensure all potential disturbance damages are identified and properly claimed.

If you have questions about expropriation or the disturbance damages you may be entitled to, please contact Amy Salak, Paralegal, at 604.580.7066 to schedule a free, no-obligation meeting with Doug Conolly to discuss your options.

This article is intended for general information only and does not constitute legal advice.

Article by: Tanya Motani and Douglas Conolly

The post Expropriation and Disturbance Damages: What Property Owners Should Know appeared first on McQuarrie Legal Services.

Estate planning can feel overwhelming, particularly when faced with important legal, financial, and personal decisions. Without clear guidance, it can be difficult to know where to begin or how to ensure everything has been properly addressed. Working with an experienced estate planning lawyer brings clarity and structure to the process, helping you make informed decisions with confidence.

The Role of a Will in Your Estate Plan

A will could be the foundation of your estate plan, as it can provide clear direction on how your affairs should be handled after your passing.

A properly prepared will can address a wide range of important matters, including the ability to:

• appoint an executor to manage your estate and carry out your instructions;
• clearly outline how your assets will be distributed and who will receive them;
• name a guardian for minor children; and
• incorporate planning strategies that may help minimize taxes and preserve more of your estate for your beneficiaries.

Without a will, you are considered to have died intestate, meaning your estate will be distributed according to provincial laws rather than your personal wishes. This can create uncertainty and lead to:

• delays;
• increase costs;
• disputes among family members; and
• a distribution of your estate contrary to your intentions.

Planning for Incapacity

Many people focus on what happens after death, but overlook what could happen during their lifetime. If you are unable to make decisions due to illness or injury, you will need a trusted representative to act on your behalf.

A Power of Attorney allows a trusted individual to manage your financial affairs, while a health care directive and representation agreement appoints a representative to make health care decisions on your behalf. Together, these documents allow you to appoint who can make decisions for you and how those decisions should be made. Without them, loved ones may need to go through a time‑consuming and costly court process to gain the authority to act.

Making Sure Your Assets Transfer Smoothly

How your assets are structured can significantly impact what your family ultimately receives from your estate. A well-planned estate ensures assets are transferred efficiently and with minimal complications.

Tools such as trusts can play an important role in managing how and when beneficiaries receive their inheritance. A trust allows you to set conditions around distributions, which can be particularly useful when planning for minor children, individuals who may need financial guidance, or situations where you want to protect your assets over time.

Other available estate planning tools, such as properly designated beneficiaries and revised ownership structures, can also impact how assets are held and then transferred to your beneficiaries. When all these elements are aligned, they not only simplify the process, but also help maximize the value of your estate, ensuring that more of what you have built is preserved and passed on to your intended beneficiaries.

Complex Situations and Avoiding Costly Mistakes

Estate planning becomes even more important when personal or financial circumstances are more complex. Without careful planning, these situations can lead to unintended outcomes, or prolonged disputes which can lead to significant legal costs to resolve.

Key considerations include:

• excluding or limiting the assets transferred to a child or spouse, in accordance with equitable considerations;
• planning for blended families or second marriages;
• providing for dependents with unique needs;
• preparing for business succession and coordinating existing legal agreements;
• eliminating or reducing taxes (capital gains tax, property transfer tax, probate tax; etc.);
• protecting your will from wills variations claims or court challenges to change your intended distribution; and
• ensuring the right individuals act as executor/trustee for your estate.

Working With the Right Estate Planning Team

Estate planning is a personal process. The right lawyer can help you make informed decisions by providing advice tailored to your goals, family dynamics, assets, and financial circumstances.

A thoughtful estate plan should work as a coordinated whole. With proper guidance, your plan can:

• protect your interests and preserve your assets;
• reduce avoidable tax liabilities and administrative complications;
• provide clear direction for your executors, trustees, and representatives; and
• support your loved ones with clarity, certainty, and care.

The result is a carefully structured plan that reflects your wishes, safeguards what you have built, and helps ensure your loved ones are provided for according to your intentions.

Contact us today to discuss your estate planning needs.

This article is intended for general information only and does not constitute legal advice.

Article by: Cindy Zheng and Jaskirat Purewal

The post Estate Planning: Protecting Your Wishes, Your Family, and Your Future appeared first on McQuarrie Legal Services.

Consideration is a fundamental principle of contract law. Except for contracts executed under seal, it is one of the essential ingredients that must be present for a contract to exist. At a basic level, consideration can be thought of as an exchange, one that takes a simple promise (which the Courts will not enforce) and elevates it into an enforceable contractual obligation. In other words, consideration is the purchase price of a promise, so long as the promisor has agreed to accept it.

Naturally, issues with consideration most often arise in contract disputes. However, it can also be a central issue in disputes outside of a purely contract law context, particularly in real estate disputes where beneficial ownership of property is at issue. As cases can be won or lost on the question of consideration, it is important to understand how the Courts view it.

How do the Courts View Consideration?

Traditionally, Courts do not inquire into the value or adequacy of consideration. This idea is often referred to as the “peppercorn” principle or theory, which arose out of old case law that held even a peppercorn (a metaphor for something of nominal value) is sufficient consideration for a contract to exist. The reasoning behind it is more economic than legal – the value of consideration is best determined by the parties to the bargain rather than the Courts.

In certain legal contexts, however, the Courts may examine whether meaningful consideration was actually given. For example, in disputes about beneficial ownership of property the absence of meaningful consideration can be important evidence in determining who is the beneficial owner. If a person transfers property to another but receives no consideration in return, the transferor can ask the Court to return the property to them on the basis of a resulting trust. Here, the “peppercorn” principle is no aid to a transferee as the Courts require the transferee to prove they provided meaningful or tangible consideration for the property (Freeland v. Farrell, 2022 BCCA 99).

When disputes arise over the enforceability of a contract or the ownership of property, consideration can be central to the outcome. Parties to these disputes need clear legal advice on whether the facts and evidence support a viable claim or defence and how the issue of consideration is likely to be treated by the Court on the specific facts of the case.

Article by: Robert Goddard and Doug Conolly.

The post How do the Courts View Consideration?  appeared first on McQuarrie Legal Services.

Recognizing the Early Warning Signs

Expropriation is often contemplated long before formal acquisition proceedings begin. Early indicators may include corridor studies, survey crews on or near your property, requests for access, notices seeking information, or communications from appraisers, negotiators, or consultants. Property owners should be cautious about signing informal agreements or granting access without understanding the implications.

Understanding the Process

Although every project differs, expropriation proceedings commonly involve notices and information requests, negotiations supported by appraisals, possession by the expropriating authority, and ultimately determination of compensation.

Understanding Compensation

Compensation may extend beyond the value of land actually acquired. Depending on the circumstances, property owners may be entitled to compensation for the market value of land taken, injurious affection affecting the remaining property, disturbance damages associated with relocation and related expenses, and business losses where applicable.

Taking Early Steps to Protect Your Position

Expropriation processes can progress quickly once initiated. If your property may be affected by a potential taking, obtaining legal advice early can help you understand your rights, evaluate compensation entitlements, and make informed decisions throughout the process.

Article by Tanya Motani and Doug Conolly.

If you have questions about expropriation or how a proposed project may affect your property, please contact Amy Salak, paralegal, at 604.580.7066 to schedule a free, no-obligation meeting with Doug Conolly to discuss your options.

The post How Expropriation Can Affect Private Property in British Columbia appeared first on McQuarrie Legal Services.

When a Temporary Use Permit May Be Required

Where a property owner cannot establish that their proposed use is already permitted under the applicable zoning bylaw, a temporary use permit provides a mechanism to lawfully operate on the property in the interim. It is important to understand, however, that municipalities have significant discretion on whether or not to grant a temporary use permit. Moreover, a municipality may impose conditions on the manner in which the property is used under the temporary use permit.

Undertakings and Restoration Obligations

As a condition of issuing a temporary use permit, the municipality may require the applicant to provide formal undertakings. These undertakings typically obligate the property owner to restore the property to the condition it was in at the time the permit was issued. If an applicant fails to comply with these undertakings, the municipality has the authority to enter the property and carry out the necessary restoration work — at the applicant’s expense.

Security Requirements

The municipality may also require the applicant to provide security as a guarantee of performance. Acceptable forms of security generally include an irrevocable letter of credit or another form satisfactory to the municipality. This security can be drawn upon by the municipality in any of the following circumstances:

• A landscaping condition in the temporary use permit has not been satisfied;
• An unsafe condition has arisen as a result of a contravention of a permit condition; or
• Damage to the natural environment has resulted from a contravention of a permit condition.

In any of these situations, the municipality may undertake the required works, construction, or other remedial activities at the applicant’s expense and apply the security toward those costs.

Public Hearing Process

Applicants should be aware that in specific circumstances the issuance of a temporary use permit may require a public hearing during which members of the public — including neighboring property owners — may make representations for or against the application. Where neighboring landowners are strongly opposed to the proposed use, this process can present a meaningful obstacle to approval and is a factor applicants should carefully consider before proceeding.

Registration on Title

Finally, if a temporary use permit is granted, it will be registered against the title of the subject property. Applicants should factor this into any financing, sale, or other title-sensitive considerations relating to the property.

This article is intended for general informational purposes only and reflects general principles applicable to temporary use permit applications. The specific requirements and procedures may vary depending on the applicable municipal bylaw and the circumstances of each application.

Prepared by: Sunny Uppal

The post Zoning Bylaw Breaches – Temporary Use Permits appeared first on McQuarrie Legal Services.

Understanding the Foreclosure Process in British Columbia

As economic pressures mount across BC’s real estate landscape, foreclosure filings are becoming increasingly common. Interest rates have risen (with only a modest softening to date), credit conditions are tightening, and prolonged development timelines have created a perfect storm for a troubled market. Whether you’re a buyer seeking opportunity, a seller under stress, a lender weighing enforcement, or a developer navigating uncertainty, understanding the foreclosure process is essential.

In BC, foreclosure is a court-supervised process. It begins when a borrower defaults on a mortgage, resulting in the lender sending a demand letter. The lender then commences the foreclosure process by filing a Petition in the Supreme Court of BC. Together with the Petition, the lender will file an affidavit attaching the mortgage documents, the demand sent, and calculating the amount due and owing. Both the Petition and the supporting affidavit must be served on the debtor and all persons whose interest in the mortgaged property is sought to be extinguished. In order to be notified of the next step, any party to the proceedings (including the borrower and any other interested parties), must file a Response to Petition setting out their position on the matter.

The next step in the process will be for the lender (now called the Petitioner) to set the matter down for hearing before the court for a declaration of the amount due and the time that the borrower will have to pay that amount due, known as the redemption period, which is typically 6-months unless there are special circumstances to reduce that time frame, such as lack of equity or wasting of the property. This order for a declaration of the amount due and setting the redemption period is known as an Order Nisi, and is typically a very short, and often uncontested application. If the debtor does not repay the amount due within the redemption period, the Petitioner may seek an Order for Sale granting the Petitioner the right to engage a realtor and market the property for sale. Once an offer is received that the Petitioner wishes to accept, a final application is brought for an Order Approving Sale. A debtor may seek to redeem the mortgage by paying it out in full at any time prior to an Order Approving Sale, despite the expiry of the redemption period. When considering an Order Approving Sale, the court will examine whether the lender has acted in a businesslike manner in marketing the subject property and whether the proposed sale is provident in all of the circumstances.

Current Trends in the Land Market

Foreclosures are no longer isolated events; they are part of a broader trend of financial distress in the land market.

Many landowners are overleveraged on raw sites purchased during the 2021–2022 peak, and refinancing has become increasingly difficult as loan-to-value ratios tighten. According to the Bank of Canada, “about 60% of mortgage holders renewing in 2025 and 2026 are expected to see a payment increase.”

Lenders are moving more swiftly to enforce their rights, while developers continue to face delays in municipal approvals despite calls for change and rising servicing costs.

This mismatch between debt obligations and development timelines is driving a surge in foreclosure and insolvency proceedings, as land has previously been seen as the most valuable asset in BC.

For Buyers: Navigating Opportunity and Risk

Distressed assets can present compelling opportunities, including court-ordered sales, foreclosure auctions, and receiver-managed disposals, which often come at below-market pricing and/or prices that are lower than is required to clear title if the property is over-leveraged.

However, due diligence is critical. Buyers must carefully review municipal files, servicing obligations, and any liens or encumbrances. Note that “cheap land” may come with hidden costs or development barriers.

Financing can also be a hurdle. Traditional lenders may hesitate to fund distressed acquisitions, requiring buyers to rely on cash or private capital. That said, buyers who offer speed and certainty, such as firm offers with short closing timelines, may gain leverage in negotiations with lenders or receivers eager to resolve quickly.

For Sellers: Preserving Value Under Pressure

Owners facing financial stress should engage with lenders early. Open dialogue can sometimes lead to extensions, restructures, or staged sales, which are options that may preserve equity and control.

Joint ventures with capitalized developers can also be a lifeline, allowing projects to move forward rather than being liquidated. Pre-selling portions of land to pay down debt is another strategy that can help avoid foreclosure or insolvency.

Waiting too long, however, risks court intervention through foreclosure or receivership proceedings, where pricing and timing are outside the owner’s control.

For Lenders: Strategic Enforcement

Lenders must balance enforcement with asset preservation. A forced sale in a thin market may crystallize losses, while a structured negotiation or joint venture may yield better long-term outcomes.

Appointing a receiver ensures professional management of the sale process, but it also adds cost and may alienate the borrower. Moreover, foreclosure listings can depress comparable sales in the area, affecting broader portfolio valuations.

For Developers: Adapting to a Shifting Landscape

Developers active in today’s market often target shovel-ready or near-serviced distressed sites where lenders are motivated to sell but fundamentals remain strong. Conservative financial modeling, including realistic absorption rates and cost contingencies, is essential to withstand prolonged cycles.

Partnerships with equity investors or lenders can provide a buffer against insolvency. As more distressed land enters the market, pricing benchmarks may shift downward, creating both acquisition opportunities and valuation risks for existing holdings.

Key Takeaway

Distress in the BC land market is rising, and all parties, including buyers, sellers, lenders, and developers, must adapt. The winners will be those who act early, document clearly, and structure deals creatively to manage the changing landscape.

Written by: Dan Moseley, Partner & Sharon K. Malhi, Articled Student

Originally Published: Varing Magazine

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The post Foreclosure, Insolvency, & Bankruptcy in the BC Land Market appeared first on McQuarrie Legal Services.