Salt Spring Island is in the middle of an incorporation study.  Basically the study will look at the pros and cons of Salt Spring going from and unincorporated area into a municipality.

Here is a copy of the Preliminary report; 2015-10-30 SSI Incorporation Study Preliminary Report FINAL

Today I went to the open house and taped the presentation for you, here it is;

Nov 22, 2015 open house Fulford
My question is at the 57:20 mark.

Here is the Q&A portion from the presentation in Ganges on the 23 Nov 2015.

Day two open house Ganges

I have mixed feeling about incorporation.  The government model we have now seems so broken but sometimes I wonder if it’s just the model or the people running the model.  My big concerns are property taxes paid for services rendered.  June and I have had our property taxes go from a low of $380 to the current $3500 or so over the last 15 years.  Most of these increased have gone to our library, pool and fire department.   On Salt Spring we are not getting a ton of services for what we pay and I think I’m paying too much now and do not want to pay more.   No one wants to pay more.  Will a municipality cost us more or not is basically up in the air.  No one really knows.  Is the system we have now that broken it can’t be fixed?  You tell me.

Here is a link to the official Incorporation site

Cheers Scott Simmons

Had the pleasure of having Wayne from Edmonton over the other day out looking at land on Salt Spring and the conversation turned to Gazette roads and or easements.   It’s an odd topic but one that comes up when buying a large rural lot.  One never really knows what they are getting unit one does a little digging.  The first thing you must know is a gazette road will not show up on a title search.  One may think they are buying 50 acres of total privacy only latter to find out there is a road going right through their property.

Here is an example of a 1930 gazette notice;

MUSGRAVE ROAD Notice is hereby given that the following described highway, 40 feet in width, is hereby established: Commencing at the intersection of the centre line of Isabella Point Road and the easterly boundary of Section 13, Range 1, South Division of Saltspring Island; thence in a general southerly direction to the west boundary of the North-west Quarter of Section 42; thence north-westerly to a point in the North-west Quarter of Section 51; thence in a general westerly direction to a point in the South-west Quarter of Section 50; thence southerly to a point on the west boundary of the South-east Quarter of Section 44; thence northwesterly to a point in the South-west Quarter of Section 49; thence …; and having a total length of 9.4 miles more or less, as shown on a plan on File 2280 in the Provincial Department of Public Works, Victoria, B.C.

Gazette roads are very vague and not necessarily surveyed and not always registered on titles.  In 1997 a local SaltSpringer found out the hard way that his land had a gazette road over it and  1997 forest appeal commission  was fined for cutting the trees on the road allowance of said road.

Yesterday the The British Columbia Real Estate Association (BCREA) sent out this legal update notice that covers historical easements.

OLD IS NOT NECESSARILY OBSOLETE

On occasion, buyers become interested in properties that are subject to historical easements, some over one hundred years old. The Property Law Act provides that a court may cancel an easement where the easement is “obsolete.” Some buyers, and occasionally their advisors, assume that anything old must, for that reason alone, be obsolete and proceed to purchase those properties on the assumption that it will be easy to convince a judge that an old easement is an obsolete easement. Such is not always the case, as illustrated below.

In 1912, an owner sold part of his land on Vancouver Island. The only access to the parcel conveyed (Parcel A) was through the part retained by the seller (DL80). Unfortunately, no legal right of access was provided through the original transaction in 1912. In 1919, the lack of a legal right of access was addressed and the owner of DL80 granted an easement over DL80 for the benefit of Parcel A. The easement granted the owner of Parcel A, and her heirs and assigns, “the uninterrupted use of and passage in and along a 12 foot wide right of way with carts, vehicles or cattle at all times forever thereafter…” The recitals in the document indicated that the easement was being granted because the owner of DL80 “did not grant access to the land described in the said conveyance dated November 25, 1912…”

For over 85 years the easement was the only way to access Parcel A. In 2004, DL80 was subdivided and a road was built that provided direct road access to Parcel A. Despite the road construction, Parcel A’s owner — a developer — continued to advertise to prospective purchasers of strata lots on Parcel A that they would be able to use the easement for direct pedestrian access to the beach.

The owner of the DL80 parcel subject to the easement applied to have the easement cancelled pursuant to Section 35(2) of the Property Law Act which provides that an easement may be cancelled where the court is satisfied that “because of changes in the character of the land, the neighbourhood or other circumstances the court considers material the registered charge or interest is obsolete.”

The judge initially hearing the application to cancel the easement concluded from the recitals in the document that the right of access was limited to that which was necessary and convenient and due to the construction of the road, access over the easement area was no longer necessary. As such, she determined that the easement was obsolete and could be cancelled. The BC Court of Appeal (BCCA) disagreed and overturned her decision.¹

The BCCA confirmed that recitals to an easement should only be referred to for the purpose of clarifying ambiguity. There was nothing ambiguous about the operative portion of the easement. There was no limitation on its duration. It was to be operative “forever thereafter.” There was no language suggesting that the easement would terminate upon the provision of alternate access.

The BCCA concluded that had that been the intention of the parties, the solicitor drafting the easement would have provided express language to that effect. In the absence of express limiting language, the easement remained in full force and effect. The BCCA cited a number of previous decisions which concluded that where an easement was still in use it did not become obsolete merely upon the availability of alternative access.²

A buyer purchasing property that is subject to an historical easement should never assume that, simply because the easement is old, it will be considered obsolete and thus cancellable. If the cancellation of the easement is of importance to the buyer, they should seek legal advice before purchasing the property.

Brian Taylor
Bull Housser LLP

“Copyright British Columbia Real Estate Association. Reprinted with permission.” BCREA makes no guarantees as to the accuracy or completeness of this information.”

When buying rural property it is not always so cut and dry.  There are many little details that should be looked into.  For those that like to read here is a little article written by lawyer Mary MacGregor about public access through deeded land.  legal opinion on public roads Mary goes through all the steps such as start with the property title then go to the original crown grant.  FYI all land in BC has an original crown grant which specifies what the crown actually sold or did not sell.  Did you know some waterfront crown grants held back one chain along the waterfront for public use.  If you do not know a chain is 66 feet or about 20 meters.  That would be a little shocking to find out one had a “public” strip 66 feet wide in front of their home they just bought and did not know about.   For those that have not seen a crown grant here is an example of one 129416-I Crown Grant They usually come with a map and if there was is gazette road or chain of public land that would usually show up on the crown grant or maybe there are other historical documents in the local archives.   It is well worth your time checking all the details before one buys rural land.   It’s usually a good idea to have a competent real estate agent and lawyer who are working for you and helping you make the right decision based on all available information.

Cheers Scott Simmons

On Salt Spring Island BC

The latest issue of Legally speaking by the (BCREA)  British Columbia Real Estate Association is worth a read if you are looking at waterfront on Salt Spring Island.

WHAT’S UP (WITH THE) DOCK?

Waterfront properties with private docks are looking attractive at this time of the year, particularly with the weather we’ve been enjoying this summer. Licensees involved in the sale of such properties need to be aware of, and inform their clients of, the possibility that any dock or other structures built upon the foreshore (the land between the ordinary high and low water mark), may be non-compliant with the rules and regulations governing their construction and use.

In the past, many waterfront property owners took advantage of the Ministry of Forest, Lands and Natural Resource Operation’s lack of interest in, and resources for, the enforcement of the rules and regulations associated with the construction and use of private docks. As a result, many docks were built contrary to the applicable guidelines, including the Private Moorage Guidelines, established by the Province and other levels of government. Some examples of non-compliant docks are those built:

In recent years, the Ministry has devoted new energy and resources to enforcing those rules and regulations to the shock of many waterfront owners who learn that they may lose their dock, or incur significant costs to rectify non-compliance.

The Province owns and regulates nearly all of the foreshore. Formerly, an owner wishing to build a dock or other structures encroaching onto the foreshore applied for a lease or license for a fixed term, typically 10 years. Both of these options involved an application with a fee, as well as rental charges. The license tenure option for private docks and has now been eliminated and replaced with both “general” and “specific” permissions which, unlike leases and or the previous type of license, do not have a fixed term and do not charge rent.

General permission applies to docks less than 24m2 in size located on rivers and lakes. No application is required for such docks. Specific permission is required for any docks larger than 24m², any small docks that do not qualify for general permission, and all docks located along the coastal foreshore.

When an existing license expires, an owner may apply for specific permission, or a lease, or may be granted general permission to retain the use of the structures. When an existing lease expires, the owner may continue with the lease, or apply for general or specific permission, depending on the size and location of the dock.

Typically, when an owner applies for general or specific permission or to renew a lease for the continuing use of a private dock, the Ministry will review the dock and other foreshore structures for compliance. If the dock or structures could impact aboriginal interests, the Province will also consult with impacted First Nations communities.

If a dock or foreshore structures are found to be non-compliant with the regulations or guidelines in place at the time the structures were built, an owner may have to remove or modify the dock/structures to become compliant. The Ministry will issue Notices of Trespass for any offending structures, requiring removal which can be an extremely bitter pill for buyers of waterfront or semi waterfront properties to swallow.

In order to avoid complaints or lawsuits, licensees acting for sellers or buyers of waterfront properties will wish to:

For more information, see: http://www2.gov.bc.ca/gov/content/employment-business/natural-resource-use/land-use/crown-land/crown-land-uses/residential-uses/private-moorage.

Jennifer Clee
B.A., LL.B.

The above article is “Copyright British Columbia Real Estate Association. Reprinted with permission.” BCREA makes no guarantees as to the accuracy or completeness of this information.

Here is my TV show I shot on Salt Spring about waterfront properties and docks;

Cheers Scott Simmons

This article was just published by the BCREA and is worth reading if you are looking at buying on Salt Spring. The key is that these sites might not be registered on title. A simple title search might not guarantee there is not an archaeological site on the property.

DEALING WITH HERITAGE SITES
How many licensees are aware that the Heritage Conservation Act (HCA),1 which replaced the Archeological and Historic Sites Protection Act (the Act) in 1977, extends the legislated protection of archeological sites on Crown lands, to archeological sites on private property, without requiring formal designation or notice being registered on title? An archeological site by definition is a location where there is evidence of past human activity, and may include shell middens, remains of ancient houses, campsites, ancient stone carvings or other heritage objects.
Land that has been designated as heritage property is clearly protected under the HCA, but so is land falling within the definition of heritage site. A heritage site is any land, whether designated or not, that has “heritage value” to British Columbia, a community or an aboriginal people. This even includes land covered by water. Heritage value means the historical, cultural, aesthetic, scientific or educational worth or usefulness of a site or object. The consequences of licensees not being aware of the protection afforded to archeologically sensitive land can by significant. Consider the following example:
A buyer locates a beautiful piece of land listed for sale in Northern BC adjacent to a pristine lake. The land appears perfectly suitable for the buyer’s dream of constructing a multi-unit residential property. Unbeknownst to the buyer, his licensee, the seller and his licensee, archeological research conducted in the 1970’s under the Act generated a report identifying the property as an archeological site. The seller, who had inherited the property, never received the report, although he had found artifacts on the property. The title search does not reveal a notice that the property is designated heritage property.
The buyer decides to make an offer to buy the property, subject to the possibility of rezoning the property to accommodate his development plans. The buyer contacts the local authority, which provides verbal assurance that the buyer’s rezoning application will be favourably received. The buyer removes his subject condition based upon that assurance and completes the purchase.
Subsequently, in the course of seeking approval to rezone the property, the buyer learns that the property is protected by the HCA. The buyer then spends thousands of dollars obtaining an archeological impact assessment required for his application for a site alteration permit and based upon the report, no permit is issued and the rezoning is not approved.
The result? The buyer is out of pocket not only for the costs associated with the archeological impact assessment and rezoning application, but also the cost of the land, legal fees and other development costs. The value of the land may also have diminished as a result of the development restrictions.
The outcome? Likely a lawsuit against:
a) The buyer’s licensee and his/her brokerage for failing to contact, or recommend that the buyer contact, the Archeological Branch;2
b) The seller’s licensee and his/her brokerage for not investigating and ascertaining whether the property was protected under the HCA;
c) The seller for not disclosing that the property had archeological significance; and/or
d) The local authority for not contacting the Archeological Branch before giving informal approval to the developer’s zoning application.
Licensees should be familiar with archeologically sensitive areas in the communities in which they work and be aware of the silent arm of the HCA and its effect on the use, development and/or value of any property it protects. To avoid claims or professional conduct complaints relating to archeological sites, licensees should:
Check to see if property is listed on municipal or provincial heritage registers;
Contact the Archeological Branch or submit a BC Archeological Site Data Request Form3 to the Branch to determine if the property is protected; or
Shift that responsibility to their client (in writing).
Licensees should also review the Real Estate Council of British Columbia’s Professional Standards Manual section on heritage properties4 and become familiar with the subject clauses set out therein.
Jennifer Clee
B.A., LL.B.
“Copyright British Columbia Real Estate Association. Reprinted with permission.” BCREA makes no guarantees as to the accuracy or completeness of this information.

Here is another article on the subject which goes into the case of Wendi Mackay of Victoria and the archaeological branch. bcs-rogue-and-costly-archaeological-bureaucracy

Here is the link to the BC gov Archaeology home page.

On behalf of all my future clients on Salt Spring Island I have requested all the site info for all the island of Salt Spring. Here are the screen shots of my request.

Will keep all updated on the progress of my request.

Cheers Scott Simmons

Update July 14, 2015

Just received these emails from the heritage branch.

Please note you would have to read from the bottom up to figure out this email thread.  I have removed all email address from this thread.

As mentioned previously, we do make the registry information available to realtors.  When they are listing a property or have purchasers considering same realtors contact our office to determine if there are any known archaeological interests associated with the property.   This service is available to all realtors in the province.

As stated in at the end of this thread above I will send a letter to my MLA and request the minister send me all the documents that pertain to Salt Spring.

Cheers Scott

Last year there was a group of cabins for sale on the Salt Spring MLS.   Some of you might remember them.  I was just shocked when they were first listed.  I sent a letter to the managing broker of the company that had them listed and explained the land is in the ALR and that what they were doing was actually leasing the buildings without and interest in the land.  They changed their listing info and made it clear that the purchase did not include the land.   I was still skeptical and did not show the cabins.  What would preclude the land owner from evicting the cabin owners?  The lease they were selling was for 99 years but there was no leases that I knew about registered on title.  Today I feel like I was right and vindicated for my position on those cabins.

This was just sent to me from the BCREA (British Columbia Real Estate Association)

In 2001, Lakefront Ranch Inc. (Lakefront) owned 320 acres of land in central BC. The property was situated within the Agricultural Land Reserve (ALR) and therefore subject to the Agricultural Land Commission Act (ALC Act) which prohibited the subdivision of land within the ALR into smaller parcels except in extraordinary circumstances.

1. Mushroom Farm Inc. v. Trike Ranch Inc., 2013 BCSC 1294.
2. International Paper Industries Ltd. v. Top Line Industries Ltd., (1996) 135 DLR (4th) 423.

“Copyright British Columbia Real Estate Association. Reprinted with permission.” BCREA makes no guarantees as to the accuracy or completeness of this information.

I’m not always right but if something looks to good to be true it’s probably not true.

Cheers

Scott Simmons