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Salt Spring Island Real Estate

MLS homes for sale by Scott Simmons

The Property Disclosure Statement in BC

January 26, 2016 By Scott Simmons 6 Comments

What is a PDS (property disclosure statement) and why you should anyone buying or selling Salt Spring real estate care.  If you are selling think of the PDS as your trusted friend.  Just like a trusted friend you can and should tell all to the PDS.   The PDS will be there with you if you get into a sticky situation selling.  If you have never seen one here is an actual PDS, please note there is no address; example PDS .

Why do I need to fill one out if I’m selling?  You do not have to British Columbia doesn’t have a law requiring property sellers to complete the PDS, the REALTORS® of BC make the form available to sellers listing their home on the MLS®.  It is not mandatory but strongly suggested as best practice.  Think of it like “air bags” in a car.  Most people will never need their “air bags” well why put them in a car if most will not need them?  Well if that truck coming your way at high speed swerves into your lane you will be glad you had your “air bags”.   99.99% of real estate deals will never “need” a PDS but if you disclose chances are the buyers can not come back on you and take you to court.  Here is info about the latest court case, Nixon v. MacIver,  were the PDS was involved.  Info below is from the BCREA which I have been a member of for more than a decade:

PROPERTY DISCLOSURE STATEMENT TIPS

Mike ManganThe BC Court of Appeal recently decided Nixon v. MacIver, the court’s newest Property Disclosure Statement (PDS) case.1 Once again, the court held in favour of the sellers. It seems timely to offer a few PDS suggestions for licensees.

Listing REALTORS®

Why use a PDS? It makes sense that the seller, the person most familiar with the property, should inform potential buyers about his or her knowledge of it. The PDS gives every buyer the same starting point for inquiring about the property and reduces a Realtor’s risk of being sued for misrepresentation.

A seller may want advice when completing a PDS. Review the PDS instructions with the seller and remind the seller to honestly and fully complete it. Warn the seller against assuming or guessing. Say, “If you don’t know, you don’t know.” In Nixon, much of the dispute might have been avoided if the sellers, when completing their PDS, had not wrongly assumed the age of a roof. Even so, the court dismissed the claim against the sellers because they honestly believed their answer to be correct.

If the seller says, “I don’t understand this question,” consider simplifying the seller’s inquiry. You can ask, “What part of the question don’t you understand?” If the seller does not understand a particular word, consider consulting a dictionary together and always document the inquiry in your notes.

Suppose a Realtor gives a seller certain advice about filling in the PDS, but the seller rejects that advice? The Realtor should warn the seller about the risks of not following that advice and fully document the exchange.

If a Realtor believes that a seller’s answer is misleading or needs clarification, they should explain to the seller why. For example, where a seller describes his knowledge of water damage in the PDS as, “some.” In particular, beware the half-truth – the answer that mentions a real problem, but downplays its actual magnitude. Warn the seller that he or she may be sued for giving false or misleading information. If the seller refuses to correct a misleading answer, the Realtor should withdraw.

In a lawsuit, there may be a question whether the buyer relied on the PDS before making an offer. A listing Realtor should record when the PDS is delivered to the buyer or the buyer’s agent.

Buyer Agents

It is important to put the PDS into perspective for a buyer. The Nixon case emphasizes the buyer’s own obligation to investigate the property. Subject to a seller’s duty to disclose a latent defect, Nixon held that a seller who completes a PDS has no obligation to add extra information beyond answering the specific questions in the form. The court reiterated that the PDS only asks a seller to say if he or she is aware of certain problems. As the Real Estate Council of British Columbia says:2

“Realtors who act for buyers should caution their clients that questions on the PDS worded, ”Are you aware…” refer only to the present tense. A negative answer does not mean that there has not been a problem in the past or that a past problem will not recur.”

Incorporate the PDS into the contract. If a particular statement in that PDS is especially important to the buyer, add that the statement in question, “is a fundamental term of this contract.”

Remind the buyer of the importance of a professional inspection and have the buyer give a copy of the PDS to the inspector. The buyer can ask the inspector to note any discrepancies between what the inspector sees and what the PDS says or omits.

In contract law, a buyer may only rescind the contract for innocent misrepresentation by taking legal steps before completion. If a buyer discovers information that is inconsistent with the PDS, advise the buyer to immediately seek legal advice.

Mike Mangan
B.A., LL.B.

1. Nixon v. MacIver, 2016 BCCA 8 aff’g 2014 BCSC 533.
2. Real Estate Council of British Columbia, Professional Standards Manual, online: Trading Services, 4. General Information, (a) (xxii)(1)Disclosing Defects: How the Law Works:http://www.recbc.ca/psm/disclosing-defects-how-the-law-works.
“Copyright British Columbia Real Estate Association. Reprinted with permission.” BCREA makes no guarantees as to the accuracy or completeness of this information or the currency of legal information.

The court case is interesting to read over.  Here is what I think is the most interesting part about disclosure;

Disclosure statements

[48]        Information contained in a disclosure statement that is incorporated into a contract of purchase and sale may be a representation upon which a purchaser can rely: Ward v. Smith, 2001 BCSC 1366 (CanLII) at para. 31. However, a vendor is only obliged to disclose his or her current actual knowledge of the state of affairs of the property to the extent promised in the disclosure statement and need say “no more than that he or she is or is not aware of problems”: Arsenault v. Pederson, [1996] B.C.J. 1026 (QL) (S.C.) at para. 12. In other words, the vendor must correctly and honestly disclose his or her actual knowledge, but that knowledge does not have to be correct. A vendor is not required to warrant a certain state of affairs but only to put prospective purchasers on notice of any current known problems. The purpose of a disclosure statement is to identify any problems or concerns with the property, not to give detailed comments in answer to the questions posed. See Anderson v. Kibzey, [1996] B.C.J. No. 3008 (QL) (S.C.) at paras. 13-14;Zaenker v. Kirk (1999), 30 R.P.R. (3d) 9 (B.C.S.C.) at para. 19; Kiraly v. Fuchs, 2009 BCSC 654 (CanLII) at paras. 47, 49; and Roberts v. Hutton, 2013 BCSC 640 (CanLII) at para. 83.

 

So there you have it.  Please disclose all if you are selling.   Buyers please do you due diligence, do not rely on just the sellers PDS,  hire professionals to inspect the home and or property.

Cheers
Scott Simmons

Filed Under: Buy house on Salt Spring, Selling your home

Salt Spring Incorporation News

November 22, 2015 By Scott Simmons 2 Comments

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

Filed Under: Buy house on Salt Spring

Easements and Gazette roads

August 28, 2015 By Scott Simmons Leave a Comment

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

  1. McCorquodale v. Baranti Developments Ltd., 2015 BCCA 133.
  2. Chivas v. Mysek, 1986 BCJ No. 2547 (QL) (CA).
Collinson v. LaPlante, 1992 CanLII 685 (BC CA).
Vandenberg v. Olson, 2010 BCCA 204.

 

“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

 

Filed Under: Buy house on Salt Spring

Waterfront properties things to know

July 22, 2015 By Scott Simmons Leave a Comment

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?

Jennifer CleeWaterfront 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:

i) without Provincial authorization,
ii) with illegal structures,
iii) contrary to local zoning and building regulations, or
iv) contrary to Canadian Coast Guard or Department of Fisheries and Oceans regulations.

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:

i) investigate the status of any docks or waterfront structures,
ii) avoid making any misrepresentations regarding docks or waterfront structures,
iii) warn clients of the risks associated with non-compliant docks and waterfront structures, or
iv) encourage buyers to exercise due diligence in investigating the issue if important to them.

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

Filed Under: Buy house on Salt Spring

the Heritage Conservation Act

March 26, 2015 By Scott Simmons Leave a Comment

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.

screen shot of request for info on Salt Spring Island

screen shot of request for info on Salt Spring Island 2

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.

Justine Batten
Director
Archaeology Branch
Ministry of Forests, Lands and Natural Resource Operations 
 
Telephone:  250 953-3355
Fax:            250 953-3340
email:         

P Please consider the environment before printing this e-mail

From: Scott Simmons 
Sent: Tuesday, July 14, 2015 9:39 AM
To: Batten, Justine FLNR:EX
Subject: Re: Data Request: Scott Simmons – One Percent Realty Salt Spring Island

Just one more question.

 

It states in the Data Terms and Conditions part 2.  …but not to withhold if from those who have a need to know and who and an interest in a site or sites such as: planners, realtors,… How can you contravene your own Data terms and conditions?

 

As I have stated I have an interest in ALL of Salt Spring Island.  The act does not specify interest.   I have stated my interest that should suffice.  You are withholding and blocking me from getting archaeological information contrary to the Heritage Conservation Act and your own Data terms and conditions.

 

At this point I’m going to go to my MLA and request the Minister grants me access to the information I have requested.  Thank you for your time and correspondence on this issue.  It is much appreciated.

 
 

Sincerely,

Scott Simmons

250.538.8316

Salt Spring representative for
One Percent Realty 
Salt Spring Real Estate
Twitter @SaltspringRE

 
 

From: “Batten, Justine FLNR:EX”
To: ‘Scott Simmons’ <>
Sent: Tuesday, July 14, 2015 9:13 AM
Subject: RE: Data Request: Scott Simmons – One Percent Realty Salt Spring Island

The attached document sets out the terms and conditions of access.  This and related information can be found on our website https://www.for.gov.bc.ca/archaeology/index.htm

Justine Batten
Director
Archaeology Branch
Ministry of Forests, Lands and Natural Resource Operations 
 
Telephone:  250 953-3355
Fax:            250 953-3340
email:         

P Please consider the environment before printing this e-mail

 
 

From: Scott Simmons 
Sent: Tuesday, July 14, 2015 8:45 AM
To: Batten, Justine FLNR:EX
Subject: Re: Data Request: Scott Simmons – One Percent Realty Salt Spring Island

 

Can you send me a copy of the other conditions the minister has imposed?

 

Sincerely,

Scott Simmons

250.538.8316

Salt Spring representative for
One Percent Realty 
Salt Spring Real Estate
Twitter @SaltspringRE

 
 
 

From: “Batten, Justine FLNR:EX” 
To: ‘Scott Simmons’ <>
Sent: Tuesday, July 14, 2015 8:37 AM
Subject: RE: Data Request: Scott Simmons – One Percent Realty Salt Spring Island

 

Mr. Simmons, section 3(2) as you quote below states explicitly that its operation is subject to ss 3 and 4.  I have already explained the application of section 3(3)(a) and subsection 4 states “the inspection of information in the Provincial heritage register is subject to reasonable conditions the minister may impose.”

 

The database (register) will not be available for your viewing as explained in our earlier emails.

 

Justine Batten
Director
Archaeology Branch
Ministry of Forests, Lands and Natural Resource Operations 
 
Telephone:  250 953-3355
Fax:            250 953-3340
email:         

P Please consider the environment before printing this e-mail

 
 

From: Scott Simmons
Sent: Tuesday, July 14, 2015 8:31 AM
To: Batten, Justine FLNR:EX
Subject: Re: Data Request: Scott Simmons – One Percent Realty Salt Spring Island

 

So basically you are disregarding this section of the act;

 

(2) Subject to subsections (3) and (4), information in the Provincial heritage register must be available for inspection by any person during regular business hours.

 

Can I book in an appointment on Thursday at 10am to view the registry?

 

Please stop putting words in my mouth saying I will be misleading my clients.  That is not for you to decide.  If I mislead my clients I will be accountable to my clients and I do understand your concerns but do not see how this gives you any right to block my simple request. 

 

Please follow the act and grant me full access to the registry in person as per the law on Thursday as requested.  As the law says the register MUST be available.  And as I have stated my intent is not to do damage and or interfere and the presumption of innocence is an important part of the common law which is the foundation of this act.

 

Sincerely,

Scott Simmons

250.538.8316

Salt Spring representative for
One Percent Realty 
Salt Spring Real Estate
Twitter @SaltspringRE

 
 
 

From: “Batten, Justine FLNR:EX” 
To: ‘Scott Simmons’ <>
Cc: “Ruskin, Jessica FLNR:EX” 
Sent: Tuesday, July 14, 2015 8:11 AM
Subject: RE: Data Request: Scott Simmons – One Percent Realty Salt Spring Island

 

There is no physical registry per se Mr. Simmons but rather an electronic data base of all known sites in the province.   The restrictions, as described to you, apply both with respect to our mailing you the information and to any on site review of the registry itself.

 

If we were to provide you with a list of all properties containing all known archaeological sites on Salt Spring, this could very well prove misleading to your clients.  Such a listing would not tell you the degree of impact on the use of the property as this requires knowledge of the type of site, when it was recorded and how well it was recorded in addition to what percentage of the property is impacted by the site.  Furthermore, any listing we provided to you now would become outdated as new sites are added over time.

 

It is also important to note that the absence of a site may not be indicative of the fact that no site is present.  This absence may merely mean that particular piece of property has not been examined by an archaeologist and tested for the presence of a site.  Releasing information on all known sites is also an infringement of the privacy of the property owners of those lands containing the site.   This infringement can be justified in the face of a possible sale or listing but not as a shopping list for a commercial enterprise.

 

We will not be varying our policy in this instance.  Our office can provide your clients with the requisite information well in advance of them making any binding commitment to purchase a property without infringing the rights of other property owners.

 

Justine Batten
Director
Archaeology Branch
Ministry of Forests, Lands and Natural Resource Operations 
 
Telephone:  250 953-3355
Fax:            250 953-3340
email:         

P Please consider the environment before printing this e-mail

 
 

From: Scott Simmons 
Sent: Tuesday, July 14, 2015 7:57 AM
To: Batten, Justine FLNR:EX
Cc: Ruskin, Jessica FLNR:EX
Subject: Re: Data Request: Scott Simmons – One Percent Realty Salt Spring Island

 

Good Morning Justine Batten

 

I really do not care what other Reators do or do not do or have not done that is totally irrelevant and would never stand up in court as doing ones fiduciary duty to ones client.  What I care about is having information for my clients on Salt Spring Island.  Your interpretation of the law seems very odd.  How can you possibly claim 3(a) have I given you any intent to damage to or interfere? When and or how can the simple knowledge of something be taken as intent to damage or interfere.  What you are basically saying is if I find out where the places are I intend to go out and damage and or interfere which is not my intent.

 

Your obtuse action of interference with my request is intolerable and would not stand up in court.  It all comes down to the act and you are over stepping the act that mandates your branch.

 

If I come to Victoria in person can I go through the registry myself? As per the act.  Would I have complete access?

 

Sincerely,

Scott Simmons

250.538.8316

Salt Spring representative for
One Percent Realty 
Salt Spring Real Estate
Twitter @SaltspringRE

 
 
 

From: “Batten, Justine FLNR:EX” 
To: ‘Scott Simmons’ <>
Cc: “Ruskin, Jessica FLNR:EX”  
Sent: Tuesday, July 14, 2015 7:40 AM
Subject: RE: Data Request: Scott Simmons – One Percent Realty Salt Spring Island

 

Good morning Mr. Simmons.  Why we restrict access to those with an interest in the land being queried is set out in section 3(a) below.  How we restrict it is to limit the release of information to those who have a specific need to know.   If you check with others in your industry  you will find this is the standard applied to all who query the registry.

 

Justine Batten
Director
Archaeology Branch
Ministry of Forests, Lands and Natural Resource Operations 
 
Telephone:  250 953-3355
Fax:            250 953-3340
email:         

P Please consider the environment before printing this e-mail

 
 

From: Scott Simmons
Sent: Monday, July 13, 2015 6:02 PM
To: Batten, Justine FLNR:EX
Subject: Re: Data Request: Scott Simmons – One Percent Realty Salt Spring Island

 

Hi Justine Batten as per the Heritage conservation act you operate a register and under section (3) below there are only three reasons you can refuse to disclose information.  The act says nothing about an “identifiable interest”.

 

Provincial heritage register

 

(3) Despite the Freedom of Information and Protection of Privacy Act, the minister may refuse to disclose information in the Provincial heritage register and other information obtained in the administration of this Act or the Museum Actif any of the following apply:

(a) disclosure of the information could, in the opinion of the minister, result in damage to or interfere with the conservation of a heritage site or heritage object;

(b) disclosure of the information would violate an agreement made under section 4;

(c) anthropological information that is of traditional social, spiritual or other cultural importance to a living community

(i)   was obtained under conditions of confidentiality, or

(ii)   is confidential at the request of representatives of the community whose heritage is represented by the information.

 

Please send me an email stating how long it will take you to fulfill my request and the cost of this.  Thank you.

 

Sincerely,

Scott Simmons

250.538.8316

Salt Spring representative for
One Percent Realty 
Salt Spring Real Estate
Twitter @SaltspringRE

 
 
 

From: “Batten, Justine FLNR:EX” 
To: “‘Scott Simmons 
Cc: “Acheson, Steven FLNR:EX” <>; “Ruskin, Jessica FLNR:EX” <>
Sent: Monday, July 13, 2015 3:53 PM
Subject: FW: Data Request: Scott Simmons – One Percent Realty Salt Spring Island

 

We appreciate the nature of your request for information Mr. Simmons but, as you were advised by Ms. Ruskin, archaeological information is not released on the terms you have specified.

 

All realtors in the province operate under the same parameters:  when they receive notice that a house may be listed  or there is a listed property that their client is interested in, they seek information from our office as to the status of that particular property.   If the offer date is proximate, you can call our office directly as we will provide you with the information immediately.  Our inability to provide you with an area wide list does not relate to the number of the sites but rather that you have no identifiable interest in receiving this information for each property on Salt Spring Island.

 

To be clear, we welcome your request for information on a property by property basis and trust this will provide your clients with the information they require.  Please feel free to contact me directly if you have additional questions in this matter.

 

Justine Batten
Director
Archaeology Branch
Ministry of Forests, Lands and Natural Resource Operations 
 
Telephone:  250 953-3355
Fax:            250 953-3340
email:         

P Please consider the environment before printing this e-mail

 

From: Ruskin, Jessica FLNR:EX
Sent: Monday, July 13, 2015 3:32 PM
To: Acheson, Steven FLNR:EX; Batten, Justine FLNR:EX
Subject: FW: Data Request: Scott Simmons – One Percent Realty Salt Spring Island

 
 
 

Jessica Ruskin, MSc | Archaeologist/Heritage Resource Specialist
Archaeology Branch | Ministry of Forests, Lands and Natural Resource Operations

Phone:   250-953-3348 | Fax:  250-953-3340 |e-mail:

Unit 3 – 1250 Quadra Street, Victoria BC V8W 2K7 | PO Box 9816 Stn Prov Govt, Victoria, BC V8W 9W3

 

Visit our website at: http://www.for.gov.bc.ca/archaeology/index.htm

 

From: Scott Simmons  
Sent: Monday, July 13, 2015 3:28 PM
To: Ruskin, Jessica FLNR:EX
Cc: Cooper, Diana FLNR:EX
Subject: Re: Data Request: Scott Simmons – One Percent Realty Salt Spring Island

 

To Jessica Ruskin, MSc

 

Thank you for getting back to me in such a short time of less than four months.  Why can you not provide me the archaeological info for Salt Spring? There can not be that many places.  What will this search cost and how long will it take to get this information?  It is critical that as a realtor of Salt Spring I be given this information so that I can direct my clients not to buy and build on what could be another Grace islet.   Waiting for a place to be listed is to late in the game.  Some places sell within an hour or so of being listed.

 
 

Please take this email as a legal notice and be sure it will be used in any court case against me for not doing my fiduciary duty to protect my clients from claims on their properties.

 

Sincerely,

Scott Simmons

250.538.8316

Salt Spring representative for
One Percent Realty 
Salt Spring Real Estate
Twitter @SaltspringRE

 
 
 

From: “Ruskin, Jessica FLNR:EX” <>
To: Scott Simmons
Cc: “Cooper, Diana FLNR:EX” <>
Sent: Monday, July 13, 2015 3:12 PM
Subject: RE: Data Request: Scott Simmons – One Percent Realty Salt Spring Island

 

Good afternoon Scott;

 

Thank you for submitting a data request for information concerning all of the archaeological sites on Saltspring Island.

 

Unfortunately, I cannot provide archaeological information for the entire island.  This does not mean we cannot release archaeological data to you, just that the format will need to be a little more restricted.  I can supply archaeological site data forspecific properties that are listed for sale.

 

I’ve attached a copy of our Access to Information Policy for your reference.

 

Please let me know if you have any questions.


Kind regards,

Jessica Ruskin, MSc | Archaeologist/Heritage Resource Specialist
Archaeology Branch | Ministry of Forests, Lands and Natural Resource Operations

Phone:   250-953-3348 | Fax:  250-953-3340 |e-mail:

Unit 3 – 1250 Quadra Street, Victoria BC V8W 2K7 | PO Box 9816 Stn Prov Govt, Victoria, BC V8W 9W3

 

Visit our website at: http://www.for.gov.bc.ca/archaeology/index.htm

 

From:  
Sent: Thursday, March 26, 2015 9:46 AM
To: ARCWEB Feedback FLNR:EX
Subject: Data Request: Scott Simmons – One Percent Realty Salt Spring Island

 

Terms and Conditions Accepted

 

Yes

Name

 

Scott Simmons

Affiliation

 

One Percent Realty Salt Spring Island

Address

   

City

 

salt spring island

Province

 

BC

Postal Code

 

V8K 1N5

Phone Number

 

250-538-8316

Fax Number

   

Email

   

Why Site Information is Required

 

I Scott Simmons a Salt Spring Realtor will be able to work with buyers and or sellers and buy and or sell the properties on Salt Spring and feel confident I have tried to find out all about said proprieties on the entire island of Salt Spring.

Third Party Access

 

All buyers and or sellers on Salt Spring who go through Scott Simmons Salt Spring Realtors.

Information Requested

 

I request copies of all sites on Salt Spring Island and on the surrounding shores and or islets.

File Attachment#1

   

File Attachment#2

   

File Attachment#3

   

File Attachment#4

   

File Attachment#5

   

Format for Requested Text Data

 

PDF

GIS Data

 

No

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

Filed Under: Buy house on Salt Spring

Unsubdivide-able land On Salt Spring

November 20, 2014 By Scott Simmons Leave a Comment

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.

The shareholders of Lakefront were four separate companies, each of which held 25 per cent of the shares of Lakefront. One of those shareholder companies was Mushroom Farm Inc. (Mushroom). A single individual controlled each of the four shareholder companies, and through them Lakefront.

Lakefront and each of the four shareholder companies entered into a Shareholders Agreement and Declaration of Trust (Agreement) whereby Lakefront was said to hold the property “as trustee for the shareholders and their successors.” Pursuant to the Agreement, the property was informally divided into four parcels and each of the shareholders was given exclusive possession of one of those parcels.

The Agreement characterized the rights of the shareholders to those unsubdivided parcels as an interest in land. The Agreement also made it clear that the purpose of the scheme was to avoid the unsecure and costly process of subdivision which, at trial, all parties agreed was unlikely to have been approved given the restrictions of the ALC Act.

The shares of Mushroom were transferred to new owners but the single individual continued to retain control of the other three shareholder companies and thus control of Lakefront. Over time Mushroom and Lakefront had a disagreement over their respective rights and obligations under the Agreement and Mushroom eventually sued Lakefront for failing to comply with its obligations

In what can only be described as legal chutzpah, Lakefront successfully argued that it was not bound by the Agreement (which was drafted by Lakefront itself) because the Agreement was illegal in that it offended Section 73 of the Land Title Act (LTA). Section 73 prohibits the subdivision of land into smaller parcels except in accordance with the LTA, which all parties agreed was not followed.

In agreeing with Lakefront,1 the court followed a 1996 decision of the BC Court of Appeal2 which held that an attempt to grant rights of occupation to a portion of land without first subdividing that portion offended the policy objectives of Section 73. As a result, the court determined that the Agreement was unenforceable to the extent that it purported to convey an interest in land to Mushroom.

From time to time REALTORS®, acting either for buyers or sellers, may encounter schemes which purport to grant exclusive possession to unsubdivided portions of a larger parcel of land. Some schemes may be similar to the scheme described in the Mushroom Farm Inc. case, others may not. Some schemes may offend Section 73 and others may not.

The validity of each scheme will be determined by the specific facts and circumstances involved. When confronted with a scheme that purports to create rights of occupation to an unsubdivided portion of land, REALTORS® should proceed with great caution.

A REALTOR® representing a seller wishing to sell a right to occupy an unsubdivided portion of land (either through the sale of shares or otherwise) should:

A. ensure that the seller obtains legal advice with respect to the legality of the interest the seller wishes to sell in light of Section 73 and the Mushroom Farm Inc. decision, as well as the provisions of the Real Estate Development Marketing Act (REDMA) as they apply to the marketing of cooperative and shared interests in land;
B. ensure that any representations made by the REALTOR® are consistent with the advice provided in (a); and
C. recommend that any unrepresented buyers obtain legal advice with respect to the interest they are acquiring in light of Section 73 and the Mushroom Farm Inc. decision and REDMA.
A REALTOR® representing a prospective buyer of a right to occupy an unsubdivided portion of land should ensure that their client, before making an offer to purchase, obtains legal advice with respect to the legality and extent of the interest being offered for sale in light of Section 73 of the LTA, the Mushroom Farm Inc. decision and REDMA.

Brian Taylor
Bull Housser LLP

Revised July 2015

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

Filed Under: Buy house on Salt Spring

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July 18, 2018 By Scott Simmons 2 Comments

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June 16, 2018 By Scott Simmons Leave a Comment

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Salt Spring Island Trust Land Use Zoning bylaw 355

February 17, 2018 By Scott Simmons Leave a Comment

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Is an offer an sale?

January 26, 2018 By Scott Simmons Leave a Comment

This last month I had an accepted offer on a home and had a backup offer come in.  The backup offer was a very weak offer because the condition precedent (subject to clause) was so subjective.  It was subject to the buyer viewing and liking the lot.  Normally no one would take an offer like […]

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Salt Spring Housing Crisis explained

July 12, 2018 By Scott Simmons Leave a Comment

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January 23, 2017 By Scott Simmons Leave a Comment

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Does the home get sunlight?

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