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Salt Spring Island Real Estate

MLS homes for sale by Scott Simmons

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

 

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Salt Spring Real Estate Market Report

If you are looking for Salt Spring Island Real Estate it would be well worth your time to check out my Salt Spring Market Report pages.

To help you search for a Salt Spring home for sale I have two systems you can use.  One is a map based mobile search system for tablets and/or phones. This system works really well if you are on Salt Spring, as it will automatically show you properties as you drive around the island.

The other system is a data base (Advanced MLS system or PCS) for laptops or desktops.

These two systems display information in real time, which allows you to view new listings within one second of them coming on the market. You will also find the “sold” prices of homes, as well as other useful information.

Radio Real Estate Shows

TV show Realty Reality on Salt Spring

So glad shooting for the new Real Estate TV show “Realty Reality” is over. It was a lot of work. It all looks so easy on TV but in reality it was not easy. I think they were waiting for the “moment” to happen. You know the big fall down the steps or fall of […]

Home inspection on Salt Spring Island

Home inspection on Salt Spring Island happened yesterday at a 42 year old log home. To accomplish the home inspections the buyer brought in a  Home Inspector, Geo-technical Engineer and a local Salt Spring contractor. Jeff the home inspector tells the story about the bag of Gold he found in an attic; gold story How […]

Salt Spring home face lift

My clients bought this dated salt spring home a month ago and are upgrading it.  The home was built in 1996 and is structurally 100% perfect.  It seams as if the original owner skimped on the finishing.   The main up grade Alex Denny (salt spring master carpenter) will be doing for the owners is re-finishing […]

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Buying on Salt Spring Island

Salt Spring rental homes by the numbers

July 18, 2018 By Scott Simmons 2 Comments

I get many people asking me about buying a rental home on Salt Spring and usually spend a lot of time answering all their questions.  So in this post, I hope to cover some of the factual information. Here are the typical questions and basic answers; What is the rental market like on Salt Spring?  […]

Ban on Dual Agency BC

June 16, 2018 By Scott Simmons 2 Comments

On June 15th, 2018 the ban on dual agency just came into effect in BC. Here is a post I wrote about how the new rules will change the way I do business on Salt Spring New Rules for BC Real Estate As a continuation of the New Rules post, what happens if we are […]

New Rules for BC Real Estate

June 16, 2018 By Scott Simmons Leave a Comment

On the 15th of June 2018, the new rules governing BC real estate have come into effect. If you come to Salt Spring to look at homes and or land Scott will go over the form below and ask you if you would like agency representation and ask you to sign this Disclosure-of-Representation-in-Trading-Services as a represented part […]

Salt Spring Island Trust Land Use Zoning bylaw 355

February 17, 2018 By Scott Simmons Leave a Comment

On Salt Spring Island the Island Trust is responsible for our local zoning.  You can find our zoning info here at the Salt Spring Island Trust LUB 355. The bylaw has maps that cover every part of the island.  Believe it or not every few months or so I get an email from someone saying […]

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 NEWS

Salt Spring Housing Crisis explained

July 12, 2018 By Scott Simmons Leave a Comment

Is Salt Spring in the middle of a housing crisis?  It all depends on who you talk to and what one defines as a crisis. If you move to Salt Spring and have limited funds and are looking to rent a home at about $1000 per month your probably out of luck.  There are basically […]

Candidate for Regional Director CREA

March 7, 2017 By Scott Simmons Leave a Comment

I’m running for the position of board member Regional Director for BC for the Canadian Real Estate Association (CREA).  Below is my official platform after edits suggested by CREA lawyers. My name is Scott Simmons. I’m a REALTOR® on Salt Spring Island BC. If you go to the REALTOR.ca site and put in Salt Spring […]

CRD sewer and solid waste

January 23, 2017 By Scott Simmons Leave a Comment

The nuts and bolts of local goverment are really the non glamours basics of water, sewer and garbage (solid waste).   The CRD is the local service provider for Salt Spring.  On the night of 24 Nov 2016 Russ Smith Senior Manager, Environmental Resource Management for the CRD put on a waste presentation.  Here is a […]

Incorporation – A Third Option: Self-governance with contracted services

May 11, 2016 By Scott Simmons Leave a Comment

This was just posted on the Salt Spring exchange in 4 parts.  I have permission from John Gauld the author to publish this document on my Salt Spring web site;   SSI is known as a community that questions conventional practices and is creative and innovative in its response to community challenges. Perhaps the up-coming […]

Salt Spring’s new SSIWPA PAC

November 4, 2014 By Scott Simmons 2 Comments

If you live on Salt Spring you have to get used to all the acronyms.  If you have not heard of SSIWPA it’s because it’s new.   SSIWPA stands for Salt Spring Island WaterShed Protection Authority.  Today  was the first meeting of the SSIWPA PAC (Public Advisory Committee). The ideal behind SSIWPA is that it […]

 

Critical Salt Spring Buying Info

Ban on Dual Agency BC

June 16, 2018 By Scott Simmons 2 Comments

On June 15th, 2018 the ban on dual agency just came into effect in BC. Here is a post I wrote about how the new rules will change the way I do business on Salt Spring New Rules for BC Real Estate As a continuation of the New Rules post, what happens if we are […]

New Rules for BC Real Estate

June 16, 2018 By Scott Simmons Leave a Comment

On the 15th of June 2018, the new rules governing BC real estate have come into effect. If you come to Salt Spring to look at homes and or land Scott will go over the form below and ask you if you would like agency representation and ask you to sign this Disclosure-of-Representation-in-Trading-Services as a represented part […]

Sun Path Chart

Does the home get sunlight?

February 28, 2013 By Scott Simmons 1 Comment

If you’re planning to live on Salt Spring year-round, one of the most important things to consider when buying a property is SUNLIGHT. Do the neighbor’s trees or a mountain block the sun during the winter months?  According to Salt Spring real estate mythology, “If they buy in August, they will list in November and […]

Aggregate Days on the Market

January 2, 2012 By Scott Simmons Leave a Comment

What are “aggregate days on the market”? On the Victoria Real Estate board an agent can “Re-List” a property for a mere $25 fee.  An example would be if a home has been listed on the board for 180 days the listing can be taken off the market and then “Re-Listed” and appear to be […]

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