Modification of an easement agreement #385

Jul 01, 2005

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By Gerry Neely
B.A. LL.B.

When is an easement not an easement? "When the rights granted by it detract so substantially from the rights of the servient owner that it must be something other than an easement." This quote is from the reasons for judgment interpreting an easement agreement granting access over Lot 3 (the servient tenement) for the benefit of Lot 2 (the dominant tenement). The benefits included the right to "landscape, garden and enjoy the Easement Area as an integral part of Lot 2," in common with the owner of Lot 3.

The Lot 2 owners constructed a road through the Easement Area, which restricted the Lot 3 owner's access to her property for heavy equipment or a pickup truck, planted hedge trees that would potentially eliminate her water view, installed deer fences approximately eight feet high on either side of the Easement Area to protect the fruit trees and grapes they had planted in the Easement Area, constructed concrete pilasters to support trellises for grapes and took the fruit from pre-easement trees because they looked after them.

Eventually, the Lot 3 owner rebelled and sued to modify the easement by deleting the landscaping clause. The Lot 2 owners' position was that the rights of the Lot 3 owner to landscape and garden her property in the Easement Area were subject to their rights. If this argument prevailed, the Lot 3 owner might never be able to use her property. The judge agreed that there was no way both parties could landscape and garden within the Easement Area and ordered the deletion of the clause.1

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Enforcement of hard flooring bylaw

In another hard flooring material case, a strata corporation had mixed success when it petitioned for an order directing an owner to remove the laminate flooring he installed. It contravened a flooring bylaw approved two years before the owner purchased his unit, requiring wall-to-wall carpet throughout second- and third-floor units except kitchens, bathrooms and five feet of the entry halls.

The owner neither asked whether laminate flooring was permitted nor searched in the Land Title Office for a copy of the bylaws before he made his offer. Instead, he relied on a "buyer's package" provided by the listing representative, whose evidence was that it contained a complete set of the bylaws. The judge didn't accept the owner's claim that the page containing the flooring bylaw was missing.

The owner was ordered to remove the flooring and replace it with carpet at his expense, but wasn't ordered to pay the legal costs normally paid to a successful party. While a strata corporation has the power to require an owner to pay the cost of remedying a contravention, it must first give the owner particulars of the complaint and a reasonable opportunity to answer it, including a hearing if the owner requests one. The strata corporation failed to do this and, therefore, had to bear its own costs.2

* * *

Indian Land Registry and First Nations Registry System

The Law Society of BC recently issued a practice watch concerning a completed sale of a sublease on First Nations land following registrations in the Indian Land Registry.

Some First Nations Bands, including the one in question, now have the right to create and run their own land registry systems. In this case, after all monies had been paid out, the lawyer acting for the buyer was notified by Indian and Northern Affairs Canada that the registrations had been cancelled and would have to be submitted for re-registration under the Band’s First Nations Registry System. The system for the Band in question wasn't in place at the time of the notification. Unfortunately, both the cancellation of the registrations and the failure to set up the Band's registration system potentially risked the title and priority interests of a buyer and mortgagee.

Lawyers who deal with First Nations land were advised to determine whether the land falls under the First Nations Land Management Act, and were referred to www.fafnlm.com for information.

  1. Prinsen v. Wickland, SCBC, Victoria Registry, Reasons for Judgment, December 3, 2003 and Property Law Act, RSBC 1996, c. 377, s. 35.
  2. The Owners, Strata Plan VR19 v. Collins, SCBC, Vancouver Registry, Reasons for Judgment, December 31, 2004 and Strata Property Act, RSBC 1998, c. 43, s. 129, 133, 135, 173.

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