Do Good Easements Make Good Neighbours?

In Mending Wall, the American poet Robert Frost famously asked: Do good fences make good neighbours? In the poem, two neighbours are walking in tandem on either side of their fence, laboriously re-stacking fallen stones. The narrator questions this customary practice because their lands respectively contain apple and pine tree orchards. In response, the neighbour reiterates the adage: good fences make good neighbours. Here, Frost hints at the complexity of property rights. But, let’s suppose the fence was intruding two meters into the narrator’s property. What then?

Often, properties are subject to easements which—broadly stated—grant the right of use, enjoyment, and/or access to others. There are two general categories of easements: public and private. First, public authorities can acquire by expropriation an easement-like right of access for the maintenance of public services and utilities, what is known as a statutory right of way. Once established, these rights-of-way may limit where you can build permanent structures on your property (e.g. a patio, pool, carport, etc.).  For example, Frost’s narrator may have powerlines over a portion of his property; this could restrict the size of his orchard to ensure the utility company’s access.

Second, easements may be granted privately between property owners. These agreements run with the land, insofar as the right-of-access (or otherwise) is registered against the granting land (the servient tenement). Consequently, the easement will persist even when the initial property owners have sold their lands. The benefiting lands (the dominate tenement) carries the right for each subsequent owner’s or inhabitant’s enjoyment. For example, the narrator’s neighbour may be so content with fence mending because he inherited lands that benefit from an easement; whereas the narrator questions the custom because he has inherited lands that grant this benefit.

There are three elements required for an easement to be valid. First, there must be servient and dominate tenements. Private easements cannot exist in gross (“thin air”). These lands need not be contiguous, but they must be close enough to allow the one to benefit the other. Second, because easements impose a burden on the servient tenement, courts will not enforce one unless it improves the dominate land somehow. Third, an easement must be capable of forming the content of a grant. In other words, easements may only concern property rights, such as access to or use of lands. It cannot grant the right to a spectacular view, for instance. Nor can an easement impose a positive obligation on the servient tenement-holder. In Frost’s Mending Wall these three elements appear to be satisfied. Does that mean the narrator’s neighbour can fence the easement lands? Maybe.

Easements grant a property right, not a type of ownership. As such, they never grant the benefiting landowner exclusive possession of the subject lands. Where sufficient access remains for the servient tenement-holder, a dominant tenement-holder may fence easement property—provided it contributes to the easement’s purpose. In Beyer v. Clarke, for example, the B.C. Supreme Court permitted such a fence because it improved the land’s safety for the dominant-tenement holder and their dog. The easement at issue granted a general right of use and enjoyment. To that end, the dominant tenement-holder constructed an ornate garden. Because the fence contained a gate which allowed garden access to the servient tenement-holder and because the fence contributed to the easement’s general purpose, the court refused to order its removal. From this precedent, the narrator’s neighbour may fence the easement lands, provided it contains a gate and contributes to the easement’s purpose.

How do easements end? First, the tenement-holders may agree to remove the easement from the land titles registry. Second, the benefitting landowner may abandon the easement. This requires more than mere disuse. Rather, it requires an action which clearly demonstrates their intention to abandon the right. They may, for example, fence over their access route. And lastly, the easement’s purpose may be rendered obsolete.  An easement allowing for septic truck access, for instance, may become obsolete when a city installs sewage lines.

As Robert Frost’s Mending Wall suggests, property law is complex. Maintaining good relations with your neighbour often requires more than a fence. If your property is subject to an easement and you are hoping to make changes, call our office for more information about your rights and your property’s restrictions.

Renovictions in BC

In April 2018, Premier John Hogan created a Rental Housing Task Force, comprised of three MLAs: Spencer Chandra Herbert, Adam Olsen, and Rae Leonard. One of their major recommendations regarding the issue of “renovictions” has been adopted by the Provincial government and came into force in May 2018. A renoviction occurs when a tenancy agreement is prematurely ended for renovations or repairs. While this is permitted under 49 of the Residential Tenancy Act, the Task Force’s public consultations suggested that this section was often misunderstood or abused by landlords. For example, cosmetic upgrades and minor renovations to electrical or plumbing systems were often being cited as justifications for evicting tenants. The Task Force claimed that this created housing insecurity for renters. To mitigate this issue, they recommended that agreements should persist where possible. Where health and safety concerns necessitate the tenant’s absence from the property, the Task Force further suggested that they receive a right of first refusal upon the work’s completion. The Province quickly adopted these recommendations, as follows:

  • Landlords must provide 4-months’ notice to end a tenancy for demolition, renovation or repair, or conversion. The tenants have 30 days to dispute this notice at the RTB.
    • Before the notice is filed, the landlord must have all the applicable permits and approvals to renovate.
  • If the landlord ends the tenancy under section 49 (landlord’s use) and they do not:
    • take steps towards accomplishing the stated purpose within a reasonable time;
    • use the property for less than 6 months after the tenancy ends;

they will be required to compensate the tenant for 12 months’ rent; unless an arbitrator finds that extenuating circumstances excuse the landlord of liability.

  • Where major renovations require the tenant to vacate the property, the tenant will have a right of first refusal to re-enter the property under a new tenancy agreement.
    • However, this only applies to tenancies within a residential property with more than five or more rental units.
    • Should the landlord fail to recognize this right by not giving the tenant 45 days’ notice of availability and a new tenancy agreement, they will be required to compensate the tenant 12 months’ rent (again, subject to a valid excuse from extenuating circumstances).

For commercial residential rental companies, these new rules introduce a risk of significant liability when renovating or repairing a building, for each tenant has a potential claim of 12 months’ rent. With five tenants at $1,000 per month, the landlord may be liable for $60,000 for failure to adhere to these rules. As such, we recommend seeking legal advice before issuing notices and swinging hammers.

The Speculation and Vacancy Tax Act

The Speculation and Vacancy Tax Act (the “Act”) was enacted by the British Columbia provincial government on November 27, 2018. The purpose of the Act is to combat speculation in the residential housing market and turn empty houses into homes for BC residents.

General Information about the Act

Unless exempted, all owners of residential property in designated regions must pay the speculation and vacancy tax (the “Speculation Tax”). The designated regions include most of the Capital Regional District and Metro Vancouver, the Cities of Abbotsford, Chilliwack, Kelowna, West Kelowna, and Nanaimo, as well as the Districts of Mission, and Lantzville.
Every owner of a residential property on December 31 in those regions must make a declaration by March 31 of the following year, even if the owner no longer owns the property.

The Speculation Tax is calculated as follows:
Tax payable = (tax rate) x (owner’s interest) x (assessed value of the property)

For 2018, the tax rate for all owners is 0.5%. For the 2019 calendar year and beyond, the tax rate will be 0.5% for Canadian citizens and permanent residents who are not members of Satellite Families (defined below). Foreign owners and members of Satellite Families will be charged a tax rate of 2%. “Satellite Families” are households who declare less than 50% of their total income for the year on Canadian income tax returns.

Owners who owe taxes must pay by July 2 of the year following the assessed year. For the 2018 calendar year, the Speculation Tax must be paid by July 2, 2019. Failure to pay on time may result in interest and penalties.

Exemptions
If an owner qualifies for one of the following exemptions, they will not have to pay the Speculation Tax. However, failure to declare will result in being assessed at the highest tax rate (2%), even if the owner would have otherwise been exempt. Below is a list of some, but not all, of the exemptions under the Act.

1. Principal Residence
Owners are exempt if the residential property is their principal residence. If owners own multiple properties, they can only claim this exemption for the place they lived the longest in. Spouses cannot claim two different places unless there is a specific reason, such as work, medical leave, or divorce. Foreign owners and members of a Satellite Family cannot claim this exemption. If the owners do not live in the residence for the necessary time, they may still be able to claim the exemption if they were absent for certain reasons, such as medical leave or residential care.

2. Tenants
If the property is occupied by a tenant for periods of at least 30 days and for a total of 6 months (3 months for 2018), the owner can claim an exemption. There must be a written tenancy agreement, unless the tenant has a non-arm’s length relationship with the owner (e.g. close friend of family member).

3. Under Construction or Renovation
If the property is uninhabitable for a period of at least 90 days due to construction or renovations, the owner may be able to claim this exemption. The owner must demonstrate that they have taken reasonable steps to ensure that the building activity continues without undue delay, or that any undue delay was beyond their control.

Other Information
The Speculation Tax is completely separate from an owner’s other taxes, including income tax, property tax, and the Vancouver Empty Homes Tax.

The Speculation Tax attaches to the owner, not the property. This means that a new buyer does not have to worry about hidden liability when they buy a house and that the seller may be liable to pay the Speculation Tax even after they sell a house.

Owners may be able to claim tax credits against any Speculation Tax assessed. BC residents who are not members of a Satellite Family get tax credits of $2,000 per property and per person, which means that the first $400,000 of a property will usually be tax free.

If you have any questions about how the Speculation and Vacancy Tax Act may apply to you, please contact Heath Law LLP at 250-753-2202 or toll free: 1-866-753-2202.

BC Limitations Act

In 2013 the new BC Limitation Act (“BCLA”) came into force.  There are many differences between the BCLA and the old BC Limitation Act.  Two of these differences are in relation to s. 14 and s. 15 of the BCLA.

S.14 of the BCLA relates to the limitation period for demand obligations. S. 14 states: “A claim for a demand obligation is discovered on the first day that there is a failure to perform the obligation after a demand for the performance has been made.” In other words, the countdown period for the limitation period does not start until the borrower under an agreement fails to pay an obligation once a demand has been made.  The old BC limitation act had a six year limitation period for demand obligations in which the countdown period for the limitation period would start from the date the initial obligation arose.

S.15 of the BCLA relates to the limitation period for realizing or redeeming security.  S. 15 states: “A claim to realize or redeem security is discovered on the first day that the right to enforce the security arises.”  This is a marked difference from the old BC Limitation Act which had a six year limitation period for bringing action on collateral that was not in the secured party’s possession.  Lenders in secured transactions need to be aware of this striking change.

These two provisions of the BCLA were judicially scrutinized for the first time since their enactment in the recent British Columbia Court of Appeal decision Leatherman v 0969708 BC Ltd., 2018 BCCA 33.  This case is illustrative of the wariness lenders should have in regards to the new BCLA.

In Leatherman a mortgage was granted to secure a debt.  Under the mortgage the loan was payable on demand, with payments of interest to be paid annually.  The Mortgagor failed to make a required interest payment on Oct 31, 2013.  This is effectively the date of default.  No further action was taken by the mortgagees until Nov, 2015.  At that time correspondence was exchanged between the parties in relation to the debt and its repayment.  A demand was made by the mortgagees on Nov 9, 2016.

The Court stated “This Mortgage, like most mortgages, includes both a covenant to pay and security for the debt. The covenant to pay the principal, considered on its face, and alone, is a demand obligation. With respect to it, s. 14 applies; that is, it is not payable until demand. The obligation to pay interest, however, is not a demand obligation because it was payable without demand on October 31 of each year. The Mortgage also provides that the property mortgaged is security for the debt. With respect to security for the debt, s. 15 of the Act applies. The right to realize on the security arises upon discovery of that right.”  In other words, the mortgage became enforceable as of the date of default, Oct 31, 2013, and would be statute barred two years later.  However, the mortgagor was still liable for his personal covenant as two years has not elapsed since demand for payment was made.

Going forward, where there is a default on a mortgage a lender must foreclose within two years of that default even if the loan, which is supported by the mortgage, is payable on demand, and no demand has been made.

The limitation period could be extended beyond two years after default where a mortgagor acknowledges liability.  This is governed by s.24 of the BCLA.  S. 24(1)(a) states “If, before the expiry of either of the limitation periods that, under this Act, apply to a claim, a person acknowledges liability in respect of the claim, the claim must not be considered to have been discovered on any day earlier than the day on which the acknowledgement is made.”

Acknowledgement under s .24 includes a debtor’s performance of an obligation under or in respect of a security agreement (s. 24(8)).  In other words, for a conventional mortgage where there are specified payments, when the mortgagor under a mortgage makes a payment after their initial default this will postpone the date of discovery to the date on which the mortgagor made the after default payment.

Tent Cities have been popping up in British Columbia, some in large urban areas such as Victoria and Vancouver and others in smaller communities such as Abbotsford and Nanaimo.  Advocates of these tent cities state that tent cities act as a community for homeless people providing enhanced safety and a sense of belonging.  How have the BC Courts treated these tent cities?

In British Columbia v Adamson, 2016 BCSC 584 the application for removal of the tent city by interim injunction failed.  The Province applied unsuccessfully for the removal of the tent city which was located on Victoria Courthouse property.  The Court determined that the Province failed to meet the test for granting an interim injunction which is laid out in RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.  The test in which all elements have to be passed is as follows:

  1. Has the applicant demonstrated that there is a fair question to be tried;
  2. Will the applicant suffer irreparable harm if the injunction is not granted; and
  3. Does the balance of convenience favour granting the injunction?

The Court found that there was a fair question to be tried but the Province did not fully demonstrate they would suffer irreparable harm nor did the balance of convenience weigh in favour of the Province.

The court based its decision on a great deal of evidence which demonstrated this particular tent city to be a safe-haven for the homeless that were living there.  The evidence proffered described the tent city as a community with rules and governance.

A second application was heard for an interim injunction on the Victoria Courthouse tent city.  The Court’s decision on this second application is recorded as British Columbia v. Adamson, 2016 BCSC 1245.  In this application the Province was successful.  The Court based its decision on the changes occurring in and around the tent city.  The tent city governance had fallen apart as well concerns began to crystalize relating to the health and safety of the surrounding community.  The Court ordered that the tent city residents were to vacate the premises as soon as additional housing from the Province became available.

In another British Columbia Court decision Vancouver (City) v. Wallstam,

2017 BCSC 937 an application for an interim injunction to dismantle a tent city was heard.  Again, the RJR MacDonald test was used.  The Court determined that the applicant City was unable to prove that irreparable harm would be suffered.  The evidence spoke similarly to Adamson in that this tent city was a safe-haven for the homeless.  The tent city was vital in maintaining the homeless people’s security of the person.

The decisions mentioned above support the view that only once a tent city begins to negatively impact the surrounding community will an interim injunction be granted.  As long as the tent city remains a civilized community, they are allowed to stay.  The availability of alternative housing is another factor that the Courts have considered in allowing or disallowing the injunctions to dismantle a tent city.

From these decisions there is much left unclear about the public’s rights in relation to these tent cities.  Perhaps future decisions will tender a new legal test to be applied in these tent-city circumstances.