Quality of Life Balanced by hss75292

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									V O L U M E   2 8 ,   N U M B E R   4                                                                                  A U G U S T      2 0 0 5




                                    Quality of Life: Balanced
                                    Political Action
                                           How does it work?                            the Torrens system
                                                                                        of land title
                                           “What’s good for the province is good for
                                                                                        registration (to
                                           the real estate profession,” says BCREA
                                                                                        ensure economic
                                           President Dave Barclay, a REALTOR®
                                                                                        vitality and protect
                                           from Smithers. “By approaching issues
                                                                                        property owners).
                                           from a public perspective, instead of
        As REALTORS®, you sell             self-interest, we have a better chance       “Quality of Life reflects the economic
the livability of your communities.        of being heard—and making real               and social contributions we’ve made
Economic vitality, affordable housing,     differences for us and our clients.”         for decades,” says Barclay. “I’m really
a safe and attractive community and                                                     proud to bring that to the government’s
a healthy environment create good          For example, a public opinion survey
                                                                                        attention.”
neighbourhoods. That’s why they’re         in January indicated nearly all British
the basis of Quality of Life, a philos-    Columbians are concerned about hous-
ophy BCREA adopted in May 2004.            ing affordability. This reinforces BCREA’s   More information
                                           position to eliminate or reduce the          Enclosed with this newsletter is a
By taking a balanced approach to           Property Transfer Tax (in an April survey    brochure that briefly explains the
accommodating growth and building          of BC REALTORS®, the importance of           Quality of Life philosophy. BCREA will
better communities, Quality of Life        this issue was rated 8.8 out of 10).         use this with politicians, government
reflects the work you’re already doing.                                                 staff, the business community and the
                                           Research is an important component.
                                                                                        public to introduce the philosophy and
                                           Since it’s important to align the
What is Quality of Life?                                                                open the door to more communication.
                                           priorities of the profession with those
It provides a framework for BCREA’s                                                     Additional information is available
                                           of the public—the people who elect the
government relations activities, helping                                                from BCREA’s Quality of Life website
                                           government—BCREA surveys both
build influence, credibility and trust                                                  (www.qualityoflife.bcrea.bc.ca), and
                                           groups. Before taking positions on
with the government and other decision                                                  more will appear in future issues of
                                           issues, the results of these surveys are
makers. It’s based on five principles:                                                  The Bulletin.
                                           considered, and other research is sought,
  • Ensuring economic vitality             including original works (such as the
                                           economic impact of real estate trans-
  • Providing housing opportunities
                                           actions) and studies done by other
                                                                                          I      N        S        I      D         E
  • Preserving our environment             organizations.                                 President’s Report                 Page 2
                                                                                          Being professional
  • Protecting property owners
                                           External organizations play another role       Trends                             Page 3
  • Building better communities
                                           in Quality of Life. By creating alliances      Proud to be a REALTOR®

The principles are hard to argue with,     on specific issues, BCREA can demon-           Practical Points                   Page 4
and they help BCREA establish common       strate the broader benefits of its             Be WELL prepared: new ground water regulation

ground with individuals and organiza-      positions. It’s also harder for decision
                                                                                          Government Relations               Page 5
tions, providing a foundation to work      makers to ignore recommendations made          No impact from telemarketer legislation
together to achieve specific goals, such   by large numbers of people. BCREA is
                                                                                          Education                          Page 6
as improving the affordability of          considering an alliance to further its         Expand your career opportunities
housing.                                   position on preserving the integrity of                          1 1 9 5 - 4 4 0 X
                                                                                              I S S N




                                                                                          THE BULLETIN • AUGUST 2005
President’s Report
             Being Professional
I love my job. That’s probably why                  obligation to the public and to our
I’ve been doing it for 17 years. There’s            profession. The Code of Ethics of
nothing like helping people find the                The Canadian Real Estate Association
right property—especially since, more               embodies these obligations. As
often than not, I’m helping them find               REALTORS®, we are committed to:
homes.
                                                       • Professional competent service                      President Dave Barclay
Looking at the results of BCREA’s                      • Absolute honesty and integrity
REALTOR® survey, I’m pleased so many                     in business dealings                         to educate and make a positive
of you feel the way I do. Despite our                                                                 impression on a home buyer or seller.
                                                       • Cooperation with and fairness
pride, though, there are also concerns                   to all                                       We play a very important role in the
about ethics and cooperation among                                                                    lives of our clients and our commu-
REALTORS®, particularly in this very                   • Personal accountability through
                                                         compliance with CREA’s                       nities, and we always need to
active market. One consumer with a                                                                    remember that.
                                                         Standards of Business Practice
bad experience reflects poorly on
everyone else, no matter how seriously
                                                    Doesn’t that say it? I think this new
we take our education and high
                                                    Code of Ethics will be a great marketing
standards of practice.
                                                    opportunity. I also think we can dem-
Because we care so much about our                   onstrate our professionalism even more
                                                    by letting the public know about the              Dave Barclay
professionalism, and we’ve told our                                                                   President
national organization, CREA has been                education necessary for licensing and,
working for some time to revise the                 in the future, to require REALTORS® to
Code of Ethics. The new national Code               take continuing education.
will take effect on July 1, 2006. Here’s
part of it:                                         More than 96,300 homes sold on the
                                                    MLS® in BC in 2004. That’s more than
As REALTORS®, we accept a personal                  96,300 opportunities for a REALTOR®




Board of Directors 2005-2006
                                              Officers                Regional Directors
                                              President               Region I     Linda Woodruff      250.567.2271   woodruff@hwy16.com
     Long-Range Plan Principles               Dave Barclay
                                              250.847.5999
                                                                      Region II    Gretchen Gebhard    250.717.5000   gretcheng@shaw.ca
   • Responding to communication needs        dave@askmel.ca
                                                                                   Scott Veitch        250.428.9331   smveitch@telus.net
   • Building membership relations            Vice President
                                              Kelly Lerigny
   • Providing enhanced service options       250.792.7175            Region III   Marc Owen-Flood     250.385.2033   marc@owen-flood.com
     for member boards                        kellylerigny@shaw.ca                 John Tillie         800.976.5566   john@johntillie.com
   • Offering excellence in education         Past President
     services                                 Gordon Maroney          Region IV    Bill Binnie         604.926.6011   billbinnie@royallepage.ca
                                              604.590.4888                         Brian Naphtali      604.737.8865   info@brianandrosalee.com
   • Maintaining an equitable fee structure   gmaroney@dccnet.com
                                                                                   Andrew Peck         604.266.8989   apeck@royalpacific.com
   • Leading provincial advocacy efforts      Executive Officer
     on behalf of the profession              Robert Laing
                                              604.742.2787            Region V     Patti Flostrand     604.535.5553   patflost@dowco.com
   • Demonstrating public interest
                                              rlaing@bcrea.bc.ca                   Moss Moloney        604.590.4888   mmoloney@axionet.com




       THE BULLETIN • AUGUST 2005
Trends
      Proud to be a REALTOR®                                                                                                        Correction

                                                                                                                                    I always like to receive The Bulletin put out by
 More than 80 per cent of you are                                                                                                   the BCREA as the articles are usually of some
 proud to be REALTORS®, according                                                                                                   interest and informative. The Trends article in
                                                                                                                                    the [June] issue is an exception.
 to an online survey conducted in the
 spring. Unfortunately, this is less than                                                                                           The “Years of Employment” . . . graph separates
                                                                                                                                    years of experience into 5 year segments ending
 the 84 per cent response in the 2004
                                                                                                                                    with 25+ years and ranks it as percentage of
 REALTOR® survey.                                                                                                                   total. Unfortunately if you add up the totals in
                                                                                                                                    each column you get 149%. This means that 149%
 Among many other questions,                                                                                                        of the respondents have been in real estate
 BCREA asked about REALTOR® and                                                                                                     somewhere between 0 and 25+ years. How’s
                                                                                                                                    that for a useful statistic!
 public perceptions of the real estate
 profession. The study was conducted                                                                                                Sincerely,
 by Insightrix Research Services.                                                                                                   Jeremy Sutton
                                                                         It’s interesting to note, then, that
 Personalized email invitations were                                                                                                RE/MAX Treeland Realty
                                                                         more than 36 per cent gave a neutral
 sent to 9,452 BC REALTORS® and
                                                                         response when asked how the pro-
 1,831 responded, for a completion                                                                                                  Mr. Sutton also had concerns regarding the
                                                                         fession was perceived by the public.
 rate of 19.4 per cent.                                                                                                             REALTOR® profile that appeared at the begin-
                                                                         More than 40 per cent said very                            ning of the article. The profile was based on
                                                                         positively or positively:                                  the highest number of responses to the options
 How closely does the following                                                                                                     given for each of the questions and wasn’t
 statement reflect your opinion                                                                                                     meant to be definitive.
                                                                         REALTORS®
 of the real estate profession:                                                                                                     Thank you, Mr. Sutton, for raising your concerns.
 I am proud to be a REALTOR®.                                                                                                       The correct figures for years employed in real
                                                                                                   Very Positively 2.7%             estate are included below.
                               2005             2004                                               Positively 39.4%
                                                                                                                                    The Editor
 Very well                     41.4%            45.2%                                              Neutral 36.6%
                                                                                                   Negatively 20.2%
 Well                          39.5%            38.8%
                                                                                                   Very Negatively 1.0%             Years employed in real estate
 Somewhat                      15.7%            11.1%
 Not very well                 2.8%             2.4%                                                                                                          2005         2004
 Not at all                    0.5%             2.6%                                                                                1-5 years                 26.6%        21.0%
                                                                         In a public survey conducted in
                                                                         January by Ipsos-Reid, more than                           6-10 years                10.3%        13.2%
                                                                         70 per cent of respondents had a                           11-15 years               26.7%        27.0%
                                                                         very favourable or somewhat                                16-20 years               14.7%        14.1%
                                                                         favourable impression of the                               21-25 years                9.6%        11.1%
                                                                         real estate profession:                                    25+ years                 12.1%        13.6%

                                                                         Public

 Why so much pride? REALTORS® love                                                                 Very Favourable 16%           Read the October issue of The
 helping clients achieve their goals and                                                           Somewhat Favourable 55%       Bulletin for more about REALTOR®
 dreams, and they also consider real                                                               Somewhat Unfavourable 20%     volunteerism and to learn what
 estate to be an honourable profession                                                             Very Unfavourable 6%          REALTORS® see as priorities for
 that provides valuable services.                                                                  Don't Know / Not Stated 3%    government lobbying.



 The Bulletin is published bimonthly by the British Columbia Real Estate Association. Real   Send questions and comments        600 – 2695 Granville Street
                                                                                                                                                               www.bcrea.bc.ca
 estate boards, real estate associations and licensed REALTORS® may reprint this content,    about The Bulletin to:             Vancouver, BC V6H 3H4
 provided that credit is given to BCREA by including the following statement: “Copyright                                                                       Printed on recycled paper.
                                                                                             Editor: Norma Miller               Phone: 604.683.7702
 British Columbia Real Estate Association. Reprinted with permission.”
                                                                                             Assistants: Kim Mason              Fax: 604.683.8601
 BCREA makes no guarantees as to the accuracy or completeness of this information.                       Steve Olmstead         Email: bcrea@bcrea.bc.ca       ISSN: 1705-3307



                                                                                                                                     THE BULLETIN • AUGUST 2005
Practical Points
      Be WELL Prepared: New Ground
      Water Protection Regulation by Kim Spencer                              kspencer @bcrea.bc.ca

Anyone involved in the purchase              • deactivate or permanently close          adding
and sale of rural property knows the           a well that has been out of service,     questions
importance of a reliable and adequate          and                                      relating to
supply of good quality water. The next       • ensure the well is securely capped       water wells
time you deal with a property that             or covered.                              (based on
contains a well, consider this: starting                                                the requirements of the Regulation)
November 1, 2005, a new government                                                      to the form, and this request will be
Regulation for wells will take effect in                                                considered this fall. In the meantime,
BC. It’s important to understand the                                                    you may wish to learn more about the
new Regulation so you can properly                                                      legal requirements of well owners so
advise your clients.                                                                    you can properly advise clients
                                                                                        purchasing property on which there
The new Regulation is designed to                                                       is a well. Even if these requirements
protect groundwater and wells from                                                      aren’t reflected on the Property
contamination. This is particularly                                                     Disclosure Statement, it will be useful
important for rural property owners                                                     for the property owner to be aware of
who use private, domestic wells as their                                                them. As a trusted professional, you’re
drinking water source. The Regulation                                                   in an ideal position to lend a hand
also applies to geotechnical and                                                        with this.
environmental monitoring of wells on
commercial and industrial properties.
                                                                                        Further information on the Internet:
                                                                                        A list of qualified well drillers and
                                                                                        qualified well pump installers:
    property owners also                   REALTORS®                                    http://wlapwww.gov.bc.ca/wat/gws/
   have a responsibility to                It’s a great idea to get into the habit      gwis.html.
                                           of asking sellers how they have dealt
   prevent contamination                                                                The Ground Water Protection
                                           with these items. To assist, the
                                                                                        Regulation:
                                           Ministry of Environment is working
                                                                                        http://wlapwww.gov.bc.ca/wat/gws/
                                           with the British Columbia Ground
                                                                                        gws_reg_back/gwpr_oics.pdf
Property Owners                            Water Association to develop a series
                                           of well stewardship brochures, one           Background information:
While most of the Regulation’s require-
                                           of which will focus on how property          http://wlapwww.gov.bc.ca/wat/gws/
ments relate to the standards that
                                           owners can comply with the Regulation        gws_reg_back/back.html.
must be met by well drillers and pump
                                           and keep their well water safe. These
installers, property owners also have a                                                 BCREA thanks Heather Smart, of the
                                           brochures will help you inform and
responsibility to prevent contamination.                                                Water Protection Section of the Water,
                                           assist your clients. BCREA will advise
For example, property owners must:                                                      Air and Climate Change Branch of the
                                           you when the brochure is available, or
                                           you can check (or advise your clients to     Ministry of Environment, for her assis-
  • maintain the integrity of the
    wellhead and surface seal,             check) the following website for the         tance in preparing this information.
                                           appropriate link:
  • engage a qualified well driller if     http://wlapwww.gov.bc.ca/wat/gws/
    alterations to, or closure of, the
                                           gwis.html.
    well are contemplated,
  • ensure the well identification plate   The Ministry of Environment has
    remains visible and not damaged        asked BCREA’s Property Disclosure
    or lost,                               Statement Subcommittee to consider




      THE BULLETIN • AUGUST 2005
Practical Points
  New Council Chair, Vice Chair
 In July, Dougal Shewan, of Royal             aware that Council can impose              the Council,
 LePage-Wolstencroft in Langley, was          administrative penalties or disciplinary   few licensees
 elected as Chair of the Real Estate          sanctions in situations where a licensee   participate in
 Council of British Columbia for 2005-        has failed to act in accordance with       the election of
 2006. Philip Jones, of Royal LePage          the Rules. The Council is a regulatory     its members.
 East Kootenay Realty in Cranbrook,           agency established by the provincial       Voting statistics
 was elected as Vice-Chair.                   government. It protects the public         since 2002             Council Chair Dougal Shewan

                                              interest by enforcing the licensing and    indicate about
 Priorities include the licensing of strata   licensee conduct requirements of the       20 per cent of
 managers, introducing a relicensing          Real Estate Services Act.                  eligible licensees tend to vote for
 education program and Council’s efforts                                                 broker positions, although that
 to effectively regulate the profession,      Eighteen members of the Council            number spiked to nearly 34 per cent in
 given its new self-regulating status.        are managing/associate brokers and         2004. Only about ten per cent of
                                              representatives elected by licensees       eligible licensees tend to vote for
 The Council licenses individuals and         to represent all areas of the province.    representative positions.
 brokerages engaged in real estate sales,     There are also three government-
 rental and strata property management.       appointed public members.                  For a complete list of members, and for
 Its Rules establish expectations regard-                                                more information about the Real Estate
 ing conduct, and licensees should be         Despite the considerable authority of      Council of BC, visit www.recbc.ca.




Government Relations
   No Impact from Telemarketer Licensing
                                              government will require the licensing      the supply of goods or services between
                                              of telemarketers under the new             a supplier and consumer that isn't
                                              Telemarketer Licensing Regulation. The     entered into in person.
                                              regulation will be administered by the
                                              Business Practices and Consumer            The BPCPA has indicated that it wasn't
                                              Protection Authority (BPCPA).              the intent of those who drafted the new
                                                                                         requirement to impact the practices of
                                              According to the BPCPA, the regula-        the real estate profession.
                                              tion was needed to combat fraudulent
                                              telemarketing and consumers'               Other exempted groups include charities
 BCREA has received written confir-           frustration with the number of calls       that call or fax consumers directly, and
 mation that REALTORS® won't be               they receive from telemarketers. All       may include educational institutions,
 subject to new telemarketing licensing       telemarketers who conduct business         political organizations and firms
 requirements, as long as they aren't         in BC, or who contact consumers in         conducting surveys.
 initiating contact to enter into a           BC by phone or fax for the purpose of
 contract with a consumer over the            entering into a distance sales contract    For more information about the BPCPA
 telephone or by fax.                         or third-party fundraising, will be        and the Telemarketer Licensing Regula-
                                              subject to the new regulation. A dis-      tion, including frequently asked
 By October 1, 2005, the provincial           tance sales contract is a contract for     questions, visit www.bpcpa.ca.




                                                                                           THE BULLETIN • AUGUST 2005
Education
    Expand Your Career Opportunities by Andre Gravelle, Director,
    Diploma and Certificate Programs, Real Estate Division, Sauder School of Business, UBC

               The Diploma Program in          to their own schedules. The program
               Urban Land Economics            offers four areas of specialization:
               is a nationally recog-          property management, appraisal,
               nized distance education        property assessment and real estate
               program designed for            development.
               highly motivated real
               estate professionals who        The Real Estate Division works
               want to expand their            closely with real estate professionals           The Sauder School of Business Real
               knowledge of complex            and faculty experts to provide a com-            Estate Division is Canada’s leading
               real estate markets and         prehensive curriculum to meet the                real estate educator. The Real Estate
sophisticated properties. The Diploma          educational needs of current                     Division provides a variety of edu-
Program also meets the educational             practitioners and new participants in            cation programs ranging from licensing
requirements for the Real Estate               the real estate profession. The program          education, professional development
Institute of BC’s RI designation, and          consists of 11 courses, each one                 opportunities and university credit-
serves as the entry requirement for the        approximately 13 weeks in length.                based programs, providing real estate
Bachelor of Business in Real Estate            Courses in the first part of the program         education opportunities for students
undergraduate degree.                          provide a broad foundation in the                provincially, nationally and
                                               underlying principles that drive the             internationally.
An online distance education program,          real estate market. The focus then
the Diploma in Urban Land Economics            shifts to professional and applied               For more information, contact the
allows working professionals to balance        aspects, with an emphasis on helping             Diploma Program: 604.822.2227,
study and work. The flexible online            students hone their analytical and               1.888.776.7733 or
learning format allows students to             problem solving skills. Online program           info@realestate.ubc.ca.
choose the time and place to study, and        assistance with course material is
determine the program pace according           readily available.




Education
                                    cpe Seminar Schedule
  Buyer Agency                                                           Professionalism It Pays! Be Safe or Be Sued
                Instructor: Jim McCaughan                                                Instructor: Mike Mangan
            •   September 23, VREB, Victoria                                         •   September 22, SOREB, Penticton

  CONDO 202: Advanced Strata Law for REALTORS®                           Representing Buyers in the Sale of New Homes
                Instructor: Mike Mangan                                  and Condominiums
            •   September 23, OMREB, Kelowna                                             Instructor: Gerry Halstrom
                                                                                     •   September 8, KADREA, Kamloops
  Negotiating and Presenting Offers                                                  •   October 6, REBGV, Vancouver
                Instructor: Richard Collins
            •   August 25, REBGV, Vancouver
                                                                         Selling Tenant-Occupied Properties (STOP)
            •   October 7, VIREB, Duncan                                                 Instructor: Evelyn McNulty
                                                                                     •   September 15, VREB, Victoria
                                                                      Check with your local board office for last-minute changes. Look for more
      THE BULLETIN • AUGUST 2005                                      cpe seminars on BCREA’s REALTOR Link ® homepage, under Education.
 N U M B E R             3 8 6


                                                                                                                                                                           Funded, in part, by




   G RO W - O P            POSSIBILIT Y AND                                  had been in the contract, because the                 record and history
                                                                             owners assumed the management                         with prior landlords
   AC T I O N S A G A I N S T P RO P E RT Y
                                                                             company would inspect the exterior                    didn’t reveal anything
   M A N A G E R A N D D UA L A G E N TS                                     monthly and the interior periodically.                that would concern a
                                                                                                                                   reasonable landlord.
   A rumour and other indirect evidence                                      Damages to the house were discovered                  Their credibility
   that a home had been used to grow                                         after an exterior inspection revealed                 suffered because they
   marijuana resulted in separate actions                                    the furniture had been removed. The                   differed as to the
   being combined in a single provincial                                     tenant left the house when notice was                 inspections that had
   court trial because of their common                                       given of the intention to do an interior              been agreed upon in
   facts.                                                                    inspection. No direct evidence of a                                             Lawyer Gerry Neely
                                                                                                                                   the discussions lead-
                                                                             grow-op was left, but the type of dam-                ing to the contract
   One action was brought by the buyer
                                                                             ages pointed to a grow-op as their                    with the property management com-
   of the house against the former owners
                                                                             source. The lack of direct evidence led               pany. The judge dismissed their claim,
   and the dual agents who acted for the
                                                                             the former owners to decide it was                    concluding the contract didn’t impose
   buyer and sellers for damages suffered
                                                                             unnecessary to disclose to their repre-               an obligation for regular interior
   due to their failure to disclose the
                                                                             sentative or in the Property Disclosure               inspections and the company had acted
   possibility of a grow-op.
                                                                             Statement the possibility that there                  reasonably in carrying out exterior
   The other action was brought by the                                       had been a grow-op in the home.                       inspections.1
   former owners of the home against
                                                                             The dual agents first learned of the
   the property management company                                                                                                 Gerry Neely BA, LL.B.
                                                                             possible grow-op from another repre-
   that rented it to the alleged grow                                                                                              Victoria, BC
                                                                             sentative in their brokerage firm who
   operator, for failing to exercise care
                                                                             had been told this by a client. The dual
   in the selection of the tenant and a
                                                                             agents decided they had an obligation                    1
                                                                                                                                          Hawick et al. v. Columbia Prop Management Ltd.
   lack of proper inspections. They
                                                                             to make their principals aware of this                       and Haggerty v. Loni Hamer-Jackson et al., PCBC,
   wanted reimbursement for the cost                                                                                                      Small Claims Division, Kamloops Registry, Reasons
                                                                             possibility, and proceeded to do so. The
   of repairs and the return of fees paid                                                                                                 for Judgment, February 1, 2005.
                                                                             buyer denied having been given this
   to the company. Their written contract
                                                                             information.
   didn’t refer directly to inspections.
   Instead, in very general terms, the                                       The judge accepted the evidence of the
   company was required to act reason-                                       dual agents, concluding the informa-
   ably in performing every act usually                                      tion had been given to the buyer.
   performed by a manager of similar                                         Therefore, and in the absence of any
   premises.                                                                 actual knowledge by the dual agents
                                                                             of the potential defect, there was no
   The company only performed interior
                                                                             breach of their respective duties to the               Back issues of Legally Speaking are
   inspections if it had a specific concern,
                                                                             former owners or the buyer.                            available to REALTORS® on BCREA’s
   upon request, if there was a need for
                                                                                                                                    REALTOR Link® homepage under the
   repairs or maintenance and for                                            The former owners fared no better                      heading Communications. Subscribers
   incoming and outgoing inspection.                                         with their claim against the property                  who are not REALTORS®, and who wish
   The property manager likely would                                         manager. The management company’s                      to see back issues, should contact BCREA
   have avoided litigation if this wording                                   check of the tenant’s employment                       by email at bcrea@bcrea.bc.ca, or by
                                                                                                                                    phone at 604.742.2784.


Legally Speaking is published monthly by email and bimonthly in print by the British Columbia     Send questions and comments   600 – 2695 Granville Street
Real Estate Association, and funded in part by The Real Estate Foundation of British Columbia.
                                                                                                                                                                 www.bcrea.bc.ca
                                                                                                  about Legally Speaking to:    Vancouver, BC V6H 3H4
Real estate boards, real estate associations and licensed REALTORS® may reprint this content,                                                                    Printed on recycled paper.
provided that credit is given to BCREA by including the following statement: “Copyright British   Author: Gerry Neely           Phone: 604.683.7702
Columbia Real Estate Association. Reprinted with permission.”                                     Editor: Kim Mason             Fax: 604.683.8601
BCREA makes no guarantees as to the accuracy or completeness of this information.                 Assistant: Norma Miller       Email: bcrea@bcrea.bc.ca         ISSN: 1705-3307


           L E G A L LY S P E A K I N G • A U G U S T 2 0 0 5
N U M B E R            3 8 5


                                                                                                                                                                              Funded, in part, by




M O D I F I C AT I O N             OF AN                                 The judge agreed there was no way both                    F I R S T N AT I O N S R E G I S T RY
                                                                         parties could landscape and garden within
EASEMENT AGREEMENT
                                                                         the Easement Area and ordered the                         The Law Society of BC recently issued a
When is an easement not an easement?                                     deletion of the clause.1                                  practice watch concerning a completed
“When the rights granted by it detract                                                                                             sale of a sublease on First Nations land
                                                                                                                                   following registrations in the Indian
so substantially from the rights of the                                  ENFORCEMENT                OF HARD
servient owner that it must be some-                                                                                               Land Registry.
                                                                         F LO O R I N G BY L A W
thing other than an easement.” This is
                                                                                                                                   Some First Nations Bands, including the
from the reasons for judgment inter-                                     In a hard flooring material case, a strata                one in question, now have the right to
preting an easement agreement granting                                   corporation had mixed success petition-                   create and run their own land registry
access over Lot 3 (the servient tenement)                                ing for an order directing an owner to                    systems. In this case, after all monies
for the benefit of Lot 2 (the dominant                                   remove the laminate flooring he installed.                had been paid out, the lawyer acting
tenement). The benefits included the right                               It contravened a flooring bylaw approved                  for the buyer was notified by Indian
to “landscape, garden and enjoy the                                      two years before the owner purchased                      and Northern Affairs Canada that the
Easement Area as an integral part of                                     his unit, requiring wall-to-wall carpet                   registrations had been cancelled and
Lot 2,” in common with the owner                                         throughout second- and third-floor                        would have to be submitted for re-
of Lot 3.                                                                units except kitchens, bathrooms and                      registration under the Band’s First
                                                                         five feet of the entry halls.                             Nations Registry, which wasn’t in
The Lot 2 owners constructed a road
through the Easement Area, which                                         The owner neither asked whether lami-                     place at the time of the notification.
restricted the Lot 3 owner’s access to                                   nate flooring was permitted nor searched                  The cancellation of the registrations
her property for heavy equipment or a                                    in the Land Title Office for a copy of the                and the failure to set up the Band’s
pickup truck, planted hedge trees that                                   bylaws before he made his offer. Instead,                 registration system potentially risked
would potentially eliminate her water                                    he relied on a “buyer’s package” provid-                  the title and priority interests of a
view, installed deer fences about eight                                  ed by the listing representative, whose                   buyer and mortgagee.
feet high on either side of the Easement                                 evidence was that it contained a complete                 Lawyers were advised to determine
Area to protect the fruit trees and grapes                               set of the bylaws. The judge didn’t accept                whether the land falls under the First
they had planted in the Easement Area,                                   the owner’s claim that the page contain-                  Nations Land Management Act, and
constructed concrete pilasters to support                                ing the flooring bylaw was missing.                       were referred to www.fafnlm.com for
trellises for grapes and took the fruit
                                                                         The owner was ordered to remove the                       information.
from pre-easement trees because they
looked after them.                                                       flooring and replace it with carpet at his
                                                                         expense, but not to pay the legal costs                   Gerry Neely BA, LL.B.
Eventually, the Lot 3 owner rebelled                                     normally paid to a successful party.                      Victoria, BC
and sued to modify the easement by                                       While a strata corporation can require                       1
                                                                                                                                          Prinsen v. Wickland, SCBC, Victoria Registry,
deleting the landscaping clause. The Lot                                 an owner to pay the cost of remedying                            Reasons for Judgment, December 3, 2003 and
2 owners’ position was that the rights                                   a contravention, it must first give the                          Property Law Act, RSBC 1996, c. 377, s. 35.
of the Lot 3 owner to landscape and                                      owner particulars of the complaint and
                                                                                                                                      2
garden her property in the Easement                                      a reasonable opportunity to answer it,                           The Owners, Strata Plan VR19 v. Collins, SCBC,
                                                                                                                                          Vancouver Registry, Reasons for Judgment,
Area were subject to their rights. If this                               including a hearing if the owner requests                        December 31, 2004 and Strata Property Act,
argument prevailed, the Lot 3 owner                                      one. The strata corporation failed to do                         RSBC 1998, c. 43, s. 129, 133, 135, 173.
might never be able to use her property.                                 this and had to bear its own costs.2


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provided that credit is given to BCREA by including the following statement: “Copyright British   Author: Gerry Neely              Phone: 604.683.7702
Columbia Real Estate Association. Reprinted with permission.”                                     Editor: Kim Mason                Fax: 604.683.8601
BCREA makes no guarantees as to the accuracy or completeness of this information.                 Assistant: Norma Miller          Email: bcrea@bcrea.bc.ca          ISSN: 1705-3307


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