The owner of a West Vancouver waterfront home will be spared the prospect of dismantling parts of her $5.79-million house – but only if she buys the land her house encroaches on from the municipality, for fair market value.
That’s the decision from the B.C. Court of Appeal in a long-running legal fight between homeowner Jie Liu and the District of West Vancouver over 1,000 square feet of Liu’s multimillion-dollar home which encroach on public land.
The court case concerns a house at 2998 Park Lane, built in the 1940s, which sits next to municipal land used as beach access at the foot of 30th Street.
Over the years, parts of the home, including the carport, family room, and fish ponds, were built on district land.
Liu bought the property in 2011. She maintained the previous owner, Raoul Tsakok, told her that the structures had been permitted under a grandfather agreement.
Soon after she bought the house, however, the municipality sent her a letter about the encroachments and the two sides started negotiating over the value of the public land covered by parts of Liu’s home and garden.
But after they failed to reach an agreement on a price, in October 2012, the municipality took the case to court.
Municipal staff argued successive owners of the property had taken over public land for their private benefit.
Lawyers for Liu argued the district had authorized the structures, because municipal staff knew about them for decades and didn’t do anything about them.
A B.C. Supreme Court justice ruled in Liu’s favour in July 2014, stating the buildings that encroached on public land appeared to have been authorized by the district.
But the municipality appealed, and the appeal court recently reversed that decision.
In a Feb. 29 decision, B.C. Court of Appeal Court Justice Gregory Fitch wrote that the previous judge had made a mistake in deciding the building encroachments – which at some points intrude 30 feet into a 66-foot public road allowance – had been OK’d by the municipality, writing there was no evidence to back that up.
Fitch noted there are no records to show when either the house or encroaching structures were built, but added the district only acquired the road allowance from the province in 2004, so could not have taken any action prior to that time.
According to court documents, before Liu bought the property, she asked a friend with real estate experience to view it with her. After he raised concerns about the encroachments, they went to the municipal hall but were told by staff the district had no information about encroachment issues, despite correspondence on file between the municipality and previous owner on the topic. Liu went to the district hall once more before the sale closed and was told she should speak with the municipality’s land and property agent, but he was unavailable.
Liu’s lawyer told the court she would not have bought the property if she had known about the encroachment issues.
In the Court of Appeal decision, Fitch wrote although the buildings weren’t authorized, it would be “premature to grant an order that would entail destruction and removal of a large portion of Ms. Liu’s home,” especially as the buildings aren’t interfering with public access or future plans of the municipality.
In a dissenting opinion, Justice David Frankel offered a harsher assessment of Liu’s actions, saying she knew about the encroachments before she bought the house and should have made more effort to find out whether they were authorized.
If Liu and the municipality can’t agree on a fair price for the piece of municipal land, it will be decided by a B.C. Supreme Court justice.
In 2012, when the two sides couldn’t agree on a price, the municipality had pegged the land value at $4.6 million, while Liu said it was worth $3.6 million.
But land values in West Vancouver have gone up in the past four years.
BC Assessment lists the 2015 land value of Liu’s property, immediately adjacent to the road allowance, at more than $5.2 million.
Mark Chan, director of corporate services for the municipality, said in an interview the district plans to keep a portion of the public property which contains a foot path and public beach access.
