The owner of a waterfront home in West Vancouver is barred from buying or leasing part of the province’s shoreline, the British Columbia Supreme Court has ruled.
In a ruling late last month, Judge Heather MacNaughton denied a motion by owner Heyan Wan, who was seeking to transfer title to part of the foreshore – the area of shore between the high tide marks and low – under British Columbia’s Property Law Act.
The petition arose because of a unique feature of Wan’s property: an outdoor swimming pool that juts out onto the foreshore, surrounded by a stone seawall. At high tide, the pool is surrounded by seawater on three sides, by MacNaughton’s decision.
The pool was built by the property’s previous owners in 1949. When Wan purchased the property in 2015, the pool had developed leaks.
The new owner hired contractors to demolish the old house on the property and build a new one. According to the court’s decision, the scope of this work also included repairs to the swimming pool, which ultimately led to the litigation.
In British Columbia, the foreshore is publicly owned. The Burrard Inlet foreshore where Wan’s property is located is managed by the District of West Vancouver, which leases it from the province.
The basin and the breakwater are considered “encroachments” on the foreshore. In November 2014, before Wan finalized her purchase of the property, the district approached her offering an encroachment license, which Wan signed, per MacNaughton’s decision.
“Section 6 of the license requires Ms. Wan to maintain the encroachments in a safe condition at all times and prohibits her from replacing, extending, modifying, adding or substantially repairing the encroachments without the permission of the manager of the encroachments. District Risks, which permission may be denied at the sole discretion of the manager,” reads the court ruling.
The license also allows the district to terminate it with 30 days’ notice, which the district sent to Wan in October 2018 after reviewing the work she had proposed to do on the pool.
In a letter accompanying the notice, District Risk Manager Clay Nelson wrote the following, per MacNaughton’s decision:
“The current District policy approach to foreshore encroachments is not to penalize owners who may have acquired properties with unauthorized additions, granting temporary licenses where appropriate to allow encroachments to remain until the end of their natural useful life.”
“When unnecessary encroachments have reached a stage where they would require investment in replacement, expansion, modification, additions or substantial repairs for their continued use, the District’s approach is to cancel existing licenses and require their withdrawal.
Wan sought judicial review of the district’s decision to revoke his license and require the demolition of the pool, and – separately – filed the lawsuit under property law which MacNaughton ultimately dismissed.
Wan’s petition asked for the right to purchase the foreshore from the province or, alternatively, the right to obtain a 30-year easement for the portion of the foreshore where the pool is located.
In rejecting the petition, MacNaughton concluded that it was impossible that Wan could have honestly, but wrongly, believed that the foreshore was part of her property, since she had signed the license offered by the district.
“(Wan) cannot claim that she relied on representations from the Province, or for that matter the District, as to the nature of the interest to which she was entitled with respect to the encroachments,” wrote MacNaughton in his decision. “It couldn’t have been clearer.”
MacNaughton noted that Wan’s petition states that she is not fluent in English and signed the license without seeking legal advice before doing so. Despite this, however, Wan’s motion did not say she did not understand the license or any of its terms, the judge wrote.
“While living in China, Ms. Wan bought a $7.2 million property in Canada, demolished the house there and built a new one,” MacNaughton wrote.
“Given the size of this investment, Ms. Wan should have exercised due diligence in signing the license. A reasonable person making such an investment would have determined exactly what her rights were with respect to the encroachments and terms of the license. . Having not done so, she cannot now say that she did not understand it or that she is not bound by its terms.”
MacNaughton further ruled that – given the size of Wan’s investment and available estimates of the cost of removing it from the pool – it would not be onerous for her to remove it. Nor is it clear that removing the pool would have a significant negative impact on the future value of the property, the judge wrote.
Thus, MacNaughton dismissed the motion in its entirety, awarding provincial and district court costs.
She noted, however, that the district had rescinded its cancellation of the license pending the outcome of Wan’s court cases. If the district reviews Wan’s submissions and decides to revoke the license again, Wan is entitled to challenge that decision in court, according to MacNaughton.
Wan’s property was valued at over $12.6 million in 2021.