Langley v. Yang

2012 BCSC 1520 Langley v. Yang IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Langley v. Yang, 2012 BCSC 1520 Date: 20121016 Docket: S140422 Registry: New Westminster Between: Robert George Langley and Maria Anna Adersberger-Langley Petitioners And Jie Yang, also known as Tanya Yang, and Xu Han, also known as Tony Han Respondents - and - Docket: S143772 Registry: New Westminster Between: Jie Yang, also known as Tanya Yang, and Xu Han, also known as Tony Han Petitioners And Robert George Langley and Maria Anna Adersberger-Langley Respondents Before: The Honourable Mr. Justice McEwan Reasons for Judgment Counsel for Langley and Adersberger-Langley : D. Richardson Counsel for Yang and Han: K. Wince Place and Date of Trial/Hearing: New Westminster, B.C. September 20, 2012 Place and Date of Judgment: New Westminster, B.C. October 16, 2012 [1] Two petitions are before the Court. [2] The petitioners Yang and Han ("Yangs") seek relief under the Property Law Act, R.S.B.C. 1996, c. 377, either to transfer title to a portion of the Langleys' land to them or to grant an easement. [3] The petitioners ("Langleys") seek an order against the Yangs under the same statute for the removal of the encroachment. [4] The parties are the owners of adjacent one acre parcels in Anmore, British Columbia. The two parcels radiate from a circular cul-de-sac such that they widen as they get further from the street. They also rise in elevation as they go back. [5] When the property was originally developed a number of large boulders were placed along or near the boundary line between the two lots. The location and size of the boulders is such that it would be difficult for either party to disturb many of them without trespass to the other property. [6] Visually, the Langley property is characterized by a line of trees that ends (at least at the parts of the boundary material to this application) before it reaches the line of boulders. There is a path located on the Langleys' side of the boulders, that is, between the boulders and the tree line. That path is located wholly on the Langley property. The parties' houses are located such that the Langley's home is well back from the property line, while the Yang's is very close to it. [7] The Yangs moved into their property in November of 2009. Tanya Yang, who describes herself as a "Manager of Project-Engineering", deposes that they initially thought that the tree line was the property line and that the path was on their property. Tony Han began to improve the pathway in the spring of 2010 to add stone steps and to make some other changes. Robert Langley advised him that the path was not on their property, and Mr. Han stopped the work he had been doing. [8] In the spring of 2011 the Yangs undertook the construction of a patio adjacent to their house, extending the finished surface to the edge of the boulder line. They also placed some artificial rock on the boulders and have added plants to create a pleasing cosmetic effect. These improvements encroach on the Langley property by as much as 1.96 metres. The patio surface itself encroaches a little over one metre. [9] There is a considerable amount of affidavit evidence as to who said what to whom, none of which could properly be sorted out without seeing and hearing from the witnesses. In staking their case on the affidavits the parties must understand that the court will treat material it cannot reconcile as essentially superfluous, and can address only what is firmly established by the uncontradicted evidence, or where the truth is obvious on other grounds. [10] Much of the Yangs' evidence seems to have been tendered to convince the court that the Langleys somehow acquiesced in the construction of the encroachments, or made representations respecting the boundary line upon which the Yangs relied. The case does not ultimately turn on such matters. [11] It is abundantly clear that the actual location of the boundary was not precisely known. It was not where the Yangs had first thought it to be. None of the discussion at the time the Langleys protested the use of the path, or suggested where the boundary probably was, is really pertinent. That is because no reasonable person in the Yangs' position would have embarked upon an expensive landscaping project without establishing the boundary by means of a proper survey. The material gives rise to a strong inference that the Yangs simply considered it in their best interests to finish the landscaping to the natural boundary, creating a fait accompli. [12] The photographs in evidence show that the remedy is not a simple matter of asking the Yangs to reconfigure their patio to fit it onto their own property. The dimensions are such that the whole point of the patio is lost if they are confined by the property line. The encroachment is crucial to the aesthetic of the patio and to its essential functionality. This, of course, only reinforces the point that a survey should have been obtained and suggests that the Yangs wanted the patio regardless. I think it is tolerably clear that they proceeded on the basis that less they knew about the property line the better. The patio is a substantial installation and would be costly to dismantle. It would leave the Yangs with a less pleasing and usable property. [13] The Yangs' justification for what they have done is that they have simply finished their property to the edge of the existing line of large rocks placed along the boundary, roughly marking the line between the properties. Ms. Yang refers to it in her affidavit as "the rock wall." The photographs show that what is involved is a small arc of land on the Yangs' side of the boulders that could not be used by the Langleys for any practical purpose, unless they moved the rocks away. To the extent the rocks straddle the property, it is debatable whether either party could move them without the consent of the other. As it appears on the ground, the Yangs have simply finished to their side of the wall of rocks marking off their property from the Langleys'. [14] The applications are both under s. 36(e) of the Property Law Act, R.S.B.C. 1996, c. 377. It reads: Encroachment on adjoining land 36 (1) For the purposes of this section, "owner" includes a person with an interest in, or right to possession of land. (2) If, on the survey of land, it is found that a building on it encroaches on adjoining land, or a fence has been improperly located so as to enclose adjoining land, the Supreme Court may on application (a) declare that the owner of the land has for the period the court determines and on making the compensation to the owner of the adjoining land that the court determines, an easement on the land encroached on or enclosed, (b) vest title to the land encroached on or enclosed in the owner of the land encroaching or enclosing, on making the compensation that the court determines, or (c) order the owner to remove the encroachment or the fence so that it no longer encroaches on or encloses any part of the adjoining land. [15] In the recent Epp v. Gartside, 2011 BCSC 1687, Melnick J. of this Court reviewed the law on this subject, in a case involving a long standing encroachment by a driveway. In the course of his reasons, Melnick J. referred to Vineberg v. Rerick, [1995] B.C.J. No. 2506, which is regarded as a leading authority in this area. Melnick J. observed: [21] That section [s. 36] has been judicially considered in a number of cases. In Svenson v. Hokhold, [1993] B.C.J. No. 859 (B.C.C.A.) and in Vineberg v. Rerick, [1995] B.C.J. No. 2506 [Vineberg], our courts found that it was sufficient if the property in question had, at some time in the past, been partially enclosed by a fence or a construction equivalent to a fence. In Vineberg, Mr. Justice Leggatt indicated at para. 17 that one should not impose too strict a criteria on a section that is intended to provide equitable relief. Similarly, the definition of what is a building has been interpreted with seemingly great elasticity. For example, in Dattolo v. Merlo, [1998] B.C.J. No. 1499 [Dattolo], Mr. Justice Shabbits found a concrete sidewalk to be an extension of a home and thus coming within the definition of a building. Of course, he also found in those particular circumstances that if the sidewalk had been removed, access to a rental unit connected by it to the home would have been impractical. The sidewalk in question was two feet wide and encroached the neighbour's property by a couple of inches due to mutual mistake by the neighbours as to the location of the property line when the sidewalk was installed. Mr. Justice Shabbits ordered an easement to be granted as the balance of convenience favoured that applicant. [22] Once an applicant establishes that either of the requisites apply (a building encroaching on the neighbour's property or it having been at least in part delineated by something that can be said to be the effective equivalent of a fence) then the Court applies a balance of convenience test. This was described in Vineberg at paras. 19 and 20: 19 Moving on to the heart of this matter, the test for determining how to use s. 32 is the balance of convenience: McNutt and McNutt v. Tedder and Tedder (1982), 34 B.C.L.R. 145 (B.C.S.C.). 20 Counsel has provided several cases which illustrate how the balance of convenience has been judicially interpreted in similar situations. From these and other cases considering s. 32, I have noted three predominant considerations used in the balance of convenience analysis: 1. The comprehension of the property lines: Were the parties cognizant of the correct boundary line before the encroachment became an issue? There are three degrees of knowledge: honest belief, negligence or fraud. The party seeking the easement should have an honest belief to be awarded this remedy. 2. The nature of the encroachment: Was the encroachment a lasting improvement? What is the effort and cost involved in moving the improvement? Was its effect on the properties in question? The more fixed the improvement, and the more costly and cumbersome it would be to move it, the more these considerations will be weighed in favour of the petitioner. 3. The size of the encroachment: How does the encroachment effect (sic) the properties, in terms of both their present and future value and use? These questions serve to balance the potential losses and gains of the creation of an easement. [23] In this case, there is no evidence to suggest that the driveway, although paved, was an essential part of the "building" (the home on the property) as the Court found the sidewalk was in Dattolo. The paving clearly took place at some point subsequent to the construction of the home. It is not at all evident that it is, in any way, a part of the home or any other building on the property. The fact that it is a paved driveway does not, by that alone, make it a building within the intent of s. 36 of the Act. [24] Whether the easement area was in some way delineated by some form of construction that could be characterized as a fence is not easy to determine. I have carefully studied the photographs and the survey drawings that have been submitted in evidence. I conclude as a fact that the wooden fence depicted in the circa 1950s photograph did not extend onto the Gartside property. [25] There are some areas of the uphill side of the driveway (to the right as one looks uphill toward the Epp residence) which has fieldstone covering the bank where the natural slope of the Gartside property has been cut away to provide a level surface for the driveway. But the irregular placement of this fieldstone on part of this bank is in marked contrast with the rock wall or rock construction that one can see on the Epp property proper bordering what appears to be a parking area on the upper part of the driveway. I conclude as a fact that the fieldstone does not constitute a construction that, even by the most elastic of interpretations, can be classified as a fence. [26] Thus, s. 36 of the Act is not engaged. Had I found it to be engaged, however, I would not have concluded that the balance of convenience favoured the Epps in any event. [16] As can be seen from this passage, Melnick J. treated the categorization of the nature of the encroachment as a threshold question. Upon finding that the encroachment in that case was neither a "building" nor land enclosed by an improperly located "fence," Melnick J. found that s. 36 was not engaged. [17] The passage quoted from Epp is useful for present purposes in summarizing the law that has developed in relation to s. 36, particularly as to the expanded meaning of "fence" as including "property ... having been at least in part delineated by something that can be said to be the effective equivalent of a fence." [18] The patio the Yangs built is not an essential part of a building. I say so having considered the approach taken in Dattolo, referred to by Melnick J. It is, however, a crescent of land enclosed by an artificially placed row of stones approximating the boundary line. The area of the encroachment is land long-since enclosed on the Yangs' side by the rocks. The Yangs have cited Barrow v. Landry, [1998] B.C.J. No. 1601. It is a useful consideration of whether a stone wall can be described as a "fence" within the meaning of s. 36. There, Clancy J. of this Court observed: Jurisdiction 13 The most contentious issue is whether the court has jurisdiction to make an order. The parties agree that the retaining wall is not a building. If an order can be made, it must be on the basis that ". . . a fence has been improperly located so as to enclose adjoining land". 14 Mrs. Barrow has provided a definition of "wall" which includes reference to a solid fence of masonry. 15 Mr. Landry submits that the retaining wall is not a fence. He has referred to a number of dictionary definitions for those terms. The definition that best accords with my understanding of what comprises a fence is as follows: A hedge, structure, or partition, erected for the purposes of inclosing a piece of land, or to divide a piece of land into distinct portions, or to separate two contiguous estates. Black's Law Dictionary, Fourth Edition. 16 I conclude that a fence may have two purposes, one is to enclose an area and the other is to separate an area into distinct portions or to separate contiguous estates. What is left in doubt is the definition of the type of structure that qualifies as a fence. 17 The authorities are of some assistance. In Lahey v. Hartford Fire Insurance Co., [1968] 1 O.R. 727 (High Court of Justice) the court was concerned with a claim under an insurance policy when a stone wall was damaged by water used to quench a fire in the insured building. The definition of "building" included the word "fences". The court found for the purposes of that insurance policy that the word "fence" referred to "a structure which encloses wholly or partially some piece of property so as to impede ingress and egress. It may be composed of anything so long as it creates a line of obstacle serving this purpose."(p. 728). The court went on to emphasize that stone structures on other premises could well be fences. 18 Those findings are consistent with Urban Housing Co. v. Oxford City Council [1940], Ch. 70 (C.A.) where Sir Wilfrid Greene M.R. was concerned with walls built across roads in order to prevent others from using the roads. He held at p. 81: Now it is said that the phrase "fence or other enclosure" would not include a wall. I am quite unable to take that view, and I need say no more about that. 19 That finding does not provide a great deal of guidance as to what type of structure may be considered a fence but certainly the court was satisfied that a wall could be a fence. 20 Section 8 of the Interpretation Act, R.S.B.C. 1996, c. 238 mandates that every enactment be given a fair, large and liberal interpretation so as to best ensure the attainment of the objects of the enactment. The purpose of the legislation has been held to be the provision of "a basis on equitable grounds for resolving disputes over encroachments": Svenson v. Hokhold (1993), 26 B.C.A.C. 26. 21 To take the narrow view suggested by Mr. Landry would not be of assistance in attaining the objects of the Act. I see no reason to limit the definition of "fence" as that word is used in the Act to some upright, above ground, structure that encloses an area of property. I conclude that a structure of any kind, provided it serves the purpose of either enclosing property or separating contiguous estates is a fence within the meaning of the Act. I find as well that it is unnecessary, as contended by Mr. Landry, that the fence be constructed for the specific purpose of dividing the property into two distinct portions. It seems to me to be sufficient if the structure serves that purpose. 22 Section 36(2) also requires that the fence be located so as to "enclose" adjoining land. No argument was addressed to this issue but "enclose" is defined in the Concise Oxford Dictionary as "surround with a wall, fence, etc.". I think it self-evident that if the wall is a fence and it has the effect of incorporating some of Mr. Landry's property with that of Mrs. Barrow, it can be said to surround the encroached area and thus "enclose" the adjoining land. 23 I find that the court has jurisdiction to hear the application of Mrs. Barrow. [19] I think this is definitive that, for present purposes, an aggregation of large stones meant to separate two properties that effectively annexes a part of one property to the other, is a "fence" within the meaning of s. 36. [20] As the court observed in Vineberg, once section 36 is engaged, the test is the balance of convenience, as set out in McNutt v. Tedder (1982), 34 B.C.L.R. 145 (B.C.S.C.). [21] The balance of convenience analysis starts from the proposition that there must be an honest belief, for the very good reason that the Act statutorily expresses an equitable remedy, and a party seeking such a remedy must do equity or come to the court with "clean hands." The Yangs, at a minimum, avoided the obvious means of establishing where the boundary line was, in circumstances where they knew the Langleys would not be accommodating if they were wrong. They were not, in the circumstances, inadvertently misled by the apparent boundary line created by the rocks. [22] Were that the case, I think they would have a strong case for the relief they seek because the land in question is, relative to the Langleys' property, a small fraction of unusable land that is effectively beyond their reach. The patio renders a section of the Yang property usable that would otherwise be wasted and creates a significant enhancement to the use, enjoyment, and value of their property. The patio area is quite some distance from the Langleys domicile and is not a significant encroachment on their privacy, although the feelings between the parties are such that that is not the Langleys' subjective experience. [23] The proper way for the Yangs to have approached this would have been to obtain a survey and to seek the relief they now ask of the court on the basis that the small bit of land they need was inside the long-standing, albeit informal, boundary line created by the rocks. This would not have been a sure thing because the court would only have been dealing with a proposal, not a fait accompli. What the Yangs appear to have intuited is that once the desired encroachment is built and its practical and aesthetic merits are demonstrable, as is its evident expense, there is an inevitable pragmatic shift towards leaving it in place. This is why the "honest belief" has been described as a threshold question. It simply cannot be the general law that a person who heedlessly builds on another person's land will enhance his or her chances of keeping it by doing so. [24] In some respects, this case is more invasive on the Yangs' part than the situation in Epp. There, the applicants had come into possession of lands that the respondents had permitted to be used as a driveway for many years. Part of the trouble between the parties revolved around the way the applicants had behaved. It was not a case of the new owners actually building anything, but of assuming they would be able to carry on an existing use, despite notice that they had no legal right to do so. [25] Melnick J.'s observation that an "honest belief" is a threshold issue would be binding on me and would dictate a result in favour of the Langleys, were it the ratio of the case. The distinction between Epp and the present case is that in Epp the applicants failed the first threshold of establishing that the encroachment was a building or a "fence." The rest is useful, but obiter, as Melnick J. noted. [26] I think that generally the lack of an honest belief should be treated as crucial consideration. What Leggatt J. said in Vineberg, however, was that the party seeking the easement "should" have an honest belief. I think that somewhat cautious word is wise, because there may be cases where other considerations are not entirely overwhelmed by the applicant's choice of an unjustifiable tactic. [27] I think this is such a case. The land in question is really not accessible or usable by the Langleys. It is not, except psychologically, a manifest intrusion on their living space. It is well behind and away from their domicile. It is beyond a boulder line they have not found it necessary to disturb during their occupation of the property. It seems obvious that what has occurred is that relations between the parties have reached such a low that reasonable accommodation is not possible. The parties have, for example, descended to putting up signs along the border instructing each other of their positions. [28] What the Yangs did was inexcusable, but in the particular circumstances of this case I am persuaded that a proper amount of compensation together with costs will serve the purposes of an adequate rebuke of such behaviour, and also the ends of justice and common sense. [29] Accordingly, I order the Yangs to pay the Langleys the sum of $22,000 based on the appraisal of Leigh Walker respecting the increase in value of the Yang property attributable to the improvement, and making some allowance for the loss of value to the Langley property. [30] I also order the Yangs to pay special costs to the Langleys as well as their disbursements, including the $728 spent for a survey. [31] If the Yangs have not paid those sums within 90 days of these reasons, they must, within 30 days, remove the encroachment, and, at their own expense, and put the area encroached upon back in its original condition. [32] The costs order is in either event. "McEwan J." ________________________________ The Honourable Mr. Justice McEwan