Whitehorse Daily Star

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NOT WHAT IT SEEMS – Professional land surveyor Tim Koepke conducted a briefing Friday. He explained some waterfront property owners may not own what they think they own, that a portion of their home or all of their home may be sitting on land they don’t have title to.

Doubts cast onto waterfront property ownership

A well-respected Yukoner with unquestionable credentials says there is a very serious matter that needs to be addressed regarding the ownership of waterfront property.

By Chuck Tobin on November 4, 2019

A well-respected Yukoner with unquestionable credentials says there is a very serious matter that needs to be addressed regarding the ownership of waterfront property.

Tim Koepke held a two-hour briefing Friday morning to explain his concern, and the depth of what he sees as a very real problem that could affect many, many Yukoners.

So significant is the issue, it may involve property owners who don’t own the property they think they own, he said.

So significant is the issue, homes people live in may not be sitting on titled property, he said.

Koepke said the matter involves property owners, the real estate industry, the mortgage industry, the legal profession, insurance companies, property tax authorities and so forth.

It’s nobody’s fault that the situation is the way it is, but it is the way it is for sure, he insisted.

Koepke is a professional Canada land surveyor who started working here at a local surveying firm more than 40 years ago. He is a professional engineer.

For some 25 years, he was a senior land claim negotiator for the federal government and was on the front line of the land claim settlements in the Yukon.

He explained Friday morning he only came upon his concern in recent weeks when he was helping his neighbour with property concerns related to the Southern Lakes enhancement proposal by Yukon Energy.

In his belief, he has a professional obligation to disclose what he learned, so that it may be addressed by all those who need to come together to address it, Koepke said.

He said he has had his conclusions and observations reviewed by the most senior of surveyors in Whitehorse and they have agreed with him.

He said he doesn’t want to be talking openly about this anymore because it’s been stressful, and the problem is not his to correct.

This has nothing to do with the quality of surveying, or the professional conduct of real estate agents and lawyers who handle real estate transactions, he insisted.

Koepke said it is a flaw related to the application or non-application of legislation required to relax an otherwise hard and fast rule that says waterfront properties cannot encroach within 30 metres or 100 feet of the ordinary high water mark.

Without the application of the legislation, the 100 feet of land reserved for the public stands, it is the law, he explained.

Koepke said there are waterfront properties on Marsh Lake and most likely elsewhere in the Yukon that encroach on the public reserve without having the exception, though he has no idea how many.

“What do we have, a whole bunch of people who do not have ownership of the land that their buildings are on,” Koepke said, adding it’s a case of “I don’t own what I think I own.”

Imagine, Koepke proposed, submitting an insurance claim and the insurance underwriters discover that the building they’ve been insuring all these years is not sitting on titled land, as they were told it was.

Imagine finding out half of your million-dollar home is sitting on land you don’t own, he suggested.

Koepke explained the issue in detail.

The matter is related to the general principle in the Yukon of having a 30-metre or 100-foot reserve of public land between titled property and the ordinary high water mark of the body of water the property overlooks, he said.

During the negotiations of the land claim settlements, First Nations were not allowed to select land within the 100-foot reserve.

Koepke’s property of 30 years on Marsh Lake does have the 100-foot reserve, though others in the neighbourhood do not.

Back in the day, several decades ago and through the years, the federal Surveyor General of Canada could agree to relax the 100-foot buffer in some cases because of circumstances.

Perhaps dwellings had already been built or placed on waterfront land within the 100-foot reserve before the land was even surveyed for ownership, as was the case in some areas of Marsh Lake.

When there was a desire to begin raising ownership title to those lands, the survey was conducted and it was agreed the requirement for a 100-foot buffer would be reduced to accommodate existing dwellings, he explained.

Koepke said the issue arose when he and his neighbours were recently talking about the proposal by Yukon Energy to raise the lake level to increase the amount of water stored in the Southern Lakes for hydro generation, he explained. (Many residents are staunchly opposed.)

Koepke said he began helping his neighbour go over his land title. He noticed and was quite surprised there was no notification on the title indicating the 100-foot reserve had been relaxed, and his neighbour’s property does encroach.

A small but random sample of files at land title’s office showed a couple of more properties that encroached but did not have any notice that an exception to the 100-foot reserve had been applied, he explained.

At the briefing Friday, Koepke provided a real property title he’d copied, with the identifying features like the lot number covered over. The property encroached on the reserve, but there was no exception on file.

Koepke drew a line across the property showing where the 100-foot reserve is. It cuts through the middle of the house.

That the situation has been allowed to get this far is not a big surprise, he suggested.

He said the law says you’re entitled to accept documents like land titles on their face. What you see is what you get, and there’s no need to explore beyond the document to verify its validity, he explained.

Koepke said the fault lies with the federal and Yukon governments.

“The problem is not one of surveys, which are made under instructions of the Surveyor General pursuant to the Canada Lands Survey Act and the prevailing legislation,” says the briefing note prepared by Koepke.

“The defect title is present due to the failure of federal and territorial officials from the 1950s to the present day to apply the law as set out....”

Koepke suggested he expects things will change now in dealing with waterfront property transactions.

There is an obligation in real estate transactions for full disclosure of all pertinent information, such as whether an exception to the 100-foot reserve has been issued, he explained.

Koepke said he very much would like to see general agreement by the powers that be to look at this matter with some urgency and get it addressed, though there hasn’t been much said so far and he’s communicated his views.

While it was the issue he’s speaking about now concerns Marsh Lake property owners, Koepke said the same situation could be widespread with other water bodies in the Yukon.

“Now that I have lobbed a grenade into the barn, somebody is going to have to say, ‘we have a problem, and we need to fix it,’” he said.

“Unfortunately, I’m going be the most unpopular guy in the Yukon for prying open this can of worms, and it was not my intention.”

In an interview shortly after noon today, Energy, Mines and Resources Minister Ranj Pillai said Koepke explained his concerns a week or a week and a half ago to his MLA, John Streicker, who is also the minister of Community Services.

Streicker immediately communicated Keopke’s view to him, he said.

Pillai said he’s asked the lands branch to look into the matter, and he expects to get an update in the next day or two.

Comments (26)

Up 0 Down 0

... inexperienced on Nov 10, 2019 at 3:46 pm

Would this apply to the condos that are built by Boston Pizza? They are a stones throw from the water.

Up 2 Down 7

Ernie A. on Nov 8, 2019 at 3:56 pm

So a person should be free to do some staking of freed up lands now in some of these prime spots. If I'm reading this right.

Up 3 Down 8

CJ on Nov 7, 2019 at 1:01 pm

@attn Mr Gray: Surveys haven't been required for mortgages for a long time now -- since the 1990s, at least, I believe.

Up 7 Down 1

YukonMax on Nov 7, 2019 at 7:44 am

Oh! I know for a fact that if your property is in the Campbell region you are safe.
Sheriff's never, ever travel that far.

Up 10 Down 7

Miles Epanhauser on Nov 7, 2019 at 12:31 am

I have concerns for some Marsh Lake residents.

The Lake level has been raised because of the Whitehorse Rapids dam and the control structure. Yukon Energy wants to raise the lake levee higher to increase storage; at face value it's a small increase in water level that will result in less diesel and LNG burnt to produce power in the winter.

What may have been a 30m setback years ago may no longer be so thus the poor landowner is threatened by higher water, violation of the 30m setback and of course many hayseeds are very quick to automatically call the household rich and deserving of condemnation.

Somehow this issue seems very unfair to many people. The city of Whitehorse has a climate emergency that means council will support increasing Marsh Lake water levels.

Up 7 Down 4

Mr.Gray on Nov 6, 2019 at 5:09 pm

To "Attn Mr Gray", please enlighten me how my property was surveyed without any surveyor stepping foot onto my property when I purchased it? On my neighbors as well?

Up 7 Down 2

North_of_60 on Nov 6, 2019 at 3:29 pm

@G'dN FYI from the article: "... hard and fast rule that says waterfront properties cannot encroach within 30 metres or 100 feet of the ordinary high water mark". "Ordinary" is the operative condition, ie. the average high water mark.

Up 5 Down 9

Attn Mr Gray on Nov 6, 2019 at 12:31 pm

Mr. Gray your survey timeline is askew because every time someone went for a bankloan or mortgage a survey would have been required. Nice try though.

Up 3 Down 8

Groucho d'North on Nov 6, 2019 at 9:33 am

It's just a minor clerical error.
So does the high-water mark of the 2007 flood event factor into what the historic property lines are measured from now?

Up 10 Down 2

BnR on Nov 6, 2019 at 7:52 am

Lands Branch is going to be looking into this...
I sense more policy analyst positions in the works.
And where do realtor responsibilities lie? You hire a realtor to make sure you are buying what you think you are buying? If I’d bought a piece of land that had title issues, I’d be looking to the realtor for recompense.

Up 16 Down 9

Nicky on Nov 5, 2019 at 10:28 pm

Some people believe that holding September water levels will encroach on their properties. Have they built on the 100-foot reserve above the high water line? They don't own that land. This 'buffer zone' exists so normal water levels don't cause problems on private properties. In that case they also have no basis for compensation. Ignorance of the law is not a valid defence.

Up 12 Down 4

Mr. Gray on Nov 5, 2019 at 9:31 pm

Most of the properties effected on Marsh Lake are the older lots around Army Beach and McClintock sub divisions. These lots go back to the fifties when the Feds took care of things and they were land leases only. Over time these lots were sold off by the government based on the original survey by the Federal Government. No new survey was conducted when the Territorial Government took it over. Has anyone ever took note over the terrain on that peninsula on Marsh Lake? It is literally composed of sand. What wears away faster with wind and wave activity? Not rock...Sand. That means that earlier surveyed lots that were never resurveyed over the years suffered from natural erosion that kept eating away the shoreline after the Hydro Dam was built and created in the late fifty`s.
These lots were originally within the 100 foot boundary in some cases but in time the erosion effects have created a new high water mark. Just remember that some of these eroded lake front properties were never water front properties until the dam was built thus creating higher water levels on Marsh lake. Over time the new sandy shoreline has been redefined with Mother Nature after the initial survey. Add in a little sloppy administration over the years with the Governments involved and here we are. I certainly hope the press stays on this story till the final resolution has been found and pressures our current elected Government to hold a formal follow up.

Up 9 Down 4

Apex Parasite on Nov 5, 2019 at 1:55 pm

People largely talk like waterfront property owners are exclusively well heeled and as such should remediate encroachments at their own expense.
The reasons for encroachment vary as do questions as to how land and property may perhaps have changed hands over the years with never a mention of the setbacks.

Many owners are average Joes and were they to be put into a situation of say, having to move their house, simply would not have the resources to do so.
Micheal Miller may represent the voice of reason in all this. Acknowledge the issue, establish ground rules going forward, and create process to make clear the responsibility of all in observing the clearances required.

The grenade Mr. Keopke lobbed has the potential to create great hardships on those average Joes and huge litigation considerations represented by the well heeled.
I mean what would non compliance of say having to move your house look like for whatever reason. Would the bulldozers come in and move it for you? Sheriff standing nearby to make sure nobody gets crazy as their world is torn apart?
Obviously the damage has been done so to speak. Now it's about damage control and mitigation of the litigation.

Were this to become an issue that requires quantifying the actual scale of the problem and then redefining boundaries and lines, it would be a very very good day to be a professional land surveyor and a very bad day for taxpayers.
Perhaps Mr. Koepke has not so much lobbed the grenade into the barn but rather has lobbed a golden egg into the nest.

Up 7 Down 8

Obi on Nov 5, 2019 at 1:27 pm

Just for the sake of argument!
1. The Ordinary High Water Mark is subject to question, especially in the southern lakes region. The measurement is done by surveyors on the site, but it is not an exact science. It is an opinion only, and can vary between different survey companies as to how it is calculated. This would create doubt,as to its exact location.
2. The measurement of the O.H.W.M. must be done on natural flow bodies of water. That means no dams in place, to complicate the measurements taken.
Therefore I would challenge the data produced by Mr.Tim Keopke, unless the measurements on file, were done prior to the construction of the two dams on the Yukon river, including the addition of the fourth wheel at the Whitehorse Rapids Dam.

With regards to his statement that insurance companies would not settle a claim because of a property not being on titled land, I think is wrong. The homeowner is blameless in this fiasco, and the contract between the Insurance company and their client was made with the approval of the legal society and the Government Land Title Dept.
Premiums have been paid and the contract bound.
The insurance claim would be paid, but the company might then subrogate against the parties responsible, and sue the Survey Generals Dept., the Land Titles Dept. of the Territorial Government, and the Surveyors who did the original survey work.
The simple solution is an order in council accepting all existing lot surveys, and then make sure all new ones are done correctly....

Up 13 Down 11

stephen on Nov 5, 2019 at 1:08 pm

Sorry first all every Canadian should know it's public own land close to the water. Anyone building docks, etc are breaking the law. I have had a few encounters down south with rich people thinking they own right to the water and find out I can walk across their deck or dock any time I please.

All level of governments should know better and when opening up land for sale should make it clear the People of Canada own the land around water ways.
No waver should be given at all for anyone building close to water or trying to block access to water by home owners.

Up 11 Down 7

JohnW on Nov 5, 2019 at 12:01 pm

Someone thinking they own the shoreline is like thinking they own the greenzone next to their property.
It seems that some living on the southern lakes ignored the hard and fast rule that says waterfront properties cannot encroach within 30 metres or 100 feet of the ordinary high water mark, and built too close to the water anyway. If holding September water levels into the winter causes problems in the 100-foot buffer zone, then they're not entitled to any compensation.

Up 15 Down 5

Can Of Worms Indeed on Nov 5, 2019 at 12:01 pm

What about soil erosion? There’s lakefront property that’s been in the family since 1950 and I know the waves have slowly eroded part of the waterfront away over the last 20 years or so. The old survey stakes that were installed on the waterfront property line back in the day are now well within 100 feet of the existing high water mark. Does that mean when it’s resurveyed they’d want to take some of our property that was legally surveyed and deeded 70 years ago? I’m not about to move any buildings that were legitimately built on the family land decades ago and I’m also not about to accept a decrease in my property size just because the lakeshore has moved closer over the years.

Up 18 Down 36

Willard on Nov 5, 2019 at 8:39 am

Why didn't the Conservatives deal with this issue in the past?

Up 19 Down 10

Michael Miller on Nov 5, 2019 at 8:33 am

This shows a serious lack of communication has taken place. Personally, I think a land title at face value should be enough to demonstrate your ownership.
Anyone who surveyed or developed land within 100 feet of water should be made accountable if this is an issue.

There is a simple solution which involves a voluntary registry of property within 100 feet of water followed by automatic approval of the existing title.

Up 7 Down 16

Matthew on Nov 5, 2019 at 5:11 am

Oh people, news flash, you NEVER own the land, it's always the banks, even after paid off.. in the fine print of mortgages.. read what you sign.

Up 14 Down 22

jc on Nov 4, 2019 at 8:51 pm

They paid for it, they paid the taxes on it, they own it! Whoever claims it otherwise, can buy another suitable lot and move the buildings at their expense.

Up 22 Down 10

J Russell on Nov 4, 2019 at 7:53 pm

Thank-you Mr. Koehler. I’ve always understood that the waterfront belongs to the people (and animals) of Canada.

So Looking forward to North of 60 ‘giving back’ their bit of Yukon river in Marwell to the people, and for the trail to extend for all.
Thank-you again

Up 33 Down 1

Bent Canoe on Nov 4, 2019 at 6:25 pm

Isn't this a 200 + year old Canada-wide law? In Quebec it's called "la loi des 3 chaines". One chain being 33 feet long. (Don't ask me where that 33 feet standard comes from.) So 3 chains equal 99 feet, or approximately 30 metres or 100 feet. That 100 feet from the high water mark reserve applies to all NAVIGABLE bodies of water, i.e. lakes and rivers which have been important transportation resources from times immemorial. Apparently the reserve was meant to provide access to navigable bodies of water, and to ensure water travellers would be able to camp overnight on the shore, as in the old voyageur tradition, which is also the Yukon tradition.

Up 19 Down 15

Boyd Campbell on Nov 4, 2019 at 4:33 pm

Old news- it's been well known for decades that many buildings were built within the high water mark. The surveying business must need a boost since the land claims bonanza has collapsed.

Up 43 Down 2

BnR on Nov 4, 2019 at 4:15 pm

Well don't blame Tim for exposing the BS in Lands Branch.
This discrepancy has been going on for years, with who you know or how connected your family is to the government in power being more important tax the legislation. There are waterfront properties all over the Yukon that are well within the set back, never mind the scores of docks and other structures that encroach. Some get licenses of occupation, but mostly its wide open. I know one business owner in the Marsh lake area who is being forced to remove his dock by Lands Branch, yet well connected families with properties on lakes like Quiet Lake have all sorts of docks etc with no license of occupation and the get to keep their docks. Same with outfitters, all sorts of outfitter owned structures breaking the law with respect to set backs.
Its all about who ya know...

Up 30 Down 8

Waterfront land owner on Nov 4, 2019 at 2:55 pm

Thank-you Mr. Koepke for speaking up and bringing this to our (waterfront land owners) attention.

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