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.