Easements and Profit à Prendre

Easements and Profit à Prendre

There was an interesting situation with a father and son who had bought two properties side by

side in the Boswell area on the east shore of the lake. When they started building on their land,

they did not respect the boundary between the two lots. The father had his garage on the son's

property, and the son had something on his father's property. The father was getting old and

decided to sell his property. They wanted to change the boundary line and re-subdivide it to

reflect the actual occupation.

The government found it advantageous to take a road allowance on the front part of their lawn to

widen the highway. Both parties were severely irritated. They said, “No, darn way.” They came

to me about it and said, “What can we do?” I dreamed up something that had never been done

here in BC.

I thought we could fix the situation with an easement—the right for one party to travel across

another party's property, not to occupy it. The easements are there for water lines or roadways or

driveways on the neighbour's place. Easements give one the right to “trespass,” not the right to

occupy.

So, I decided that I would solve the problem with easements. I happened to discuss the situation

with the Registrar of Titles in Nelson, who had come from England. I described to him the

situation, and I still joyously remember him saying, “Oh, they are doing that type of thing in

England all the time.” He said they called it profit à prendre— the right to take something from

land belonging to another.

I competed a survey that created the two “trespasses.” Each property owner had the right to

literally live on the neighbour's property. I've created this type of survey several times to avoid

the costs and delays involved with subdivision.

I faced a comparable challenge in Nelson. There were five-acre lots along the upper reaches of

Nelson in the southwest area. The owners of the golf course wanted to expand. To do this, they

wanted to buy half of these five-acre lots, four or five of them in a row. The medical health

officer would not allow the sale because he wanted those lots to connect the area into the city’s

sewer system. Even though they were in a wet area, properties from the old days had septic fields

before the area became part of Nelson. The golf course needed the land, so I created a profit à

prendre.

One of the owners of the lots consulted a lawyer from Trail, who said the profit à prendre could

not be done. Another party had a son involved with the oil patch business in Alberta. He noted

that they used profit à prendre in Alberta, but it had to be for profit. Well, the golf course was

being done for profit, so the lot owner was out to lunch on that. I said to go ahead and do it, and

it worked. I had to laugh at the lawyer from Trail who actually wrote a letter saying it could not

be done.

An agreement was signed between the owners of the lots and the golf course. The agreement

stated that if the owners of the lots sold, ownership of the properties would be transferred to

profit à prendre, providing the golf course with the right to use the back two and a half acres of

their property. The golf course actually got title to the property.

To this day, I say that was the right thing to do. You need to have a little extra special initiative,

almost arrogance, to do some things contrary to what other official people think should be done.