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Date Posted: 10:30:03 02/16/08 Sat
Author: Dirk (David v Goliath)
Subject: Re: Whaletown Realtor Signs Papers to Force Heritage Cabin Demolition
In reply to: Island Report 's message, "Whaletown Realtor Signs Papers to Force Heritage Cabin Demolition" on 12:47:28 02/11/08 Mon

Not even familiar with this website, I was recently alerted to this posted message. Although the gist of the item is more or less correct, I feel I should rectify a few of the details contained in it.
I have no issue whatsoever with the real estate agent retained by Mr. Lubomir Janda to sell the one remaining lot in his subdivision near the Whaletown ferry terminal. In fact, it would only be beneficial to all parties involved, including to myself, to see this property sold. This would be a “win-win” for everybody with me gaining a new neighbour and the end of some 10 years of harassment and threats, including an upcoming lawsuit from this developer.
The actual harassment goes back further, against Bill Emery, the previous owner of my property. Bill, an old-timer who had always lived either on the water or by the water was a man of many talents. However, he never held a driver’s licence and was virtually illiterate. Mr. Janda tried to bluff Bill trying to make him sign a contract to buy his property at a price far below the actual value that Bill was unable to read. Prior to me purchasing Bill’s property in 1998 at the full appraised value at the time, Mr. Janda was given the option of first refusal to acquire it. He was not willing to match my offer or do better.
I purchased this landlocked property on the knowledge to have walk-in ingress and egress to it. The foreshore trail connecting it with the public road has been in continuous use long before Mr. Janda purchased the property on which it is located. It is the only safe way into my property for fire protection and ambulance crews, as well as BC Hydro and Telus meter readers and maintenance personnel.
Correspondence dating back to March 2, 2000 with the Ministry of Highways confirms that before approval for his subdivision would be granted, this would be subject to providing “reasonable and necessary access” to the satisfaction of the Ministry of Transportation and Highways and the Provincial Approving Officer.
The subdivision was completed in the fall of 2004. The detailed survey of all the buildings on my property was completed several months prior to that. As early as February 2000, the developer informed me about the alleged encroachment of the heritage-vintage building used as guest cabin. At another occasion he admitted that he had actually helped the previous owner constructing the other alleged encroachment, the woodshed.
This woodshed, which not only serves as utility connection for BC Hydro and Telus, also houses the pressure pump for the water system covered under the water line easement, while the guest cabin is partially covered under the same water line easement.
Mr. Janda has had encroachment and/or property line disputes with at least two other neighbours. I verily believe it to be true that the alleged encroachment of the two buildings is a result of the discrepancy of modern survey equipment versus manual survey methods more than 50 years ago in steep heavily forested terrain. Based on the original survey in October 1957, the encroachments could never have been intentional.
Although the developer had been previously aware of the possibility of two of my cabins encroaching slightly onto the adjacent lot, he did not make an attempt to resolve this during the subdivision process. Since the alleged encroachments had already been surveyed, the problem could have been easily resolved by a simple minor lot line adjustment at little or no additional expense.
On February 28, 2000, one year prior to the date the developer decided to subdivide and sell lots from his property, I made the following proposal to the Ministry of Highways and Transportation in regards to easements for ingress and egress and the waterline to my property if and when Mr. Janda would subdivide the land surrounding my property. “The simplest solution to achieve this, will be by allowing me a 20-m wide access strip along my current hydro line. This will follow the easiest grade and will also allow me to redirect my waterline to my house.”
The consolidation of the two easements combined with the existing one for the hydro line to a single one and a redirection of the water line, would be beneficial to all parties, including the potential buyer of this lot. It would also allow a shared driveway replacing my continuous access to the foreshore trail granted to me under the easement for the waterline, which follows this trail. “At any time the Grantee is granted the right to make use of the easement area, with or without motor vehicles, for the purposes of gaining access to water for the use of the said Dominant Tenement. At any time or times, hereafter to pipe water, and to survey, lay down, construct, operate, maintain, inspect, replace and repair such pipes and such other works as may be necessary, useful or incidental to the purpose aforsaid.”
Instead the developer decided giving me ingress and egress at the worst spot possible, at the top of a very steep slope, making this an unsafe access and virtually of no use. The consolidation of all the two granted easements with the existing one for BC Hydro and the elimination of my right to continuous use of the foreshore trail would have made it a much more sellable piece of property.
After Mr. Janda set himself up not being able to sell this remaining lot in his subdivision, he now tries to put the blame on an alleged minor encroachment of two little sheds. Given the many options for building lots on the large remaining unsold lot, 1.33 ha. or more than 3 ac., I fail to see why a potential buyer would want to build right next to my existing house. In the unlikely case they would decide to build next to me, the two little rustic sheds in this dispute will only form a buffer and thus enhance the privacy to both residences.
The developer has not clearly proven that he has been unable to complete at least two sales to date, the prospective buyers citing the alleged encroachments as their sole reason for not purchasing the lands. I suggest that the alleged encroachments have had no effect on a potential sale of the adjoining lot, rather by the developer’s unneighbourly behaviour and unwillingness to solve this matter.
To date, he has also had the opportunity to remedy the alleged encroachment by a mutually agreed upon lot line adjustment, which has been presented by him as part of his subdivision plans. I agreed to this proposed and mapped lot line adjustment but Mr. Janda has not yet finalized the agreement, resulting in this malicious action. He has refused to solve this matter through mediation and failed to respond to my counter offer of December 14, 2007, as well as our agreement, in which I would purchase the strip of land on which the alleged encroachments are situated.
This is a typical David and Goliath case. A man, who for commercial gain sells half of his 50 acres for some $ 2 million, versus a neighbour with half an acre who just wants to live in peace and be left alone. The developer gets so greedy that when he realizes he his unable to sell his last remaining lot through his own doing tries to put the blame on the alleged encroachments of his neighbour’s two little sheds. He tries to squeeze thousands of dollars out of him for a few square feet to cover one cabin and forces him to demolish the other one.
If worse comes to worse, I will cut the cabins right in half lengthwise right along the property line. But no sheets of plywood with messages. I will just leave them cut open with the insulation fluttering in the wind. See whether this will increase his chances to sell the property, which will be off the market anyway indefinitely by two more upcoming separate back to back lawsuits against him and his property.
Where I come from, people keep agreements, handshake or otherwise. I have dealt with several people from where the developer comes from, and found them all outstanding honourable and honest people. Unfortunately, like anywhere else, there are always exceptions.
Unable to retain an expensive lawyer in my defence, I may lose the court case in Courtenay on March 3. But in the end, I will be always able to look my neighbour straight in the eye and I won’t be turning around in my grave with feelings of guilt.

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