Who Owns the Water?
All water in BC is owned by the Crown and strictly regulated. As property lines extend to, but do not include the foreshore, the upland owner has no rights to use or “possess” the water, only a right to access. A license from the Provincial Crown is require to use/ possess.
Waterfront Boundaries Can Change
The Crown owns all property which exists below the high water mark therefore if the high water mark changes, the property boundaries will change. A new survey is required to re-define the property after erosion (loss) or accretion (gain), especially for:
- Property tax issues
- Building on property (building envelope)
- Building on water (dock location)
General Public has a Right of Access to Foreshore.
In Minor v. Van Ewyk, 2008 BCSC 558 the Court said that “the foreshore is open to public use…. The only rights the [land owner] may assert are her common law riparian right to unrestricted access to and from the water frontage, and the right conferred under a “License of Occupation””.
As Docks occupy Crown Land, a License is required for a legal dock. A License is a Personal Right and is not transferred with a transfer of the upland. There are Three Types of Dock Licneses commonly found on Okanagan Lake
- License of Occupation (pre-2008)
- Specific Permission (non-exclusive)
- Water Lot Lease (exclusive occupation)
Importantly, unlike other some other lakes in BC, there is no General Permission on Okanagan Lake to build a dock!
The License will often have Limitations, for example:
- Not to interfere with other rights or navigation (Fixed Impediments)
- Environmental Covenants
- Limitations on Use (# of slips/ commercial v. residential)
- Cannot interfere with Public Access
- No “non-moorage” purposes, incl.: patios, sundecks, hot tubs, roofs/ gazebos.
Assignment (Sales) of Dock Licenses
As a License is NOT conveyed with land, must be assigned
Suggested Contract Language:
The Seller assigns and the Buyer assumes all right, title and interest to the License of Occupation [or Permission] #19978722 with the Province of British Columbia, a true copy of which is attached to this Contract, for, inter alia, the Dock adjoining the property.
The Seller represents and warrants that the License of Occupation [or Permission] #19978722 is in good standing.”
Important Note: Consent of Province to the assignment often will be required and may be denied