Dear Tony: We live in the interior of B.C. and our bare land strata shares a marina with a condo and townhouse development. To date, the lease was always in the developer’s name.
The developer has approached our three corporations and suggested he will transfer the leases to the corporations for a fee, requiring our three corporations to convene general meetings and vote on the terms, conditions and fees.
No one in our community is experienced with leases associated with marinas and our strata council is struggling to understand the implications of either approving or not approving the leases.
Is there a standard form or resource that advises property owners with marinas and docks in B.C.?
Andrew P.
Dear Andrew: There are many variations to foreshore leases in Canada, and under several jurisdictions. There are tidal, inter tidal, and fresh water regulations that apply to coastal, navigable, and interior waters, which fall under the federal and provincial governments, and under the operation of port authorities or Indigenous territories.
I strongly advise your strata corporations to retain a lawyer experienced with foreshore lease as the terms and conditions not only bestow use, but they also come with significant liabilities and limitations.
Sat Harwood, a B.C. lawyer in Vancouver, assists strata corporations with the review, negotiation, and administration of foreshore leases. According to Sat, “It is critical strata communities understand the terms of the lease, conditions of use, environmental obligations and implications, limitations on use, and the liabilities of each corporation that may relate to environmental claims, injuries, losses, and insurance obligations.
“This isn’t like a simple tenancy agreement for permission to build a dock and host your vessels. There can be far reaching responsibilities and liabilities associated with the leases. While the developer may wish to assign the lease, the assignment may require the consent of the party who granted the lease initially.
“A review of the foreshore lease, assignment agreements, and other background documents such as the disclosure statements issued by the developer, will help the strata corporations understand the key terms and conditions, including options and liabilities before they convene a special general meeting.
“If the lease is for a fixed period, such as 25 years, but renewable, it may be a significant asset for the corporation. If the lease has a limited time period with no guarantee of renewal, it may be a significant liability.”
In addition to solving the negotiations of the foreshore lease, have your three strata corporations create resolutions that are consistent for everyone to approve at a general meeting. The terms and conditions of the lease should be met within the body of the resolution.
Also consider a contingency plan. What is the effect or result if one of the three corporations chooses not to enter into the lease assignment or costs? The method of meeting operating and maintenance costs should be clearly defined within the resolutions as well as the allocation of costs if all three communities share the marina.
Foreshore leases also apply to float home communities which are also strata titled. Communities are advised to review their leases for termination periods, terms and conditions they are required to meet.
Tony Giovenut is executive director of the Condominium Home Owners Association.
