A Supreme Court of B.C. judge did not find enough merit in a Shuswap couple’s arguments in regards to water they had been receiving from a neighbouring property to award them the legal easement and damages they were seeking.
The matter was decided on March 24 after the judge heard arguments over seven days in January. The case was initiated by Yvonne Kleineniggenkemper and Norbert Hustemeier‑Hennig who bought their rural Shuswap property from Siegfried and Erika Spieker, the owners of an adjacent property, in 2010.
Prior to the sale, both the Spiekers’ home and the property which the plaintiffs would go on to buy were supplied by a drilled well and another water source referred to in court documents as “the Metcalfe source.” The drilled well was on the plaintiffs’ property and the Metcalfe source was on the defendants’ land.
Court documents note the plaintiffs were German nationals and had limited English skills when they were searching for property to purchase before moving to Canada. They engaged the services of a German-speaking realtor to help them buy in Canada. The Spiekers also spoke fluent German and much of the discussion of the purchase over the course of two visits to the property was conducted in German.
All parties agree that discussion before an offer to purchase included a promise of continued access to the Metcalfe source, which brought water to their property through a system of pipes and information on the drilled well’s limited quantity of water.
The court documents state clauses in the offer making sale subject to professional review of water and sewer were considered unnecessary and removed by the plaintiffs prior to submitting it to the owner. The court heard that the sale went through and both parties became close friends over the following five years. The arrangement of providing water through the pipes proceeded.
In 2015, the Spiekers began the process of selling their property and accepted a purchase offer which was made conditional on cutting water supply off to neighbouring properties. This left the plaintiffs reliant on water from the drilled well on their property which did not provide enough water for their home. They attempted to drill other wells but none succeeded.
The plaintiffs filed a notice of civil claim (NOCC) against the couple who sold them their property and a Real Estate agent involved in the transaction, alleging fraudulent misrepresentation, breach of contract, negligent misrepresentation and proprietary estoppel. They based their allegations on verbal exchanges prior to the sale and a document called a property disclosure statement filed by the sellers.
The plaintiffs sought damages and a court-ordered easement allowing them to draw water from the Metcalfe source again.
The Judge did not rule in favour of the plaintiffs on any of their claims.
The decision concluded by stating that the plaintiffs failed to establish any of the claims advanced in the NOCC against the defendants. The plaintiffs didn’t proceed with their claim against the defendants’ realtor and it was also dismissed.
jim.elliot@saobserver.net
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