Shuswap couple lose court battle with neighbours over water supply | iNFOnews | Thompson-Okanagan's News Source

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Shuswap couple lose court battle with neighbours over water supply

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April 02, 2021 - 8:31 AM

A Shuswap couple has been left high and dry after a dispute with their neighbours over their rural water supply ended up in the B.C. Supreme Court.

The couple whose water supply had been cut off had argued in court that they had a legal agreement to use their neighbour's well which had been made when they bought the acreage a decade earlier.

According to March 24 B.C. Supreme Court decision, Yvonne Kleineniggenkemper and Norbert Hustemeier-Hennig emigrated from Germany in 2010 and purchased the acreage from Siegfried and Erika Spieker, who lived on an acreage next door which they'd subdivided.

The decision says while Kleineniggenkemper and Hustemeier-Hennig home had access to its own well the pressure wasn't adequate for household use. However, the property was also hooked up to an adjacent spring on the Spieker's acreage which they said they could use instead.

The two properties continued to share the spring and as both couples speak German they became close friends over the years.

Then in 2015, the Spieker's decided to sell their home and advised Kleineniggenkemper and Hustemeier-Hennig that they would no longer have access to a spring on their land as they had a pending sale.

This didn't sit well with Kleineniggenkemper and Hustemeier-Hennig.

The couple attempted to drill four wells as deep as 1,000 feet, but each attempt was unsuccessful in finding a source of water on the property. They ended up having to purchase a water storage tank and haul water in from elsewhere.

Unhappy with their lack of local water supply, Kleineniggenkemper and Hustemeier-Hennig then took their neighbours, and one-time close friends, to court over the issue. A German-speaking realtor who had overseen the sale of the house was also named in the court filings.

The couple argued fraudulent misrepresentation, breach of contract, negligent misrepresentation and proprietary estoppel over the sale of the property. The couple requested an easement be put in place giving their property access to the spring, along with damages.

A seven-day trial followed, where the real estate contract along with conversations both parties had prior to the property sale was presented to the court.

The couple did admit they never thought about what would happen if the Spieker sold their property.

Kleineniggenkemper and Hustemeier-Hennig claim the Spieker's "fraudulently" misrepresented access to the spring and told them their access to it was permanent.

In their defence, the Spieker's say they told the couple they could have access to the spring as long as they owned the acreage where the spring was located.

As all the early conversations took place in German there is some discussion about whether the words "forever" or "no limit" were lost in translation.

However, Justice Allan Betton says Siegfried Spieker admitted he couldn't remember the actual words spoken but said he didn't promise permanent access to the spring.

The Justice analyzed lengthy conversations about what was said, as well as a property disclosure statement, and even the Merriam-Webster dictionary’s definition of the word "well."

Key to their argument is a dispute as to statements listed on the property disclosure statement in regards to the water supply.

The decision says the realtor had presented two subjects to Kleineniggenkemper and Hustemeier-Hennig before they purchased the property. That at their expense the sewer and water supply should be tested to confirm the quantity and quality of the water.

However, the couple scratched out the subjects, saying they didn't see the need.

The Justice says it is "ironic" that the couple would choose to remove these clauses saying they were "unnecessary," but then argue at length about a broader interpretation about a question on the property disclosure statement about "problems" with the water system.

The Justice found that none of the statements in the property disclosure statement were "untrue, inaccurate or misleading" as the couple had claimed.

The Justice also points to bold letters on the original contract which says “Read it carefully.”

"There is a critical distinction between a promise or an agreement to provide access to the (spring) and a representation of fact that a permanent right to water from the (spring) was somehow attached to (the property)," the Justice said.

The Justice found the Spieker’s had no legal obligation to provide the neighbour's property with access to the spring, and refused to put an easement in place.

Ultimately, five years after their property had its water cut off, the couple lost the case leaving them to pay costs awarded by the court, and they still don't have an adequate water supply. Chances are they no doubt lost a friendship as well.

To contact a reporter for this story, email Ben Bulmer or call (250) 309-5230 or email the editor. You can also submit photos, videos or news tips to the newsroom and be entered to win a monthly prize draw.

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