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The Importance of Naming Your Island
By Islomaniac | September 15, 2007
There is a lot of debate about naming your island, should you do it? how do you do it? and what do you name it? A new article published in the Toronto Star, in Ontario Canada illustrates the importance of naming your island simply based on the fact that sometimes the municipality messes up. Here is what happend when the titles between two islands in Georgian Bay, Ontario got switched eventually leading to a case before the Supreme Court of Canada
The case involved two islands in Georgian Bay. Island 99B is described as Rock Island because it consists of bare rock and Island 99D is described as Cottage Island because it has a cottage on it.
Years ago, the same person owned both islands. She confused them, and referred to Rock Island as 99D instead of 99B. Similarly, she referred to Cottage Island as 99B instead of 99D.
The islands changed hands over a period of 40 years after the first sale in 1954, with succeeding owners unaware that they had title to the “other” island.
Although the tax records of the Municipality of Georgian Bay properly identified the location and owner of each island, they showed the undeveloped property assessed at a higher rate than the developed property. As a result, the owners of Rock Island were taxed as though they had a cottage on it, and the owner of Cottage Island was taxed as if the island was unimproved.
In 1964, Jean Strain bought Cottage Island but believed she owned Rock Island. In the 1990s, she stopped paying taxes on it, presumably in belief that it was undeveloped and without much value.
In response, the municipality conducted a tax sale of Island 99D, Cottage Island. Strain received notice of the sale, but the Zeitel and Henning families, who were actually occupying the island in the belief they owned it, were never notified of the sale.
Had the error been pointed out to the municipality before the sale was concluded, there is no doubt they would have rectified it and not proceeded with selling Cottage Island. But that’s not what happened.
Susan Ellscheid and Donald Simmons placed a successful bid for $999 on the island, and bought it sight unseen, thinking they were the proud new owners of a piece of rock in Georgian Bay. In fact, they became the registered owners of Cottage Island.
When Ellscheid and Simmons arrived to take possession of their island, the mistake came to light and the parties headed off to court. The trial judge declared the sale was void, but in 1991 a split decision of the Ontario Court of Appeal upheld the sale.
The case reached the Supreme Court of Canada in 1994. In a 3-2 decision, the court ruled the sale was valid.
The court said it would refuse to interfere in a tax sale where the municipal records mistakenly confused the property sold with a property occupied by other taxpaying citizens.
The court noted that the legislation provides that a tax deed, once issued, is final and binding.
As well, the court said that a survey certificate of the islands would have removed the possibility of a mistake.
The Zeitel v. Ellscheid case makes clear that it is risky to rely on municipal tax and assessment records to verify land size or location.
The Supreme Court has spoken. Make sure you know which property you are buying. Get a land survey.
A portion of this article has been republished from the Toronto Star. It was written by Bob Aaron and was first published on August 18, 2007. I am very grateful that this author shared this story. Although it is just a case example to the general public, it is an important word of caution for individuals who own or are considering owning an island
To read the entire article click here.
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