An Ontario company that put down a deposit to buy a luxury hotel in Richmond, B.C., pulled out of the deal worth tens of millions of dollars weeks later because of “uncertainty” caused by the landmark Cowichan Tribes Aboriginal title ruling, according to the marketers of the property.
Court documents show that the 14-storey Versante Hotel, close to Vancouver International Airport, was instead bought by a Hong Kong purchaser in October for the lower price of $51.5 million.
The exact value of the withdrawn offer isn’t disclosed in documents related to the court-ordered sale, which was compelled by lenders to the project who said they were owed $113 million as of August.
Commercial real estate firm Colliers says in a letter to the hotel’s receiver, Deloitte, that it had received the previous offer from “an established hotel operator” from Ontario on July 29, and it was accepted on the basis of price and terms.
But nine days later, on Aug. 7, the B.C. Supreme Court confirmed that the Cowichan Tribes hold Aboriginal title over about 300 hectares of land on the Fraser River.
On Aug. 18, the Ontario hotel firm pulled its offer for the Versante and asked for its deposit to be returned.
“Their stated concern was the recent Cowichan Tribes court ruling, which introduced uncertainty around land title ownership and potential precedent risk,” says Colliers’ letter, which is part of a receiver’s report.
It’s not the only major deal in Richmond said to have been sunk by the ruling, with the biggest owner of private land in the title area also blaming the case for the failure of two projects. The Versante is not in the Cowichan title area.
While the tribes did not lay claim to privately owned property, critics fear the ruling could undermine private land ownership across B.C. – known as “fee simple” title – because the judge said sections of the Land Title Act that establish fee-simple title as “indefeasible” do not apply to Aboriginal title.
The 100-room Versante was ordered sold by the B.C. Supreme Court last year as lenders and the owner, B.C. developer Michael Ching, became tied up in the litigation over its debts.
The guide price listed by the original marketing firm, Avison Young, was $98 million, according to an advertising brochure. The listing was later taken over by Colliers.
Ching did not provide responses to written questions in time for publication, while representatives of Colliers and Avison Young declined to comment on the sale.
Get breaking National news
For news impacting Canada and around the world, sign up for breaking news alerts delivered directly to you when they happen.
‘UNCERTAINTIES AND RISK’
Another Richmond real estate company says in separate documents prepared for a legal filing that it was told by its previous lender that “it will no longer lend” to support financing to construct a warehouse facility on the title lands because of the ruling.
Montrose Properties owns about 120 hectares of land in the Aboriginal title area, making it the area’s biggest landowner.
It also says a prospective tenant for the warehouse pulled out, citing the Cowichan ruling, according to a 31-page application to reopen the Aboriginal title case, a rare legal manoeuvre instead of lodging an appeal.
Montrose says it has spent about $7.5 million to date advancing the project, and anticipated borrowing another $35 million to complete construction, and was in “advanced discussion” with both the lender and potential tenant.
“Since the issuance of reasons for judgment in this case Montrose has been advised by the lender that it will no longer lend in respect of Building 7 because of the issues raised by the reasons for judgment,” it says in a copy of the application, which Montrose said had not yet been filed, but would be submitted to the court in the new year.
“The lender in question had provided several prior loan facilities to Montrose for similar purposes without issue. Similarly, negotiations with the prospective tenant have ceased because of uncertainties and risk allocation issues raised by the reasons for judgment.”
Montrose says that since the ruling, it “can no longer confirm clear title to its land as required by lenders, a requirement of lending agreements.”
In a separate deal, Montrose said it had been in years of discussion with energy firms such as Fortis and Enbridge about a potential facility to capture landfill gas on its lands and refine it for commercial use, rather than flaring it to the environment. It would have been a “multimillion-dollar capital investment,” Montrose says.
“Those discussions have also ceased following the issuance of reasons for judgment in this case,” it says in the documents.
Richmond Coun. Alexa Loo said on Wednesday that she felt sorry for Montrose, which now had to pay lawyers “big bucks” to figure out what to do next.
The province has sent staff to door-knocking in the Cowichan title area, and dropping flyers to ask people to contact their office, as it prepares to seek a stay on the decision while readying a possible appeal.
Loo said it was “clumsy” handling of the situation.
“I think they messed up quite badly, and they’re not truly protecting property owners in Richmond,” said Loo.
Loo had said two months ago that an unnamed company was refused financing by National Bank for a $100-million project in the title area, prompting a denial from the lender, which said the Cowichan ruling “is not a factor that is currently taken into account in our financing decisions.”
Loo declined to say on Wednesday if that project was related to Montrose.
Thomas Isaac, chair of the Aboriginal law group at Cassels Brock & Blackwell LLP, said that while the Cowichan Tribes may not be claiming private land in the title area, the nation could also “change their mind” in the future.
“But that doesn’t deal with the uncertainty created by the decision. It’s almost irrelevant whether they want people’s property or not, based on the decision. It’s the fact that they could potentially get it,” said Isaac.
He said the ruling that B.C.’s Land Title Act doesn’t apply to Aboriginal title lands is “devastating” to landowners, while noting that he is “not blaming the Cowichan.”
Isaac said the courts needed to “confirm that indefeasible title remains indefeasible,” or the province should support an amendment to the Constitution to protect indefeasible title.
“That’s what leadership would look like, and that’s not offensive to reconciliation,” said Isaac, adding that the government needed to ‘step up and show some real leadership to keep this country and keep this province together.”
The declarations in the Cowichan decision were suspended for 18 months, so the Cowichan, Canada and Richmond have time “to make the necessary arrangements.”
Premier David Eby has said the provincial government is taking the case “incredibly seriously” and will seek clarity from the B.C. Court of Appeal.
He told business leaders at the Vancouver Convention Centre on Wednesday that any reconciliation work by the government had to respect private properties and fee simple title.
“Whether it’s a family home or an industrial park owned by a business, we have to go to the wall to defend those private properties, and that is the end of the story,” said Eby.
