Fight over nine-inch railings nails strata owners with big bill
Vancouver Sun
Ian Mulgrew
16 August 2017
Ken Waters who is on the strata council at 889 Homer St. looks over the rails that are in dispute with a penthouse owner. GERRY KAHRMANN / PNG
A strata dispute over about $30,000 in rooftop renovations has dragged
through the courts and morphed into a bitter debate over $200,000 in
legal and other costs.
The neighbour-versus-neighbour battle exemplifies why such squabbles
were moved out of the courts last year and into the Civil Resolution
Tribunal, which provides a ruling for about $250 in fees.
The owners of a Homer Street strata building lost at trial, lost in the
court of appeal and now say they have been staggered by a demand for
special costs.
Ken Waters, president of the 58-unit building, remains apoplectic about
the drawn-out disagreement — he can’t believe the judgments and he’s
incredulous at the claim.
He explained the strata has so far paid $23,600 with $8,800 pending for
the roof renovations — about a $540 for each unit in the building — but
that would jump to $3,333 a unit if another $196,000 for legal and
other costs is incurred.
“He’s paying himself $110,000 — obviously, we were shocked by this,”
Waters said brandishing the bill from the unit owner who took the
strata council to court, Jack Frank, a lawyer.
“He states we acted reprehensibly. Basically, he’s bilking us for an unreal amount of money.”
“He states we acted reprehensibly. Basically, he’s bilking us for an unreal amount of money.”
The 2016 court decision said when Frank bought his unit in the 800
block of Homer it included an area designated as limited common
property intended for air conditioning equipment but treated as a “roof
deck.”
But Frank learned the parapets were 9.5 inches lower than required by
the building code and, in 2005 or 2006, he asked to install railings to
make up the difference.
The judgment says the strata initially told Frank OK, subject to city approval.
But planning progressed glacially and in Dec. 2012, when he finally asked for written consent, the strata refused.
“If you’ve seen the video, you can see why we believe it was
self-evident that it was a service space for air conditioning,” Waters
said.
In June 2013, Frank requested a city building inspection with a view to
obtaining an order requiring the strata to upgrade the roof.
Instead, the city told Frank and the strata to stop using the roof except for equipment and maintenance.
In Feb. 2015, Frank suggested new plans to make the roof usable,
insisting the strata was responsible for the cost under its “obligation
to provide and maintain safe and secure common property.”
When the strata ignored him, Frank filed a petition seeking an order
compelling it to pay for the design and installation of the safety
guards.
Justice Barbara Fisher agreed with him.
“Since 2004, Mr. Frank used his roof deck for recreational purposes, as
did the other top floor owners,” she wrote. “With the knowledge and
consent of the strata corporation, he installed cement pavers and patio
furniture. This area was important to him, as his suite has no other
exterior balconies.”
Her decision was endorsed by the court of appeal.
Frank agreed the case was an example of what was wrong with the
legislation that forced strata owners to litigate in Supreme Court — an
exorbitant, inaccessible forum for most non-represented litigants.
But he said he could not comment further because of proceedings in the offing.
special costs and this is where the conduct of the parties is reviewed
to determine whether or not the conduct has been reprehensible and
deserving of rebuke
“There is something called special costs and this is where the conduct
of the parties is reviewed to determine whether or not the conduct has
been reprehensible and deserving of rebuke, which is the legal phrase
that sits in behind special costs,” he explained.
“I am bringing an application essentially seeking a determination on
that issue and I’m looking for full indemnification of my legal fees.”
His bill sent to the strata included a fee of $113,120 for 323.2 hours
work and roughly $43,000 in disbursements — technical reports,
drawings, photocopying, expert opinions. Taxes would add another about
$17,000.
In an accompanying letter, Frank wrote: “This account does not include
anything for damages arising from the loss of use. … Since I was unable
to use the roof deck for a period of four years, damages are an
additional $24,000.”
This case is an outlier in the sense that the average condo dispute in
Supreme Court costs between $20,000 and $25,000 to resolve.
Still, such an exorbitant process discouraged many from pursuing a
complaint and prodded the former Liberal government into creating the
tribunal to provide cheaper justice.
Serious issues such as those involving underlying ownership still go to
court, but strata-owners can now take their complaints about parking,
pools, pets and noisy neighbours to a computer, tablet or cellphone.
“Oh, my goodness, wow!” said Shannon Salter, chair of the tribunal, when she heard about the costs in this case.
About 600 strata disputes have been filed with the tribunal over the last year, she said.
Most were resolved through the tribunal’s facilitation process, with only 56 so far requiring a tribunal decision.
Comments
What is missing from this article is
that all Civil Resolution Tribunal decisions can be appealed to the
courts. So in serious cases, like this one, the tribunal would possibly
just add a further step in the legal proceedings.
—CondoMadness
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