Ian Mulgrew: Fight over nine-inch railings nails strata owners with big bill
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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 $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.”
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.
“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.
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