Radcliffe v. The Owners, Strata Plan KAS1436, 2014 BCSC 2241
By Lisa Frey, Associate: admin@lmlaw.ca, 604-685-5438
The petitioners in this matter, John and Holly Radcliffe, owned a strata unit in Kelowna. After their unit was flooded due to the poor condition of the neighboring balcony in December 2009, the strata corporation opted to use “temporary repair” measures instead of a permanent fix.
The temporary repair measures failed only a few weeks later, and the petitioners experienced more flooding in early 2010. The flooding ruined the petitioners’ hardwood flooring, stained and ruined carpets, and subjected the petitioners to countless hours of industrial drying fans. However, the strata council voted not to cover the costs of fixing the petitioners’ strata lot, despite the fact that the source of the leak was common property.
At the same time that the strata corporation refused to fix the petitioners’ strata lot, the strata corporation repaired similar water damage to three strata lots located above the petitioners’ unit.
The flooding continued, and leaks inevitably led to mold and further water damage. A second band-aid solution implemented by the strata corporation also failed.
In February of 2012, the strata corporation passed a $60,000 special levy to “compensate suffering of damages due to water penetration, mold […]” – however, for unknown reasons, the strata corporation refused to share any of these funds with the petitioners.
The balcony was finally repaired in August 2012. Afterwards, the council, without explanation, proceeded to revoke previous assurances that they would pay the petitioners’ restoration invoices.
The petitioners sued the strata corporation on the basis of s. 164 of the Strata Property Act, SBC 1998, which allows a Court to make a wide range of orders to remedy or prevent a decision or action of the strata corporation against an owner or tenant.
The Court found that by failing to make appropriate repairs to the balcony, despite years of knowledge that the temporary repair measures were inadequate, and reimbursing other owners in similar circumstances, the strata corporation had singled out the petitioners to an extent that justified the Court’s intervention.
As a result of its “pattern of oppressive conduct and decision-making”, the strata corporation was ordered to pay the petitioners almost $15,000 to compensate them for the cost of repairs to their unit.
WHAT WE DO: Lesperance Mendes advises and represents strata corporations and owners on all aspects of condominium government including disputes over cost-sharing agreements and easements. For more information about our strata law practice, or to make an appointment with one of our experienced strata lawyers, please contact Paul G. Mendes, Partner, at pgm@lmlaw.ca or 604-685-4894.
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