Case Studies, Pendrell Place: "Condo chaos bred a nightmare", Vancouver Sun article (November 17, 2001)

The following is excerpted from one of a series of articles on leaky condos by William Boei. This article is one of the best in-depth leaky condo stories published by the popular media. Mr. Boei ploughed through court documents and placed the particulars of dealing with leaks at Pendrell Place within the larger context. We have inserted certain additional information uncovered by our research within [ ].


Condo chaos bred a nightmare: Leaks just the start of problems that pitted neighbours against neighbours

William Boei. The Vancouver Sun. Vancouver, B.C.: Nov 17, 2001. Page B. 1. (Copyright Vancouver Sun 2001)


Your condo leaks and it's growing mould. Could things get any worse?

Well, yes. You could find yourself in a war with your neighbours so corrosive you'll be threatened with a lawsuit for merely uttering the phrase "leaky condo."

That's what happened to some of the owners of a 22-unit condo building at 1819 Pendrell in Vancouver, who are beginning to see daylight at the end of a four-year nightmare that landed many of them in court, and brought any thought of repairs to a standstill.

It's called Pendrell Place, one of several West End buildings bearing that name. This one is west of Denman Street and from the outside, it looks like a fine place to live. Each storey is set back from the one below to allow for generous-sized patios. It's a couple of blocks east of Stanley Park, one block north of English Bay Beach, a short bus ride from downtown and just around the corner from Denman's busy restaurants, shops and coffee houses.

But by the end of October [2001], the only thing its residents could agree on was that their building's mini-government, the strata council, was dysfunctional to the point of paralysis.

A B.C. Supreme Court judge concurred, and appointed an administrator [Garth Cambrey of Stratawest] to run the building's affairs, straighten out its books and see to the repairs. [However, all did not go well, and the repairs and court actions are still not finished in November 2005.]

...

B.C.'s Strata Property Act, which sets the rules for condominium ownership, is self-enforcing, which is another way of saying there are no condo police. When a strata council fails to do its job or a unit owner won't follow the rules, the courts are often the only recourse.

At 1819 Pendrell, court documents filed in several suits and petitions tell much of the story.

In one of them, ... Richard Oldaker, now retired in Victoria, said he bought a penthouse suite in Pendrell Place in 1989 and has been renting it out.

Oldaker says it began to leak in late 1997. The strata council made various repairs without ever locating the source of the problem. Finally, in mid-2000, Oldaker said his last tenants moved out because of the leaks and new tenants refused to move in, even though they had signed a lease, because the place had become uninhabitable.

Oldaker said he wrote the strata council, asking it to find the source of the leaks and make repairs, but the council never acknowledged his request. He said a leak complaint from another unit, stemming from the same heavy rainfall, was promptly dealt with. [The condo, #304, was owned by Mr. Maximos Campos, a Strata Council Member who was employed by the Strata Corporation as the resident cleaner and handyman.]

He [Oldaker] privately hired Levelton Engineering, which diagnosed a failure of the building envelope -- leaky-condo syndrome. Levelton said that since it involved strata property, fixing it was a job for the strata council.

Levelton also found penicillium, one of several toxic moulds associated with health problems, in the unit's walls.

Oldaker said in court documents his penthouse unit's carpet and underlay had been soaked so often they had rotted and smelled of mildew. Some of the unit's gyproc walls bulged with moisture at their base, and were "so soft one can easily push a finger through it."

His condo remains unoccupied [in November 2001 and still unoccupiable in November 2005]. Some wall panels have been removed to reveal a continuing mould infestation. [Oldaker had the rotten mouldy dry wall stripped out and the condo sanitized by a professional restoration company, Highland, whose personnel wore protective suits and masks.]

Last spring [2001], Oldaker petitioned the Supreme Court of B.C. to remove the building's strata council from office and replace it with an outside administrator. [The Petition was actually filed in December 2000 and heard by the court in June 2001.]

He [Oldaker] told the court: "As a result of respondent's (the strata council's) negligence and failure to discharge its obligations toward petitioner, the property has been left in a water-damaged condition, with water-soaked carpets, water streaming down interior walls, waterlogged, crumbling and deteriorating gyproc, mould and fungus infestations in the wall spaces, staining on the interior walls and ceilings, and generally unfit for human habitation, and in such a condition that petitioner has lost tenants and income, and has been unable to lease the premises to others."

...

The atmosphere grew so poisonous, unit owner Tim Dudra said in an affidavit, that unit owner Christopher Monk, who lined up on Oldaker's side, threatened to play loud music at night and point his speakers at the floor to keep a former strata council member [the Vancouver's Sun's Daphne Bramham] who lived below [in #302] awake at night "and make her place unliveable."


Dudra said Monk later told him he had followed through on his threat, and the former council member "could take no more," sold her unit and moved out. [Monk has denied Dudra's allegation and noted that he was not contacted by the police. See Bramham's letter in which she complains about having to sleep in her mould-infested bedroom.]

He [Dudra] also charged the dissenters had made it impossible for the council to conduct business.

"Mr. Oldaker, Mr. Monk and others have attempted to twist the democracy of our Strata Corporation," he said in his affidavit.

Monk, in his own affidavit, said he was elected vice-president of the strata council last spring [in March, 2001, after unknowingly purchasing his leaky rotten condo at Pendrell Place in November 2000], but almost immediately fell out with the majority when he questioned the building's finances and asked for financial records.

He said the strata council and the building's strata management company refused to provide the records he asked for or explain discrepancies he noticed.

Two management companies -- Vancap Realty Management and Ascent Realty -- have quit as the building's managers in the last few years.

The last semblance of structure at Pendrell Place disappeared in June [2001], when a special general meeting of unit owners was convened in the building's lobby, but dissolved in chaos when Owens tried to exclude the Oldaker group, which refused to leave the meeting.

Soon after, Gord Owens [a licensed realtor and former President of the Strata Council] filed a court petition of his own, declaring that "the strata council is basically dysfunctional" and saying the best course was for the court to appoint an administrator. [Later, in 2004, Owens sued the Strata Corporation for leaky condo damage in his suite October, 2001 - October 2003 which he had rented out.]




[Contact your local library to read the rest of this story published by The Vancouver Sun in November 2001. See other postings at myleakycondo.com's blog for updates regarding Pendrell Place which still remains an unrepaired leaky rotten condo complex in November 2005, with more court action scheduled for 2006.]

Riverwest (Delta): Court apportions blame between developer (30%), designer (25%), constructor (25%) and municipality (20%)

Citation: The Owners, Strata Plan NW 3341 et al v. Canlan Ice Sports Corp. et al

Date:

20011115

 

2001 BCSC 1751

Docket:

C965848

Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

Oral Reasons for Judgement
Mr. Justice Grist
November 15, 2001

 
BETWEEN:


THE OWNERS, STRATA PLAN NW 3341,
LESLIE EVANS, GERALD O'NEIL, FIONA SMYTH,
JAMES ROBERT MACNAB, THE EXECUTOR OF THE ESTATE OF
JAMES MARTIN MACNAB, COLLEEN HARNETT,
GEORGE TEMPERTON, NANCY STEWART, TAWNIA GALE SCOTT
AND NOREEN SYDELL ANNE GUNN AND LAVONA SYBIL MARIE DAYLE,
EXECUTRICES OF THE ESTATE OF DORIS WRIGHT

PLAINTIFFS

AND:


CANLAN ICE SPORTS CORP., VAN MAREN CONSTRUCTION CO. LTD.,
GRANT DUMBLETON CARRYING ON BUSINESS AS GRANT DUMBLETON, ARCHITECTS
AND THE SAID GRANT DUMBLETON,
ELBE, LOCK, WALLS & ASSOCIATES INC.,
J. NOVACEK & ASSOCIATES LTD., THE CORPORATION OF DELTA,
AND VAN MAREN CONSTRUCTION (#8701) LTD.

DEFENDANTS

AND:


ELBE, LOCK, WALLS & ASSOCIATES INC.,
VAN MAREN CONSTRUCTION CO. LTD.,
VAN MAREN CONSTRUCTION (#8701) LTD.,
AND J. NOVACEK & ASSOCIATES LTD.

THIRD PARTIES

Counsel for Plaintiffs

E. Tully

Counsel for Defendants

J. Yardley

Counsel for Third Parties

R. Hunter

[1] THE COURT: Counsel have advised that the settlement and discontinuance entered in respect of the developer Canlan in this case requires an apportionment of fault under Section 4(1) of the Negligence Act, primarily to identify the portion of the judgment to which the remaining defendants will stand exposed.

[2] Section 4(1) provides if damage or loss has been caused by the fault of two or more persons, the court must determine the degree to which each person was at fault. This allocation of fault is as indicated in Cemple v. Harrison Hot Springs Hotel, an allocation of blameworthiness not, say, an attempt to draw lines of causation, indicating contribution to damages.

[3] As further indicated in Cemple, blameworthiness is essentially a judgment based upon standard of care, a concept familiar to negligence but not tied to or at least not fundamental to contract.

[4] Assessing fault under Section 4(1), where one of the parties in view may also have contractual obligations, requires an analysis of blameworthiness independent of features of allocation of loss inherent to contract, which might act quite independent of fault, or breach of a standard of care.

[5] Here, the participants in the construction of Riverwest included Canlan, the developer; Van Maren (#8701), the construction company that performed as general contractor; Elbe, Lock, Walls, a design firm which presented the design of the buildings constructed; and the Municipality of Delta, the municipal authority responsible for building code enforcement.

[6] As identified in my Reasons for Judgement, the major failings resulting in the buildings being subject to rot were: Firstly, insufficient care in design and detail associated with the application of stucco to the exterior of the buildings, an application which presented considerable risk considering the configuration of the buildings and the site exposure to weather; and secondly, inadequate inspection and control to assure that quality of construction was maintained and that it satisfied code requirements.

[7] The dominant source of damages was the cost of the remedial project to strip and replace the cladding on the buildings. The evidence did not establish that any of the prior remedial efforts, primarily with respect to the decks, significantly exacerbated the problems; nor did the lack of earlier efforts to remediate, once the degree of the problem became known, add to the eventual cost.

[8] Therefore, the allocation of fault focuses on the roles and failings during construction.

[9] Taking the participants in order, firstly Canlan, the developer was in overall control of the project. It chose the configuration of the buildings it wanted to comprise the project, and decided the level of involvement of the parties it contracted with, and the level of professional involvement by way of architectural design and supervision. They ultimately stood to profit from the avoidance of the cost of more extensive design and inspection.

[10] Van Maren (#8701): The recitation of points of water entry listed by Mr. Ricketts indicated not only failures in design, but very significant failures in workmanship, notably badly applied flashings, and decks which did not have even the reduced slope indicated in the design.

[11] Elbe, Lock, Walls: The design submitted by this defendant stipulated the stucco application, and was noticeably deficient in associated detail. The troublesome features of inadequate deck slope began with a slope detail which did not meet Code.

[12] Further, this defendant stood obliged under the role of designer indicated in the Building Code, notwithstanding the failure of the developer to contract for this function.

[13] With respect to the Municipality of Delta: The assessment of Delta's role is better indicated in my previous Reasons for Judgement. In short, the failing or blameworthiness was an abdication of the responsibility to enforce the relevant part of the Building Code, leaving the public unprotected from just what occurred here.

[14] I described this role as secondary to those who had a hand in the construction of the defective buildings themselves; and at first exposure, judged the degree of fault at 20 percent.

[15] I remain of this view after a more complete review and assessment of the fault of the other participants. I view the developer's contribution to fault as being the largest, because of the inadequate level of professional design and inspection determined by their management of the project. I assess its fault at 30 percent.

[16] The two remaining participants, Van Maren #8701 and Elbe, Lock, Walls should be fixed with 25 percent fault in each case.

"W.G. Grist, J."
The Honourable Mr. Justice W.G. Grist