Surrey, 10732 Guildford Drive: Court rules condo owner must pay $106,730.39 for grow op damage




Pham v. The Owners, Strata Plan NW 2003,


2007 BCSC 519

Date: 20070418
Docket: S060379
Registry: Vancouver


Yen Thi Pham



The Owners, Strata Plan NW 2003


Before: The Honourable Mr. Justice Maczko

Reasons for Judgment

Counsel for Plaintiff

Andrew Davis

Counsel for Defendant

John D. Shields

Date and Place of Hearing:

March 29 & 30, 2007


Vancouver, B.C.

[1]                There are two actions before the court being tried pursuant to Rule 18A.  One is by the plaintiff to have approximately $61,500.00, which is being held in trust by the plaintiff’s solicitor, paid out to her.  The other action is by the defendant, by way of counterclaim, seeking judgment against the plaintiff in the amount of $106,730.39.

[2]                The plaintiff owned an apartment in a strata complex at 10732 Guildford Drive, Surrey, British Columbia.  She claims that she rented out the apartment to two people who, without her knowledge, operated a marijuana grow operation in the apartment.  The defendant alleges that the apartment was never rented and the grow operation was run by the plaintiff.  For the purposes of this 18A, I am not required to resolve that disputed fact.

[3]                The grow operation caused significant damage to the plaintiff’s apartment, to a neighbour’s apartment and to common areas.  On February 11, 2005, the police raided the apartment and the grow operation was closed down.  On February 15, the strata corporation through its agent, the property manager, wrote to the plaintiff telling her about the damage and telling her that she will be obliged to pay the costs of repairs.  The letter also advised the plaintiff that she had not paid her strata maintenance payments.  At no time did she pay strata maintenance payments.  She did not respond to the letter of February 15.

[4]                The defendant again, through its property manager, wrote to her on February 28, 2005 outlining in detail the illegal marijuana grow operation and setting out the damages to the neighbour’s unit and to the common property, the health hazard caused by the growing mould and asbestos, and the risk of electrical fire because of modifications that had been made to the electrical system.  The letter told her that the work to fix the problems would begin shortly and that she would be charged for the cost.  The letter also outlined her breaches of the strata corporation’s bylaws, which included:

·         causing a nuisance;

·         interference with other owners’ right to enjoyment of their property;

·         illegal activity in her unit;

·         using the unit contrary to the purpose for which it was supposed to be used; and

·         failing to advise the council that she would not be living in the unit as required by the bylaws.

[5]                The plaintiff did not respond to this letter.  The defendant wrote to her again on April 26, 2005 notifying her that the work would be commencing that day and would take approximately 2-3 weeks to complete.  The letter also informed the plaintiff that the cost of the work would be in excess of $70,000 and that there was a $50,000 deductible on the insurance policy because the damage was caused as a result of a grow-op in the apartment.  She was again informed that she would be charged for the cost of repairs.  The plaintiff did nothing, said nothing and gave no indication at any time that she objected to the procedure or that she would do the repairs herself.

[6]                The work was completed and the plaintiff was sent a bill for $106,730.39.  The defendant put a lien on the property.  The plaintiff decided to sell the apartment and netted $61,500.00 after paying out the mortgage.  These monies have been held in trust by the plaintiff’s solicitor pending the outcome of this action.

[7]                The issue before me is whether the defendant had the legal authority to carry out the repairs and to charge the plaintiff for them.  The plaintiff’s reply to the counterclaim is a bare denial which reads as follows:

The does [sic] not oppose the granting of the relief set out in the following paragraphs of the Defendant’s Notice of Motion dated January 5, 2007:  None

The Plaintiff opposes the granting of the relief set out in the following paragraphs of the Defendant’s Notice of Motion dated January 5, 2007:  All

The Plaintiff will rely on the following affidavits:  To follow.

[8]                The plaintiff alleges that she rented out the apartment and was not responsible for the damage caused by the marijuana grow operation.  However, the bylaws require that she obtain permission from the strata corporation before she is permitted to rent out the apartment.  She did not obtain that permission.  Section 3 of the Strata Property Act, S.B.C. 1998, c. 43 (the “Act”) provides:

3          Except as otherwise provided in this Act, the strata corporation is responsible for managing and maintaining the common property and common assets of the strata corporation for the benefit of the owners.

[9]                Section 133 of the Act provides:

133 (1) The strata corporation may do what is reasonably necessary to remedy a contravention of its bylaws or rules, including

(a)    doing work on or to a strata lot, the common property or common assets; and

(b)    removing objects from the common property or common assets.

(2)        The strata corporation may require that the reasonable costs of remedying the contravention be paid by the person who may be fined for the contravention under section 130.

[10]            In my view, the statute and the bylaws provide the corporation with the authority it needed to carry out the repairs and charge the plaintiff for them.

[11]            In his argument, counsel for the plaintiff raised a number of defences to the counterclaim which I will deal with one by one.