Case Studies, Spinnaker West: Window washing fiasco
July 25,
2006
TO: Helga Hennsler-Harris, Owner, Strata Lot
6, Strata Plan LMS 497
RE: Window washing
fiasco
Thanks for taking the time to leave your
condo on a very hot and dry Saturday morning (July 22, 2006) in order to visit
the scene in the alley and discuss the Spinnaker West window washing
fiasco.
Ann Hedley, the Strata Property Manager from
Realacorp, issued a window washing notice to the owners of Spinnaker
West.
Mary Kagami, the owner of Strata Lot 3,
immediately called Realacorp to ensure that her windows would be
washed.
Sharon, and then Ann, both from Realacorp,
told Mary that washing her windows “was not in the
contract”.
Mary contacted Gary Hamilton the owner of
Strata Lot 4 and a Strata Council
member.
Gary told Mary to contact Clive Boulton the
owner of Strata Lot 5 and the Strata Council
President.
Mary sent an email to
Clive.
Clive did not respond to Mary. (Apparently Clive is on vacation until the
end of July.)
When the window washers (two men) arrived on
Saturday morning, Mary went to the alley and asked if they were going to wash
her windows.
The window washers said
“No”.
Mary returned to her leaky rotten
condo.
Mary saw that dirty water was running down
from the windows above her unit – from Clive’s dirty windows and from your dirty
windows.
The dirty water from the upper windows and
north wall was creating a dirty mess on Mary’s
windows.
The dirty water from your windows combined
with the dirty water from Clive’s windows was also flooding the north deck at
Mary’s condo causing the previously dry needles to float on about one inch of
water and to plug the drain.
Mary called
me.
Mary returned to the alley to discuss the
situation with the window washer washing your
windows.
I
arrived in time to hear the window washer tell Mary that there was nothing he
could do about it; that it wasn’t his fault; that he had a job to do; and that
he was just doing his job - washing the upper windows; and that he would not
clean Mary’s windows, even though he was making a mess of her
windows.
I
agreed with the window washer’s statements that there was nothing he could do
about his instructions from the window washer boss who had left the scene and
who got his instructions from Ann Headley of Realacorp and who was, in turn,
instructed by the Strata Council of the Strata Corporation to wash your windows
and to not wash Mary’s windows.
I
suggested to the window washer that we would have to turn off the water because
he, the window washer washing your windows, was making a very dirty mess of
Mary’s windows, which he said he would not
wash.
The window washer stopped washing your
windows, turned the water off and disconnected the hose from the hose bib on the
BC Cosmetologists Association building (Strata Lot
1).
I
asked the window washer to inspect the mess he had made of Mary’s windows so
that he would know that Mary had a valid
complaint.
The window washer entered Mary’s leaky rotten
condo and inspected Mary’s flooded north deck and her windows that had been
messed up by the dirty water falling from your windows as he cleaned your
windows by tucker pole in accordance with the instructions provided by the
Strata Council via Ann Hedley the Strata Property Manager who holds a temporary
license to provide strata management services and who has not yet completed the
course and examination required by the Real Estate Council of BC for licensing
to provide strata management
services.
You then appeared on the scene in the north
alley in an agitated state.
You demanded to know why the window washer
had stopped washing your north
windows.
You and I engaged in a spirited, but rather
civilized, rational conversation.
You inspected Mary’s flooded north deck and
windows by accepting Mary’s invitation to enter Mary’s leaky rotten
condo.
You commented that the mess on Mary’s windows
was due to the needles from the “pine tree” which had fallen on the
deck.
I
corrected “pine” to “fir”.
I
agreed with your statement that the responsibility for cleaning the fir needles
from the deck was Mary’s.
Mary and I have cleaned up the needles
several times, especially during each rainy
season.
However, I pointed out that the needles often
plug the drain, causing water to accumulate on the deck and water to splash on
Mary’s windows.
I
have personally unplugged the drains several times during the rainy season
(September through June).
The Strata Corporation has been informed of
the deficiency in drain size, several times over the years, but nothing has been
done about it.
You observed for yourself how the dirty water
from your windows drained from the deck to the alley once I pushed the blocking
needles through the small drainpipe with a custom made improvised utensil
carefully crafted from one of Mary’s wire coat
hangers.
You offered to clean Mary’s windows yourself,
so that the window washer could finish cleaning your windows on
Saturday.
Mary
objected.
Mary did not want you cleaning her windows,
even though she cannot do them herself because of her continuing problem with
her arm following her stroke.
I
pointed out to you that it was absurd for Mary to pay her unit entitlement
proportionate share of the cost of cleaning your windows and the windows of
other condos at Spinnaker West, year-after-year, when the other owners of the
Strata Corporation would not pay for Mary’s windows to be cleaned, even though
cleaning your windows dirtied Mary’s windows - whether the deck was free of
needles or not - and, incidentally, provided more water on the north deck and
the south deck to seep into Mary’s leaky rotten condo causing further damage to
her interior walls and floors.
Mary accepted, in good faith, your sincere
offer that you would undertake an effort to get the Strata Corporation to clean
Mary’s windows, just like Mary had requested prior to the window washing fiasco
on Saturday.
Accordingly, Mary gave permission for the
window washer to make a mess of her windows on Saturday while finishing the
cleaning of your windows based on your promise that the Strata Corporation would
clean her windows “as soon as
possible”.
We
realize, of course, that you alone cannot bind the Strata Corporation to fulfill
your promise, and that the matter would have to be taken up at “the next
meeting”, and that the contract for window washing services would have to be
modified.
Unfortunately, the window washer, who
remained quite polite throughout, had coiled his hoses in preparation for
leaving and would not start the window washing job again, leaving your windows
partially washed.
You stated that the window washer would have
to come back to finish your windows and the other “inaccessible” windows,
including Mary’s windows.
I
trust your windows and Mary’s windows will be cleaned “as soon as
possible”.
Dr. James
Balderson, Ph.D., Q.S.
COLCO:
The Coalition of Leaky Condo Owners
www.myleakycondo.com
Case Studies, Spinnaker West: Complaints against Realacorp and Ann Hedley filed with RECBC
July
4, 2006
TO: The Real Estate Council of
BC
Attention: Maureen Coleman, Senior
Compliance Officer
Re:
REALACORP MANAGEMENT LTD.,
Brokerage
License Number X012800;
and
SARAH
ANN HEDLEY, commonly known as ANN HEDLEY,
Managing
Broker of Realacorp, License Number 071720;
and
The
Owners, Strata Corporation LMS 497, also known as
Spinnaker
West 2368 Laurel St., Vancouver, B.C.,
a
leaky rotten condo complex.
Please investigate the
following issues related to the conduct and competence of Realacorp and Ms. Ann
Hedley.
Realacorp and Ms.
Hedley provide “real estate services” as that term is defined in the Real Estate
Act.
Realacorp and Ms.
Hedley provide “strata management services”, as that term is defined in the
Real Estate Services
Act.
As licensees,
Realacorp and Ms. Hedley are bound by the Real Estate Services Act
and Rules.
The strata corporation
and Ms. Hedley through Realacorp entered into a contract, apparently verbal, in
or about the year 1992 whereby Realacorp and Hedley provided and continue to
provide strata property management services to the strata corporation, that is,
the members of the strata corporation, for a fee.
Ms. Hedley through
Realacorp exercises delegated powers and duties of the strata corporation and
the strata council of the strata corporation.
In my opinion, the
evidence shows that Realacorp and Hedley have contravened the Strata Property Act
and the Strata
Property Regulations.
In my opinion, the
evidence shows Realacorp and Hedley have contravened the Real Estate Services
Act and Rules.
In my opinion, the
evidence demonstrates that the particular offenses committed by Realacorp and
Hedley include, but may not be limited to, the following:
(1) Failing to provide a copy of the “service
agreement” as that term is defined by the Real Estate Services Act -
Rules within two weeks of a request for a copy of the “service
agreement” by a “strata lot owner” as that term is defined by the Real Estate Services Act -
Rules, contrary to The Strata Property
Act s.36.
(2) Failing to have a written “service
agreement” as that term is defined by The Real Estate Services Act –
Rules for the purpose of providing “strata management services”,
contrary to The Real
Estate Services Act – Rules, 5-1 (1) (c). The required written agreement was to be in
place “as soon as reasonably practicable” (Rules 10-4 (3)) following January 01, 2006,
and was not in place by June 14, 2006, and is not known to be in place as of
July 1, 2006.
(3) Failing to enter into a “service
agreement” in relation to “strata management services” before providing any of
those services, contrary to The Real Estate Services Act –
Rules, 5-1 (2) (c), “as soon as reasonably practicable” following
January 01, 2006.
(4) Joining with three members of the Strata
Council of the strata corporation legally known as “The Owners, Strata Plan LMS
497”, namely, (1) L. Clive Boulton, (a resident owner and lawyer by profession),
(2) Glen Harris, (a resident owner and developer of Spinnaker West), and (3)
Gary Hamilton, (a resident owner and professional engineer by profession), to
facilitate using trust funds, for expenditure(s) that were: (a) not approved by
the owners in the 2005-2006 Annual Operating Budget of the strata corporation;
(b) not approved by the owners by way of resolution(s) properly presented to the
strata lot owners; and (c) for which written approval and authorization was not
recorded in the minutes of the strata corporation, contrary to the Strata Property Act
and contrary to the Real Estate Act –
Rules.
(5) Failing to provide an “Information
Certificate” and attachments for Strata Lot 3, Strata Plan LMS 497, within one
week of a request by a “strata lot owner”, as “strata lot owner” is defined in
the Real Estate
Services Act - Rules, contrary to The Strata Property
Act s.59.
(6) Providing an
“Information Certificate” without the required attachments, contrary to
The Strata Property
Act s.59.
(7) Providing a misleading, inaccurate and
deceptive “Form B Information Certificate” “certifying that the information
contained in [the] certificate with respect to Strata Lot [SL03] is correct as
of the date of [the] certificate [June 7th, 2006]”, falsely
certifying that:
“(a) monthly strata fees payable by
the owner of [SL03] the strata lot described above $ [145.44]”; and further
falsely certifying that
“(e) Any amount by which the
expenses of the strata corporation for the current fiscal year are expected to
exceed the expenses budgeted for the fiscal year (year ending March 31, 2006) $
[7268.10) [sic]”.
Background Notes for
(7) above:
A. The fiscal year end for the Strata
Corporation was March 31, 2006.
B. The monthly fees for Strata Lot 3 were
$145.44 during the previous fiscal year that ended March 31, 2006, after which a
new fiscal year began and was well underway (two months plus one week) without
an approved Budget by the date the Form B Information Certificate was dated and
signed by the Licensee, Hedley, being June 7, 2006.
C. The Strata Corporation was in an illegal
deficit position contrary to the Strata Property Act
of $7,268.10 as of the year ending March 31, 2006.
D. The Strata Property
Act requires that year-end operating fund deficits be recouped in
the next year’s Annual Budget, i.e., June 1, 2006 – March 31,
2007.
E.
It was known, or should have been known by Realacorp and Hedley as
Licensees providing “strata management services”, albeit without the required
written “service agreement”, that the monthly fees following March 31, 2006,
would have to be increased by the stipulated proportionate share of $7,268.10
attributable to Strata Lot 3 according to the schedule of unit entitlement in
the strata plan, and likewise for other strata lots, in order to eliminate the
unexplained illegal deficit of $7,268.10 incurred in the 2005-2006 fiscal year
during the 2006-2007 fiscal year. In
other words, the monthly strata fees as of March 31, 2006, if not earlier, and
certainly by June 7, 2006, were known, or should have been known, to be
substantially more than $145.44 because of the deficit, even if the exact total
amount had not yet been determined precisely because of other known and unknown
increases which the owners might approve during the belatedly scheduled Annual
General Meeting due to be held during the evening of the same day, i.e., June 7,
2006.
(8) Facilitating an illegal delay of the 2006
Annual General meeting of the strata corporation by not holding the Annual
General meeting within two months of the fiscal year end, contrary to the
Strata Property
Act.
(9) Failing to provide answers to questions
from a strata lot owner and failing to provide an explicit accounting regarding
the expenditure of money held in trust for the owners of the strata corporation
despite being asked in accordance with the Strata Property Act
to do so by a strata lot owner, that is, by one of the principals of the
licensee’s client, a member of the strata corporation, contrary to The Real Estate Act -
Rules.
(10) Preparing and presenting a 2006-2007 Budget
for the strata corporation which was not in accordance with the Strata Property Act
and the Strata
Property Regulation s. 6.6, Budget
Requirements.
(11) Preparing and
presenting financial statements for the strata corporation which were not in
accordance with the Strata Property Act
and the Strata
Property Regulation s. 6.7, Financial Statement
Requirements.
(12) Failing to comply with a request for
detailed financial information from a strata lot owner and thereby a member of
the strata corporation entitled to a notice in accordance with s. 45 of the
Strata Property
Act, contrary to the Financial Statement Requirements set out in
Strata Property
Regulation 6.7.
(13) Acting in a manner likely to bring
disrepute to the real estate profession generally and, in particular, likely to
bring disrepute to those licensed by the Real Estate Council to provide strata
management services.
Licensees providing
strata management services are operating under a glowing halo provided by the
RECBC.
Licensees tout that
the public is protected because they must conform to the strict requirements of
the RECBC.
However, it appears
that the RECBC is mistakenly taking an unwarranted narrow view of its
jurisdiction with respect to licensees providing strata management
services.
In my opinion, the
RECBC, by legislation, regulation and rules, is now bound to consider issues
arising from the full range of strata management services commonly associated
with the use of licensees as agents of the strata corporation and the strata
council with respect to the provision of strata property management
services.
In other words, it is
my opinion that the RECBC can and should discipline licensees for conduct
contrary to the Strata
Property Act and Regulations as well as conduct contrary to
the Real Estate
Services Act and Rules.
I trust your
investigation of these complaints against Realacorp and Hedley will produce
discipline decisions by the RECBC which will help guide the future conduct of
licensees providing “strata management services” and thereby strengthen consumer
protection for all strata lot owners.
You will find more
information about Realacorp and Hedley at:
Case
Studies, Spinnaker West LMS 0497
Yours
truly,
Dr. James Balderson,
Ph.D., Q.S.
COLCO: The Coalition
of Leaky Condo Owners
JamesBalderson@myleakycondo.com
Case Studies, Spinnaker West: Illegal budget, leaks and rot
Dear
Mary,
Your
leaky rotten condo complex, Spinnaker West – 2368 Laurel St. - has adopted an
illegal Budget for its 2006-2007 fiscal year, as it did the year
previous.
The
Statement of Income and Expenses 2005-2006 and the proposed Budget for 2006-2007
distributed just prior to the (late) AGM of June 7, 2006, included a line item
called “Maintenance: Extraordinary”.
The
Budget amount for this item April 2005 - March 2006 was
$1,000.
The
Actual amount expended was $5,091.90 being $4,091.90 over
budget.
It is my
opinion that the Strata Corporation records as distributed to the Owners do not
provide an adequate explanation as to what the money was spent
on.
It is my
opinion that the Property Manager (Ann Hedley of Realacorp - who holds a
temporary license to provide
strata management services and who has not taken the required course nor passed
the required examination) together with the Strata Council were not authorized
by the Owners to over-spend the budgeted amount, which should not have been in
the Budget in the first place.
It is my
opinion that the line item “Maintenance: Extraordinary” is ultra vires the Strata Property
Act, which states:
Operating fund
and contingency reserve fund
92 To meet its expenses the strata
corporation must establish, and the owners must contribute, by means of strata
fees, to
(a) an operating fund for common expenses
that usually occur either once a year or more often than once a year,
and
(b) a contingency reserve fund for common
expenses that usually occur less often than once a year or that do not usually
occur.
…
Expenditures from
contingency reserve fund
96 The strata corporation must not spend
money from the contingency reserve fund unless the expenditure
is
(a) consistent with the purposes of the
fund as set out in section 92 (b), and
(b) first approved by a resolution passed
by a 3/4 vote at an annual or special general meeting, or authorized under
section 98.
Expenditures from
operating fund
97 The strata corporation must not spend
money from the operating fund unless the expenditure is
(a) consistent with the purposes of the
fund as set out in section 92 (a), and
(b) first approved by a resolution passed
by a 3/4 vote at an annual or special general meeting, or
authorized
(i) in the budget, or
(ii) under section 98 or 104
(3).
Unapproved
expenditures
98 (1) If a proposed expenditure has not
been put forward for approval in the budget or at an annual or special general
meeting, the strata corporation may only make the expenditure in accordance with
this section.
(2) Subject to subsection (3), the
expenditure may be made out of the operating fund if the expenditure, together
with all other unapproved expenditures, whether of the same type or not, that
were made under this subsection in the same fiscal year, is
(a) less than the amount set out in the
bylaws, or
(b) if the bylaws are silent as to the
amount, less than $2 000 or 5% of the total contribution to the operating fund
for the current year, whichever is less.
(3) The expenditure may be made out of the
operating fund or contingency reserve fund if there are reasonable grounds to
believe that an immediate expenditure is necessary to ensure safety or prevent
significant loss or damage, whether physical or otherwise.
(4) A bylaw setting out an amount for the
purposes of subsection (2) (a) may set out further conditions for, or
limitations on, any expenditures under that provision.
(5) Any expenditure under subsection (3)
must not exceed the minimum amount needed to ensure safety or prevent
significant loss or damage.
(6) The strata corporation must inform
owners as soon as feasible about any expenditure made under
subsection (3).
The
Strata Corporation Minutes of the 2006 AGM held on June 7 show that Otto
Folprecht and Glen Harris moved and the Owners approved a motion “That the
Extraordinary Maintenance category be increased [from $2,000] to
$20,000.”
In my
opinion the motion was clearly “out of order” and should not have been
considered at the meeting, which was chaired by Clive Boulton. Apparently several lawyers who were present
raised no objection to the Owners passing a motion ultra vires the Act.
Also,
contrary to the Act, you were not
provided with a schedule showing your proportionate share of the Budget, with
and without inclusion of the illegal
$20,000.
In other
words, 15 days later, you are still in the dark as to the amount of your annual
strata fees, which, because of the illegal budget, will now be considerably more
than the previous year.
Yet
another year has passed under the continuing illusion of progress and false
promises at Spinnaker West.
More
tarps and clear plastic have been added to the roof area.
Your
condo still leaks and rots.
The
drywall in your kitchen is soggy and falls to the floor in larger and larger
chunks.
The cost
of repairs continues to climb enormously.
And yet
the Owners of the Strata Corporation have still not resolved to fulfill their
statutory obligation to repair the leaky rotten common property, despite having
received several expert professional reports over several years prescribing the
conversion from face-seal to rain-screen technology, the building envelope
standard in Vancouver since 1996.
I am
quite certain the other residential owners (Boulton, Lavajac, Hamilton,
Harris/Hennsler-Harris, Reeves/Rykman and Folprecht) would have had the building
fixed years ago if their interior walls were as soggy and rotten as the ones in
your leaky condo.
And the
rot goes on, and on, and on ….
My very
best personal regards,
Dr. James
Balderson, Ph.D., Q.S.
COLCO: The
Coalition of Leaky Condo Owners
www.myleakycondo.com
JamesBalderson@myleakycondo.com
Case Studies, Spinnaker West: Continuing leaks and rot
Dear Mary,
As you know, I patrol your leaky rotten condo at Spinnaker West several times per week.
This is to let you know that we have had a near-record prolonged period of rain during December 2005 and January 2006. Although we had a clear day yesterday, several more days of wet weather are beginning today.
I have drained approximately two inches of standing water from your North deck several times. The tiny drain spouts plug up with needles from the fir tree. Nothing has been done to enlarge the drains.
So much water has drained down and into the North wall that the doorframe for the door from your front room to the deck has swollen making the door very difficult to open and to close. You would not be able to open it in case of fire.
The usual wet areas in the kitchen, den and foyer are very wet and the drywall has deteriorated further. Your custom wood flooring in the den is twisted, lifted and stained even more than when you left.
Glen Harris and Clive Boulton met on Clive’s rooftop deck yesterday morning with, presumably, another contractor.
As of January 1, 2006, Strata Property Managers must be licensed. Realacorp Management Ltd. is currently licensed. Sarah Ann Hedley is licensed for Trading, Rental Property Management, and Strata Property Management.
Strata property managers are agents of the Strata Council. As agents they can only legally do that which the Strata Council authorizes them to do.
As you know, the owners of Spinnaker West, LMS 0497 have not instructed the Strata Council to repair the building which has been leaking and rotting since first occupied in the early 1990’s.
Please note that my email referring to 2005 BCSC 1760, Ranftl v. The Owners, Strata plan VR 672 should have referred to the leaky rotten condo complex at 1024 West 7th Avenue, not the one at 1040 West 7th Avenue. The latter leaky rotten condo has completed extensive repair work. The necessary work at 1024 remains stalled, although Garth Cambrey’s term as an expensive administrator was recently extended.
I trust the sun will shine again over Vancouver and that your leaky condo will dry out somewhat before next fall.
Dr. James Balderson, Ph.D., Q.S.
COLCO: The Coalition of Leaky Condo Owners
www.myleakycondo.com
E JamesBalderson@myleakycondo.com
Case Studies, Spinnaker West: "The Depths of Fabrication"
Mrs. Kagami forwarded this editorial from the December 5, 2005 edition of The Japan Times concerning the falsification of earthquake-resistance data for the designs of condominium buildings. Some of these buildings are already scheduled for demolition, leaving residents to deal with finding new places to live.
Mrs. Kagami noted: "I'm vulnerable on both sides of the pond, not only Vancouver!"
In a situation highly reminiscent of British Columbia's leaky condo fiasco, the article states:
Suspicions about this unfolding scandal deepend even more because the players involved - Mr. Aneha, the design certification agencies, construction firms and condominium developers, and perhaps even the ministry - appear repugnantly reluctant to take responsibility, unable to understand their situation or void of professional ethics.
And the rot goes on and on...
