Friday, July 16, 2010

You can't mediate the right to live in your home

Let's mediate whether
 you can live in your home
About a year into this saga, the lawyers for the condo board were writing lies about the leaks being our fault.  They wrote we had not installed a chimney on the main floor properly and that it was responsible for flooding all three floors and both ends of the condo.   Of course, the chimney and fireplace were without water traces but the board hired contractors to secretly remove the chimney and dispose of it so that no evidence could ever be brought to court.  Never mind that the chimney on the main floor might have trouble flooding two floors above!  I never said the lawyers representing the board were smart.

Today, that chimney is still missing and the chairman "has no idea where it is".  The board eventually admitted it was wrong and after two years it replaced the chimney last year (2009).   I guess that is the first step to admitting liability.

But the main point to this note is to summarize a chat that a board member had with us after an Annual General Meetings where our "situation" was discussed.  It was well-intentioned, I'm sure, and the owner-board member asked if we would participate in "mediating" our differences with the board--and he would act as mediator.   I was shocked and after some thought politely declined.    My view was that "mediating" with a party that is preventing you from living in your home is like mediating with a thief about returning your possessions.   It isn't right, it isn't legal and the situation needs to be fixed before anything like mediation happens.

You don't mediate the right to live in your home.   

If this condo board starts acting properly and repairs our home properly so we can move back then they can mediate the level of damages they owe us for three years of renting and all the hardship we've had to endure.  But, we're happy to let a judge figure it out because of the penalties and interest that will likely be applied.  We've got thousands of photos, all the board's emails, communication with the property manager and reports from the experts.   When the last two board members toured our damage they were surprised at the situation and complexity of events.   One said "I hope there isn't a test because there is so much detail I never knew".   That doesn't sound like a board that has any idea of what is going on.  Most have never seen the damage to our place that they have caused--yet our door isn't more than 100 feet from their front doors.

Trying to mediate something that is clearly the fault of the board demonstrates the ignorance and insensitivity of the group.   The right thing to do is admit the faults of Phase 1, fix the place completely as it was in 2006 and stop hurting people.   I'm almost certain none of the board as individuals would act carelessly and flagrantly but under the protection of a board of managers things are different.   After three years where the board has still not fixed our damage but has fixed all the neighbouring units just proves the board is either vengeful or just dysfunctional.  Given the money and contractors involved you can't rule out the possibility that someone is getting an unspoken benefit.  No matter what the motivation, the Condominium and Property Act of Alberta does not prevent it.   The judge and lawyers who work this case can't come to a reasonable decision on how to proceed and the insurance companies (ING, Co-operators) are completely useless and non-responsive.

If we lived in a house instead of a condominium people would be in jail or legal trouble for taking steps to damage someone's home.  Under the CPA, this body of directors can hide behind the Act and do little or nothing with virtually no immediate risk.   Trying to mediate out of this mistake is transparent and a signal that little thought is going into resolving this problem.

13 comments:

  1. Quite a story. I can't imagine the headaches! We were looking at a condo in Prince's Island Estates but I think we'll pass after reading this. How are things going these days?

    ReplyDelete
  2. It isn't all bad news. There are good units in PIE and people are buying and inspecting and doing things to ensure it can't happen to them. I should probably do an update since it is 2011 and we're not done.

    The upside is that units are cheaper than other condos in Calgary. The taxes are cheaper because property values have been devalued because of the way the board has run the property. If you ensure that the board does not withhold information about your unit, check that you would be insured should the board decide to take your roof off and protect yourself against the actions that the board has taken then you' might be ok. On the other hand, the board probably wants to spend 10 million or so on fixing the other building using the same Morrison Hershfield that oversaw our disaster. Why doesn't that smell right?

    The fact is that in Alberta, all condo owners are subject to these problems. The lack of legislation, a non-existant insurance ombudsman, ING (Intact now) policy jokes and our board conspired to create this situation. You really are at risk in all condo units so don't think that another place might not have undisclosed problems or a problematic board in place. Check with the experts before buying any condo and make sure that contractors can't be hired who destroy your place without the proper protection in place.

    As for us, we filed a statement of claim in the fall of 2010 and the condo PIE has just now filed a Statement of Defence in January 2011. We're going to court and the only question is whether it will be in 2 years or 5. PIE will continue to fight and waste all the condo fees on lawyers and expenses related to the defence so they don't have to admit the errors. Stay tuned and subscribe to updates.

    ReplyDelete
  3. I appreciate the post! I've just recently moved out on my own, and I'm trying to learn all that I can about how the insurance in Calgary works, and this gave me some really helpful insight. Thanks for sharing!

    ReplyDelete
  4. You are welcome, I hope it helps. The matter is still early in litigation, 7 years later. Meanwhile the board members have all had their units repaired and fixed in a matter of months with all the protection and expertise that our project did not have over almost two years of repairs. Some have now sold their units and departed. It was amazing to watch how much better the work on the board member units was versus the work on our unit. Good luck.

    ReplyDelete
    Replies
    1. Your condo nightmare is a sweet siesta compared to what I have gone through and am still going through with my condominium board. Court of Queen's Bench Action # 1001-03731 Filed March 2010. Buying a condominium was the worst mistake I have ever made. $30,000 on lawyers to date and will be double that or more with the trial, plus of course I'm also paying their lawyers. My condo board (controlled by the same 2 owners since 1995) and the management companys are an organized crime ring operating since 1995 stealing from the owners with a fraudulent vendor name.

      Delete
  5. Hence the need for revised Condo Act regulations that put board members on the hook for irresponsible actions. Today, the board can simply be criminal and nobody can do anything about it. Plus, they have unlimited taxing ability through owner draws and can use the condo money to fight its own owners. Board members have no skin in the game, they can generally wait out an action and outspend an owner unless owners get a special resolution to dump the board and elect a new set of members.

    However, my sweet siesta is not over and your bills are junior compared to our legals and our board's legals. I'm seeing evidence of $700/hour lawyers for the board's counsel. And we're into our sixth year of litigation and not even near a court room. I wish you good luck and keep pestering Edmonton to put teeth into the Act.

    ReplyDelete
    Replies
    1. Thanks for your reply, the reason my legals are only $30,000 is because I represented myself for a year. If your action is complicated and involved I would highly recommend that you apply for a Case Management Justice (Lawyers hate this). Lawyers are children within the system and Judges are grownups. With Case Management the children are forced to stop wasting your money and have to listen to the grownups. Even with Case Management they will try to delay as long as possible but it's better than letting the children write letters back and forth and keep billing you.

      Delete
  6. Interesting idea. Thanks for the suggestion. I have seen case management on another file and it did get stretched out horribly long as well but I agree it seemed to be more focussed at the judge's level and not at the lawyer level for resolution.

    ReplyDelete
  7. I havent ever really had a problem with my insurance in Calgary. Im sorry that this happened!

    ReplyDelete
  8. What claims have you had of a major sort that would justify including that company?

    ReplyDelete
  9. Firstly Paul compliments on your blog it is the only one I have come across that actually gives 20% of Alberta Homeowners a voice. We all need to stand up and unite before these third party unregulated property management and lawyers getting more aggressive every day take over our homes and violate all our rights. These lawyers and property management have no right in our financials , insurance nor manipulating our real estate sales or property values all which are highly regulated industries for the protection and safety of all Canadians. They have an AGM circuit refusing to adhere to the Alberta Condo Act and democratic rules of law charging legal fees for the property management and third parties conflicts of interest to loop hole the condo act and pin liability against the homeowners. If we all adhered to the Alberta Condo Act Service Alberta provides a 1800 telephone line for every Canadian questions and concerns. These third party lawyers represent the property management at our costs infiltrating our bylaws for the benefit of property management and legal fees. Now we have discovered a third lawyer on our Board as a volunteer owner oh no this guys charging unknown legal fees and we are paying for his assistant too plus property management secretary.These parties know or ought to know The Condo Act election procedures state 3-7 Board Members and volunteer secretary (no vote) for two year term moving up to Upper executive for second year term and electing directors each year for two year term moving up the next year with the Pres or VP acting as AGM Chair and General meeting chair holding two votes Own and tiebreaker. AGM proxies an Owner can sign to anyone for one time vote to be destroyed at AGM. These lawyers have misrepresented AGM proxies for open proxies with property management soliciting proxies to vote against us and hosting our AGM as they have already voted themselves in with their open proxies. Simple solution remove all lawyers and if we ever need one there are sixty thousand lawyers in Canada to chose from sign a written retainer agreement for specific need at specific costs end to unknown legal fees. Replace property management with chartered accounting firm (not individual) who are highly regulated do not have sideline businesses and regulated by government and act in the best interests of their clients to ensure we are following the law. Plus they provide full disclosure and like our taxes sign their name stating prepared by accountant. Any arrears follow suit of Alberta Government who use a collection agency like Met Credit. We do not need to hire lawyers to sue ourselves writing themselves into bylaws for third party caveats cash calls bylaw infractions plus legal fees Our corporations do not benefit allowing third party predators targeting homeowners for profit. Lots more to say but ran out of characters so how do we send article to add to your blog?

    ReplyDelete
  10. Hi Paul Our condo corporation insurance doubled in 2014 and we were told it was due to the Calgary flood which our own insurance increased but did not double. We had questioned the AGM lawyer in 2013 (which we see you are in princess island is your lawyer this agm lawyer in Barclay square or maybe the bylaw lawyer on Bannister Road?) anyways we asked why our insurance increased before the flood and why we had three companies in eight years no answer and when the AGM minutes came out it said we were told there were $25000. in claims across Canada? No one knew what that meant as they refuse all disclosure (sold on public internet for profit with ten property management companies and 60 + corporation only in Calgary and Canmore with no right to withhold alter or sell for profit)

    In 2014 our insurance doubled with the lawyers and property management refusing to provide policy so we have no idea if we are even covered or for what. So in 2014 with our insurance now at $61000. year (and still no policy) we called the insurance broker who we have never heard of and find out which these lawyers forgot to mention that our insurance is in the property managements name and we are on a master policy, We have been paying for every property management claim throughout Alberta and now we are insured by a high risk American insurance company at double our costs ? We have had no claims disclosed or know of any on our property in years and these two lawyers failed to mention this. We contacted insurance brokers for wawanesa who we used to deal with before these third parties took over our corporation destroying our property and property values. They advised they only deal with condo boards on a direct basis and our costs are way over the top. We have lost all our rights and they refuse disclosure because these lawyers protect and represent them against the Owners. We have no idea where our reserve fund and monies have gone certainly not into our property. Simple solution and save costs remove these parties from our property and deal with Canadian Insurance broker direct as again they have no right to misrepresent our costs or insurance coverage. These unfortunately are only simple solutions if we get these predators off our property and we believe the only ones who can are our elected officials and govt agencies.Lots more to follow as homeowners have the right to protect our homes and assets.

    ReplyDelete
  11. condo owner/boardmember
    i have been left out of the loop on the votes on a couple of issues. i was told
    that i was in a conflict of interest position on one of the issues and i have the
    condominium porperty act and according to that act, i am not in a conflict of
    interest . but if i were, they (management person and rest of board) still
    can.t legally keep the proceedings a secret. i have asked by email for the
    motion and the names of the people who voted to put this motion into action and have only silence. on the other matter, which they did not say
    there was a conflict because it had nothing to do with me, one member of the
    board voted for a specific action and i seconded it and it went through even though 3 of the 7 board members had voted against it. so 2 of the remaing
    board members must have voted on our side, but i can't get the information on the voting. both of these actions (votes) were done by email and so all would have to have gone out to other board members. although i don't know that because they won't give me any information or allow me to see the chain of motions, voting.
    any one know what i can do? i guess hire a lawyer. this woman who calls
    herself a management person and who is a realtor has controlled this
    complex for over 20 years and the place is rundown and the properties won/t sell even at dropped prices. and she controls enough of the board to get her way. any helpful suggestions?

    ReplyDelete