Web site: www.conkie-law.ca
1. When should our strata council seek legal advice, now that we know we have a building envelope failure?
Legal advice can be very helpful early on in the process. The strata council is wise to get basic information from which it can make good decisions. A good preliminary legal opinion will tell you your options, possible parties you may sue, and whether any limitation periods have expired. Just because you have hired a lawyer for some preliminary advice doesn't mean you need to carry on with legal proceedings right away, or at all. It is generally better to get the building fixed first.
2. Who can I sue for my leaky condo?
The companies and individual professionals who developed, designed
and built your building envelope are your first targets. This
includes the architect, the developer, the general contractor, many of
the sub-trades, the municipality, other inspection agencies possibly, and
warranty providers. Many of those parties carry insurance,
so the insurance companies also become involved.
What are limitation periods and do I need to worry about them?
Simply put, limitation periods are legal deadlines which have
the effect of blocking you, the owners, from commencing or proceeding with
a lawsuit if you take that step too late. Yes, you do need to worry
about them. They may effectively cut off your access to legal proceedings,
if you have waited too long before commencing them, despite the merits
of your case.
You should get legal advice as soon as possible about limitation
periods, as this can be a complex area of the law. For example, different
kinds of legal claims have different limitation periods that apply.
Probably you have six years to sue for inherent defects in your building,
but in some cases you may have two years, and in the case of suing against
the municipalities, as little as six months. The counting of the
applicable limitation period commences at different times, and you should
obtain legal advice about this tricky area of the law, also. The
Legislature has attempted to balance the interests of plaintiffs and defendants.
Your lawyer is your advocate in interpreting the legal principles and applying
them to your case so that you will be able to proceed if possible.
How long will the court process take?
This is difficult to predict as almost all of these kinds of cases settle somewhere along the path to trial. However, if you were to proceed all the way through the court's process to a trial, you can expect it to take at least two years, and perhaps a year or two more. As almost all of these cases proceed to mediation these days instead of going to trial, it is more interesting to consider how long that process takes, which is running parallel to the court process. While that is also difficult to predict, settling very early on in the process can often mean taking less, while settling closer to a trial date often produces more profitable results. This means you should plan on the process still taking approximately a year, and it could take much more, depending on many variables.
Is going to mediation a lot cheaper than going to trial?
The process to go to mediation is very similar to the process
to proceed to trial. While the mediation occurs earlier than a trial
date, and can be much less expensive, on the other hand, for a plaintiff
to persuade the defendants to make meaningful contributions to a large
enough settlement amount, the plaintiff may have to take a lot of litigation
steps, including doing exhaustive document analysis and exchanging extensive
expert reports. Remember, in order to invite maximum contribution
from defendants at a mediation, you need to persuade them of the strength
of your case, usually. Thus, the costs can still be quite high.
The question to ask yourselves is, how do the estimated legal fees compare
to the total cost to remediate the building.
6. My strata council won't fix the building properly: what are my options?
Fortunately, the courts of British Columbia have shown a willingness
to intervene in cases where there is strong evidence of a building envelope
failure and the need to remediate, even where a majority of owners have
voted not to proceed with repairs. For example, in two recent cases,
commonly known as the Marco Polo case and the Tadeson case, where special
resolutions to remediate were defeated, and a small number of owners petitioned
the court for assistance, the Court focused on the obligations of the strata
corporation to repair the building. On that basis the Court intervened
and made declarations, for example in the Tadeson case, that repairs to
rehabilitate the building envelope were required. The strata corporation
was ordered to commence repairs and to assess each owner for their appropriate
contribution for the repair costs.
Needing the Court to intervene in this way is not desirable, as
it is costly and still risky. The courts would prefer to support
the democratic principles of majority vote that are set out in the Strata
Property Act, and rule in favour of the majority of owners. Try to
create a consensus first. Perhaps have your lawyer attend an
informational meeting or two to stress the importance to the owners and
the strata council of meeting their repair obligations.
7. Most of the owners in my building don't want to spend any money to fix the building: what can I do?
If a strata council does not appear to be meeting its repair obligations, owners can petition the court for help. If a strata council is not fulfilling its duties, they can ask that an administrator be appointed by the court to manage the affairs of the owners. On the other hand, if a majority of the owners don't wish to support the recommendations of the strata council and a 75% vote is not reachable in order to fund repairs, the strata council can support the petitioners and jointly go to court. This is one of several options. Getting 75% of the owners to vote to fund repairs can often be quite difficult. It is obviously far preferable to have a lawyer or lawyers try to persuade the owners that petitioning the court and taking court orders to require that the repairs be done will end up being quite a bit more costly for the owners than is necessary.
8. The owner who lived here before me didn't tell me the full story, and neither did his real estate agent: can I sue them?
The short answer is: yes. As a purchaser, you have an obligation to review the minutes of the strata council and perhaps various subcommittees to do your own "due diligence". If you ask the owner and your real estate agents expressly about water penetration problems, defects and deficiencies in the building and so on, they are obliged to disclose any information they may have to you. If they don't, you may be able to sue the owner for breach of contract and failure to disclose or warn you and the real estate agents for misrepresentation and negligence.
How much will hiring a lawyer cost us?
If you are hiring a lawyer to give you preliminary advice and
perhaps to review some of your contracts in the tendering and repair process,
they will typically charge either a flat fee for services or an hourly
rate. Ask for estimate of what their total fees will be for those
services. A preliminary opinion may cost between $5,000.00 and $10,000.00
depending on the extensiveness of investigation and review of documents
and the complexity of the case. Reviewing contracts and providing
some advice as to contractual relationships during the repair process should
cost quite a bit less. Ask the lawyers you are considering hiring
what their hourly rates are and what kind of experience they have, sign
a retainer letter setting out terms of your arrangement, and ask them what
their billing procedures are. Never be reluctant to clarify any concerns
or questions you have about this part of your relationship with a lawyer,
as it should make all of your communications easier, too.
If you are retaining a lawyer to commence legal proceedings for
the moisture penetration problems in your building, you have to know that
this is a costly course of conduct. It is a multi-party, complex
litigation that may last a year or more. While it varies greatly
from lawyer to lawyer, you should expect to spend fees in the range of
$50,000.00 upwards. Because all of the parties you are suing also
have to spend money on legal fees, and because the costs of attending trial
are so prohibitive, most of the parties are usually motivated to settle.
Even though you may ultimately spend $100,000.00 or more in legal fees,
if you have a $1 million cost to fix your building, the legal fees, as
you can see, are a relatively small percentage of that total cost.
What are our chances of success with a lawsuit?
Although lawyers frequently get asked this question, it is something they simply can't predict. We can say that almost none of the lawsuits commenced in British Columbia Supreme Court have proceeded to trial, and presumably most of them have settled. A settlement is supposed to be a compromise of a dispute that all parties make because they feel they can live with the compromise. Are plaintiffs happy with the results they have obtained? I certainly know some happy plaintiffs. Remember that getting a contribution of any amount towards the total costs you are facing is helpful, as long as you haven't spent more on legal and expert fees than you recover.
Which defendants are accepting responsibility or contributing to settlements?
One of the disadvantages of settlement is that the terms of them are usually confidential and they don't go into any kind of a record. No case or precedent law develops. Again, it would be interesting to somehow chart statistics on settlement payments: how much, and who is paying. If can safely be said, however, that architects, general contractors, developers, some of the subtrades and municipalities have all made contributions to settlements. They don't always do so, and each case is different, but yes, these matters are settling, for money.