If the owners are given reliable factual data so they can make accurately informed decisions and on that basis significant changes to common property are approved by a 75% vote pursuant to s.71 and s.76 of the S.P.A,, and s.6.9 of the S.P.R. then I see no probem, but that has never happened in NW2671.
Unfortunately, an insidious pattern of fraudulent misrepresentations and preemptive conversion of common property for the exclusive use and benefit of a minority of highly motivated scofflaws who take more than their share without paying for it has been going on here for decades, in blatant contravention of governing enactments.
It's well past time to put an end to that.
It's well past time to put an end to that.
In the best interests of the strata corporation, and for the peaceful enjoyment of all, I hope that someone more effective than I am will someday obtain a statutory amendment or court order that imposes reasonable and irrevocable user fees for significant changes to common property for exclusive use - indexed to inflation and tax assessed property values - to remedy significant unfairness, reduce the stigma of this strata's reputation in the marketplace, and attract prudent purchasers to build a more ethical membership.
Lump sum or monthly user fees are not the only options. In Poole v. Owners, Strata Plan VR 2506, 2004 BCSC 1613, the court imposed an Order for exclusive use of common property for 30 years in return for which the owner was to pay $1200 per year for an assignable lease of a common property rooftop of approximately 400 square feet. The equivalent of that in 2018 dollars would be about twice as high.
User fees for exclusive use of an additional 13x13 deck might be equivalent to about $3 sq ft or about $5,000 in 2004 dollars - so long as it was not a disposition of common property and proposed assignments were actually binding. If that amount was paid in user fees for each deck not shown on the strata plan it would cover about half the $10,000 cost for deck demolition, disposal, and reconstruction that Sherrill Berg had the strata pay for with surplus special levy funds in 2007 while she took more than twice her share at the expense of others without paying for it.
A reasonable formula for monthly user fees would be based on the land value and annual property taxes factored in with an adjustment for unit entitlement and addition of all the extra expenses attributable to the existence of the alteration, including the impact on property values or proportionate unit entitlement interests, cost of demolition and disposal, loss of esthetics, landscape architecture, and geotechnical stability, future reconstruction or landscaping reinstatement, repairs, maintenance, risks of fire or injury, insurance, and legal or professional services.
This kind of formula would eliminate significant unfairness and reduce Bylaw 8 reinstatement obligations by the monthly rate times the number of payments made by a given owner. It would also factor in the amount of unit entitlement strata fees paid for common expenses in comparison to the size of the area of exclusive use and require that user fees be paid into a separate account with withdrawals restricted to the extra expenses attributable to the existence or demolition of the extra decking and reinstatement of corresponding landscaping to restore the use and appearance of the common property to as shown on the strata plan and proportionate unit entitlements.
Proposed User Fee Formula pursuat to s.6.9 of the Strata Property Regulation
for exclusive use of a recreational sundeck on the common property of NW2671
$100/Sq Ft (estimated cost of demolition and reconstruction or reinstatement of landscape architecture) divided by 180 (the number of months in a 15-year estimated life of construction), minus 10% of unit entitlement = monthly user fee (which is less than $5.50 per square ft. in 2018 dollars)
Examples
2-bedroom extra deck 10’x12’=$12,000/180months=$66.60
minus 3.6 unit entitlement = $63/month
3-bedroom patio extension 3’x17’=$5,100/180months=$28.33
minus 4.7 unit entitlement = $23.63/month
Since the 2018 escalating land value for the property is about 5 times the value of depreciating buildings, adding an inflation factor in proportion to the additions might increase said revenue by an estimated 10%, but somebody smarter than me would have to figure out the details for that.
WHY USER FEES IN NW2671 NEED TO BE COURT ORDERED
Call it what you will - violation of the 75% owner approval requirement in s.71 of the Strata Property Act; adverse possession of land; theft of property as defined in s.322 of the Criminal Code; or simply contravention of Use of Property bylaw prohibitions against creating a hazard, nuisance, damage, or interference with a neighbour's use and enjoyment - the fraudulent misrepresentation of common property and unjust enrichment of scofflaws is the same.
Converting common property to exclusive use or benefit on a permanent basis is contrary to short-term exclusive use provisions and Use of Property bylaw prohibitions against unreasonable interference with the use and enjoyment of others. Scofflaws never compensate by paying User Fees, they exploit others for decades, and they are extremely vindictive in retaliating against bylaw enforcement requests.
The terms PATIO and BALCONY found on the strata plan are being persistently and deceptively conflated with DECKS.
There is one patio or balcony for each strata lot in NW2671, and they are all shown on the strata plan as Limited Common Property. Each 3-bedroom unit has a patio, shown as Limited Common Property on the strata plan. Likwise, each 2-bedroom units has a BALCONY, on the south side.
As patios and balconies are in proportion to unit entitlements, user fees are only required for the extra DECKS added to the common property on the north side of 2-bedroom units that already have a balcony on the south side.
Most decks were added unlawfully, none are on the strata plan, and all of them violate the short-term use restrictions in s.76 of the S.P.A.. No decks are designated as Limited Common Property, as that would double the benefit for those who pay less, contrary to registered ownership interests as tenants-in-common in proportion to unit entitlement.
In 2007, a couple of rogues acting in their own interests contrary to s.71 of the S.P.A. built more than a dozen recreational sundecks on common property adjacent to strata lots owned by a privileged minority, including themselves. Shockingly, they did so by diverting hundreds of thousands of dollars of leaky condo special levy funds contrary to reimbursement requirements in s.108(4) and (5), Indemnification Agreements, directions from the owners attending the AGM, and bylaw prohibitions against unlawful use of property.
This was not an innocent mistake made by volunteers. It was a deliberate plot executed in direct contravetion of the s.27 "Control of Council" vote, by two sophisticated council members with paralegal backgrounds, one a city politician, with the assistance of Joan MacDougall, a licensed professional strata agent, and most egregiously, the executive director of CHOA, Tony Gioventu.
In this strata, most owners of 3-bedroom units are deprived of their proportionate unit entitlement, while forced to pay more property taxes and strata fees to subsidize a bunch of crooks who own 2-bedroom units and take more than their share without paying for it.
The difference is not just a little, it's a LOT. Up to 30% more payment for less than half the benefit. Not just once at the time of purchase and sale, but every month, month after month, and every year, year after year, cumulatively, for as long as victims remain owners. It's not just oppressive and costly; but IF YOU THINK about it, it's sickening, because all of the same elements are at play, and nothing has changed to stop the same thing from happening again. I don't know why so many people seem to need a hit on the head with a sledge hammer to get them THINK about it.
Bylaws purporting to make owners
responsible to repair and maintain common property, along with agreements based on special permission contrary to the SPA's short term user restrictions proved to be bogus. The cost attributable to balconies, patios, and decks has been one of NW2671's largest historical expenses, but it's deceptively excluded from the Depreciation Report.
The percentage of scofflaws exploiting the law abiding to take more than their share without paying for it has grown from about 25% to over 50%, and the corruption flowing from persistent misrepresentations and unjust
enrichment arising out of permanently converting common property to exclusive use is not just significantly unfair - the historical damage is "horrific" to use the word of the strata lawyer, Adrienne Murray.
It doesn't have to be that way.
With s.110 user fees generating over $20,000 a year, imposing a reasonable User Fee formula is in the best interests of the strata corporation. It could avoid REPEATING special levies of hundreds of thousands of dollars to cover the very same extra expenses that are attributable to the existence of recreational sundecks not shown on the strata plan.
I think it really does pay to comply with the law instead of acting to cheat the neighbours.
