COLCO

Judge rules Bosa condo uninhabitable, orders overheated leaky condo returned to vendor
 
By James Balderson, COLCO, 2001.02.24

B.C. Supreme Court Judge B.I. Cohen has ruled that a penthouse high-rise condo built by Bosa Development Corporation is uninhabitable.

Judge Cohen decided that the contract to purchase the Berkley Place condo located at 739 Princess St. in New Westminster should be rescinded because Bosa delivered “something completely different from what it was represented to be: namely a new penthouse immediately fit for habitation.”

George Cherris (71), acting as the executor of the will and trustee of the estate of his wife, Bernice Iris Cherris, won the judgment against Bosa and 444336 British Columbia Ltd.

Mr. and Mrs. Cherris visited the Berkley Place presentation centre on several occasions to view the plans for the building and the penthouse they intended to purchase.  On August 1, 1996, they viewed the finished penthouse for the first time, took possession on August 22, but did not move into the penthouse prior to Mrs. Cherris’ death.  Mr. Cherris did not move in following the death of his wife due to his claim that the penthouse was uninhabitable.

Mr. and Mrs. Cherris noticed water stains, patching and cracks on the ceilings when they conducted a pre-occupancy inspection on August 1, 1996. They also noticed sound and vibration from the elevator machinery while inside the penthouse.

After they took possession on August 22, other problems were noticed.

These included:
 1. The sound from the elevator continued to be heard inside the penthouse each time the elevator was used
2. The temperature in the penthouse was frequently between 30 and 40 degrees Celsius, with the vertical blinds closed, and no available cross ventilation
3. The penthouse was a leaky condo with water-saturated walls
4. Snow slid from the roof on to the penthouse patio making it impossible to open the doors without having snow fall into the penthouse.
5. The privacy of the 24th floor penthouse was compromised because lockers on the 25th floor could only be accessed through the 24th floor.

The defects in the Bosa-built condo were still outstanding when the judge heard the case in September and December 2000, four years after completion and possession.

Due to a lack of expert evidence regarding points 1., 3., 4., and 5., the judge focused on point 2., the allegation that “solar penetration into the penthouse has caused the temperature to rise to uninhabitable levels.”

Upon hearing expert evidence by both sides, the judge stated “I am satisfied that the plaintiff [Cherris] has established improper design of the penthouse such that solar penetration into the penthouse can cause the inside penthouse temperature to rise to uninhabitable levels.”

The judge then turned to the question of whether the “overheating of the penthouse” could be rectified.

Upon examining the expert evidence presented to the court, the judge found “it is impractical to air condition the penthouse as constructed.”  The judge also found that “the overheating of the penthouse, and lack of adequate control is due to improper design such that in its current configuration the penthouse is uninhabitable.”

Turning to an appropriate remedy, Judge Cohen considered matters such as warranty, contractual conditions, error in substantialibus, fraud, and caveat emptor.  The judge reported as follows:

[41] Plaintiff’s counsel submitted that it could not be the law of this province that the defendants are entitled to sell a penthouse which apparently requires new openable casement style windows to reduce temperatures inside the penthouse.  He argued that if a person purchases a penthouse condominium with a view, he should be able to move into it upon completion of construction, without having to repair, or reconstruct portions of the unit and then have to still live in the dark behind closed blinds and drapes on sunny days.  He contended that the defendants contracted for the plaintiff and his wife a new penthouse that was fit for human habitation, and they have failed to do so.

[52] Despite the plaintiff’s numerous complaints from the date of possession, and the defendant’s assurances to correct any deficiencies, the problem of overheating has not been addressed or corrected by the defendants. … The parties can be restored to their pre-contractual positions:  the plaintiff has never lived in the penthouse and he can
return it to the defendants in essentially the same condition it was in at the time the plaintiff and his wife took possession.

[53] The plaintiff is entitled to an order for recission [sic] of the contract, and restitution. ….

COLCO members should view this decision as a step in the right direction. Developers have finally been told what we expected all along: condos must be fit for human habitation.  A hot condo is not.  A leaky rotten condo is not.

Now for a judge to rule that all owners of leaky rotten condos can return their defective condos to the vendors for the full purchase price, plus the cost of repairs, plus legal costs.

Or, in the alternative, that those responsible for the design, construction and inspection of leaky rotten condos have to pay the full cost of repairs plus legal expenses from corporate, personal and government assets.

Or, in the alternative, the government establishes a 100% compensation plan for the owners of leaky rotten condos.

Members of COLCO hereby express their heartfelt thanks and sympathy to George Cherris and, post-humously, his wife Bernice Iris Cherris, for their struggle to achieve justice in the continuing war against designers, developers and builders of uninhabitable condominiums.

We shall overcome.

http://www.courts.gov.bc.ca/jdb-txt/sc/01/02/2001bcsc0228.htm