Summerland condo owner awarded $67, says lawyers cost him $29K | iNFOnews | Thompson-Okanagan's News Source

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Summerland condo owner awarded $67, says lawyers cost him $29K

Image Credit: Summerand Resort Hotel
February 11, 2021 - 7:00 AM

A Summerland hotel strata has lost a lengthy dispute against a condo owner after it tried to force him to rent out his apartment as a hotel suite.

The Summerland Waterfront Resort took condo owner Michael Drance to the Civil Resolution Tribunal in an effort to get him to vacate his apartment and make it available to hotel guests.

The strata argued under the purchase agreement, condo owners were required to let their units as hotel suites when they weren’t using them.

According to the Feb. 8 Civil Resolution Tribunal decision, the strata council lost the case.

But while the strata was ordered to pay Drance $67, he claimed he spent $29,000 on legal fees.

However, the Tribunal, which was designed to give people cheap and easy access to small claims and strata disputes, said it didn't have the power to order costs to cover fees charged by lawyers except in "extraordinary circumstances."

And according to the Tribunal, Drance's circumstances weren't extraordinary enough.

While the case only involves Drance, it centres on what appears to be a long-running dispute between some condo owners at the Summerland Waterfront Resort who want to live there permanently and the strata council which insists owners let their units as hotel suites.

The issue also made its way to City Hall, and on Feb. 8, Summerland council voted against changing the Summerland Waterfront Resort zoning to allow seven units to be used as permanent residences. It’s unclear whether Drance’s unit was one of the seven.

According to the decision, Drance bought his condo in 2019 and was told he could have it taken out of the hotel rental pool but would still have to adhere to its rules that owners can only stay in their condos for up to 90 days per visit.

The strata argued Drance lives in the condo permanently and the strata bylaws and the District of Summerland's zoning bylaws prohibit it.

Drance disputed that he lives in the condo permanently, and the Tribunal found that the strata hadn't proved that he did.

However, the Strata council also argued Drance has to make his unit available for hotel use.

READ MORE: Poorly worded bylaw sees Kelowna condo owners lose strata dispute

In a counterclaim, Drance argued the strata council had a conflict of interest because it was also involved in managing the hotel’s rental pool. But the Tribunal refused to address the issue saying it had no jurisdiction over conflicts of interest which could only be resolved in the B.C Supreme Court.

Drance then argued the strata council's involvement in managing the hotel’s rental pool breached the Strata Property Act as it had an obligation to act in the interests of all condo owners and not just those that let their units as hotel suites. The Tribunal didn’t agree.

While the Tribunal was set up as an easy way to deal with strata disputes, the case highlights what powers the Tribunal does and doesn't have, especially for those who put considerable time and money into their cases.

Much of the decision focuses on the various municipal zoning bylaws and the Strata Property Act as well as a covenant that was registered on the land.

"The covenant says that strata lots must be used as a public hotel and Summerland Resort, and subsequent owners of the strata lots such as Mr. Drance, can only occupy the strata lots by making a reservation through the hotel reservation system," the decision reads. "When the strata lot owners are not occupying the strata lots, the covenant says the strata lots must be available for public hotel use."

While the strata council said the covenant proved that Drance must give up his unit to be used as a hotel suite, the Tribunal found that the covenant only applied to the owner of the unit when the covenant was put in place, which was not Drance.

The strata council also argued that condo owners are bound by its bylaws and a hotel management agreement which states that condos must be available for hotel use.

However, the Tribunal ruled the hotel management agreement does "not specifically" say owners must make their units available for hotel use when not using them.

The Tribunal goes onto say the bylaws only refer to the Summerland Rental Pool Rules and as these rules weren’t submitted as evidence it can not speculate on what they entail.

Separately in his counterclaim, Drance argued the strata council had "improperly denied" him from doing renovations in his unit.

The strata said it refused to let him do renovations as all hotel rooms "must look similar."

The Tribunal sided with Drance saying the strata acted "significantly unfairly" by denying his alteration request and pointed out he was not required to make his unit available for hotel use anyway.

However, it stopped short of ordering the strata to allow him to do the upgrades and instead mandated that the strata council must "reconsider" his renovation request and not consider the use of his unit as a hotel suite as a relevant factor in its decision.

It appears the Tribunal's move would allow the strata to reject Drance's request to do renovations for a second time as long as it used a different reason.

READ MORE: B.C. couple fined $107K in Airbnb dispute win case

Along with the $29,000 in legal fees, Drance also argued for punitive damages for the stress allegedly caused by the strata as it had "misled him, bullied and threatened him."

Drance submitted two separate doctors notes, one saying he had an increased heart rate and difficulty sleeping, and that his high blood pressure was likely caused by the stress of the dispute. The other notes stated the dispute had caused Drance to "suffer stress and need medication for stress relief."

The Tribunal didn't agree.

"I find that the doctors’ notes do not prove that the strata’s alleged wrongful conduct caused Mr. Drance to suffer severe or extreme emotional distress," the decision says.

The Tribunal also dismissed Drance's claim for $16,000 to cover his own dispute preparation time.

Ultimately, while Drance won the majority of the case, financially it cost a lot.

"Since Mr. Drance was partially successful in his counterclaim, I find that he is entitled to reimbursement of one-half of his (Tribunal) fees. This is $67.50."

To contact a reporter for this story, email Ben Bulmer or call (250) 309-5230 or email the editor. You can also submit photos, videos or news tips to the newsroom and be entered to win a monthly prize draw.

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