A Burnaby strata that tried to end a 37-year-old agreement to share a squash court, exercise room, swimming pool, tennis court and other amenities with a neighbouring strata has lost its case at the B.C. Court of Appeal.
For 37 years, the folks living at the Harrington apartment highrise at 3970 Carrigan Court could head over to Discovery Place next door at 3980 Carrigan Court to play squash, work out in the exercise room and swim in the pool, according to a March 2022 B.C. Supreme Court ruling.
The Discovery Place folks, meanwhile, could head to the Harrington to play tennis.
For more than 30 years, the two stratas shared the use and cost of keeping up the amenities as per a 1985 covenant signed between the developer, Lougheed Garden Estates Phase II Ltd., and the City of Burnaby.
But the Harrington folks decided to end all that on March 7, 2019.
At its annual general meeting, the strata passed a resolution to end the agreement, and gave Discovery Place notice of the termination.
The Discovery Place people didn’t like that one bit and took their concerns to B.C. Supreme Court, petitioning the court to declare the 1985 covenant is a “current, subsisting, and binding agreement” on all the parties and subsequent successors in title.
Discovery Place suggested the timing of the Harrington’s notice was likely tied to the fact the Discovery Place facilities needed “substantial repair” since they are now more than 30 years old and have seen “significant usage” over the years – including by the Harrington folks.
B.C. Supreme Court Justice Steven Wilson sided with Discovery place, concluding the agreement between the parties was “in perpetuity, subject to a subsequent agreement to the contrary."
Harrington appealed Wilson’s decision, but its application was dismissed in a unanimous decision by the court of appeal on Monday.
“In my view, the appellant has not established an error in principle that would displace this deferential standard and justify setting aside the Supreme Court order,” stated the Jan. 30 ruling written by Justice Joyce DeWitt-Van Oosten.
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