A battle between two stratas stuck sharing recreation facilities "in perpetuity" because of a covenant signed between the developer and the City of Burnaby nearly 40 years ago has sparked another lawsuit.
The strata at Discovery Place (3980 Carrigan Court) claims The Harrington next door (3970 Carrigan Court) owes it nearly $750,000 for major repairs, maintenance and operating expenses for amenities that residents at the two highrises share, including a pool, squash court and exercise room, according to a notice of civil claim filed in B.C. Supreme Court Wednesday.
Discovery Place alleges The Harrington has "refused to accept" a court order upholding a nearly 40-year-old agreement between the two stratas for sharing the facilities and the costs 50-50, according to the civil claim.
"(The Harrington's) residents have used the recreational facilities located on (Discovery Place's) land for over 30 years, and now seek to avoid duties they have to help pay for the repairs and upkeep of the facilities they have otherwise used on a daily basis for all those years," states the document.
The Harrington had tried to end the agreement unilaterally in March 2019, but Discovery Place petitioned the court for an order declaring it a "current, subsisting, and binding agreement."
The arrangement is based on a 1985 covenant between the developer, Lougheed Garden Estates Phase II Ltd., and the City of Burnaby.
In March 2022, B.C. Supreme Court Justice Steven Wilson ruled the two stratas had entered into an enforceable "post-incorporation contract" on the same terms as that covenant.
Wilson said the stratas were bound by the agreement "in perpetuity," subject to a future agreement to the contrary – and neither party was entitled to terminate it unilaterally.
The Harrington appealed, but the B.C. Court of Appeal upheld Wilson's decision in January 2023.
The strata even appealed to the Supreme Court of Canada, but Canada's highest court declined to hear it.
(The Supreme Court of Canada rarely gives reasons for not hearing cases and did not in this case.)
When Wilson ruled on the matter in March 2022, he said he wasn't prepared to make any "monetary orders" arising out of the amenity-sharing agreement because he didn't have any information about anticipated costs or what costs or expenses might be considered "necessary."
He said another court application might be required to deal with that.
Discovery Place said it was filing the new lawsuit out of an abundance of caution because it was unclear what the correct court procedure was to collect the funds it says are now owing.
The strata claims The Harrington owed it $746,228.92 as of March 27 when the lawsuit was filed and that the sum is increasing by $181.81 per day.
The allegations in the notice of civil claim have not been proven in court.
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