A Brief History of the BCLA
On January 1, 2017 the BC Leaseholders Association was incorporated as a non-profit society with the power to commence civil actions in its own name yet retain the anonymity of its members. Its prime objective, as expressed in the first article of its constitution, is “to define and affirm the rights of leaseholders in British Columbia and undertake all lawful means to ensure those rights not be abused”. Initially the BCLA was intended as a kind of counterpart to the BC Residency Agency, whose general policy it has been to ignore leaseholders with leases longer than 20 years duration. The BCLA was chiefly created, however, out of a growing awareness of the frustration that many Leaseholders in BC were experiencing in their confrontations with leasehold landlords as regards the ongoing contempt those landlords bore them generally and, in particular, as regards their unreasonable demand that lessees pay, as so-called “operating expenses,” all of their landlords own massive capital gains.
In a sense the BCLA was the inevitable consequence of untenable circumstances. It arose from the ongoing failure of the BC Courts to perceive either the pattern or the adverse effects of its own repetitive but unexamined judgments. Obliged by the complexities and intransigence inherent in the judiciary generally it permitted routine protocols, dubious precedents and rigid legal constructs to take priority over the humane precepts of Justice which constitute the fundamental principles of Law. By failing to comprehend fully the larger context of the abuses perpetuated by an inherently abstruse and unconscionable lease, it has consistently withheld justice from those who have had the misfortune of being exploited and browbeaten by the powerful landlords who created, proffered and implemented it. These revelations only gradually came to light through the prolonged efforts of the committed group of leaseholders who were ultimately to form the core membership of the BCLA. In essence the birth of the BCLA can be directly attributed to the intolerable effects of what has come to be known as the May 1st 1974 Lease, a standard-form 99-year residential leasehold contract of debatable pedigree which has been the source of endless legal disputes. Under its dictates many essentially innocent “homeowners” have been made to suffer extremes of abuse and humiliation they could never possibly have foreseen when they put their signatures to it. Theoretically the BCLA could have traced its origin to the actions of any one of a number of Corporate Leasehold Landlords using this Lease. In fact it arose out of the actions of one company in particular.
On November 29, 2012 Westsea Construction Ltd., the instigator of the May 1st 1974 Lease and the most powerful of all the corporate landlords using it in BC, issued to its leasehold tenants at Westsea Towers an Operating Budget for the coming year. In that document it laid out in precise detail its extensive capital cost projections for the coming years. What was not immediately evident from WSC’’s officious dispatch was the ramifications of so many inordinate expenses being borne entirely by its leasehold tenants within the very brief spans of time proposed. But that was not the only contentious issue. Such was the nature of the numerous assessments enhancing the worth of the landlord’s property that, if it was sold immediately after they were completed the millions of dollars in value realized by those expenditures would all accrue to the landlord alone and no part of it flow back to those who had actually paid for them. That 2012 bulletin outlined its intentions as follows:
As previously reported, WSC conducted Condition Assessment Reports for the building envelope, windows, balconies, parkade and plaza areas of Westsea Towers. In 2013 we will perform a balcony railing review…remove asphalt from upper parkade and landscaping areas, inspect and repair all spalled concrete and corroded re-bar and finally apply a waterproof membrane. The parkade repairs will be followed by the replacement of all existing building sealant; followed by concrete repair and cleaning of all building walls and balconies; and finally replacement of existing windows.
Thus, long before it had hired any engineers to determine the scope or even the necessity of its renovations, it had already projected the full extent of its building upgrades. Although Westsea would later refer to it as a “Remediation Project”, in fact the proposed expenditures mostly involved the replacement rather than the repair of its own assets. In many cases that replacement was deemed premature or unnecessary. Astute leaseholders who closely surveyed the various work projects began to realize that they were intrinsically so interlinked as to constitute an overall capital cost betterment program of enormous proportions. Moreover, it very quickly became apparent that the entire undertaking was, above all, a blatant breach of the Lease’s Article 7.01 covenant “to exercise prudent and reasonable discretion in incurring Operating expenses.” Adding further offence to the above breach was the fact that each of the various segments of the overall project was being scheduled to proceed within the confines of a single fiscal year so that they could “legally” be written off as Operating expenses rather than depreciated over decades as Capital costs—a procedure in violation of the directives prescribed by Revenue Canada Taxation.
In June 2016, while still paying for the most recent round of capital expenditures it became clear to the lessees at Westsea Towers that its landlord was serious about commencing the extensive window replacement component outlined in its 2012 renovation bulletin. The problem with that particular work project was that, as near as could be determined, the great majority of windows and doors were, despite a contested report by Westsea’s own hired Engineering firm, in perfectly fine condition and did not in fact require widespread replacement. In a brief correspondence with the Secretary of the English Bay Leasehold Association (EBLA) it was posited that the repair of the windows—if repair was indeed necessary!—was, in accordance with a somewhat woolly covenant in the Lease (Article 4.03) the liability of the tenants rather than the Landlords. Furthermore it was also pointed out that an important civil action touching the matter had actually been fought in the BC courts. In Steers V. Sheridan Investments Ltd., the landlord of El Cid apartments had openly “conceded the prerogative of leaseholders to repair their own windows at their own expense”. To many leaseholders this implied sufficient ambiguity in the drafting of Article 4.03 to call into doubt the Lease’s overall assertions about liability in this and other instances of capital cost expenditure.
Taking to heart the observations of EBLA’s secretary, in late August 2016, a private appeal was dispatched to the Leaseholders at Westsea Towers entreating them to petition their landlord to halt or postpone its window replacement initiative on the basis of Article 4.03. Though the petition itself was fated to be still born, the initial appeal for it quickly garnered the support of over 60% of the resident leaseholders. Many who signed it at that time later became members of the various protest groups that would collectively and stubbornly address Westsea’s management with honest concerns that were invariably greeted with indifference or intimidation. An attempt to bring the proposed petition to the attention of the absentee leaseholders of the building was thwarted by the landlord’s refusal to divulge any contact information on personal privacy grounds. Nonetheless, support for the objectives of the August 2016 initiative began to reach absentee leaseholders in such numbers that by the winter of 2017 over 80% of all Westsea Towers leaseholders had, in one form or another, formally voiced their opposition to the landlord’s remediation project. Back in the Fall of 2016, however only a small group of dedicated activists had begun to emerge from the supporters of the August Petition. Central to that group were all those who would become instrumental in the formation and directorship of the BCLA.
In late September of 2016 a systematic analysis of the May 1st 1974 Lease was undertaken in an effort to reduce it to an intelligible abstract that would yield some basic details about its contractual legitimacy, on the one hand and the moral bias of its basic assumptions on the other. Analyzing the Lease in that manner revealed a variety of inherent inconsistencies and flaws which it has become the objective of this website to reveal. Meanwhile, new evidence being gleaned from various reliable internet sources began to augment significantly the growing body of information about the May 1st 1974 lease, its authors and its disconcerting legal history. On the strength of those findings an effort was made to gather together all information about the civil actions pertaining to the Lease and correlate the results under objective but humane analytical criteria.
Among other things a serious appraisal of the distinctions between commercial and residential leasehold was begun. An internet Article on Capital costs in commercial leases by Paul Mayer of Fasken Martineau touched upon many relevant issues of interpretation that pertained with equal force to residential leasehold. The gist of that article suggested that the May 1st 1974 residential Lease had never been fully honest in its disclosures to leaseholders. A retired building manager who had witnessed the introduction of the lease at first hand described the contract as a “cut & paste job” whose contractual data was so fragmented and randomly disbursed that it tended more to obfuscate than clarify the basic tenets of the contract. More profound investigation of the Lease indicated that, despite its so-called “plain language,” the various ambiguities and omissions inherent in it indicated a latent potential to do harm. No one, for instance could have determined from its text that it could be used as a weapon against leaseholders by forcing them to finance the immense legal expenses of their own adversaries. So absurd was the lease that upon its advent various members of the Vancouver Real Estate Board joked that no one in their right mind would ever accept the Lease’s excesses. Later everyone was surprised when despite—or perhaps because of —the obscurities embedded in the Lease the leasehold properties proffered under it actually began to attract buyers.
Meanwhile the sustained researches into the legal history of Westsea’s contract was beginning to yield significant data that made it possible to correlate and analyze the commonalities of the many civil actions being brought before the courts due to the both the textual perplexities and the inevitable consequences of the May 1st 1974 Lease. Without the leaseholders themselves being fully aware of it, numerous lawsuits were being commenced by leaseholders naïvely bringing what they perceived to be unique and unlitigated civil actions revolving about what generally proved to be the same aspects of the lease. Again and again, directly or indirectly, these lawsuits were founded on the same complaint: the landlords were imposing on their leasehold tenants outlandish capital costs under the guise of operating expenses. Not only were these lawsuits being brought for exactly the same reason, they were, as a rule, being defeated for very same reason: the judges could not perceive or act upon the inevitable injustices their judgments prefigured. On the supposition that they were working within the parameters of the law they were in fact sacrificing the principles of justice. The recurrent confusion over leaseholder liability for the capital costs being charged back to them was a sure indication that in virtually all these cases the leaseholders never really understood the terms of the lease they signed. The claim that they had signed “pro tempo” was void because false. Whenever the landlords began to act upon their presumed prerogatives as regards the reading of the lease the leaseholders invariably expressed their profound shock and disbelief.
By the end of 2016 a number of very important events had occurred thanks to the accessibility of information via the internet. In early October 2016, having received rumours of the collapse of the valiant efforts in Victoria BC to stave off what was widely seen by Leaseholders as the forced invasion of leasehold homes by a common adversary, a growing number of dedicated lessees, from various of the leasehold properties governed by the May 1st 1974 Lease, began to share information about their common predicament. The legal victory in which Westsea Construction Ltd had been denied the right to charge its litigation costs back to Orchard House leaseholders had become common knowledge among informed leaseholders who had greeted it with jubilation. (The Honourable Justice MacKenzie had decreed that leaseholder liability in a matter concerning the interpretation of a Lease did not constitute an operating cost as such.) During the final months of 2016 details slowly began to circulate about the creation of the BCLA and its website as a means to challenge the May 1st 1974 Lease on purely moral as well as contractual grounds. Although those committed to the creation of the BCLA were generally quite different in their notions of how to rectify the underlying problem all were unequivocally united in their resolve to subdue it. With that dedicated alliance, the various major forces resisting the tyranny implicit in the lease were united in a multi-front attack on it. For the first time in the history of the lease important advances were being made against it by the many different leaseholder groups suffering the injustices being perpetrated under its dubious authority. In a sense the advent of this website can be likened to the allied invasion over seventy years ago of Southern Italy in the struggle against the tyrannical forces of Fascism in Europe. And now as then, the besieged leaseholders will be victorious in their assault because ultimately they too have right on their side.