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#18991
Alberta judge upholds HOA CONFORMITY “Guidelines” : wood-like shingles must go BLACKBURNE CREEK HOA 2019/08/17 13:41  
Not legal advice

The judgment characterizes the Edmonton ALBERTA subdivision of BLACKBURNE CREEK as a "Building Scheme" of 417 detached non-condo residences subject to Restrictive Covenants on title ( plus 63 non-covenanted homes ).

Mere "Guidelines" ( design standards to review proposed alterations or conformity of private properties ) are cited to have been attached or appendixed to the registered Covenants on each lot title. Some are online at www.blackburnecreek.com, but reliance on what any HOA posts online arguably has risks ).

After a SIX ( 6 ) YEAR LEGAL BATTLE, here an Alberta lower court empowers & orders the "Design Guidelines" enforced by removal of three sets of replacement "wood look-alike"/ rubber synthetic roof coverings.

In 2013 three sets of owners chose to ignore immediate objections by the Blackburne Creek Homeowners Association ( HOA) that their planned roof covering replacements - high tech wood-like rubber with claimed longer lifespan - would be in violation of the HOA conformity "Guidelines".

( Anyone who takes HOAs lightly needs to pause to consider this threshold of dispute. Here the "Guidelines" alone were a strong early warning of what & how such might be defended. Those partly online "Guidelines" purport to further dictate even the sole approved colour and components of fences which the Building scheme owners must maintain. Fences incidentally are not at issue here. )

Anyway a six year enforcement struggle has ensued, now disgorging this lower court Order that upholds volunteer Committee-applied, conformity “Guidelines” albeit anchored in the Declarant's registered title documents.

But this judgment appears to avoid something important : common countervailing U.S. HOA dispute jurisprudence discussing whether ( mere ARC / PRC type ) conformity “Guidelines”, genuinely share a binding full legal status of genuine Restrictive Covenants running with subdivision Building Scheme type titles.

( Online documents however suggest so, but look worded much more flexibly than their factual application here.)

Nor whether an enforcement-seeking HOA is on sound legal ground to try treating them as full covenant prohibitions running with legal compulsion on title. ( Online registered documents however purport to pass some enforcement status to the HOA from the Declarant, encumbering owner payment of monthly fees and enforcement of Declarant's approved criteria. )

Do mere “Guidelines” scheduled to the actual Restrictive Covenants on titles, themselves have any status more than “recommendations” about superficial appearance ? Should that aspect be arguably ignored by a judge ? Is there an implied "reasonableness standard" ?

Is it fair or supportable to order replacement of wood-like rubber / synthetic roofing allegedly with greater lifespans ?

1 - Background : In 2013 with their wood-shingled private roofs deteriorated after only a couple of decades, the three defendant sets of Edmonton Building Scheme owners were immediately & priorly warned - but ignored HOA orders - NOT to replace their original wood shingles with new high tech rubber wood–like substitutes.

So UP went the new wood look-alikes. Now they're ordered down.

2 - There’s minimal judicial lip-service paid to “reasonableness” of the HOA’s application for roof replacement orders . Would the high-tech rubber look - alikes be discernible other than by outlasting genuine wood ? Roofs are visible but not a front-yard shed nor treehouse etc. nor oversized recreational vehicle nor commercial vehicles parked on municipal City streets -ie what HOAs often target. . . .

3 - American ARC architectural review committees or PRC planning review committees, generate tons of conformity disputes. Some even require due process appeals. But U.S. HOAs have strong defenders including in some state legislatures.

4 - Some owners love the conformity argument ( until targetted themselves ) and sincerely link it to property values, safety etc . . .

5 - But do these Edmonton owners' synthetic wood look-alikes here really run afoul of the "Guidelines" ?

6 - Many Americans have fought battles with HOAs and come to deeply regret ever buying into a subdivision with one - legally empowered or not !

Blackburne Creek H.O.A. v Burt et al 2019 ABQB 608 issued Aug 8/19 http://canlii.ca/t/j1vgd
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#18992
litigating against your Homeowners Associaton . . . 2019/08/17 19:23  
“ . . . . The unhappy reality of modern life is that legal machinery doesn’t exist to compensate people for every unkind, improper or evil deed done to them in life, let alone in a homeowners association.”

quoted in Oct 15/16 L.A. Times “Q&A: Why lawyers don’t want to sue homeowner associations on contingency” by Donie Vanitzian with counsel from attorney Michael Krieger

https://www.latimes.com/business/la-fi-associations-contingency-20161010-snap-story.html
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#18997
DEFYING “Guidelines” as defendants instead of applying for JUDICIAL MODIFICATION 2019/09/08 16:31  
A CBC Edmonton report ( Aug 30/19; see below ) interviews the fire-fighter spouse of one of the three sets of separately-sued owners defying the 1992 "Design Guidelines" appendixed to Restrictive Covenants.

Three sets of defendant owners ( of detached homes ) were targetted - not jointly - by the HOA's enforcement motions.

Further, there is no judicial reference shown to any owner applications seeking to overturn the "Guidelines".

Noteworthy from the interviewed spouse - who may not be speaking for the two other sets of separately losing "defiers" NOR after some timely professional de-briefing - include the following :

1 - The interviewed spouse tells CBC the defiers' own combined legal costs have reached # 100 K ! Not too surprising.

2 - IF - that's IF - the HOA incurred at least a matching $100 K or more & also gets a substantial costs-back award which it is seeking, . . .

AND IF ALL THREE "SYNTHETIC" ( wood appearance ) 6 year old ROOFS will now get stripped & replaced at how much expense ( as ordered by Mr. Justice Michael Kraus ), . . .

THEN without next filing & winning an appeal, has this just cost the "Guideline-defiers" in the following combined range ?

$ 300 K plus

3 - The fire-fighter spouse is quoted telling CBC his wife ( & others ? ) "plan(s) to apply for a stay on the decision". Which means what ? :

They will legally appeal ?

They will throw themselves on the mercy of the HOA ?

Will they now try to get a 100 % covenant amendment out of the 414 other sets of plot owners 7 And then grand-fathering ?

4 - The CBC interview :

Aug 30 2019 CBC Edmonton “ Spat over roofing materials ends in court, homeowners ordered to change shingles Subtitle : Restrictive covenant in south Edmonton neighbourhood dictates specific materials” https://www.cbc.ca/news/canada/edmonton/spat-over-roofing-materials-ends-in-court-homeowners- ordered-to-change-shingles-1.5266092 )

5 - Not legal advice :

If one or more of the "Guideline"-defiers DO appeal judicially, would the lower court judgment's weak points include the following 2 or 3 critical elements arguably missing from the lower court ruling :

a - Are the mere " Design Guidelines as appendixed within Blackburne Creek Estates R-covenants on title , actually an enforceable & compulsory conformity covenant ?

b - An ignored biggy ? CBC cites the firefighter spouse as justifying the synthetics on grounds of fire safety / as less prone to wind-borne embers etc Ft McMurray type giant wildfires. ) BUT . . .

Absolutely NOTHING can be found within the lower court judgment about potentially superior ‘ember-resistance’ now raised. A (forest fire ) combustibility safety factor to potentially justify striking down the wood-only "guideline" ?

Would such have made the look-a-likes a defensible substitute under the "Guideline" ! Or is it instead possible that pre-trial this safety claim lacked strong technical proof ? Pre-trial did the parties pre-emptively set that issue aside ?

c - ALSO ( see #1 above) in section 40 – 44, the judge rules there is NO AMBIGUITY despite the “Guideline” label.

The lower court ruling then uses that conclusion to pre-empt any owner-friendly presumptions under the venerable U.K. House of Lords decision Anderson v Dickie (1915), 84 LJPC 219 at 227 (HL) / applied 585582 BC Ltd v Anderson, 2015 BCCA 261 (CanLII)

Such has been applied to protect defendant owners from ambiguous and/or governance friendly restrictions. That's not the way the trial judge explains it. Should governancers get first benefit from any ambiguity or questionable validity ?

6 - Alberta Queens Bench Justice Michael Kraus is an August 2018 ( Federal ) judicial appointee after decades of well-respected private legal experience according to the Feds' appointment Press Release.

Mr Justice Kraus is described to have practised primarily in family law. AND to have volunteered N.F.P. non-profit governance including as President of a "Heritage Festival Assn." . . .

7 - Respectfully as a Building Scheme owner myself, these "Guideline"-defiers would be well served to listen closely to competent legal advice before taking any drastic next steps . . .
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#18998
DESIGN "GUIDELINES" appendixed to Restrictive Covenants on title - BLACKBURNE CREEK 2019/09/08 20:00  
Not legal advice.

Would BLACKBURNE CREEK buyers or lenders see the following GUIDELINES ( in 1992 Restrictive Covenants on title ) as CAST IN STONE ? ? Treating them as such may be unwise, but challenging their upholding ?

: “ . . . All roofs are to be wood shakes or shingles only . Other metal tiles or sheet roofing, clay tiles, slate or asphalt shingles, including the heavier weight shingles, are not permitted...” www.blackburnecreek.com

Diligencers of the title covenants will read this in appendixed Schedule C “Blackburne Creek Design Guidelines” April 22 1992 introductioned as :

“ . . . it provides a set of subdivision guidelines ... without being restrictive . . . Decisions of Merit which do not strictly follow the Design Guidelines will be given consideration . . . .( and ) may be altered amended or varied by the Developer . . . ”

http://www.blackburnecreek.com/uploads/files/documents/Restrictive%20covenant.pdf
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