The developer of a condo complex in the Logan subdivision is appealing a ruling that has halted construction of two apartment buildings.
In a ruling last month, Yukon Supreme Court Justice Ron Veale ordered the numbered company, controlled by Falcon Ridge Development, to stop construction of the two four-storey apartment buildings.
But Whitehorse Condominium Board 95, which petitioned for the injunction, may have inadvertently put some of its members’ properties at risk.
Because the condo board’s governing document didn’t include plans for the construction of the apartment buildings, the developers had to get the written consent of all owners before it could make changes needed to legitimize the construction, Veale concluded.
The developer hadn’t done that, so Veale halted construction of the two partially completed buildings.
According to documents filed with the court, because the developer also failed to get written consent when it started the second phase of development, Veale’s ruling could mean that the title on 33 units in the complex might now could now be considered invalid.
Some of those units are still owned by the developer, but others have already been sold, which puts the mortgages and insurance policies that have been taken out on them into question.
The developer is appealing that ruling, but it will take months for the case to make its way through the court.
In the meantime, the developer has filed a separate application to stay Veale’s ruling until the appeal is decided.
That would give both the developer and the owners time to sort out any potential problems with title.
Condo board president Helen Booth said she’s been assured by Yukon government that there are no issue with the titles.
“Of course once we read the decision we looked into it right away and talked to Land Titles,” she said. “The board is actually taking steps to ensure that they’re going to be 100 per cent secure by refiling the plan.”
“Until any titles are actually questioned in a court action our position is that certainly the titles are valid,” said Lesley McCullough, assistant deputy minister of courts and regulatory services. “The staff at the land titles office have consistently acted in accordance with the Condominium Act and the Land Titles Act.”
Both those acts are in the process of being updated.
When the Yukon’s Condominium Act was written in the 1960s, phased developments like Falcon Ridge were not explicitly dealt with.
“Most of the condos were classic apartment-type buildings or town houses,” said McCullough.
Getting written consent from all members to amend a condo declaration was much simpler when it only involved two neighbours sharing a duplex.
For Falcon Ridge Development to get every member of the condo board to sign off on the apartment buildings will likely be an impossible task.
Several owners have filed affidavits with the court spelling out their adamant opposition to the project.
The updated Condominium Act is still in the process of being written but it will likely contain provisions to govern how phased developments are built, said McCullough.
In any case, even if the ruling were to be stayed it still wouldn’t allow construction to start back up.
The developer is not asking to overturn the permanent injunction that is stopping it from finishing the buildings.
However, it is asking to suspend an order that the developer pay special costs to the condo board.
For its part, the condo board will oppose both applications, said its lawyer, James Tucker.
The board is also pursuing a separate lawsuit.
It’s suing the developer for more than $1 million it claims it is owed in condo fees, fines and accrued interest.
Contact Josh Kerr at
joshk@yukon-news.com