When Ryan Wachal and his family moved into their new home in North Saanich’s Dean Park about 18 months ago, they never dreamed they would find themselves embroiled in a legal battle with their neighbours, or more accurately, with a group of neighbours who purported to represent the entire community.
The conflict involved the Dean Park Estates Community Association (DPECA), a non-profit group that, according to their website, is dedicated to “the maintenance of high standards in both visual appeal and property values for the approximately 780 homes that comprise Dean Park Estates.”
It all began when, in February of 2016, the Wachals obtained a building permit from the District of North Saanich to build a new accessory building on their property. The permit specifically prohibited the building from use as a dwelling unit, but that wasn’t a problem as its purpose was a quiet area wherein Mrs. Wachal could paint, exercise and entertain, separate from the main house.
“I thought I’d done everything right. We’d hired a professional architect and builder and work was underway when out of nowhere this handful of older guys came up and demanded we stop building,” said Wachal.
That’s when Wachal discovered that the DPECA were intent upon exercising a restrictive covenant registered on all Dean Park properties. That covenant required that all additions to existing dwellings, regardless of municipal approvals and permits, also required the approval of the DPECA Design Review Committee. Wachal said he estimates the DPECA has a membership of less than 20 per cent of the approximately 780 homeowners in the community. Membership requires homeowners to pay a $20 annual fee.
Wachal apologized and dutifully submitted his plans to the Committee only to have them rejected, ostensibly because the committee members did not believe the dwelling was not intended as a secondary dwelling on the property.
After a meeting, during which a DPECA representative told Wachal he was “in a pile of shit,” Wachal provided evidence that his addition could not be used as a secondary residence as the building permit specifically prohibited such use. The DPECA responded with a new reason for rejecting the project, stating that the structure was “not suited to the existing dwelling.”
“I wanted to be a good neighbour so we had our designer prepare new plans, and submitted them to the DPECA,” explained Wachal, adding that he thought this would resolve the matter.
He was wrong.
On June 18, 2016 he received another letter from the DPECA citing new reasons for the rejection of the revised plans.
“The problem all along was that there were no clear thresholds. When I went for a building permit from the municipality there were clear rules to be met. With the community association it seemed like they could move the goalposts and just make up the rules as they wished,” said Wachal.
The whole situation eventually ended up in front of Justice G.R.J. Gaul of the Supreme Court of British Columbia where the DPECA sought an injunction prohibiting Wachal from continuing any construction or exterior work on the property he owned.
They failed in that effort with the judge ruling that the restrictive covenant on the property was so vague and uncertain as to be unenforceable, opening the door for Wachal to finally resume and complete the renovations on his home.
“It’s been very frustrating and a needlessly stressful and expensive process,” said Wachal, who has spent some $30,000 in legal fees to defend his right to renovate his own property.
Wachal was awarded costs by the court but that award will only cover about 25 per cent of his costs.
But the case isn’t unique, according to Oscar Miklos of Haddock and Company, a law firm specializing in conflicts arising from restrictions governing strata properties as well as other disputes like Wachal’s.
“Nightmares like this can occur any time there is a restrictive covenant on a property,” said Miklos.
“The best advice I can give anyone is for the buyer to beware. If there is a restrictive covenant on a property, make certain you understand what it means to you in real terms and even research the history of the behaviour of any strata organization or community association before you buy. a bad governing group should make you consider buying elsewhere.”
Peter Jones, the current Vice President of DPECA acknowledged that the entire situation was very unusual and that, ordinarily, this type of dispute should have been resolved between neighbours.
“In the history of our association we had never before rejected a design.
“This time, my personal opinion is that there were just some strong personalities involved and no settlement was going to be reached,” he said.
In the interim, Jones reported that DPECA has filed an appeal of the court decision.
Despite the ruling of the Supreme Court of B.C. on this matter, the DPECA website continues to call for Dean Park residents to seek the approval of the Design Review Committee for any exterior changes to any property within Dean Park Estates.