The CEO of Concord 91原创 Group Inc. has lost his bid to thwart the petition by condo owners at a tower near 91原创’s Yaletown who are seeking access to a 6,000-square foot amenity space.
In oral reasons released Tuesday (Aug. 22) in written form, B.C. Supreme Court Justice Lauren Blake rejected Terry Hui’s application to throw out the petition from strata owners at The Erickson, a 17-storey, False Creek North condo building where Hui owns the penthouse and claims the second-floor amenity space for himself.
“In addition to the fee simple [permanent ownership of] land making up lot 60, Mr. Hui says that the owner of lot 60 is entitled to additional amenities and privileges consistent with the ownership of a luxury penthouse condominium,” Blake wrote.
That includes a private elevator linking private parking with a private lobby. But, when the city issued the development permit in November 2005, it stipulated that access to all amenities be made available to all residents.
The strata’s petition said there was an inconsistency between the development permit and disclosure statement, both of which said the amenity space was for all residents, and the 2010-filed strata plan, which errantly shows the amenity space as limited common property for strata lot 60.
In August 2021, a city inspector found the restricted second floor amenity area was in contravention of the development permit and city zoning bylaws. Concord unsuccessfully applied for an amendment.
The strata failed to convince the Registrar of Land Titles to correct the error and filed the court petition last November instead of appealing the registrar’s decision.
Hui argued that the petition should be dismissed on the grounds that it is an abuse of process, not a reasonable claim, and is unnecessary, scandalous, frivolous or vexatious.
The judge rejected those arguments.
Blake made a key determination that the strata owners seek rectification of the filed strata plan, not expropriation. If the petition is successful, it would lead to a ruling that the space was never supposed to be for Hui’s benefit.
“The legal basis of the petition makes clear that the strata’s position is that Mr. Hui, as president of Concord, ‘knew or ought to have known that Concord had submitted a development permit application to the city requesting that the L-2 amenity space be excluded from the computation of [floor space ratio] on the basis that it would be used as an amenity space for the benefit of all the residents of The Erickson,’” Blake wrote. “The developer ultimately received a development permit with the ‘express condition that the amenity spaces, including the L-2 amenity space, had to be permanently maintained for the exclusive use of the residents and occupants of The Erickson’.”
B.C. Assessment Authority’s website shows the penthouse at The Erickson was valued last year at $18.98 million.
Blake awarded costs to the strata owners.