Author: orchardhouseleaseholder

Open letter to Julie Trache, President and co-owner, Westsea Construction

Ms. Trache:

You made it clear that you want me and a few others out of your building when your lawyer Mark Stacey, of Singleton Urquhart Reynolds Vogel, shouted as much at us in court during a case-planning conference last year before Justice Geoffrey Gaul, which likely made an impression on the justice; namely that Mr. Stacey represents a corporate bully.

And of course your lawsuit against us for daring to question your presumed-by-you right to bill all lessees your unlimited legal expense to oppose any single lessee did not just demand that we pay the alleged debt, but asked that the court order the sale of our suite lease assignments to fund its payment; we’d be punished AND no longer be around to pester you further. You’d be rid of us… and this website.

At the time of writing Justice Gaul is considering his decision on your preposterous position that all lessees should fund your legal opposition to any one or group of them, which ignores precedents and the simple logic of fairness and access to justice. We’ll leave this posting here for future readers, who will know what the outcome was, and you might even come back to it, should you have a Scrooge-like revelation about your behaviour as a landlord.

I’ve also been a landlord, Ms. Trache; I owned several investment suites and had numerous tenants over the decades. I didn’t find it necessary to act oppressively to perform that role, nor did I end up in court. I also chaired a condominium board for 15 years, and I led a municipality for almost a decade. Sure, I enforced the rules, and even created some needed new ones, but I found it easy to have open communication with those housed in my properties or governed by my council, and never found it necessary to sue to evict someone.

In response to your effort to evict us—as well as other low-income lessees in other buildings at other times—and more generally in reaction to your mean-spirited and even un-christian behaviour as a landlord, I reply as follows. You will not win the petition lawsuit, and your desire to evict me specifically is a pipe dream. I like the studio suite I hold and intend to live out my days in it, maintaining this website and these postings until I shuffle off this earth. I’ve also made arrangements that this website will be funded and be maintained beyond my lifetime, so that it can wave you on your way, when it’s your turn.

Yet I’d take these posts down in short order if you were to have the suggested Scrooge-like revelation and henceforth treat your tenants like the reasonable, humble and low-income folks they are. At that point we might even chat; you know where to find me.

-Your lessee tenant, Gerald Rotering

Westsea has confirmed that it will not permit lessees to post notice of a summer picnic in the next-door park. This petty enforcement of the post-no-signs rule of the Orchard House lease is demeaning to lessees, who are treated like children, so I called a spade a spade in the following email exchange. Brian Slater was then Westsea’s property manager and Julie Trache is the company president.

Hi, Brian: The Orchard House site manager must have neglected to describe the small notes that I posted by each floor’s elevator buttons, as it would be preposterous to think that Ms. Trache could be so petty as to prohibit Orchard House residents announcing that they’ll gather for a potluck picnic in the next-door park on Sunday. ‘No commercial notices, ‘understandable, calls to revolution, of course not, even “kittens for sale”, nah, but a note with a smiley face to say “Picnic Sunday; everyone welcome”, no, no landlord would behave that way… it’s a laughable suggestion!

To overcome the misunderstanding, and with my apology for not having done so before, I ask formally that Westsea Construction allow the Association of Orchard House Lessees to post notes twice per year for a social function, namely a summer picnic and a December Christmas event, both of which take place off the property. These will be one half of an 8.5 X 11 sheet of paper, posted not more than a week in advance, and removed by us by the end of the day of such events. The Sunday picnic, by the way, starts at 5 p.m. in South Park; Ms. Trache could bring the chicken salad. -Gerald Rotering, Publicist, Association of Orchard House Lessees

To which Mr. Slater replied that the answer is ‘no signs or notices’ (even for a picnic), and told me not to be “rude, demeaning or derogatory” and write only in a “reasonable and appropriate manner”. He added that events may not be referred to as associated with Orchard House. To which I replied as follows:

Brian, Julie:  So you believe that it is not rude, demeaning or derogatory to treat lessees like unruly children who may not be permitted to announce a picnic gathering. Yet the prohibition you confirm is the very definition of demeaning to lessees. My reply was entirely “reasonable and appropriate” sarcasm to the enforcement of a rule imposed to a petty extent that a court would almost certainly find is not reasonable. If you act in a laughable manner, you’re going to be laughed at. Oh, and let us know when you have “Orchard House” registered somehow for your exclusive use. -Gerald Rotering, lessee, Orchard House, Victoria

The following is a commentary, and some references date back to 2020. For a factual report regarding the landlord’s lack/refusal of financial disclosure see this site’s page titled $ disclosure refused by Westsea (opens new tab).

Because no disclosure is required in the long-term residential lease that our landlord drafted to his own advantage back in 1974, we lessees at Orchard House wonder if we are subsidizing the landlord. The same applies to the other nine leases identical to ours, the standard-form nature of which was declared by the B.C. Court of Appeal in May of 2020.

Let’s start with the annual budget; we don’t get one. A simple question or two that I once put to the company about spending in the upcoming year were dismissed in writing by the company’s lawyer as “inappropriate”. No, I’m not kidding.

In May or June of each year we receive a past-year statement of operating costs with a one-page list of expenses and, most years, the amount we owe in addition to last year’s monthly suite fees to cover all of the costs. In May of 2019, for example, we were told that the “shortfall” for 2018 was $495,690, so lessees were told to pay three monthly payments ranging from $564 to $1,112. No total was given, but if we chose to do the math and pay the “shortfall” at once, that ranged from $1,692 to $3,336 depending on suite size. This expense was on top of monthly fees that had already increased 38% over 2017.

Westsea’s lawyer boastfully tells judges that our finances are “audited”, but little good a one-page statement does us, as we have no idea what’s included in a line item only identified as “legal” at $454,000, or “accounting and administrative costs” at $63,000, nor “salaries and employee benefits” at $85,229. Since my innocuous questions about these statement line items were “inappropriate”, I should move on to more fundamental questions, such as:

• Are the 16 suites to which Westsea itself holds the lease assignments and rents out 13 for revenue paying their share of the building operating expenses and lump-sum capital costs, such as for new windows? (There are two managers’ suites and an owner’s suite that appears to remain vacant.)
• Are lessees paying the site managers to operate Westsea’s rental suites and perhaps even for advertising or in-suite repairs?
• Westsea provides no visitor parking, but by my count retains 34 parking stalls that it can assign at will or rent out for revenue. Yet Orchard House costs are paid by suite lessees, nothing by parking stalls, so I suppose that lessees paid for the cost of the new roof, sod and sprinkler system atop that parking, as well as the annual garage cleaning, property tax and regular lawn cutting.
• Do the above-mentioned accounting and administrative costs include head-office operations for Westsea? Where do Orchard House-specific operating costs end, and Westsea’s own business expenses start? Does Westsea’s business run with no costs to itself whatsoever? Does “bill the lessees; they won’t know” apply, because we certainly don’t know.

That last point reminds me that Justice Douglas somehow came to believe that our lease includes a clause allowing Westsea to bill lessees “management costs”. On this point see my article Don’t believe it! (new tab). How did Madam Justice Douglas come to read into our lease a non-existent clause? The court record on this was corrected at the request of lessee Hugh Trenchard.

More questions about our money could be asked, some substantial, some more minor. But obviously lessees deserve to know more about where their money is going, which point MLA Carole James raised with me as a specific concern of hers when last I chatted with her.

Yes, we could undertake legal action, similar to what lessee Hugh Trenchard did in 2014, to see if the court would require the company to open its books. In Hugh’s case the company’s lawyer agreed on the fourth day in court to disclose a windows engineering report, avoiding what was likely to be an adverse ruling. The company’s lawyer portrays this as a victory, saying that the action by Mr. Trenchard was dismissed. Sure… by consent in exchange for disclosure.

Of course we should not have to sue to be assured that we’re not subsidizing our landlord’s rental business and head-office expenses. A mature and fair landlord with no guilty conscience would likely have an open-book policy. It’s not like there’s any business advantage to keeping secret the operating expenses of a leasehold building, which secrecy then makes us suspicious.

Since the owners of Westsea Construction won’t be open about how it spends our money we need legislation that requires the books to be open. Back to you, Carole. (And, updated 2 December 2020, to you, MLA Grace Lore and Minister of Housing David Eby.)

A minority of Orchard House lessees blame litigant Hugh Trenchard for our landlord billing all lessees its litigation expenses of over $1 million as of the end of 2019. ‘Sorry, but this is not Hugh’s fault. It is Westsea Construction that ignored a precedent-setting ruling indicating that it may NOT collect these expenses from lessees.

Anyway, some of us have chosen not to pay these charges by our landlord, and you could do the same. Yes, you too might then face a Petition-action lawsuit for defying the company. But numerous of us already face that, so we’ll settle the matter for you before you’d get to court. If you don’t dare defy the company and choose to pay these outrageous billings (illegal in other jurisdictions!), at least don’t blame your neighbour for your landlord’s actions.

If you’ve been paying Westsea its demanded litigation expenses, it’s time to file your claim to recover that money, either via the B.C. Civil Dispute Resolution Tribunal or via a small-claims court action. Information about how to proceed is posted on this web site under the heading “Disputing WS’s legal costs”. Sharpen your pencil. And if you thought these billings were his fault, stop blaming Hugh.

While many of us don’t like the smell of tobacco and/or marijuana, some of us also have asthma that flares up in reaction to smoke. It’s not fun to begin to wheeze and fight for air in one’s own home or while sunning on the balcony when someone else lights up a cigarette or a joint.

I raised this with Westsea Construction during 2017, and to management’s credit their legal people were in touch with two suite leaseholders and/or their tenants, which improved my situation, but did not resolve it. I was told that enforcement was under Rules and Regs. # 2, “No Lessee shall make or permit any disturbing noises in the building or do or permit anything to be done therein which will interfere with the rights, comfort and convenience of other occupants of the building.” Also, Rules and Regs. #29, which says, “No lessee shall permit cooking or other odours to escape from suites into the building.”

But if specific instances of smoking are deemed to be a nuisance under these clauses, why aren’t ALL such instances a nuisance? So that’s what I told Westsea; that my comfort and convenience certainly IS being affected, and that under these clauses the building should simply be declared smoke-free. ‘No such luck. “At this time Orchard House will not be declared a smoke-free building,” was the reply.

Since then I’ve been distracted, as this web site shows, but will bring the issue forward in future. Perhaps a few other leaseholders will help me sponsor a legal action (“tort of nuisance”) to have a judge declare that smoking is, in fact, a comfort and health-compromising nuisance that cannot be allowed under our in-house Rules. Now excuse me, as I have to go use my asthma-treatment inhaler.