Mowat v. Dudas

2012 BCSC 454 Mowat v. Dudas IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Mowat v. Dudas, 2012 BCSC 454 Date: 20120328 Docket: S117018 Registry: Vancouver In the matter of the Partition of Property Act, R.S.B.C. 1996, c. 347 and In the matter of the application for the sale of the lands known as Cypress Gardens and legally described as: Amended Lot 2 (Explanatory Plan 9808) except part in Plan 21426, Block 256, District Lo 544, Plan 11432 Between: Christopher D. Mowat, Peter George King, Sybil Heather Harding, Joan Mabel Southern, Vera Krajic, Carla Dawn Eiers and Catherine McBride Petitioners And Jozsef Dudas, Robert Akester, Sully Makalai, Glen Bauder, Brenda Ens, Brendan Lewis, Rochelle Van-Halm, Karin Wilson, Mia Toth, Federique Mirot Nielson, Tarp Mortgage Corp., Rathbone Holdings Ltd., Venosta Enterprises Corp., Ferina and Csaba Benko, Vankero Holdings Ltd., Stan Karon Holdings Inc., Cecllia Choi, Vanessa and Steven Merritt, Gianni Michele Laudisio, Chris Chiu, Nick Masse, Ian, Carol Bendyshe-Walton, Rahim Moshaver, Fatemeh Hassanbadi, Abdul and Rashida Jaffer, Ali Esmaeili and Tahereh Saleck, Mike Dunlop, Maloon Investment Ltd., Ju Hee Enterprises Ltd., Farmarz Farrokhi, Mary Sparks, Daniel and Nancy Moldowan, Suen Yong and Yoo Shim Choi, Nurdin and Naseem Jesani, Bernice Hilliard, Alex Reid, Mahmood (Mike) Madani, Ebrahim Namini, H. Dehkordi, Mahtab Houshangi, Karim Sidi and Shelina/Zaima, Karen and Paul Hughes, Eugene Orest Bartman, Nicolaas Jang, Farid Vaziri, Marilyn Millard, Paul McCulloch, M. Estfandiarei, M. Yousefzadeh-T, Alexandra N. LaLiberte, Nicola O'Toole, Nicky Eve, Peter and Alice Hughes, Daniel Lawrence Gyra, Hamid Baradaran, S. Khodabadhsh, Janet Patricia Friesen, James Brake, April Mackenzie-Moore, Matthew D. Baldry, Fumiko Honda, Paul Alexander Hetherington, Harry and Maria Stephens, Jennifer Aldrich, Doyle Elder, Minaz Dhanani, Branden Ji, Kyung Sun Yoo, Bennie and Joanna Mikkelson, Paola DeRycke, Belinda Sikes, Calvin Lee, Saeed Mahalen, Gahzal Verdi, Andrea Ouchi, Gregory J. Couch, T. L. Forslund, P. Khoshnevis, M. Nasimnasseri, Maziar Rahmani, S. Allahverdian, Yousuf Mohammadilliba Nasiri, Fwu Tzong Pan, Jong Sun Kim, Aeri Jeong, Kingsley and Mercy Ageyman, Alex Yim Yee, David Brun, Karyn Hurst, Diana Souki Kadi, Kasla Gagnon, Bertha L. Plaza, Carlos A Ruiz, Jiang Ni Qi, Joseph CG Brule, Rollema Carolino, H. Mamaril, Cheryl Pico, Dom Repta, Ghidei Tesfaldeti, Genet Afework, Sakarkhanu Jina, Mi Young Park, Sylvia and Jon Clippingdale, Kimberly and Garth Borgfjord, Kevin Anjam, Sima Khosravi, Melanie Journoud, Paul Gagnon, M. Yagowen, Simon James, April Letnes, James Chi-Sheng Chen, Yung Chung, Seung Ja Yim, Sungho Kim, Michael Fournogerkais, Lavinia McCarthy, Olga Laura Holm, Kathleen Marie Wilson, Rose Hanberry, Jesse Geral Michael Finestone, Shehnaez Mistry, Nizar Ladak (Omar), Teresa and Janusz Chrzanowskii, Sherilyn Lee Smith, Corianne Hoppenbrouwer, Enrique and Alexander Morales, Stephen Webb, Tracy Kim Hall, Rene Oliva, Nancy Castro, Leslie Marie Fish, Blair Harper, C. Spiliotakis, Fatemeh Ashrafi, Parviz Ashrafi, Martin Tuma, Louise Rudder, Tyson Weiss, Afsaneh Imani, Mohammad Ali Samie, Yong Jun Sohn, Hailey Fox, Otto and Sandrine Lejeune, Maria Cho Hang Wang, Young Soon Hwang, Kise Jeong, Ludmilla Klosek, Tina and William Fitzpatrick, Veli and Elizaveta Veliev, Erwin Barbosa, Michelle Degrano, Mihai Radu, Mohammed Bahrami, S. Rostamkhan, Steven and Kimberley Barnicke, Cherith Nora, David Belland, Thomas, Edith, and Kevin Woodman, Peter and Nedyalkova Dimova and Mohammed Heydari-Kamjani Respondents Before: The Honourable Mr. Justice Ehrcke Reasons for Judgment Counsel for the Petitioners: J.C. McKechnie Counsel for the Respondents Nizar and Zinnattara Ladak, Abdul and Rashida Jaffer, Nurdin and Naseem Jessani, Gloucestershire Developments Ltd., Shenaaz Mistry, Abdul Rasul Maklai, Vankero Holdings Ltd., Venosta Enterprises Corp., Karim and Shelina Sidi, and Stan Karon Holdings Inc.: J.A. Dawson Appearing on his/her own behalf: Sherilyn Smith Petar Dimova Ghide Tesfaldet Harry Stephens Carlos Ruiz Jiang Ni Qi Yousuf Mohammadi April MacKenzie-Moore Paul Hetherington Joseph Brule Kevin Anjam Place and Date of Hearing: Vancouver, B.C. January 17-20, 2012 Place and Date of Judgment: Vancouver, B.C. March 28, 2012 INTRODUCTION [1] The petitioners and respondents are owners of condominium homes in a housing development known as Cypress Gardens, in North Vancouver, British Columbia. Some of the owners want to sell the entire complex, believing that the 9.5 acres of land upon which the housing development is built is worth more as bare land than it is with the buildings on it. They wish to find a buyer for the entire complex, who would presumably demolish the buildings and redevelop the land with new buildings at a higher density. [2] Many others wish to continue living in the homes they own at Cypress Gardens, which of course, would be impossible if there is a sale of the entire complex. One developer, Polygon Pacific Homes Limited ("Polygon"), already approached the owners in the spring of 2011 with a proposal to buy their units for redevelopment. Although some owners agreed to sell their units at that time, there was not a sufficient level of interest to suit the desires of the developer, and the sales did not proceed. [3] Therefore a number of owners who wish to sell have now brought this petition under the Partition of Property Act, R.S.B.C. 1996, c. 347 in an attempt to force a sale of the housing complex, regardless of the desires of those others who want to remain living in their homes. The issue before the Court is whether to order the sale of the entire complex, notwithstanding the objection of those owners who oppose such a sale. THE RELIEF SOUGHT IN THE PETITION [4] Cypress Gardens is a common law condominium development, comprising 177 apartments and townhouses owned by 135 different owners. Each of the seven petitioners is an owner of a unit in Cypress Gardens. Each of the respondents is also an owner. [5] The petitioners, Christopher D. Mowat, Peter George King, Sybil Heather Harding, Joan Mabel Southern, Vera Krajic, Carla Dawn Eiers, and Catherine McBride commenced this proceeding by filing the petition on October 19, 2011. The relief they sought in the petition is as follows: 1. The lands and premises located in the City of North Vancouver, British Columbia, more particularly known and described as: Amended Lot 2 (Explanatory Plan 9808) except part in Plan 21426, Block 256, District Lot 544, Plan 11432 (the "Land") be sold out of Court by being offered for sale, by private sale, free and clear of all encumbrances save and except the reservations, provisos, exceptions and conditions expressed in the original grant from the Crown. 2. The petitioners have exclusive conduct of the sale and shall forthwith list the Land for sale until further order of this Court, for private sale by general, exclusive or multiple listing through a licensed real estate agent, agents or firms, and may agree to pay to any real estate agent or firm who may arrange a sale of the Land a commission of not more than 3% of the gross selling price plus applicable tax, such commission and tax to be paid from the proceeds of sale upon completion. 3. The price and other terms of the sale, and distribution of the proceeds, shall be subject to the approval of the Court unless otherwise agreed by all parties of record. 4. The petitioners are entitled to recover their costs of the within proceeding on a solicitor and client basis, such costs to be paid from, and to form a charge upon, the proceeds of sale of the Land. 5. Service of this petition, and of any order made herein, on the following persons is dispensed with: a. a mortgagee of the Land or any part of it, and any creditor holding a financial encumbrance or lien registered against the Land, and b. a tenant of a co-owner of the Land. 6. The parties are at liberty to apply for such further and other directions as may be necessary to carry out the full purpose and intent of this Order. SERVICE ON THE RESPONDENTS [6] On November 22, 2011, Mr. Justice MacKenzie made an order permitting service as follows: 1. the petitioners may serve any owner of a unit in Cypress Gardens (other than a corporate owner) with a copy of this order, the petition, and supporting affidavits by: a. delivering a copy of same to a unit owned by that owner; and b. mailing a copy of same by regular mail to the last known address of that owner; [7] The order also provided that any owner who wished to file a response to the petition could do so up to and including January 13, 2012. As of that date, responses had been filed on behalf of some, but not all, of the respondents. POSITION OF THE CONSENTING RESPONDENTS [8] Nizar and Zinnattara Ladak, Abdul and Rashida Jaffer, Nurdin and Naseem Jessani, Gloucestershire Developments Ltd., Shenaaz Mistry, Abdul Rasul Maklai, Vankero Holdings Ltd., Venosta Enterprises Corp., Karim and Shelina Sidi, and Stan Karon Holdings Inc. (hereinafter referred to as the "Consenting Respondents") filed a response consenting to the relief in paragraphs 1,3, 5, and 6 of the petition, but opposing the relief in paragraphs 2 and 4 concerning who would have conduct of the sale and costs. [9] I note that the style of cause lists "Nurdin and Naseem Jesani" and "Shehnaez Mistry", whereas the documents filed in response refer to the respondents as "Nurdin and Naseem Jessani" and "Shenaaz Mistry". I assume that these are simply typographical errors. [10] The Consenting Respondents are represented by their counsel, Mr. Dawson. He made submissions on their behalf at the hearing of this petition. Referring to the affidavit of Omar Ladak sworn January 13, 2012, he explained that the petitioners have now modified their position in order to include representatives of the Consenting Respondents on the sale committee, and have changed their position on costs. With the modifications agreed to, the Consenting Respondents support the relief sought by the petitioners. THE MODIFIED RELIEF SOUGHT [11] The modified relief sought as set out in the petitioners' written brief is as follows: 1. The lands and premises located in the City of North Vancouver, British Columbia, more particularly known and described as: Amended Lot 2 (Explanatory Plan 9808) except part in Plan 21426, Block 256, District Lot 544, Plan 11432 (the "Land") be sold out of Court by being offered for sale, by private sale, free and clear of all encumbrances save and except the reservations, provisos, exceptions and conditions expressed in the original grant from the Crown. 2. The following persons, each of whom is an co-owner of an undivided interest in the Land (or associate or principal of a co-owner), namely: Ronald Wilson, Omar Ladak, Nurdin Jessani, Dave Mowat, Tony Akester, Abdul Jaffer, Rashida Samji jointly have conduct of the sale, and shall forthwith implement this order by selecting a real estate agency or agencies, establishing a listing price, negotiating a commission, and offering the Land for sale by general, exclusive or multiple listing through a licensed real estate agent, agents or firms until further order of this Court, and may agree to pay to any real estate agent or firm who may arrange a sale of the Land a commission of not more than 3% of the gross selling price plus applicable tax, such commission and tax to be paid from the proceeds of sale upon completion. 3. The price and other terms of a sale, and distribution of the proceeds, shall be subject to the approval of the Court. 4. Service of this petition, and of any order made herein, on the following persons is dispensed with: a. a mortgagee of the Land or any part of it, and any creditor holding a financial encumbrance or lien registered against the Land, and b. a tenant of a co-owner of an undivided interest in the Land. 5. The parties are at liberty to apply for such further and other directions as may be necessary to carry out the full purpose and intent of this Order. [12] The petitioners have not formally applied to amend their petition to reflect this change, but I shall proceed on the basis that the modified relief sought is what they are truly seeking on the hearing of this petition. THE EXTENT OF SUPPORT FOR THE RELIEF SOUGHT [13] As set out above, the Consenting Respondents are not opposed to the modified relief sought. [14] The remaining respondents do not have counsel, but a large number of them have filed responses and affidavits explaining their position with respect to the proposed sale. As well, a number of the respondents made oral submissions in person at the hearing of the petition. Their reasons for opposing the relief sought will be discussed more fully below. [15] The petitioners allege in their petition that the sale which they propose has the support of a majority of the owners, but that claim is not supported by the evidence filed, and it is vigorously contested by the respondents who made submissions before me. [16] In my view, there is only one reliable indicator of the level of support for the petition, and that is the number of petitioners plus the number of respondents who, within the time set out in the order of MacKenzie J., filed responses in support of the petition. [17] There are seven petitioners, plus the Consenting Respondents who have formally indicated their support. The petition states that each of the petitioners is a co-owner, and in submissions I was told that collectively they own 16 units. The affidavit of Omar Ladak states that the Consenting Respondents collectively own 38 units. It would appear, therefore, that the petition, or more accurately, the modified relief sought, has the formal support of the owners of 54 of the 177 units. Contrary to the claim in the petition, that does not amount to a majority of owners in support of the relief sought. Rather, it is less than one-third. OVERVIEW OF THE PETITIONERS' CLAIM [18] The petitioners submit that in law, it does not matter whether their plan to sell the entire complex has wide support among the owners or not. They submit that since each petitioner is a co-owner of Cypress Gardens, each petitioner has a prima facie right to obtain an order for sale of the entire complex under the Partition of Property Act. They say that in principle, even if the sale were sought by only one owner of a single unit out of the 177 units at Cypress Gardens, that one owner would still have a prima facie right to obtain an order for sale of the entire complex from the Court, subject only to a very narrow discretion to refuse the sale. Moreover, the petitioners say that the onus is on those opposed to a sale to demonstrate that a sale should not be ordered. They say the complex is in need of costly repairs, and they cannot sell their individual interests for as much money as they expect could be realized by selling the entire complex and distributing the proceeds. They submit that on a court-ordered sale, the total proceeds could be as much as $90,000,000, although I note that this submission appears to contradict assertions made by some of the petitioners and their supporters in letters to the owners in the summer of 2011 suggesting that no one is likely to make a higher offer than Polygon's offer of a little over $60,000,000. THE EVIDENCE ADDUCED BY THE PETITIONERS AND BY THE CONSENTING RESPONDENTS [19] The petitioners rely upon the affidavits of Ronald Wilson and of Peter George King, as well as the affidavit of Omar Ladak filed on behalf of the Consenting Respondents. [20] Peter George King is a co-owner, having purchased his 613/100,000 interest in the Land in April 2007. He described himself as Past Treasurer of the Board of CGT Management Corp. ("CGT Management"): see Exhibit "A" to the Affidavit of Mihai Radu, sworn November 7, 2011. [21] In Mr. King's affidavit sworn October 18, 2011, he deposed that approximately 58% of the co-owners are residents who live in their homes at Cypress Gardens, and 42% are investors who rent out their units. Mr. King said that he was responsible for overseeing the financial affairs of Cypress Gardens for two years. In his opinion, the financial affairs are not in good order, and the premises are in a chronic state of disrepair because the owners failed to fund proper maintenance. Attached to his affidavit as an exhibit is a survey conducted in July 2003 by Dubas Engineering Inc. describing various potential repairs with an estimated cost of about $4,500,000. [22] Mr. King also referred to cost estimates for other work that could be done on the property in relation to the heating system, re-piping the interior units, unstable land along the bank of Mosquito Creek, root systems of trees causing buckling of pavement, and asbestos that had been found in one unit. At paragraph 13 of his affidavit, Mr. King expressed his opinion that "the present cost to restore Cypress Gardens to a reasonable state of repair would probably be in excess of $10,000,000 and possibly much more." He said the current reserve fund of $100,000 for repairs and maintenance is inadequate. [23] Mr. King opined that the aggregate market value of each owner's interest is probably less than they could receive by selling the entire property. He deposed that the state of disrepair makes it difficult to sell individual units. He said the last sale of a unit was in June 2011, for a price for $312,000. [24] Mr. King referred to the fact that in March 2011, Polygon offered to purchase the respective interests of all the co-owners. Had all the co-owners accepted, the aggregate sale price would have been more than $60,000,000. However, on September 26, 2011 Polygon withdrew its offer because it had not received support from a sufficient number of co-owners. There then followed a number of information meetings, at which the possibility of an application to the Supreme Court was discussed. [25] Ronald Wilson is a retired solicitor who prepared the legal documentation for the creation of the common law condominium at Cypress Gardens. According to the affidavit of Omar Ladak, although Mr. Wilson is not himself an owner, he is trustee for nine units at Cypress Gardens. [26] In his Affidavit #1, sworn October 18, 2011, Ronald Wilson deposed that Cypress Gardens was originally built in 1962 as a rental complex. In 1993, at the instruction of the registered owner, Mr. Wilson prepared and registered in the Land Title Office the documentation to convert the rental complex into condominiums, with a view to marketing and selling them to the public. [27] To effect the conversion under the Condominium Act, R.S.B.C. 1979, c. 61 would have required the consent of the City of North Vancouver. This was impractical, first because the City would not approve a conversion in light of the low vacancy rate for rental housing at the time, but also because it would have been necessary to bring the building into compliance with current building codes, and that would have been prohibitively expensive. According to Mr. Wilson, those impediments to partition (subdivision) continue to apply today. [28] Accordingly, the conversion was done as a "common law condominium", which Mr. Wilson described in paragraphs 7-9: 7. The common law condominium documentation I prepared and filed in the Land Title Office comprised the creation of 177 separate certificates of title, each for an undivided fee simple interest. The percentage share of each undivided interest was calculated using the same formula as set out in the Condominium Act for the calculation of unit entitlements. Each of the registered co-owners from time to time of each of the undivided interests was granted the exclusive right to occupy a specific unit, being one of the 177 units designated on an Explanatory Plan filed in the Land Title Office. 8. The registered owners of the undivided interests are tenants in common. 9. After I had prepared and registered this documentation in the Land Title Office, and filed with the Superintendent of Real Estate a Disclosure Statement for the 177 undivided fee simple titles thereby created, sales to the public took place. [29] On the final day of the hearing of this petition, January 20, 2012, Mr. Wilson re-swore his Affidavit #1 to add a new paragraph 9b: 9b. Sales to the public also took place before the Disclosure Statement was required to be filed with the Superintendent of Real Estate and after an Advisory Statement was provided to the purchasers. [30] With minor exceptions, the content of the Disclosure Statement is the same as the Advisory Statement. [31] On January 20, 2012, Mr. Wilson swore two additional affidavits. His Affidavit #2 attaches as an exhibit a letter he received from the City of North Vancouver concerning stabilization of the creek bank adjacent to Cypress Gardens. [32] Ronald Wilson's Affidavit #3 attaches as exhibits various documents relating to the sale of unit 603 to the petitioner Sybil Heather Harding. Counsel for the petitioners used these documents in oral argument to illustrate and explain how the conversion to a common law condominium was accomplished. He explained that all of the initial sales to members of the public had similar documentation and were carried out in a similar manner. [33] The conversion was carried out in two stages. First, on June 2, 1993, Mr. Wilson filed 177 separate certificates of title, each transferring a determinable fee simple interest in the Land from the original owner, William Peel And Son Estates Ltd., to a numbered company, 443595 B.C. Ltd. The numbered company subsequently changed its name and became Blackridge Estates Ltd., who in turn sold each of the 177 units to members of the public. [34] Thus, for example, in the case of Sybil Heather Harding's purchase of her condominium, unit 603, the Form A Transfer filed in the Land Title Office on December 21, 1993 shows that Blackridge Estates Ltd. transferred to her a determinable fee simple 612/100,000 interest in the Land, subject to a right of reverter. THE NATURE OF THE COMMON LAW CONDOMINIUM SCHEME AT CYPRESS GARDENS [35] Counsel for the petitioners briefly described the nature of the Cypress Gardens housing project in this way in his written submissions: 5. The complex does not comprise strata lots but operates identically to a strata titled complex. A company, CGT Management Corp., of which all co-owners of undivided Interests are shareholders, is by agreement among them given the authority to manage the complex in a manner identical to a strata corporation, which it does according to a set of rules which are identical to the statutory bylaws under the Condominium Act in force in 1992. [36] When a purchaser becomes an owner, he or she not only acquires an interest as tenant in common in the Land, but also becomes a shareholder in CGT Management and becomes bound by the terms of the User Agreement. The User Agreement sets out the rights and responsibilities of each owner vis-a-vis the other owners. The enforcement of the User Agreement is secured by the registration in the Land Title Office of a possibility (or right) of reverter held by CGT Management. I note that the documentation seems to use the terms "right of reverter" and "possibility of reverter" interchangeably. [37] When a unit is transferred, what is conveyed to the purchaser is a determinable fee simple, subject to the possibility of reverter. In the case of each purchaser, the Form A transfer describes the Freehold Estate Transferred not as an absolute fee simple, but rather as a "Determinable Fee Simple". Each Form A transfer also describes the undivided interest transferred as being "Subject to Right of Reverter". [38] For each of the 177 units, the Form A transfer refers to a unique right of reverter number. For example, in the case of unit 603, the Form A transfer sets out the legal description of the parcel transferred followed by the proviso: "Subject to Right of Reverter No. BG190735." The document filed under that number, however, does not contain the actual terms or wording of the right of reverter, but simply notifies one of the existence of the possibility of reverter. As explained to me by counsel for the petitioners, the actual terms of the possibility of reverter are contained in a Form E Schedule that is attached to the original Form A transfer from William Peel And Son Estates Ltd. to 443595 B.C. Ltd. (Blackridge Estates Ltd.), registered under number BG190734. This latter document is listed on the Title Search for Sybil Heather Harding's unit 603 in the following way: POSSIBILITY OF REVERTER BG190735 1993-06-02 12:55 REGISTERED OWNER OF CHARGE: CGT MANAGEMENT CORP. INCORPORATION NO. 451551 NEW NUMBER ASSIGNED FOR CONVERSION PURPOSES ONLY, FOR ORIGINAL DOCUMENT SEE BH414004 BH414004A REMARKS: SEE BG190734 [39] For each of the 177 units, the terms of the Possibility of Reverter are contained in the Form E Schedule attached to 177 original Form A transfers registered in the Land Title Office under unique numbers. All of those 177 Form E Schedules have identical terms. On the Title Search for each unit, this document is referred to by the number assigned to it by the Land Title Office. As set out above, in the case of unit 603, the Title Search directs one to "See BG190734". The Title Search for any of the 177 units would refer to an identical Form E, but registered under a different number unique to that unit. [40] The Form E Schedule contains five paragraphs and attaches a copy of the User Agreement as Schedule "1". It reads as follows: 1. The Vendor hereby grants, conveys and transfers to the Purchaser the undivided interest of the Vendor described in Item 2 of Form A (the "Undivided Interest") in the Land described in Item 2 of Form A (the "Land") so long as the User Agreement forming Schedule "1" hereto (the "User Agreement") with respect to the Unit bearing the number shown in Item 1 of Form A and on the Explanatory Plan filed in the Land Title Office under the number set forth in Item 1 of Form A (the "Unit") shall not have been determined by reason of any default thereunder on the part of the Purchaser. 2. The Vendor hereby grants to the Purchaser the rights set forth in the User Agreement and the Vendor and the Purchaser agree with each other to observe and perform the covenants and agreements therein contained. No interest in land is constituted, conveyed or created by the User Agreement. 3. The Purchaser covenants and agrees with the vendor and with all purchasers of other undivided interests in the Title of the Land (a) not to institute any proceedings for partition or sale of the Land pursuant to the terms of the Partition Act of the Province of British Columbia or otherwise and in lieu thereof the rights of the Purchaser shall be governed exclusively by the terms hereof and the User Agreement. (b) not to assign or transfer the rights held under the User Agreement to a person other than a purchaser of the Undivided Interest it being the intent and objective that the holder from time to time thereof shall also be the holder of User Rights with respect to the Unit. (c) that the Purchaser has no right to receive or participate in any way in the receipt by the Vendor of any income, revenue or other monies derived from any disposition by the Vendor of any interest in the Land or Building including any disposition of other undivided interests, user rights in respect of other units, any security instruments granted to the Vendor in connection therewith, any lease by the Vendor of other units in the Building or any car parking, storage or laundry room revenue and the Vendor has complete exclusive and full authority and power, without notice to or agreement from the Purchaser or the purchasers of other undivided interests in the title to the Land to enter into any such transactions. 4. The Vendor and the Purchaser agree with each other that to the extent that, if at all, the perpetuity rules are applicable to the cessation or vesting of any interest pursuant to the terms hereof, then notwithstanding anything to the contrary herein elsewhere contained, the event of cessation or vesting shall only be effective if the same shall occur prior to the expiration of 20 years after the death of the last survivor of all lineal descendants now living of the late King George V of England. 5. The Vendor and the Purchaser agree with each other that words defined in the User Agreement and used herein shall have the meanings ascribed to them by the User Agreement and that the User Agreement forms a part of this Schedule. [41] The petitioners submit that the right of reverter is contained solely in paragraph 1 of Form E and that the remaining paragraphs are simply a contract between William Peel And Son Estates Ltd. and 443595 B.C. Ltd. which does not run with the land and does not bind subsequent purchasers. [42] On December 20, 1993, William Peel And Son Estates Ltd. assigned the possibilities of reverter to CGT Management, so that wherever the word "Vendor" appears in the Possibility of Reverter or the User Agreement, this now effectively means CGT Management. This is confirmed by Article 14.19 of the User Agreement, which provides: 14.19 "Vendor" means the Transferor named in the Transfer and (except for the purposes of Paragraph 3(c) on Page 2 of the Transfer and Article 6.04 of this User Agreement) the Management Company on it becoming the holder of the Right of Reverter with respect to the Undivided Interest pursuant to Schedule "B" to this User Agreement. [43] The result is that when each purchaser becomes an owner, he or she becomes bound by the terms of the User Agreement, and if an owner is in default of the User Agreement, his or her interest in the Land reverts to CGT Management. [44] The legal nature of the right of reverter in common law condominium schemes was described by Mr. Justice Boyle in Westsea Construction Ltd. v. British Columbia (Registrar, Land Title Office) (1995), 3 B.C.L.R. (3d) 56 (S.C.) as a limitation on the grant of a fee simple, rather than a charge on the land (para. 38). Based on the principle of nemo dat quad non habit, all future interests and charges attach to the defeasible fee simple because that is all that the owner has (para. 35). [45] Since the right of reverter constitutes a limit or condition on the original grant, subsequent transfers are all subject to the same limitation by virtue of nemo dat and s. 186 of the Land Title Act, R.S.B.C. 1996, c. 250. Section 186 states in part: 182 (6) Subject to subsection (8), if the transfer contains express words of limitation, the transfer operates to transfer the freehold estate of the transferor in the land to the transferee in accordance with the limitation. (7) Subject to subsection (8), if the transfer contains an express reservation or condition, the transfer operates to transfer the freehold estate of the transferor to the transferee subject to the reservation or condition. (8) Subsections (4) to (7) do not operate to transfer an estate greater than the estate in respect of which the transferor is the registered owner. [46] Consequently, all subsequent transfers after the original transfer are subject to the right of reverter and the terms that are set out in the User Agreement and its schedules. STATUTORY ABOLISHMENT OF COMMON LAW CONDOMINIUMS BY DETERMINABLE FEE SIMPLE [47] The creation of common law condominiums by way of a determinable fee simple, as was done by Ronald Wilson in this case, is now prohibited by statute in British Columbia. Pursuant to a 1994 amendment, s. 73(4) of the Land Title Act, now provides: 73 (4) A person must not grant an undivided fractional interest in a freehold estate in land or a right to purchase an undivided fractional interest in a freehold estate in land if the estate that is granted to or that may be purchased by the grantee is (a) a fee simple estate on condition subsequent, or (b) a determinable fee simple estate that is or may be defeated, determined or otherwise cut short on the failure of the grantee to observe a condition or to perform an obligation relating to a right to occupy an area less than the entire parcel of the land. [48] Projects like Cypress Gardens that were created before 1994, were "grandfathered" by s. 73(5): 73 (5) Subsection (4) does not apply to land if an indefeasible title to or a right to purchase an undivided fractional interest in (a) a fee simple estate on condition subsequent in the land of the kind described in subsection (4), or (b) a determinable fee simple estate in the land of the kind described in subsection (4) was registered before May 30, 1994. [49] Thus, on the state of title certificate for each of the co-owners of Cypress Gardens, one finds the notation, "Dealings permitted under Land Title Act, s. 73(5)." THE DISCLOSURE STATEMENT [50] As described by Ronald Wilson in his Affidavit #1, when the units in Cypress Gardens were marketed to the public, he filed a Disclosure Statement with the Superintendent of Real Estate. Section 50.1(3) of the Real Estate Act, R.S.B.C. 1979, c. 356, required that the Disclosure Statement "contain full, true and plain disclosure." [51] The Disclosure Statement that Mr. Wilson prepared and filed for Cypress Gardens states in Paragraph 2.01(a)(3) that each purchaser will have "in perpetuity", the exclusive use and occupation of the Unit assigned to them: 2.01 (a)(3). Each purchaser will hold exclusive rights in perpetuity to use, occupy, possess and enjoy (User Rights) the Unit identified in the purchase document and rights in common with all other purchasers to the Common Property and Common Facilities. The Boundaries of the Units and their location in the building is shown on a plan registered in the Land Title Office (a copy of which forms Schedule "B" hereto). [52] Paragraph 2.01(a)(5) informed prospective purchasers that their rights and obligations under the User Agreement of Cypress Gardens are substantially identical to those of strata lot owners under the Condominium Act: 2.01 (a)(5). The rights and obligations set out in the User Agreement are substantially identical to those enjoyed by and binding on owners of strata lots created by the Condominium Act. THE RESPONDENTS' RESPONSES TO PETITION [53] A large number of respondents who are opposed to the petition have filed formal responses, notwithstanding that they did not have the assistance of counsel. [54] A lengthy Response to Petition was filed by Carlos A. Ruiz and Bertha L. Plaza, Shiva Khodabakhsh, Paul Gagnon and Marina Yagowen, Rene Olivia and Nancy Cedeno, Yousuf Mohammadi and Ziba Nasiri, Sakar Badrydin Jina, Harry and Maria Stephens, Peter Dimov and Nedyalkova Dimova, Kasia Gagnon, Simon James and April Letnes, Bernice Hilliard, Mihai Radu, Kingsley Agyeman and Mercy Agyeman, Afsaneh Imani, Paola De Rycke, Yong Jun Sohn, Paul Hetherington, Kevin Anjam, Alex Yim, William and Tina Fitzpatrick, Sherilyn Smith, and Eugene Bartman. [55] In their Response, they submit that each of the co-owners, by purchasing their interests, agreed not to commence proceedings for partition of the property, and not to assign their rights in the property except to a purchaser of its interest in the Land. They submit that the will of the co-owners must be expressed through a general meeting of CGT Management, and that the Board is the only proper representative of the co-owners. In their submission, the Board has a mandate to follow directions given by the general meeting and ensure compliance with the User Agreement. They say that this petition frustrates the Board's legitimate actions to resolve this matter through general meetings. They also submit that the complex is not in a chronic state of disrepair, and that any such defects are attributable to mismanagement by a previous Board. They say that many people would experience hardship if the Court ordered a sale. [56] Another Response to Petition was filed by Teresa and Janusz Chrzanowski who submit that the petition is contrary to the terms of the User Agreement and that the petitioners should have presented their request for a sale to the Board of CGT Management in order to see if a majority of owners favour a sale. As well, they submit that there should have been a professional appraisal to help owners decide whether they should agree to a sale or not. [57] Ghide Tesfaldet and Igenet Afework filed a separate Response to Petition, which makes many of the same points, but emphasizes personal hardship. In particular, they submit at paragraph 4: If we are stripped off [sic] our unit at this time, we will be subject to a great deal of hardship since because of our age and income, we do not qualify for a mortgage and we cannot acquire a similar unit with the same convenience for the price that a so call 'liaison group' is ready to accept for our complex. [58] Jongsun Kim and Aeri Jeong filed a Response making a similar point about the personal hardship that a sale would cause to them. [59] The Response of April MacKenzie-Moore opposes the petition because the petitioners are representing only their own interests and not the interests of all the co-owners. She submits that the petition should be refused so that the co-owners can decide the matter for themselves in accordance with the User Agreement. [60] In the Response of Jiang Ni Qi and Joseph Gilles Brûlé, they submit that the determinable fee simple with a right of reverter held by CGT Management is an impediment to a sale being ordered as requested by the petitioners. They also submit that ordering a sale pursuant to the Partition of Property Act would be contrary to what each owner agreed to in the User Agreement. They say that the complex is not in need of all the repairs alleged by the petitioners, and the state of repair is not a reasonable basis for ordering a sale. They submit that the petitioners are free to sell their individual units at any time, and therefore they do not require the assistance of a court-ordered sale. Finally, they submit at paragraph 18 that an order for sale would cause unnecessary hardship to many of the owners: A sale at this time would dispossess co-owners of their homes and cause many of them undue distress. Such a sale, under the terms proposed by the petitioners, will cause financial and personal damage to many co-owners who are still happy living in the complex and want to keep their situation unchanged for the time being. We ask the Court to reject the petition in liming (sic) due to the damage that could be exerted on many co-owners that don't want to sell under the present circumstances. THE EVIDENCE OF THE RESPONDENTS [61] In addition to filing formal responses, many of the respondents filed affidavits in these proceedings. [62] Afsaneh Imani, who along with her husband owns the unit at 765 Westview Crescent, says in her affidavit that they do not want to sell their home because they know that they could not afford similar accommodation on the North Shore. In addition, she objects to a procedural defect in these proceedings. She says that her husband, Mehrdad Rahmani, was not notified of these proceedings despite the fact that his name as well as hers appears on their certificate of title, a copy of which is attached as an exhibit to Ms. Imani's affidavit. [63] Indeed, neither the name "Mehrdad Rahmani" nor the name "Afsaneh Imani" appears on the style of cause, which may lead one to wonder whether the petitioners have in fact served everyone who in law must be served with the petition. It appears that this is not the only inaccuracy in the style of cause. Some of those named as respondents in the affidavit of Omar Ladak are also not listed in the style of cause, for example, Gloucestershire Developments Ltd., and Abdul Rasul Maklai. [64] April MacKenzie-Moore provides some context to the history of this proceeding in her affidavit. She says that she loves her home at Cypress Gardens and had no intention of selling when Polygon first approached her in March 2011. Then, when Polygon decided in late September that there was not enough support from the co-owners, a bitter divide developed between the group that wanted to sell to Polygon and those that did not. Although she does not belong to either group, she opposes this petition because it is not democratic. She says that the petition ought to be refused so that the co-owners can decide the matter for themselves in accordance with the User Agreement. She adds that she does not agree with the contention that owners are unwilling or unable to pay for needed repairs. Rather, she says it was poor fiscal management during the years 2006 to 2009 that resulted in the depletion of the contingency fund. She says, however, that they are now progressing. [65] Another owner resident, Mihai Radu, says that he cannot afford to sell his unit in the current economic climate. He says that Ronald Wilson and Peter King, who filed affidavits in support of the petition, do not reside in the complex and therefore are not qualified to critique the property's condition. He says that communications distributed by Mr. Wilson and Mr. King in the summer of 2011 urging owners to accept Polygon's offer have caused him to lose faith in their ability to represent the interests of all the co-owners. [66] Kingsley Agyeman and Mercy Agyeman are owner residents who do not wish to sell. They say that past members of the Board seemed to be campaigning for Polygon, when they were supposed to be neutral and fight for the improvement of Cypress Gardens. [67] Alex Yim opposes the petition, but said he would be willing to sell if there were support of at least 80% of the current owners at Cypress Gardens. He believes that the current Board of Directors elected by the owners to oversee the management and administration of Cypress Gardens is the proper channel to oversee any sale of the property. [68] Jiang Ni Qi and Joseph Gilles Brûlé oppose the petition. They have owned their 3-bedroom, 1410 square foot home at Cypress Gardens since November 2009. They refused Polygon's offer to purchase their unit in 2011. The amount offered by Polygon was not enough to provide for a replacement home in North Vancouver. They say that there should only be a sale if "the sale is handled in a respectful manner, and agreed by all of the co-owners." [69] William Fitzpatrick and his wife Tina Fitzpatrick are interested in selling, but are opposed to the petitioners having the authority to act on behalf of all the owners. They initially accepted the offer made to them by Polygon, but they now believe that the amount they were offered "was less than the property is worth by a large margin." The Fitzpatricks agree that the overall state of the property is in disrepair, and they believe that a sale of the entire property would maximize their economic interests. However, they also feel that the proceeding has been initiated in a manner that was "underhanded and manipulative." They oppose the petitioners having conduct of sale. They support the actions of the current Board "who are the only legitimate representatives of our corporation." [70] Janusz and Teresa Chrzanowski took possession of their home at Cypress Gardens in November 1993. When Polygon approached them with their offer to purchase in 2011, they visited another North Vancouver development at the behest of a Polygon representative, but they found the apartments there to be unattractive and expensive. They cannot afford an increased mortgage. They say there are few if any homes on the North Shore in their price range, and none that are comparable to their present home at Cypress Gardens. They do not wish to sell unless they receive a sufficient amount to cover the purchase price of an equivalent home in the central part of North Vancouver. They say that any sale should first have the support of the required majority of co-owners, and co-owners who do not wish to sell their units should not be deprived of their homes by owners who wish to sell. They say that any of the petitioners who wish to sell have the option "to sell their unit separately as they have the marketable title which they agreed to at time of purchase." [71] Sherilyn Smith swore two affidavits, one on November 8, 2011, and another on January 10, 2012. In her first affidavit, she deposes that she has lived in her home at Cypress Gardens since October 2010. Like the Chrzanowskis, she visited another North Vancouver development at the behest of a Polygon representative in 2011, but she found the apartments there to be unattractive "5-story boxes" with a price of $550,000 for a 1,000 square foot unit. She says that she cannot afford an increased mortgage, and she is not aware of any homes on the North Shore in her price range that are comparable to her present home at Cypress Gardens. She further says that her unit is suitable for her retirement and geriatric years, as it has room for a live-in companion when necessary, or a roommate to offset costs. She also appreciates that she has the liberty to rent out her home during periods of travel. These were important considerations when she chose to purchase her home at Cypress Gardens, given her age and limited income. [72] In her second affidavit, Ms. Smith points out problems that she sees with the petitioners' actions, and discusses the actions of Mr. Wilson and of members of the previous Board of Directors, including Mr. King. [73] Carlos Ruiz and Bertha Plaza came to Canada as immigrants from South America. The sixty-two-year-old couple now live in Cypress Gardens, and they have no intention of selling their unit any time soon. Mr. Ruiz is the President of the current Board of Directors. In his affidavit, he disputes the petitioners' claim that the current owners are unwilling to carry out necessary repairs. He says that the previous Board issued levies, but the owners never knew where the money went. He says that as the current President, he can affirm that a large number of owners would be ready to provide the money to fix up the complex "if they see there is responsibility in the plans presented with enough anticipation to their consideration." Attached as an exhibit to his affidavit is a "Soft Assessment" dated September 22, 2011, which he says shows that the Land is worth more than had been offered by Polygon. Finally, Mr. Ruiz makes the point that when he and his wife purchased their unit, they had no understanding or expectation that there could be a forced sale against their will. [74] Bernice Hilliard is an owner who is currently renting out her townhouse at Cypress Gardens. However, she lived at Cypress Gardens from 1994 to 2001 and loved it. She says she plans to move back to her unit when she retires. She indicates that she would be willing to pay an additional fee for maintenance and repairs. She says she could never buy a comparable home on the North Shore for what has been offered, and she does not want to sell any time soon. [75] Paul Gagnon and Marina Yagowen say that they do not wish to sell to Polygon or any other company. They depose that their income is very limited and they are unwilling to sell their home for less than they would need to replace it without having to enter into a new and higher mortgage. The amount they were offered by Polygon would not allow them to find a similar dwelling unit on the North Shore. [76] Shiva Khodabakhsh says in her affidavit that she and her husband Hamid Baradaran oppose the petition. She says they would not be able to find similar accommodation if there were a sale. They are unemployed, and therefore they would not be able to obtain a new mortgage. [77] Rene Olivia and Nancy Cedeno depose that they do not wish to sell any time soon. They write: We love very much our apartment and the location, especially because it is our first own place. This apartment is also the only one that suits our family income. It is very difficult, almost impossible to get another bigger mortgage. It was very hard for us to get the mortgage approved for this place and that it (sic) is why we don't want to sell our place because we think we won't be able to buy another place. We don't understand how some people are working on our backs trying to sell our complex to Polygon or as per their own non consulted terms, without having ever asked us or other owners if they want to sell or not, just because they want to do it and are trying to protect their own interest not taking into account the needs of other co-owners. We don't think they should decide for us because we are also owners as everyone else and we pay our maintenance fees, taxes and any other charge when we have to. My husband (Rene) will also lose his job because he holds the position of caretaker in the complex. So we will be left without job and without a home at the same time. We have renovated our apartment. We put a new kitchen, new laundry, new windows, for our comfort because we have planned to live in here for a long time. We locked our mortgage for 5 years. If we force to sell, we will be penalized by the bank. Our older daughter works at Safeway which is only steps away from our place, very convenient because we also work night shifts and our little daughter goes to daycare which is only one block away from our place. These are some of the many reasons we love our place. [78] Yousuf Mohammadi and Ziba Nasiri, who are both in their fifties, explain in their affidavit why they do not wish to be forced to sell: Our kids have built a strong foundation and connection with the community of North Vancouver and restarting is not an option for our family. My husband and I both work in North Vancouver allowing us to provide our children with transportation to work and school conveniently. It will be impossible to acquire our townhouse's square footage in North Vancouver for the price Polygon is offering. Retirement for my husband and I is getting within reach and I do not intend on paying off a mortgage for a new piece of property for the rest of our lives. [79] Seventy-three-year-old Sakar Jina deposes that she does not wish to sell because she could not afford to replace the home she now has at Cypress Gardens. She says: I am an old lady and am very sick. I don't want to sell my townhome: I put a lot of money to repair it for my comfort, because I have planned to live in her for a very long time. I have been asked numerous times to sell by Polygon, as well by the former board members (2010-2011) of Cypress Gardens complex. Past notification that was given out from Polygon notified home owners of all the units that did not wish to sell; the amount of notices that were given to me were seemingly leading to harassment. Polygon was not professional in their arguments; they notified everyone in Cypress Gardens town homes on which units did not wish to sell. They made me feel invasion of privacy. The money Polygon was offering to me does not allow me to find a similar dwelling unit on the North Shore, with the convenience and location I do presently have. I do not want any arrangement because I am sick. I love my place. My income resources are very limited. I cannot afford to sell our convenient place for less than I need to replace it for a similar dwelling unit without having to enter into new and higher mortgages. At my age it is very difficult, almost impossible, to get another mortgage. I am going simply to be displaced from my environment without any consideration to my age, health condition and work possibilities. [80] Similar points are made in the affidavit of eighty-nine-year-old Harry T. Sidney Stephens and his wife, Maria de Lourdes Adriana Stephens. They do not wish to sell their home. They say that the money realized from a sale would not be sufficient for them to find comparable replacement accommodation without taking on a new mortgage, which at their age would be almost impossible. Mr. Stephens goes on to describe the effect that the stress has had on them: The amount of stress that has been put among me as well on my wife has caused her to attempt suicide leading to permanent heart damage; she will be now relying on heart medication for the rest of her life. [81] Kasia Gagnon is a single parent living in her three-bedroom townhome at Cypress Gardens with her two children. In her affidavit she mentions her single income and limited resources and says that she will not be able to find a similar home for a similar price on the North Shore. She points to the advantages of her unit, including separate bedrooms for her children, and the close proximity of her children's school, which is a five-minute walk away. She says that her children were raised in the neighbourhood since they were little, and they have friends and family close by. She says that at her income level it is impossible for her to get a higher mortgage that would be affordable on her salary, with the result that she and her children will simply be displaced from their home if there is a sale. [82] Simon James and April Letnes live with their two young children in their home at Cypress Gardens that they purchased in February 2011 for $375,000. Since their purchase they have spent another $80,000 renovating their unit. Prior to finding this unit, they did not expect to be able to afford a home in the Greater Vancouver area with similar amenities. Their unit is particularly well suited to their family because of the outdoor space and safe, secure environment for their children to play. They say that they love their home and cannot afford to go through the home-buying process again so soon. In his affidavit, Mr. James also referred to the stress caused by the efforts to persuade them to sell: Almost immediately after moving in we received Polygon's offer to buy all of the units in Cypress Gardens and all of our joy and excitement with our new living situation turned to stress and anxiety. On two separate occasions my spouse, April Letnes, was cornered by Mr. Peter King and Ms. Heather Harding and pressured to accept Polygon's offer to sell. Since this process began it has put a great deal of strain on my relationship with my spouse, April Letnes and my children. We have exhausted most of our savings purchasing our unit and the offer presented to us by Polygon was not sufficient to find a comparable home on the North Shore with the convenience, location and access to schools and recreation we currently have. The petitioners in this matter do not represent our interests at all and therefore we oppose the orders sought and will not be forced to sell our unit on their terms. [83] Paola de Rycke also deposes that she would suffer hardship if the property is sold. She is an owner who resides in a three-bedroom home at Cypress Gardens with her husband and children, one of whom is autistic. She deposes that her son needs a routine and his own room because of his illness. A sale of the property would mean a move for the family and a disruption to her son and his routine. She fears that a move would have a negative impact on his behaviour and her family's quality of life. She does not think that her family would be able to find a replacement home with similar amenities at a price they could afford. [84] Yong Jun Sohn and Mi Aie An are owner residents that appreciate the outdoor space and access to the creek that Cypress Gardens provides. They say that they have made improvements to their home, including the addition of a front and back deck, because they plan to remain at Cypress Gardens in the long term. Their children have friends in the complex, and they do not wish to move. [85] Dr. Eugene Bartman deposed that he has no intention of selling his home at Cypress Gardens any time soon. He added that the petitioners "represent a very small sliver of the total owners." He supports the current Board who, he says, are the only legitimate representatives. [86] Peter Hughes and Alice Hughes are owners who have resided at Cypress Gardens for nine and a half years. Mr. Hughes is 90 years old and has advanced Parkinson's disease. Ms. Hughes is 74 years old. They are both retirees and live on a fixed income. For them, if the property were sold, it would be life-changing and have a great impact on their lifestyle. They say the amount that Polygon offered them for their three-bedroom townhome "would certainly be insufficient to replace our present accommodation in a similar location." [87] Jongsun Kim and Aeri Jeong depose that they are not willing to sell their home at Cypress Gardens to Polygon or any other company. They say that they could not afford similar accommodation in the event that the property was sold for the amount Polygon was offering. They say they support the actions of their current Board, "who are the only legitimate representatives of our corporation." [88] The respondents Ghide Tesfaldet and Igenet Afework depose that they do not want to sell. They say that the money from a sale would not be sufficient for them to purchase any similar accommodation on the North Shore, where they work. They say that with their income and at their age, they cannot obtain another mortgage. They add: We bought this house for peaceful mind and happiness but we face a lot of stress and cancellation of job to go to meetings. [89] Petar Ivanof Dimov provided an affidavit and made oral submissions. He says that this matter is causing the residents considerable stress. Residents are uncertain as to whether they will have to leave their homes, and this limits their ability to improve or renovate their units. Mr. Dimov likens this property to a strata property. He says that the Partition of Property Act should not apply because that Act is designed to address the needs of true tenants in common rather than those who commonly own property that is subject to an agreement like the User Agreement. Instead, he says that although the property is not formally recognized as a strata lot, due to the nature of the property, the provisions of the Strata Property Act, S.B.C. 1998, c. 43, that concern the winding up of a development ought to apply. Since the petitioners have not obtained approval for a sale through a resolution at a special or annual general meeting, Mr. Dimov submits that the petition ought to be refused. [90] In his affidavit, Mr. Dimov deposes that he is a foreign-trained mechanical engineer who has experience working as a maintenance technician in British Columbia for the last seven years. Mr. Dimov says that in his professional opinion, the building he and his wife live in at Cypress Gardens is in a good state of repair. He says, "In many aspects it is more sustainable and provides more affordable maintenance opportunities than many of the buildings built these days." He says that the building can be affordably maintained, and several owners have indicated a willingness to participate in paying special levies for necessary upgrades and major installation replacement projects. [91] Paul Hetherington swore two affidavits in this matter, on November 2, 2011 and on January 11, 2012. In his first affidavit, he deposes that he has lived at Cypress Gardens since 2001 and has made significant improvements to his unit. He points to the property's low density, spacious grounds, generous square footage, and nearby amenities as aspects that make it particularly desirable. He says that in the summer of 2011 he viewed approximately 20 other townhouses and apartments for sale in North Vancouver and Burnaby. Based on that experience, he does not believe he would be able to find a new home without having to downsize the square footage of his home significantly. He says that it would cost up to several hundreds of thousands of dollars to move into a comparable unit in a comparable location. He does not agree that the owners are unwilling or unable to pay for repairs. [92] In his second affidavit, Mr. Hetherington says that there have been several improvements in the complex since the election of the new Board of Directors, including repairs to the heating system and the repair and painting of the fascia boards that line the rooftop. He believes that the new Board is doing a good job of running the day-to-day operations of the complex, and that with time, the entire ownership could become unified behind them. He believes that the complex is well built and should not be demolished: From my observations, I believe that the new board is doing a very good job of running the day to day operations of the complex. I have come to believe that many of the issues that are brought up at Cypress Gardens could be taken care of with the guidance of a committed board. It Is my opinion that given time under these new circumstances the ownership could rebuild trust and become unified towards the future of Cypress Gardens. As I have lived in the complex for over 10 years and having done extensive renovations to my unit. I have seen the structure behind my walls and have noted that my unit is well built and does not have any structural issues. It is my opinion that the demolition of the property is unnecessary, and would be a waste of perfectly fine buildings. There are issues that need addressing, but the issues are not nearly at the point where demolition is the best option. [93] Mr. Hetherington then proceeds to explain why he is not interested in selling his home at Cypress Gardens and why he does not want to be forced to move: On a personal level I am in a very good situation as I am coming to the end of my mortgage, and will own my unit within two years. It has taken a lot of work to get to this point and I am very much looking forward to living mortgage free. The thought of taking out another mortgage is extremely unappealing. Especially when I already have everything that I desire within my unit and the Cypress Gardens complex. There would be no advantage to moving into another location. Finally, I believe it is the "little" things that together make up a home. There are so many memories and experiences that bond us to where we live. That provides a sanctuary from the outside world and allows us the space, and the familiar environment to relax and reflect after a hard days work. A place to harbor our spirit when times are tough, and a place to celebrate the joys of our life. That is what I feel Cypress Gardens provides for me, and is why after 10 years of living here I do not want to move. The following is a list of the "little" things that I love about my wonderful home‑. Smooth white oak hardwood floors. ‑ The peacefulness of being away from main roads, and only hearing the occasional car come through our complex. ‑ Living only a four minute drive from my work. ‑ The opportunity to help change an elderly neighbor's light bulb. ‑ Randomly giving Lego sets to the young boy next door. Watching the ducks in my ponds carelessly sail back and forth on a summers day. The fact my neighbors are so quiet, and nobody lives above me. ‑ Seeing the cherry blossoms come into full bloom in front of my living room windows. ‑ A fire in my wood burning fireplace. ‑ Hearing Mosquito creek running in the distance as I fall asleep. ‑ Knowing that I built or renovated everything in my unit. ‑ Being able to watch my duck ponds while I cook dinner, because I took the time and effort to remove a wall and put in a great countertop. ‑ Seeing my friends' reactions when they see how nice my place is. ‑ Knowing that each room has great memories of experiences I've had. ‑ Valuing that this is the first place where I lived on my own and was able to decorate exactly how I wanted. ‑ Knowing that all the furniture was bought specifically because it fit in with the scale of my rooms and fits the decor perfectly. ‑ Enjoying the water pressure in my shower as it is strong and is a great way to wake up in the morning. ‑ The relaxation of sitting in my soaker tub. ‑ All my light switches have dimmers. ‑ Seeing all the different birds and animals that come through our common areas each season. ‑ Lounging by our fantastic outdoor pool. ‑The space in between our buildings, no one is looking directly into my unit. ‑ The fact that I have my own ground level entrance. ‑ My car never gets frost on the windows during winter thanks to the carport.‑ Having my own laundry room with new front loading laundry machines. ‑ The curved arches I put over my doorways and fireplace. ‑ I could go on and on, but these are just a sample of the things that make me want to stay at Cypress Gardens. [94] Kevin Anjam purchased his interest in Cypress Gardens in August 2010. He says that he would incur a major unnecessary financial loss, including a mortgage penalty, a higher mortgage interest rate, moving costs, lawyers' fees and property transfer tax if he is forced to move. Moreover, he says that he is sure that he would be unable to afford to purchase another property on the North Shore with similar amenities. He views his interest in Cypress Gardens as an inalienable right and does not think it is fair for a few individuals to deprive all of the co-owners of their homes. He says that if there is a court-ordered sale, he and his family, along with many other co-owners of Cypress Gardens, will be left with no place to live. THE PARTITION OF PROPERTY ACT [95] The petition is brought pursuant to the Partition of Property Act. [96] Section 1 provides that a proceeding for partition includes a proceeding for sale and distribution of the proceeds. [97] Section 2(1) sets out who may be the subject of an order for partition or sale: 2 (1) All joint tenants, tenants in common, coparceners, mortgagees or other creditors who have liens on, and all parties interested in any land may be compelled to partition or sell the land, or a part of it as provided in this Act. [98] Section 3 provides that in a proceeding for partition, one may claim a sale and distribution of the proceeds without claiming a partition. [99] Subsection 4(1) sets out who has standing to maintain a proceeding for partition: 4 (1) Any person who, if this Act had not been passed, might have maintained a proceeding for partition may maintain such a proceeding against any one or more of the interested parties without serving the other or others, and a defendant in the proceeding may not object for want of parties. [100] Section 6 deals with a situation where a majority requests a sale: 6 In a proceeding for partition where, if this Act had not been passed, an order for partition might have been made, and if the party or parties interested, individually or collectively, to the extent of 1/2 or upwards in the property involved request the court to direct a sale of the property and a distribution of the proceeds instead of a division of the property, the court must, unless it sees good reason to the contrary, order a sale of the property and may give directions. [101] I pause to note that in this case, the petitioners have not established that the owners of a majority of the property involved are requesting the Court to direct a sale. [102] Section 7 provides that the Court may order a sale instead of a partition where that would be more beneficial for the interested parties: 7 In a proceeding for partition where, if this Act had not been passed, an order for partition might have been made, and if it appears to the court that because of the nature of the property involved, or of the number of parties interested or presumptively interested in it, or of the absence or disability of some of those parties, or of any other circumstance, a sale of the property and a distribution of the proceeds would be more beneficial for the interested parties than a division of the property, the court may (a) on the request of any of the interested parties and despite the dissent or disability of any other interested party, order a sale of the property, and (b) give directions. [103] Section 8 provides: 8 (1) In a proceeding for partition where, if this Act had not been passed, an order for partition might have been made, then if any party interested in the property involved requests the court to order a sale of the property and a distribution of the proceeds instead of a division of the property, the court may order a sale of the property and give directions. (2) The court may not make an order under subsection (1) if the other parties interested in the property, or some of them, undertake to purchase the share of a party requesting a sale. (3) If an undertaking is given, the court may order a valuation of the share of the party requesting a sale in the manner the court thinks fit, and may give directions. [104] Section 17 provides that an order for partition is deemed to effect a subdivision of the land: 17 An order for the partition of land into 2 or more parcels is deemed to effect a subdivision as defined in the Land Title Act and must contain an express declaration that the order is subject to compliance with that Act. ISSUES AND THE POSITION OF THE PARTIES [105] There are two broad issues that arise on this petition: the first is whether the petitioners lack standing or are for some other reason barred from seeking a sale under the Partition of Property Act; the second is whether the Court should order the sale or should exercise its discretion to refuse a sale. [106] The position of the petitioners is that since they are owners of the Land as tenants in common, they have standing to seek an order for sale as against the other owners. Pursuant to ss. 7 and 8, they seek sale and distribution of the proceeds rather than partition, since partition would be impractical in light of the fact that it would be deemed under s. 17 to be a subdivision of the Land, which in turn would require the consent of the City of North Vancouver, and that consent could not be obtained. [107] The respondents who made submissions before me request that the Court exercise its discretion to refuse to order a sale of the Lands. Some of the respondents also question whether the petitioners have the right to apply for sale under the Partition of Property Act because of the possibility of reverter and the terms of the User Agreement. STANDING [108] The petitioners submit that the fact that they are co-owners of the Land as tenants in common gives them standing to seek an order for sale under the Partition of Property Act, regardless of the percentage of owners who favour a sale and the percentage who are opposed. [109] Regrettably, the Partition of Property Act is far from pellucid on the question of who has standing. [110] Section 4(1) grants standing to apply for partition to anyone who, "if this Act had not been passed, might have maintained a proceeding for partition." [111] Section 7 provides that the Court may order a sale in a proceeding for partition "where, if this Act had not been passed, an order for partition might have been made." [112] Section 8 uses similar language, permitting the Court to make an order for sale "where, if this Act had not been passed, an order for partition might have been made." [113] Thus, the question of standing under the Partition of Property Act depends on who would have had standing to apply for partition if the Act had not been passed. [114] Reference may usefully be made to the Consultation Paper on the Partition of Property Act prepared by the British Columbia Law Institute in June 2011. The authors of that paper note on p. 5 that s. 2(1) of the Act states who is subject to an order, but does not define who has standing to apply for it. They go on to refer to the language used in s. 4(1) and state: In order to determine who is eligible to seek partition, therefore, the English law pre-dating the English Partition Act, 1868 [31 & 32 Vict., c. 40] needs to be examined. Specifically, it is the law of England as it existed on 19 November, 1858 that needs to be examined, as the Law and Equity Act [R.S.B.C. 1996, c. 253, s. 2] makes English law as it existed on that date applicable in British Columbia except to the extent it has been altered by laws of the province or is inapplicable to local circumstances. As of that date, the classes of persons eligible to seek partition were coparcenary tenants and those co-owners to whom the statutes of 1539 and 1540 had extended the remedy. As coparcenary tenancy no longer exists, the persons eligible to seek partition or sale in lieu of partition in British Columbia are those described in the 1539 and 1540 statutes, namely: (a) joint tenants of the fee simple or a profit à prendre; (b) tenants in common of the fee simple or a profit à prendre; (c) joint tenants or tenants in common of a life estate; (d) co-owners of a leasehold estate (co-lessees). [115] In the present case, the petitioners are tenants in common, but not of an absolute fee simple. Rather, they are tenants in common of a fee simple determinable, subject to a possibility of reverter. [116] As Boyle J. noted in Westsea Construction Ltd. at para. 25: When a possibility of reverter is registered, the registration provides notice that a fee simple has been converted into a determinable fee. [117] The nice question, then, is whether tenants in common of a fee simple determinable subject to a possibility of reverter were among the class of persons eligible to seek partition under the statutes of 1539 and 1540. If not, then the petitioners may not have standing under our current Partition of Property Act. [118] Several of the respondents have taken the position that because the petitioners' estates are subject to a possibility of reverter, this is an impediment to their obtaining relief under the Partition of Property Act. Because those respondents were not represented by counsel, that position was never fully articulated. I have not been directed to any case authorities that deal with this question. [119] In the absence of full submissions on the point, I am reluctant to rule definitively on the question. For the purposes of these reasons, I shall proceed on the assumption that petitioners do have standing to bring the petition under the Partition of Property Act, while noting that the question is not free from doubt. In light of the decision I reach, it is not strictly necessary for me to decide this point. ARE THE PETITIONERS BOUND BY AGREEMENT NOT TO SEEK PARTITION OR SALE? [120] Another position advanced by some of the unrepresented respondents is that the petitioners are bound by the terms of the User Agreement not to seek partition or sale of the Land. [121] The Response to Petition filed by Ghide Tesfaldet and Igenet Afework states at paragraph 3: According to our User Agreement, all owners waive their right to ask for partition of the land. This is an action that cannot be undertaken by any owner. Only a General Meeting, gathered according to the current regulations can undertake such initiative. (Please refer to User Agreement, Article 6, Provisos, 6.08). [122] A similar same point is made in the Response filed by Jongsun Kim and Aeri Jeong, and also in the Response of Teresa and Janusz Chrzanowski. [123] Article 6.08 of the User Agreement provides: 6.08 The parties hereto hereby declare and agree that no interest in land is or shall be created or shall be deemed to have been created by this User Agreement (as distinct from the Transfer) and no subdivision of land shall have been effected or shall be deemed to have been effected nor shall there be any intent by the parties to effect any division of [sic] subdivision of the Land, or to create divided interests in the Land by either the Transfer or the User Agreement and no leasehold relationship shall be created or be deemed to have been created by this User Agreement nor shall there be any intent by the parties to create the relationship of landlord and tenant between them for any term. [124] The petitioners submit that "the clear intent of Article 6.08 of the User Agreement is to negate any interpretation that it purports to create a subdivision of the land or a leasehold interest in the land." I agree with that interpretation. The language used in Article 6.08 does not constitute a waiver of the right to seek partition or sale. [125] However, a related, but somewhat different, point is made by Carlos Ruiz and others, who submit at paragraphs 4-5 of their Response: 4. By purchasing the Interest, the Purchaser (term including subsequent registered owners of that interest) promise the Vendor (CGT Management Corp) to observe and perform the covenants and agreements set out in the User Agreement. By the fact of purchasing the Interest, the new co-owner agrees to be bound by the User Agreement. 5. The Purchasers (and, therefore, subsequent Owners) also agree amongst other things: a) Not to commence proceedings for partition of the Land. b) Not to assign its User Rights under the User Agreement except to a purchaser of its interest in the land. [126] This is an apparent reference to the language used in paragraphs 3(a) and (b) of the Form E Schedule attached to the original Form A transfers from William Peel And Sons Estates Ltd. to 443595 B.C. Ltd.: 3. The Purchaser covenants and agrees with the Vendor and with all purchasers of other undivided interests in the Title of the Land (a) not to institute any proceedings for partition or sale of the Land pursuant to the terms of the Partition Act of the Province of British Columbia or otherwise and in lieu thereof the rights of the Purchaser shall be governed exclusively by the terms hereof and the User Agreement. (b) not to assign or transfer the rights held under the User Agreement to a person other than a purchaser of the Undivided Interest it being the intent and objective that the holder from time to time thereof shall also be the holder of User Rights with respect to the Unit. [Emphasis added.] [127] The petitioners submit that while paragraph 1 of the Form E Schedule sets out the terms of the right of reverter which affects all future purchasers, the remaining paragraphs, including paragraph 3(a), do not run with the land, and are nothing more than a private contract between the original Vendor, William Peel And Sons Estates Ltd., and 443595 B.C. Ltd. The petitioners point out that this Form E Schedule is only attached to the original transfers from William Peel And Sons Estates Ltd. No similar Form E Schedule is attached to the subsequent Form A transfers to the purchasers who are the current owners of Cypress Gardens. [128] I agree with the petitioners that the terms of the right of reverter are contained in paragraph 1 of Form E of the original transfer. This is made clear in the User Agreement at Article 14.12, which states: 14.12 "Right of Reverter" means the charge registered in the Land Title Office against the Undivided Interest in favour of the Vendor pursuant to the terms of paragraph 1 on Page 2 of the Transfer. [129] It will be recalled that Form E is attached as page 2 to the Form A transfer from William Peel And Sons Estates Ltd. to 443595 B.C. Ltd., and paragraph 1, constituting the right of reverter, is on that page. [130] As I understand the submission of Mr. Ruiz, however, his point is not that paragraph 3(a) constitutes part of the right of reverter, but rather that the terms of the User Agreement, which bind all of the current owners, require each owner to respect all the terms set out in Form E, even though Form E was originally a contract between William Peel And Sons Estates Ltd. and 443595 B.C. Ltd. [131] Article 6.03 of the User Agreement provides: 6.03 If the Purchaser is in default in fulfilling any covenant, condition, agreement, proviso, rule or regulation contained in the User Agreement, adopted pursuant to Article 1.07 or contained in the Schedule [Form E] forming part of the Transfer and if such default continues for a period of thirty days after notice thereof by the Vendor, except in the case of a non monetary default which to be cured with all due diligence would require a longer period, then after such longer period, or if the Purchaser fails to proceed promptly after the service of such notice and with all due diligence to cure the same, then, in any of such events this User Agreement, the User Rights and all interests held by the Purchaser in this User Agreement with respect to the Unit shall determine and be at an end. On any such determination, the Vendor shall have the right to resume the User Rights with respect to the Unit as of its former estate subject to the terms of Article 9. The Certificate of the Vendor as to the determination of the User Agreement with respect to the Unit shall be conclusive evidence of its determination. Any notice to be given pursuant to this Article shall be given by the Vendor in writing concurrently to the Purchaser and to any Mortgagee of the Purchaser who shall have given notice in writing to the Vendor pursuant to the terms of Article 1.13 hereof and any such Mortgagee shall have the right in its own behalf to cure or proceed to cure any such default of the Purchaser within the period hereinbefore prescribed. If requested by any such Mortgagee the Vendor agrees with the Purchaser to enter into a direct covenant with any such Mortgagee in the terms of the preceding sentence hereof. [Emphasis added.] [132] A question of interpretation arises in respect of the word "Transfer" in this Article. Does that word refer to the transfer to the current owners, or to the original transfer from William Peel And Sons Estates Ltd. to 443595 B.C. Ltd.? [133] The word "Transfer" is defined in Article 14.14 of the User Agreement: 14.14 "Transfer" means the transfer (in Form A and the Schedule [Form E] thereto) of the Undivided Interest to which this User Agreement forms Schedule 1. [134] The Form A transfers to the current owners do not have a Form E or any other schedules attached. In particular, the Form A transfers to the current owners do not refer to a "Schedule 1". Therefore, it would seem that the word "Transfer" as used in the User Agreement cannot refer to the transfers to the current owners, but must rather mean the original transfer from William Peel And Sons Estates Ltd. to 443595 B.C. Ltd., as it is that transfer and its Form E that has the User Agreement attached and forming Schedule 1. [135] Even if "Transfer" means the original transfer, the word "Purchaser" is not restricted to the original purchaser. Rather, "Purchaser" in this context includes the current owners. This is clear from the definition in Article 14.10 of the User Agreement: 14.10 "Purchaser" includes the registered owner from time to time of the Undivided Interest and holder of User Rights with respect to the Unit. [136] Thus, all current owners are "Purchasers" within the meaning of the User Agreement. This means that they are also included in the word "Purchaser" for the purposes of Form E, because paragraph 5 of Form E provides that "words defined in the User Agreement and used herein shall have the meanings ascribed to them by the User Agreement". [137] This is consistent with Article 13.01 of the User Agreement, which provides in part: 13.01 The Transfer (including this User Agreement every Schedule hereto) and everything herein contained shall be binding on and shall enure to the benefit of all Owners to the same extent as if it had been signed and sealed by all Owners and formed a document to which all Owners were parties... [138] Therefore, as I understand the submission of Mr. Ruiz, it is this: Since each of the current owners is bound by the terms of the User Agreement, Article 6.03 requires them also to honour paragraph 3(a) of Form E of the original transfer from William Peel And Sons Estates Ltd. to 443595 B.C. Ltd., and they are therefore bound not to institute any proceedings for partition or sale of the Land. This is reinforced by Article 13.01 of the User Agreement, which makes everything in the original transfer, including Form E, binding on all of the current owners to the same extent as if it had been signed by them. [139] If this interpretation is correct, then by bringing this petition, the petitioners have failed to honour the condition in Form E not to institute proceedings for partition or sale, and according to Mr. Ruiz, the petition should be dismissed on that basis. [140] Because the respondents were not represented by legal counsel, this point was not fully canvassed in argument by either the respondents or the petitioners, and for that reason, I would prefer not to base my decision on this point. I therefore turn to the question of the proper exercise of my discretion under the Partition of Property Act. DISCRETION UNDER THE PARTITION OF PROPERTY ACT [141] All the parties to this petition agree that the Court has a discretion not to order a sale under the Partition of Property Act. The use of the word "may" in ss. 2, 7 and 8 has been held to create such a discretion: Evans v. Evans, [1951] 2 D.L.R. 221 (B.C.C.A.). [142] Section 6 describes circumstances in which the Court "shall" order a sale, but with the limitation "unless it sees good reason to the contrary." As set out above, s. 6 has no application in the present case, as it has not been shown that the owners of a 1/2 or upwards interest are in support of the petition. [143] Counsel have referred me to a number of trial decisions in which the nature of the discretion not to order a sale has been considered, including Hayes v. Schimpf, 2004 BCSC 1408; Machin v. Rathbone, 2006 BCSC 252; Zackariuk Estate v. Chepsiuk, 2005 BCSC 919; Dunford v. Sale, 2007 BCSC 1422; Zimmerman v. Vega, 2011 BCSC 757; Richardson v. McGuinness, [1996] B.C.J. No. 2636 (S.C.); Riser v. Rawlings, 2008 BCSC 1050; and Jabs Construction Ltd. v. Callahan (1991), 61 B.C.L.R. (2d) 383 (S.C.). The most useful statements of principle, however, are found in the following decisions of our Court of Appeal. [144] A useful starting point is Harmeling v. Harmeling (1978), 90 D.L.R. (3d) 208 (B.C.C.A.), a decision of our Court of Appeal sitting in a five-justice division. There the Court rejected any approach that would limit the discretion to cases where there was a want of good faith, or vexatious intent or conduct or malice in taking the proceedings. Rather, as Seaton J.A. wrote for the majority at p. 212: In my view we should not limit the discretion in that manner. I think that we ought to accept without qualification the general statement that there is a prima facie right of a joint tenant to partition or sale and that the Court will compel such partition or sale unless justice requires that such an order should not be made. [145] The nature of the discretion was further clarified in Bradwell v. Scott, 2000 BCCA 576. There, the section under consideration was s. 6, but the Court opined that the exercise of discretion under that section would not be significantly different from the discretion under the other sections of the Partition of Property Act. The Court held at paras. 43-45 that the exercise of discretion would depend on the particular facts of each case: It does not appear from my reading of either the majority or minority reasons for judgment in Harmeling that the section then equivalent to our present s. 6 was under consideration. Rather, the section considered by both judges who wrote in Harmeling, as indicated above, was s. 3 (now s. 2), and in particular the words "may be compelled." We are bound by the majority opinion that those words confer a discretion to refuse an order where "justice requires that such an order should not be made." This case, however, turns on the interpretation of s. 6, and the meaning to be given to the words "unless it sees good reason to the contrary." Having said that, I am unable to see any real difference between the discretion conferred by this language and that described by Mr. Justice Seaton as arising under s. 3 (now s. 2). To the extent that "serious hardship" was said in Dobell [Dobell v. Oman, [1998] B.C.J. No. 504, (6 March 1998), Vancouver Registry, A972782 (B.C.S.C.)] to be the test for "good reason to the contrary" I would respectfully disagree. Serious hardship to a respondent may be a proper ground for refusing an order for sale, as might lack of "good faith, vexatiousness or maliciousness" on the part of the petitioner. But these are not the exclusive measure of "good reason." I agree with Mr. Justice Seaton that we should not limit the discretion by creating a general rule that might serve to justify refusal in any given case. The facts and circumstances of each case must be examined to determine whether a good reason, of whatever sort, exists for refusing the order. [Emphasis added.] [146] At paras. 34-35, the Court also addressed the question of onus or burden of proof: In para. 9 of the chambers judge's reasons (quoted above at para. 13) he said that it was not possible to determine who was at fault for the various confrontations and altercations which occurred between the parties. The Scotts contend that in leaving this issue unresolved, the chambers judge effectively placed upon them the onus of proving that the Bradwells were not entitled to equitable relief. They say this is an error because as the parties seeking equitable relief, it was for the Bradwells to establish their entitlement to same. As they failed to establish their entitlement, it is the Bradwells who should bear the risk of non-persuasion. This argument is closely related to the Scotts' jurisdictional argument, dealt with above, and in my respectful view it must fail for essentially the same reasons. There is no requirement under s. 6, either as a condition precedent to jurisdiction, or otherwise, for the petitioner to prove that he comes to court with "clean hands", and is otherwise entitled to equitable relief. The section says the court must order sale of the property "...unless it sees good reason to the contrary". This language is neutral in terms of onus. It is for the court to assess the evidence and to determine whether justice requires that such an order be denied. In practical terms, it would be for those opposing the application to put before the court evidence tending to establish a good reason for refusing it. In any event, I can see nothing in the statute or in the cases decided under it, to support the Scotts' submission. [Emphasis added.] SERIOUS HARDSHIP [147] As set out in Bradwell, serious hardship is one circumstance that may provide a proper ground for refusing an order for sale, although it is not the exclusive measure of when that discretion may be exercised. [148] Phillips v. Phillips (1980), 24 B.C.L.R. 194 (C.A.) is an example of the kind of serious hardship that may justify the exercise of discretion to refuse partition or sale. The property in that case was jointly owned by a husband and wife. After separation, the wife continued to live in the property with the children, but the husband applied for partition and sale to raise money to pay off his loans. The trial judge found that the husband's application was not vexatious, and granted the order. The Court of Appeal allowed the wife's appeal and set aside the order for partition and sale on the basis that if the order were allowed to stand, the wife and children would be left without a home and would have to relocate. Although Phillips was a case involving a husband and wife, the Court of Appeal applied the general principles relating to partition and sale as set out in Harmeling. [149] Similarly, in Bergen v. Bergen (1969), 68 W.W.R. 196 (B.C.S.C.), Seaton J. refused partition or sale because he held that the plaintiff husband's conduct was economically oppressive. The premises were of a relatively low value, and if the property was sold, the wife would not have been able to provide adequate accommodation for herself and her children. [150] In the present case, there is evidence that many of the respondents would suffer hardship if there were an order for sale of the Land. [151] Kevin Anjam deposed that he would suffer a major financial loss if he is forced to sell. He said that he and his family would not be able to afford to purchase another property on the North Shore with similar amenities to his present home at Cypress Gardens. [152] Shiva Khodabakhsh deposed that she and her husband are unemployed and it would be difficult or impossible for them to get a new mortgage. As she put it, "We are going simply to be displaced from our environment without any consideration to our financial problem." [153] Paul Hetherington deposed that if there is a sale, it would cost him up to several hundreds of thousands of dollars to move into a comparable home. [154] Yong Jun Sohn and Mi Aie An deposed that they could not afford a similar dwelling unit on the North Shore with the convenience and location they presently have at Cypress Gardens. They do not want to have to move their children away from their friends. [155] Paola de Rycke deposed that a sale would not allow her family to find a similar three-bedroom home on the North Shore. She has an autistic child for whom a forced move would be detrimental. She does not believe that she would be able to obtain a new mortgage to finance the increased cost of a replacement home. [156] Simon James and April Letnes deposed that they purchased their home at Cypress Gardens last spring for $375,000 and have spent another $80,000 on renovations. They say that they would not be able to find a comparable home on the North Shore with similar access to schools and recreation for their children. [157] Kasia Gagnon deposed that as a single parent with two children, she cannot afford to move. She says that she would not be able to buy a replacement home on the North Shore similar to her home at Cypress Gardens, where her children each have their own bedroom and can walk to school. She says it would be impossible for her to get a higher mortgage, and she and her children would simply be displaced from their home. [158] Harry T. Sidney Stephens deposed that he and his wife would not be able to find a similar home on the North Shore. He says that at his age of 89, he would not be able to obtain a new mortgage to purchase a replacement for their home at Cypress Gardens. [159] Sakar Jina deposed that she is 73 years of age and in ill health. She has put a great deal of money into improvements for her townhome at Cypress Gardens because she wants to live there for a very long time. She loves her home and does not want to move. She would not be able to get another mortgage, and with her limited income resources, she could not find a similar replacement home on the North Shore. [160] There are numerous other respondents who recounted the hardship they would suffer if there were an order for sale. I have already reviewed their affidavits above under the heading "The Evidence of the Respondents", and I need not repeat them all here. [161] The petitioners submit that the hardship the respondents would suffer is merely that of the inconvenience and unhappiness at having to move and does not amount to the sort of hardship that would warrant refusing the order for sale. The petitioners refer to cases where trial courts have found that mere inconvenience to one party does not amount to hardship. Those cases are distinguishable, however, because of the sheer number of individuals in the present case who would be negatively affected by an order for sale. This is not a case where one party is unsatisfied at the prospect of moving. Although the precise numbers are unclear, it appears that dozens of individuals would suffer hardship in the present case. [162] Moreover, the type of hardship in the present case is similar to that in cases like Phillips. The evidence before me demonstrates that an order for sale would force particularly vulnerable people out of their homes, including young children, single parents, the elderly, the infirm, and people of very limited financial means. There would be a negative impact on the children, who would suffer the disruption of having to move, change schools, and develop new support networks, if indeed their parents were even able to find new accommodation to purchase, which in many cases is doubtful. Many of the respondents have deposed that they were only able to buy their homes at Cypress Gardens because the prices there were much lower than for other accommodation on the North Shore, and that if there were a sale, the proceeds would be insufficient for them to find suitable replacement housing. As set out above, common law condominiums of this sort are now prohibited by s. 73 of the Land Title Act, and so it would be difficult or impossible for families to find similar accommodation for the same price as Cypress Gardens. In short, many families would be unable to purchase adequate replacement housing after a sale of their condominiums at Cypress Gardens. [163] The petitioners reply that many of the respondents who say the amount received from a sale would not be enough to buy a new home, are basing that claim on the offer they received from Polygon. They point out that this petition is not about Polygon's offer, and they submit that responses opposed to the petition based on that offer are irrelevant. The petitioners submit that on a court-ordered sale, each owner would likely receive considerably more than they were offered by Polygon, and therefore, the respondents' fears of not being able to afford to buy comparable replacement accommodation are groundless. [164] However, as set out above, the petitioners' claim that a court-ordered sale is likely to raise more money than was offered by Polygon is inconsistent with earlier assertions made to residents of Cypress Gardens when they were being encouraged accept Polygon's offer. [165] For example, Ronald Wilson, in a letter he sent to owners on August 25, 2011 (attached as an exhibit to the Affidavit of Mihai Radu) described the offer from Polygon as being "a fair, even generous Proposal." [166] Moreover, in a letter dated May 19, 2011 to all owners (also attached as an exhibit to the Affidavit of Mihai Radu), one of the petitioners, Catherine McBride, advised owners that there is little likelihood any developer would make an offer higher than Polygon's. She wrote: Regarding the idea that we could approach another developer and get "more money", we would like to bring up the following points: The Undivided Interest title of Cypress Gardens is very unusual and tricky to unwind. Polygon has already invested significant time and legal fees investigating the best way to proceed. This would be a $250 million dollar project and we understand there are very few builders in Vancouver able to develop a frame project this large. Most developers are colleagues and it is not common practice to compete or "steal deals" from one another; it is simply not professional. The property will need to be rezoned at considerable expense and time. Polygon has offered the maximum price they can afford based on reasonable density for the site. Another builder, to provide a higher purchase price, would have to assume a higher density and the City of North Vancouver would not likely approve a higher density than what Polygon is proposing. Based on all the considerations listed above, it is highly unlikely that another builder would consider making any proposal to develop Cypress Gardens, let alone a significantly higher one that the Polygon proposal. [167] I am satisfied that the evidence presented by the respondents establishes that a substantial number of residents at Cypress Gardens would be unable to purchase comparable replacement homes on the North Shore for the amount of money they would likely realize from a court-ordered sale. Moreover, many of the respondents would not be able to finance the additional cost of purchasing replacement accommodation, with the result that they would lose their homes and be forced either to rent or to move to a different municipality, far from their work, their friends, and their children's schools. [168] I accept as accurate the statement of Kevin Anjam in his affidavit: I believe that if this proceeding ends up in favor of the petitioners, many co-owners of Cypress Gardens, including me and my family, will be left with no place to live. PRIOR AGREEMENT [169] In Ben 102 Enterprises Ltd. v. Ben 105 Enterprises Ltd., 2007 BCSC 1071, Barrow J. considered whether an agreement entered into between co-owners of a property as to how they may dispose of their interest, can constitute a sufficient reason for a court to exercise its discretion to refuse an order for sale under the Partition of Property Act. He determined that it could. He examined the jurisprudence on the point from both Ontario and British Columbia and found at para. 14: I think that there can be no doubt that the contractual relationship between the parties to a partition application can constitute a sufficient reason to deny relief under the act. [170] Ben 102 Enterprises was followed in Vetter v. Bolivar, 2010 BCSC 652. In that case, at paragraph 18, Josephson J. accepted the proposition that where co-owners have entered into an agreement that is capable of governing their affairs, including how and when one tenant is permitted to dispose of its interest, the agreement is a bar to the presumptive entitlement of partition. [171] Our Court of Appeal dealt with this issue in Cooper v. Deggan, 2003 BCCA 395. In that case, the parties were co-owners of an island. They had entered into an agreement governing the disposition of an owner's undivided fractional interest in the event that one owner wished to sell (clauses 13 and 14). Clause 12 of the agreement also allowed for sale of the entire property by unanimous agreement. The Court found no error in the conclusions of the trial judge, who wrote at para. 29 of his reasons (2002 BCSC 1749): The petitioners' Partition of Property Act proceeding, to the extent that it is effectively an effort by them to sell their interests and force the sale of Paul Deggan's interest, is arguably in breach of the Agreement because it represents a sale contrary to clauses 13 and 14 of the Agreement (and clause 12, if it is more than simply permissive). [172] In the present case, the User Agreement does not deal with sale of the entire interest in Cypress Gardens. It does, however, contain provisions that set out how owners may dispose of their own undivided interests. Article 1.13 provides that the purchaser of an undivided interest may transfer or mortgage the undivided interest or sub-grant User Rights or part with possession of the Unit without the management company's prior consent, provided that they deliver a copy of that transfer within 10 days of the contract. Article 1.06 requires the purchaser to "notify the Vendor forthwith upon any change of ownership or of any mortgage or other dealing in connection with the Undivided Interest or User Rights with respect to the Unit." Article 6.05 provides that "The User Rights with respect to the Unit shall not be assigned, transferred or mortgaged except in favor of a Purchaser or other successor in title to the Undivided Interest or a mortgagee of the Undivided Interest." These and other provisions codify the terms on which an owner may dispose of his or her interest. [173] As has been pointed out by many of the respondents, this is not a case in which the petitioners have no way to dispose of their ownership interests unless they have recourse to the courts. On the contrary, they may sell their interests at any time in the same way that they purchased them in the first place. OTHER RELEVANT CIRCUMSTANCES [174] Bradwell reminds us that determining whether there is a good reason to deny an order for sale requires a consideration of all the facts and circumstances of the individual case. The Court rejected the use of rigid categories to determine whether an order for sale ought to be refused. [175] In the present case there is an additional circumstance that constitutes an important reason for exercising the Court's discretion to refuse an order for sale, and that is the reasonable understanding and expectation of the respondents when they purchased their condominiums as to the nature of their rights as homeowners at Cypress Gardens, and the nature of their relationship with the other owners. In this regard, one must consider the documentation that a prospective purchaser would typically see, including the User Agreement and the Disclosure Statement. [176] The User Agreement begins by designating a specific unit, its balcony and a car parking space "for the exclusive use occupation, possession and enjoyment (the 'User Rights') of the Purchaser" subject to the terms of the User Agreement. A purchaser would naturally consider the designated unit as his or her home, that is, as a permanent place of abode. [177] Although Cypress Gardens is not a strata property, and although it was not created under the Condominium Act, it was marketed in such a way as to encourage prospective purchasers to believe that what they were buying was the functional equivalent of a statutory condominium. [178] That is, purchasers were led to believe that they were buying individual homes, and not merely a fractional interest in 9.5 acres of land and buildings that could be sold out from under them any time a minority of owners, or even a single owner, decided to bring a petition under the Partition of Property Act. [179] This is illustrated by the Disclosure Statement prepared and filed by Ronald Wilson when the units were marketed to the public. Paragraph 2.01(a)(3) stated that each purchaser would have the exclusive use and occupation of the Unit assigned to them "in perpetuity". It would be reasonable for prospective purchasers to understand this to mean that they could use and enjoy their condominium home for as long as they chose to stay there. As one of the unrepresented respondents put it to me in oral submissions, he could not understand how the petitioners could force him to move out of his home at Cypress Gardens, when he had faithfully paid his mortgage, taxes, and assessments. He said the present petition felt to him like a foreclosure, yet he had done nothing wrong to warrant his home being taken away from him by court order. [180] The Disclosure Statement also notified prospective purchasers in paragraph 2.01(a)(5) that their rights and obligations under the User Agreement of Cypress Gardens would be substantially identical to those of strata lot owners under the Condominium Act. [181] Similar language appears in the contract of purchase and sale (a sample of which is attached as Exhibit "C" to Ronald Wilson's Affidavit #3), which states at paragraph 11: The User Agreement provides for substantially identical rights and obligations with respect to the Purchaser's Undivided Interest and User Rights to the Unit to those set out in the Condominium Act of the Province of British Columbia with respect to strata lots created thereunder. [182] These references to the Condominium Act would reasonably lead a purchaser to believe that his or her right not to be forced out of his or her home by the actions of another owner, would be similar to the rights enjoyed by the owner of a statutory condominium. [183] The Condominium Act in force when Cypress Gardens was created provided a mechanism by which the owners could collectively decide to sell their building when its state of repair led them to believe that it should be destroyed. The deemed destruction of a building was dealt with in s. 65 of the Condominium Act, but under that statute, it was not sufficient that one, or several, owners could force all the others to abandon their homes. Rather, the deemed destruction of a building required passage of a special resolution of the owners. "Special resolution" was defined in s. 1: "special resolution" means a resolution passed at a properly convened general meeting of the strata corporation, of which at least 14 days' notice specifying the purpose of the special resolution has been given, by not less than 3/4 of the votes of all persons entitled to vote thereon under this Act or the bylaws, present at the meeting in person or by proxy at the time the resolution is passed; [184] It was reasonable for purchasers of homes at Cypress Gardens to believe that a similar kind of democratic process would have to be followed before the complex where they live could be sold against their will. [185] As Carlos Ruiz put it in his affidavit: When we bought the property nobody told us about the possibility of being displaced because the figure of the land partition according to the petitioners' will, even though we had a professional realtor leading us through the process. [186] In my view, the respondents reasonably believed that a sale of the kind sought by the petitioners in this case could only come about through a democratic process expressing the will of a substantial majority of the owners, by way of a process similar to that in the Condominium Act, namely, a special resolution of at least 3/4 of the owners. [187] The documentation drafted by Ronald Wilson to create and market the common law condominium project at Cypress Gardens, and the language used in the documentation, would encourage a prospective buyer to form that reasonable belief. [188] These are additional circumstances supporting the conclusion that it would be unjust to make an order for sale in this case. CONCLUSION [189] As set out by the Court of Appeal in Harmeling and Bradwell, on a petition under the Partition of Property Act the Court must consider whether justice requires that such an order should not be made. The exercise of that discretion may take into consideration such issues as hardship and prior agreement of the parties, but there is no fixed list of relevant factors. All the circumstances of each case must be taken into consideration. [190] The facts of this case are unusual. The Court has not had the benefit of any previous decisions dealing with petitions for sale of common law condominiums, nor did the Court have the assistance of the submissions of trained legal counsel for the respondents other than the Consenting Respondents. [191] For all the reasons set out above, and considering all the circumstances of this case, including but not limited to the hardship that would be caused to many resident owners at Cypress Gardens, I am satisfied that it would be unjust to make an order for sale. [192] The petition is dismissed. The Honourable Mr. Justice W.F. Ehrcke