1) That the fundamental nature of a time share plan is in creating an interest that is not specific, but is to be used generally in conjunction with other time share owners; as your agreement outlines. As opposed to a lease, which is for a specific property.
2) That the project was formed and regulated under the timeshare provisions of the Real Estate Act as noted in the prospectus document which contained the following bolded statement: TIME SHARING INVOLVES A CONTINUING RELATIONSHIP WITH A SUBSTANTIAL NUMBER OF OWNERS OF EACH TIME SHARE INTEREST. And the essence of this disclosure is also outlined in paragraph 13 of the VIA's.
3) That your usage rights "floated" as opposed to being assigned a specific unit for a specific period of time
What does the above mean? It's just rambling.
Interest that is not specific? How much more specific can it be than,
"You get one week a year in this unit, don't break anything. Pools over there."? Floating means nothing. It's simply a booking parameter. It describes nothing about the relationship between lessees, as the Judges would have us believe. I get one week between week 1 and week 18. If everyone wants week 12, guess what, most people will be disappointed. How does floating create or demonstrate a relationship between lessees? My paragraph 13 is about default and doesn't disclose any essence of the continuing relationship with a ... blah, blah, blah, blah.
It's the big picture that is really disturbing. Its the progressive creep, one small wrong added to another, that is the proof.
I want to point out that you've said things that I find contradictory. You've said that
"... you had horrendous legal representation - so bad that a law school should do a case study on it." And at every turn you remind us,
"... courts can only decide on the case presented." Yet you continually defend the courts' decisions, quoting them at length. The conclusion I've drawn from your posts is that despite horrendous legal representation, despite courts making decisions only on the cases presented; they somehow arrived at the correct conclusion. I don't see it that way.
You state,
"If you are responsible for maintenance, repair, and replacement costs - what are you being asked to pay that is not in that category?" That's a good question. It begs perspective first. The original Renovation Plan so readily accepted as necessary and appropriate by your extolled Judges, is double the 2017 average cost per square foot of a custom built home in Canada. VIRTUALLY DOUBLE! It is equivalent to the cost of building a new hotel in Canada in 2017. Believe me, the cost per square foot evident in the Fairmont Villas never approached that of a new hotel. Moreover, that cost was for a new structure where you aren't utilizing roofs, walls, all of the concrete, etc. So yes, you've asked a good question, ...
what are we paying for?
Major caveat 1, Replacement Cost in my lease contract is strictly limited to furniture and fixtures within a unit, for which a Replacement Reserve is established and funded annually through Maintenance Fees.
Major caveat 2, The Renovation Plan will never be completed. Firstly because the number of units has been reduced by half. Secondly, they aren't spending anywhere near as much on the 25% they've renovated per square foot as originally budgeted. Our $4,000 bill should now be no more than $1,300. Plus, there shouldn't be interest charged on money that was never spent. How is that even reasonable? How could a Judge agree to that? The renovation of 25% of the units completed thus far was more than paid for by those who choose to stay.
Maintenance is the collection of planned activities necessary to perpetuate and sustain the life and purposeful use of assets. Nothing in the Renovation Plan is or was Maintenance.
That brings us to Repairs. The repairs that prompted the Renovation Plan were at least one building's foundation but, I believe that building was taken out of the equation at bankruptcy. I'm honestly not sure about this detail.
This leaves the other purported precipitating event, the problems with Poly-B piping. Poly-B is in as many as 30% of the homes in Western Canada. As many as 90% of the homes built in the 80's and 90's contain Poly-B. The problem with Poly-B is almost exclusively a result of the piping laying out in the sun for an extended period before installation. The general thinking is if after 10-years there have been no leaks it is probably best to leave it and replace it as opportunities or necessities present themselves. When Poly-B does fail, it is usually pin-hole leaks that become evident rather than catastrophic failures. Nothing indicates that all of the Poly-B in all of the building necessitated such an immediate, extensive and disruptive solution.
To make it worse, the Judges cast nary a glance at Northmont when they redesigned the units as part of the renovation. A redesign is nowhere near a repair. Let me put a fine point on it; The Judges were both naive and ill-informed.
This whole thing was cooked-up simply to extort money for the lessees paying to stay or paying to go, period. The fact that the Judges can't see that amazes me.
Just two examples of the many errors the Judges made, in my opinion: From the Jeke ruling,
"[113] That these are long-term contractual relationships is more than evident; the leases are for 40 years, and later VIAs would create permanent ownership interests." Categorically not true.
"[112] All of the above provisions confirm the fundamental nature of a time share plan in creating an interest that is not specific, but is to be used generally in conjunction with other time share owners. This, in essence, creates not only a relationship as between the lessor and lessee, but one between all of the time share owners, whose interests are to be managed in a manner that gives effect to their collective interests."
When I purchase my lease interest a 'time share plan' absolutely was defined by the acquisition of ownership in property and land. I am not a party to a time share plan. Furthermore, please, someone explain the essential interest between the time share 'owners'? The Judges sure didn't. I absolutely have only one contractual relationship, one-on-one, with the Lessor, period. The Judges are wrong. I am not a party to a time share just because they call it one; I don't have a relationship with the lessee in the unit next to me, just because they say I do; and, I am not an owner just because they and the Lessor call me an owner.
Now I am going to finish this martini and I'm done.
#NAFR
