Condominium Plan No. 802, 2012 ABQB 751

Court of Queen ’ s Bench of Alberta Citation: Condominium Plan No. 802 0605 v. Zilke, 2012 ABQB 751 Date: 20121207 Docket: 1203 12757 Registry: Edmonton Between: The Owners: Condominium Plan No. 802 0605 Plaintiff - and - Linda Zilke Defendant _______________________________________________________ Memorandum of Decision of L. A. Smart, Master in Chambers _______________________________________________________ [ 1 ] The Plaintiff, The Owners: Condominium Plan No. 802-0605 (Condo Corp.) commenced an action against the Defendant Linda Zilke (Zilke) the owner of a unit in the subject condominium complex.

The Amended Statement of Claim alleges that a Caveat was registered against Zilke ’ s unit in the amount of $14,656.37 pursuant to

Section 39 of the Condominium Property Act for contributions levied by the Condo Corp. plus future contributions levied, interest pursuant to sections 40 and 41, all reasonable costs and expenses pursuant to

section 42 of the Condominium Property Act . It alleges that the amount claimed under the Caveat remains unpaid. [ 2 ] Also claimed is recovery of expenses of $1,470 for charges rendered by an exterminator and locksmith. Furthermore, it is alleged that Zilke is in breach of a number of bylaws for failure to repair, causing a nuisance, failing to cause others in possession to

comply with the bylaws, allowing her unit to be unfit for human habitation, and allowing the heating system in the unit to be rendered inoperable.

Specific particulars of the breaches include leaving her unit in such a condition that it has become infested with mice and allowing water pipes to burst damaging hers and an adjoining unit. [ 3 ] The Condo Corp. seeks both in personam and in rem relief, an Order that Zilke comply with the bylaws, and if she doesn ’ t, authorization for the Condo Corp. to take steps to ensure compliance including removal and disposal of property contained in the unit, damages for loss or expenses in taking the appropriate steps, interest and costs on a solicitor and own client basis. [ 4 ] Zilke was noted in default.

The Condo Corp. now applies for personal judgment of $39,315.55. Filed in support is the affidavit of the secretary of the Board of Directors. She parrots the allegations and requests the relief set out in the Amended Statement of Claim. The particulars of the indebtedness are attached (a computer generated ledger) and copies of invoices for the exterminator and the locksmith. Included is a demand letter sent to Zilke on March 14, 2012 stating her account was severely in arrears for $557.88 being the months of February and March, 2012.

The Affidavit also sets out the intention to get a personal judgment and thereafter seek recovery against the unit under the Civil Enforcement Act including a reduction of the 180 day waiting period. [ 5 ] A review of the invoices of the exterminator provide some insight into what this Condo Corp. has been facing. The first attendance appears to have been on December14, 2011. The invoice indicates the unit is abandoned, the tenants were hoarders, construction company workers inside the unit were wearing respirators and a respirator was needed by the exterminator.

The account rendered is for $603.75 which includes five more attendances in December. This invoice is not listed on the ledger but appears to form part of the $1,470 alleged to be owing. On March 9, 2012 there was a reinspection and rebating done three more times in March. It is observed that the 4 th and 5 th floors still need to be emptied and cleaned out. The next attendance is on June 11, 2012. It is prefaced with a remark “ FOLLOW UP MOUSE VISIT - STILL BADLY INFESTED W/MICE -HELP!!! NOTE: PLEASE REMOVE ROTTEN POTATOES FROM BATHROOM**THANK YOU FROM LAURIE. ” I suspect Laurie is the Condo board ’ s secretary.

Regardless, the potatoes were removed. Investigations were expanded to three additional units which presumably are adjoining units in some fashion. From the addresses it appears the immediately adjoining units had no mice but two doors down there appeared to have been an indication of some activity. The invoice for changing locks is dated March 3, 2012. It is important to note that the information garnered from the above invoices is not evidence. I am, however, alive to the issues faced by the Condo Corp. [ 6 ] The ledger of indebtedness contains some remarkable amounts.

Despite the Demand Letter stating arrears of $557.88 in March, 2012, it brings forward a balance of $2,065.88 at January 1, 2012. On August 16, 2012 there is an entry: Insurance Deductible - $10,000, on October 9, 2012 for Content Removal - $13,650 and on October 15, 2012 for Legal - $9,524.04. No explanation or back-up documentation for these rather significant amounts was provided. One can speculate as to how the insurance deductible and the expense for content removal arose but judgments are not granted on speculation.

As for legal costs, invoices or bills of costs clearly identifying the services performed must be provided. Current authority, albeit mixed, puts in to question what legal expenses can be recovered and whether they form part of contributions caveatable under the Condominium Property Act. Interestingly, at no point in time on the ledger is the exact amount set out in the Caveat owing.

Regardless, caveats are notice of a claim and without more are not evidence of the amount nor does it establish validity of the claim per se. [ 7 ] There are no pleadings or evidence to say that insurance was involved in anyway whatsoever, nor evidence that a deductible was paid or is payable or how much other than a bald amount set out in the ledger. There is no allegation in the pleadings nor evidence that content removal occurred or how much was paid, again, other than a bald amount set out in the ledger.

The last invoice from the exterminator includes inspections in other units but there is no evidence to say why that was necessary or why mouse sign two doors down was attributed to Zilke ’ s unit. And, finally there is no evidence as to why it was necessary to change the locks, just that it was done and the invoice attached. Conclusion [ 8 ] Based on the evidence before me I will grant judgment against Zilke for the Condo contributions for 2012 in the amount of $2,510.46. The other claims will be adjourned to an unspecified date to permit the Condo Corp. the opportunity to present proper evidence.

When the matter is set down, the additional evidence along with proper notice for the application to reduce the waiting period under the Civil Enforcement Act will be served on Zilke. Parenthetically, I note the application to reduce the waiting period appears premature in that no Notice of Intention to Sell has been given by a Civil Enforcement Agency.

Finally with respect to service, despite Master Breitkreuz ’ s earlier Order to permit service of the Statement of Claim and subsequent documentation in the action by regular mail to the property address, I direct personal service of the earlier motion and supplemental materials upon Zilke. If personal service cannot be effected, leave is granted to seek another Order for substitutional service upon evidence being presented that demonstrates reasonable efforts have been made to locate Zilke. Under the circumstances there will be no costs for this application.

Heard on the 30 th day of October, 2012. Dated at the City of Edmonton, Alberta this 7 th day of December, 2012. L. A. Smart M.C.C.Q.B.A. Appearances: Brian Sussman, Q.C. Biamonte, Cairo & Shortreed LLP for the Plaintiff No one appeared for the Defendant