A Tanner Ridge homeowner has been awarded $102,000 in damages after a neighbour built a home blocking her views of the valley, the ocean and the mountains in contravention of a restrictive covenant.
Justice Elaine Adair also awarded Li Zhang $7,500 to compensate her for the “intolerable” glare created by the metal roof on her neighbour’s new home.
The dispute between Zhang and neighbours Ben and Erin Davies, who live across the street from each other on Bella Vista Drive in Central Saanich, was heard in B.C. Supreme Court in February.
“The lesson, of course, is that people should not unilaterally decide to ignore documents that have been entered and placed on their titles such as restrictive convenants,” said Zhang’s lawyer, Michael Hutchison.
“This was significantly important to my client for her well being, and it reflected a recognition from the court that she had bought her property with expectations that were being protected by a restricted covenant.”
The Davies were bound by the conditions of the covenant and proceeded to build in defiance of their obligations, he said.
“From a legal perspective, it’s a useful case because it reaffirms the principle that restrictive covenants will be enforced,” Hutchison said.
Zhang bought her house in December 2013 because she loved the views. The house was marketed with a brochure highlighting the views. Zhang, who is from China and has limited English, moved in with her two children in February 2014.
In February 2015, the Davies bought their property and built their home, blocking Zhang’s view, especially on the main floor of her house.
During the trial, Zhang argued that the Davies’ house was built in breach of a restrictive covenant stating that no house could be built on the property purchased by the Davies without her prior written approval of the plans and specifications. The Davies argued that the covenant was void and unenforceable.
By March 11, 2015, the Davies had permits to build, but did not have written approval from Zhang. Despite that, they went ahead with construction.
The Davies said they started construction because Zhang had the plans for a month — an exaggeration noted by the judge — and they were not sure she would ever sign off on the plans. They had a building permit, financing for the construction and trades lined up.
“Even though they knew Ms. Zhang had not given her written approval, the Davies were not prepared to wait any longer to start construction,” said Adair.
On June 2, 2015, Zhang launched her civil suit. Twice, the Davies tried to approach her to get her written approval of the drawings. Zhang put up a sign telling the Davies to stay away and contact her lawyers.
During the summer of 2016, the sun shining on the metal roof created a strong glare inside the east-facing rooms from sunrise to noon, the judgement said. When the sun is shining, Zhang is unable to use the kitchen, eating area, dining room and living room. A real estate appraiser said the light made it uncomfortable to remain in those rooms.
“It was like a flashlight shining in your eyes,” he said.
The appraiser said the loss in value to Zhang’s property from the roof and the construction was $153,000.
The restricted covenant was put in place to preserve Zhang’s views and it required the Davies to get written approval from her, Adair found. “The evidence established there was a practical benefit to her lot in terms of the view and the real estate value.” The restrictive covenant is valid and enforceable and the Davies’ house was constructed in breach of it, the judge concluded.
In addressing the metal roof, Adair said homeowners may do something perfectly legal in using their property, “but if you cause an unreasonable interference with neighbours by doing so, you are going to be liable.”
The Davies could have taken steps to avoid this situation, said Hutchison.
“They could have gone to court and asked for the court to make an order releasing their property from the restrictive covenant. Then it would have been up to a judge to decide whether or not the value to Zhang’s property for protection outweighed the reasonable use of their property. The issue would have been dealt with before anyone spent the money building a house.”
Hutchison said he expects Zhang will be pleased her position was recognized. She has no plans to move, he said.
“It’s unfortunate. I don’t think the Davies set out with intention of harming Ms. Zhang, but they preferred their interest over hers.”
