East Vancouver property dispute highlights co-ownership risks, legal experts say

Legal experts say an 11-year property battle between two former friends highlights the risks of joint ownership, and the tremendous toll of housing insecurity.

Shaira Holman and Cynthia Brooke, who both identify as queer and disabled, each own one-half undivided interest in a side-by-side duplex in East Vancouver. When they co-purchased the property with their late wives in 2001, each couple hoped the duplex would be their “forever home,” and failed to draft a legally binding agreement on home ownership.

More than two decades later, the widowed tenants are facing thousands of dollars in legal fees, after Holman filed a petition to force the sale of the entire duplex in B.C. Supreme Court last November.

“Yes, our younger selves dreamed of a 'forever home.' But forever is the realm of vampires. Humans are mortal; we get sick, and we all die, and all our homes are eventually sold,” Holman tells CTV News in a statement.

In March, Justice David Crerar ruled there were several reasons not to order a sale of the entire property, which has an apprised value of $3.29 million. One reason laid out in his ruling is that the duplex sits on two separate municipal lots, with the property line running down the middle.

Both parties agree they can’t afford to stratify the duplex, which would cost an estimated $250,000. Instead, Crerar reasons Holman and Brooke can register a property wall agreement to split the adjacent units under different ownership.

The judge noted even with the proceeds of a sale, Brooke would be unlikely to afford a comparable house, particularly given "the unrelenting rise in Vancouver real estate prices."

“It was the petitioner who changed the status quo by moving out,” Crerar adds, referring to Holman’s second property on the Sunshine Coast. She keeps tenants at both locations, and says she needs to sell the East Vancouver property in order to stop working, as ordered by her doctor, due to a complex-PTSD diagnosis.

The ruling set legal precedent by acknowledging the value of living in a “queer-friendly” and “physically and culturally comfortable neighbourhood," with close proximity to Brooke's long-term health-care providers. Crerar also refers to the importance of housing security for Brooke, who has lived on a disability pension since suffering a workplace injury in 2008.

But Holman, who is an artist and co-founder of the Vancouver Queer Arts Festival, disputes claims that the precedent supports the housing rights of queer, disabled and financially marginalized folks.

“All the factors my neighbour argues she cannot and should not have to bear—loss of the home, loss of queer neighbourhood, the difficulty of moving as a disabled person—are precisely the same as what I face,” Holman says.

While the ruling recognizes the couples once considered each other "family," Holman argues it fails to award their queer chosen family the same rights as a straight nuclear family: "In this broken family, equitable division of assets only happens if we sell the house as a whole and share the proceeds," Holman says.

Brooke says she also wants a fair division of assets, and that Holman did not appeal to the judge based on being queer and disabled.

“Holman was asking the judge to force sale to maximize profit, and to be in sole control of the sale," says Brooke. "I was asking for the right to stay in my forever home and community, and to divide our properties equitably."

Property wall agreements split adjacent dwellings under different ownership, but are relatively rare in Vancouver. Up until 2012, before changes were made to the Land Title Act of B.C., these deals weren’t legally binding for future owners.

Since potential buyers may not be familiar with the legal structure, Holman believes the sale would result in a much lower price. But the judgment notes that even if she’s limited to selling her half, its estimated value is $1.41 million, meaning she’d still make a nearly $1.32-million profit off her original investment.

Salima Samnani, a lawyer practicing in Vancouver, says this case highlights the mental health costs of housing insecurity.

“There's an illusion that if you have a house your housing is secure, but when you're constantly worried about losing your housing, I don’t think it’s possible to have a stress-free life,” says Samnani. “Not giving people at least some safety nets is a terrible disservice to people’s mental health, and often forces people to stay in dangerous situations.”

Her legal advice to anyone considering co-ownership is to enter a formal contract that includes how to get out of that contract in worst case scenarios. That includes putting something in the contract about how surviving beneficiaries would comply with the terms, and what to do if an owner dies before writing a will.

“At the end of the day this is a business venture, you really have to treat it very, very formally and get proper legal advice,” she says.

Samnani believes this legal precedent could be used as a call to action for better bylaws, legislation and tax rules that can help people avoid these types of situations.

“How are you supposed to evaluate who's the worst off and who deserves the sympathy of the courts? This case is very unique in that there is no bad person. We need logical, no-nonsense steps rather than pushing the narrative of ‘homeownership is just a get rich quick scheme.’”