Lawsuit over neighbouring home obstructing views in Whistler dismissed

The neighbouring property, still under construction, is seen in this image from BC Assessment. (bcassessment.ca)

A Whistler couple who sought more than $300,000 in damages because the home built next to theirs obstructed their view and limited their privacy has had their claim dismissed.

The lawsuit stemmed from Valerie Elisabeth Whiffen and Arthur Julian Craddock's 2017 purchase of a home on Bear Paw Trail north of Whistler, according to a B.C. Supreme Court decision issued Wednesday and posted online Thursday. 

Whiffen and Craddock sued developer Whistler Rainbow Properties Ltd., construction company Big Bang Construction Ltd., and a man named Luis Eduardo Garcia, who "was associated with both Rainbow and Big Bang, and who appears to have communicated on behalf of both at various times," according to Justice Ian Caldwell's decision.

The homeowners accused the defendants of breach of contract, breach of promise or negligent misrepresentation, the judge wrote in his decision.

"Their complaint is that the home built on the adjacent lot is different than was represented to them, interferes with their views and privacy, and has reduced the market value of their home," Caldwell wrote.

PUSH FOR 'COMFORT'

According to the judge's summary of the facts of the case, the couple entered an agreement to purchase the home for $2.8 million, subject to six initial conditions, the last of which was to be removed by early September 2017.

None of the conditions made any reference to the adjacent property, which was also slated for development, but the judge noted that "the plaintiffs say that they were constantly pushing for 'comfort' as to what was going to be built on the adjacent property."

This push for comfort ultimately led to an addendum to the agreement extending the deadline for removal of some of the conditions, as well as an in-person meeting at the property between the plaintiffs, their real estate agent, Garcia, an architect, and a surveyor.

During the meeting, Garcia and the other representatives of the developer explained that plans for the adjacent property had not been finalized or approved by the municipality, though Garcia sought to reassure the couple that the designs he had shown them for the neighbouring home would not change.

Craddock and Whiffen left the meeting with "some comfort about construction on the adjacent property," according to Caldwell, who added that "they still felt uncertain because there was nothing in writing making the actual terms clear."

The following day, Garcia sent an email to the plaintiffs' realtor saying that, "as long as Big Bang Construction builds the house," it would match the design he had shown them.

Caldwell's decision indicates that the pair decided to move ahead with their purchase, agreeing to two formal addenda to the home purchase contract.

"Neither of the addenda in any way mentioned or referred to any issues regarding the adjacent property or the house that was to be built on that property sometime in the future," the judge wrote.

UNACCEPTABLE CHANGES

In April 2018, shortly after construction on the next-door home had begun, Craddock and Whiffen learned that the plans had been "changed," and that the residence would include "a rooftop deck with a covered outdoor kitchen, a hot tub, and a bathroom," according to the decision.

These changes were intolerable to the plaintiffs, who "determined by late 2018 that they could not live in the home given the compromises to view and privacy," Caldwell wrote.

Since that time, the couple has listed the home for sale twice, first for roughly $3.1 million in March 2019, and later for roughly $3.8 million in June 2021. During the first listing, according to the court decision, they received three offers, ranging from $2.77 million to $3.02 million, but none of those offers "firmed up to completion."

During the second listing, the couple received an offer for $3.2 million, "which they describe as well below asking price," Caldwell wrote, adding that they planned to re-list the home again this year.

The plaintiffs argued that Garcia's email should be considered part of the contract to purchase the home, or that it should be considered a promise or a negligent misrepresentation. The damages they sought reflected their estimate of the reduction in their home's market value, plus the costs of a variant application they made and the costs of installing a privacy screen.

Caldwell rejected these arguments, saying that the communications between the parties were merely "discussions" that "lacked the certainty required to accord them the status sought by the plaintiffs."

"Had either party, particularly the plaintiffs, wished to make their expectations clear, they were well able to include a term or terms detailing those expectations in the final addendum," the judge wrote.

"They did so with respect to the other changes relating to deficiencies. They failed, for reasons best known to themselves, to do so with respect to the adjacent property."

The lawsuit was dismissed and the defendants were awarded court costs.