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Homeowners Ordered to Remove
Suite
(July 2000)
by Del Elgersma
A B.C. couple that excavated their crawl space and converted
it into a secondary suite, in violation of a municipal bylaw,
was recently ordered to restore their home to its original condition.
In 1994 the couple built a two-storey house with a crawl space
on a lot they owned in Burnaby. The lot was zoned for single-family
homes with a maximum floor area of 2,400 square feet. The house
built on the lot was just under the maximum permitted floor area.
In 1995 the owners excavated part of the crawl space for a suite,
resulting in the floor to ceiling height being increased from
4 feet to 8 feet, and increasing the floor area of the home by
about 700 square feet.
After the City found out about the excavation, the owners applied
for a building permit, which was refused. An application for
a variance was also refused, and in 1997 the city began legal
action against the owners to force them to restore the crawl
space. The trial judge found in favour of the City. The owners
appealed to the B.C. Court of Appeal.
The owners' main defence was that the City didn't prosecute thousands
of owners of illegal suites, but only those that it received
a complaint about. They argued that by ignoring the other illegal
suites and proceeding only against the defendants because a complaint
was received, the City was violating their right to equality
under the Charter of Rights.
In essence the defendants' position was that the City should
not be permitted to enforce its bylaws unless it had a system
in place for enforcing all breaches of its bylaws.
The Court of Appeal dismissed this argument, comparing it to
a motorist ticketed for speeding arguing that the ticket should
be ruled invalid because other motorists have driven over the
speed limit without being issued tickets.
Finally, the court refused to exercise its discretion to refuse
to make the order. Restoring the crawl space would require the
defendants to spend a considerable sum of money. The court weighed
the public interest of enforcing the bylaw against the hardship
the order would impose on the defendants.
Given that the defendants knowingly and deliberately flouted
the bylaw for their own benefit, the court ordered that they
restore the crawl space to its original condition. This case
illustrates the danger for homeowners who attempt to circumvent
local bylaws. The courts may not be sympathetic to them if they
are prosecuted.
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