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Fairwinds Community Association
Ad-Hoc
Committee –
to investigate the feasibility of
changing/modifying the Building Covenants in Phase IIA of Fairwinds
Development |
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Report to the Fairwinds Community Executive, March 23,
2009 |
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Background |
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Building
Covenant enforcement is an ongoing issue in Fairwinds and both
the current developer
(“Fairwinds”) and the Fairwinds Community Association recognize the need
to have the building covenants adhered to and enforced as required.
Building Covenant enforcement needs to be done in order to maintain a high
standard of house construction and protect and enhance the value of all
the homeowners’ property within our development. This is normally not a
big problem for new construction as Fairwinds is the approving authority
and all detailed building plans are subject to a formal review and
approval prior to the start of construction. |
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Fairwinds
has stated that it does not want to be involved with reroofing on existing
structures and herein lays one of the issues the committee was asked to
address. |
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The building covenants were drawn up on a phase by
phase basis. Simply put, roofing materials have evolved significantly in
the nearly two decades since the early phase building covenants were drawn
up. Building covenants are cast in stone as it were, and they do not
evolve. |
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Modifying building covenants can only be done by
either having all the residents approve a change; or residents petitioning
the courts to make modifications when it can be shown that a large
majority support the change(s) or where it can be clearly demonstrated
that covenants are out dated and no longer reflect current standards. In
a large phase (in this instance 58 residences) it is virtually impossible
to gain 100% approval for a change to the covenants. This leaves the
alternative of petitioning the courts to make any changes. This is an
expensive and time consuming process with no guarantees that the Judge
will rule in favour of the petitioners. |
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Fairwinds Community Association cannot initiate any
court action as FCA is not a property owner and therefore does not have
legal standing in the courts to initiate such an action. |
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This
lack of legal standing also applies to Fairwinds. Once they have sold all
the property in a phase of the development. Such is the case in Phase IIA. |
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In Phase IIA of the Fairwinds Development residents
are faced with two separate issues relating to the Building Covenants that
apply to the type of roofing materials that can be installed on a
residence. |
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| The type of materials that are permitted for new
construction |
| The types of materials that may be used for
reroofing an existing residence. |
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The
Ad-hoc Committee Fairwinds Community Association at their last Executive
Meeting on Feb .3, 2009 struck an Ad-Hoc Committee to investigate the
possibilities of modifying the building covenants for Phase IIA. The
Committee was to also consider if the process to modify the building
covenants in Phase IIA could also be structured so as to form a template
that could be used to modify the building covenants in the other phases of
Fairwinds. Fairwinds has indicated that they do not wish to be involved in
reroofing issues in the older Phases because the Building Scheme only
authorizes Fairwinds to act as Approving Agent for new construction. A
lot
owner does
not normally require a building permit to reroof his house. This leaves a
resident with the option to install a conforming roof, or install one which
does not conform and risk legal action by a neighbour.
The
ad-hoc committee was aware that cedar was not the likely choice and that
making the modifications plus the additional costs for a traditional clay or
cement tile would be very expensive. With a large number of retirees on a
fixed income the ad-hoc committee investigated a number of possible less
costly roofing alternatives.
The
Design Guidelines are a document which was prepared by Fairwinds to give Lot
Owners information on what Fairwinds will require to approve the plans for
a new home in Phase IIA. It contains the following clauses and restrictions
for roofs. |
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3.6 Roof Materials |
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The roof is to be of cedar
shakes, cedar shingles, clay tiles or concrete tiles. |
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The Design Guidelines apply only
to new construction, are not referred to in the Building Scheme for Phase
IIA and are not registered against title to any lot in phase 2 |
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The Building Scheme contains the
following clause that is applicable to both new construction and re roofing: |
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5.0 The following limitations on the use of any
of the Lots or any parts thereof shall be applicable: |
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(c) ...and no roof shall be
constructed of a “Duroid” type material or of metal. No tile roof shall be
constructed except for concrete or clay tiles. |
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The Building Scheme is registered
against the title of each Phase 2 Lot, runs with the land and is binding on
each Phase 2 Lot owner.
Link
to Building Guidelines for Each Phase |
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The First Issues |
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A
new residence currently under construction in Phase IIA violated the
building covenants for this Phase where the owners have installed a metal
roof on their house. The owners of this residence thought they had been
given verbal approval to go ahead and install a metal roof which they felt
was more in keeping with the architectural style of their house. When they
submitted their detailed plans to Fairwinds for written approval as required
under the Building Scheme the plans were rejected because of the proposed
metal roof. They owners went ahead with construction and when they were
requested by Fairwinds to cease the installation of their metal roof, they
circulated a petition in the immediate vicinity of their house. Fifteen
neighbouring residents signed the petition stating to the effect that they
had no objection to this metal roof. The installation was completed in mid
February 2009. |
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Fairwinds is reluctant to petition the Courts to seek an
injunction to have the current roof removed and replaced. Fairwind’s legal
counsel are of the opinion that they no longer would have legal standing in
court as they no longer own any properties in Phase IIA. (The property with
the non conforming roof had been resold several times before the present
owners purchased and Fairwinds was no longer the owner of said
property).[Note that Fairwinds may be able to commence action under a
separate restrictive covenant that is registered on the lots that abut the
golf course]. Fairwinds is also reluctant to launch legal action because of
the uncertainty that the courts would rule in their favour, given that the
roof is now installed and has the tacit approval of the immediate
neighbours. The only alternate legal redress at this point appears to be
for a resident in Phase IIA to launch a court action. This appears to be
unlikely even though Fairwinds has indicated they would underwrite at least
some of the legal costs. Taking legal action in this instance is one way to
try and ensure that Building Covenants are adhered to. This situation also
points out that roofing materials have evolved and the metal roof that has
been installed if of a high standard and appears to be aesthetically in
keeping with the rest of the structure and therefore not an eyesore or
problem to surrounding residents. |
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The Second Issue
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A number of residents in Phase II are faced with
replacing their aging cedar shake or shingle roofs and because of a lack of
availability of “roofing quality” cedar shakes or shingles, they are faced
with a dilemma on what materials to use. Based on the experience of one
resident to replace their cedar roof with clay tile and the very high
modification/installation costs to make this change, the Ad-hoc committee
examined the possibilities of using alternate, less costly materials. At
first glance it would seem that the building covenants in place do not leave
much wiggle room to use other materials. This then became one of the
challenges for the committee - to find alternatives roofing materials that
would not violate the guidelines. |
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Ad-Hoc Committee |
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The following people served on this committee: Karen
Kenyon, Chair; Cliff Hinton, FCA representative; Trevor Cradduck, Chris
Hansen, Marion and Walter Clark (all residents of Phase IIA) and Keith
Thompson (a Fairwinds resident and practicing lawyer). |
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Investigation
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The committee under Karen’s capable leadership and great
participation by the rest of the members held several meetings, including a
very instructive session by Fairwinds’ approving official, Dave Scott who
outlined the history and evolution of the approved roofing materials used in
the various phases of the Fairwinds Development. The first thing that
became evident is that the world of roofing materials has made significant
progress since the building covenants were drawn up in the late 1980’s.
Cedar because of a lack of availability, relatively short life and abysmal
fire rating (in spite of its’ inherent architectural appeal) has declined
significantly as a roofing material for new construction in BC. |
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There are a range of materials that would seem to bridge
the gap between cedar and clay or concrete tile. A number of these are clay
based, kiln fired products; some are composites manufactured with clay or
cement and other materials. A number of these new roofing materials have
approximately the same dimensions, weight and appearance as a cedar shake
and have been certified as all weather (Grade 1) with the high Class “A” and
“B” fire ratings. This means that these types of alternatives appear to
conform to the existing building covenants and offer residents a lower cost
alternative for reroofing (although local roofing suppliers quoted prices
that were higher than Duroid, fibreglass laminates or cedar products). |
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Seeing that the newer phases in Fairwinds are using a
laminated fibreglass asphalt shingle as the material of choice, we spent
some time discussing the possibilities of this being a conforming material.
Keith Thompson’s research found a recent BC legal precedent where the Judge
had ruled that Duroid and Fibreglass Laminates where the same type of
material. This appears to rule out using Fibreglass Laminate Shingles as a
conforming choice in Phase 2 |
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Committee Findings
and Recommendations: |
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Fairwinds Community Association at this point in time
does not have any legal jurisdiction over roofing choices for either new
construction or reroofing projects in any of the Building Phases in the
Fairwinds Development. |
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New Construction: |
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Owners
of lots in Phase IIA should follow the clearly spelled out formal process
for seeking building approval from Fairwinds and ensure that their roofing
material choices conform to the building covenants. |
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Owners who choose not to use conforming
roofing materials risk being sued by other residents in Phase IIA. |
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Existing Homes |
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| Homeowners who are faced with a reroofing
construction project need to make themselves aware of the materials that
are available to use on the project which will meet the Building Scheme
restrictions. |
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The
Building Scheme itemizes the roofing materials that are prohibited in
Phase 2. It follows that if a material is not prohibited by the Building
Scheme (and by the zoning bylaws for the Nanaimo Regional District) it can
be used by an owner when it is time to re-roof his house. |
| Based on our research and the advice of Fairwinds
there are conforming alternative roofing materials that can be used on
re-roofing projects. There are lightweight clay materials now available
that to the best of our knowledge will conform to the Phase IIA Building
Covenants Several alternatives that we found that appear to be acceptable
are manufactured by US Tile Co. under the brand names ProShakePlus and
ProSlate
www.ustile.com |
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ProSlate -- colors |
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There
are a number of roofing products on the market made from recycled tires,
polymers and rubber would seem to be suitable choices for reroofing. As
these materials largely arrived on the market after the Phase IIA Building
Covenants were struck, they are not specifically excluded in the Phase IIA
Building Covenants and therefore allowed (according to our best legal
advice). Examples of these include
Enviroshake, (www.enviroshake.com),
EcoRoof (www.penfoldsRoofing.com)
Euroslate/Euroshake (www.euroslate.ca) |
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Enviroshake Roof |
Eco-Rubber (Pensfold Roofing) |
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EuroSlate |
EusoSlate - Close up |
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| In any event homeowners contemplating reroofing in
Phase IIA are responsible for their own research and choices of
materials. Factors to be considered include: cost, warranty, fire and
weather ratings and availability. Please note that while the foregoing
examples have been approved by Fairwinds for use in new home construction
in Phase IIA their inclusion in this report does not indicate an
endorsement by the Fairwinds Community Association. |
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Other
Recommendations |
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| Fairwinds Community Association should act as an
educational resource for all property owners and create and maintain a
library of brochures and samples of suitable roofing materials that have
been approved by Fairwinds should be kept in the Fairwinds Centerand be
readily available to residents. |
| Fairwinds Community Association should also
approach the major roofing companies and suppliers to ensure that they
each fully understand the restrictions contained in the Building Scheme
for Phase IIA and the materials which have been approved to date by
Fairwinds for new home construction and which could be used by residents
when they reroof their homes. |
| Fairwinds Community Association should designate a
member of the executive and/or knowledgeable residents to be a resource
for residents in the Fairwinds Community to assist with the selection of
reroofing materials. This person(s) would be responsible to manage the
brochures and samples and to keep themselves apprised of new roofing
materials coming on stream. |
| It would appear that in Phase IIA (and we suspect
in many of the other early phases of the Fairwinds Development) there are
enough alternative roofing materials available which do not contravene the
Building Scheme, then there is no need to take costly, time consuming and
possibly futile legal action to seek to have the building covenants
modified or changed. |
| After discussing the possibility of obtaining 100%
approval by the residents of Phase IIA to modify/change the Building
Scheme with three different lawyers, they all came back with the same
advice, “Don’t waste your time as in our experience, it is almost
impossible to get all the residents to agree on this issue, especially
those with tile roofs who would likely not see any need to make
changes”... |
| Fairwinds Community Association should develop a
preferential discount program where members of the FCA receive a reduction
in the price of roofing materials and labour and a variety of consumer
related products from local merchants. This could be an incentive for
non-participating residents to join FCA. |
| Members of the Committee expressed support for the
concept of having and reinforcing the building covenants in order to
maintain a high end community. The members felt that most people that
live here or would consider moving into the Fairwinds Community would be
supportive and would endeavour to conform to any building covenants.
There might be the occasion where, for example a non-conforming low
quality (Duroid) roof might be installed and there was a consensus that if
this were to happen then legal action would be appropriate. |
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As the
committee members felt that it had met its mandate the sentiment was to
disband the committee and submit a report to the FCA Executive.
Respectfully submitted,
Clifford
Hinton 3/23/2009 |
