3600 Van Horne - Absurdity and disgrace - Tagg · 2012. 2. 9. · 3600 Van Horne, the building in which I live, was part of that affordable housing scheme. 3600 Van Horne is a four‐storey

Philip Tagg 2009‐02‐27 1 (10) 3600 Van Horne — Absurdity and disgrace

3600 Van Horne - Absurdity and disgrace A personal account by Philip Tagg (27 February 2009)

IntroIn 2006 I bought a condo at 3600 Van Horne in Montréal. That purchase has been an un‐mitigated disaster. In what follows I will try to explain what seems to have caused the disaster and to suggest what I feel must be done to avert further catastrophe.

Fig. 1. Location of 3600 Van Horne

The first person singular in this document is me and no‐one else, while the we refers either to the other two board members of the condo association and myself or to all of us condo owners at 3600 Van Horne. It will be clear which of those two we‐s is op‐erative on each occasion.

This is not an official document addressed to any particular person or body. It merely registers my recollections, opinions and reflections on matters of great concern, not only to me and my fellow condo owners at 3600 but to any condo owner in Québec, as well as to anyone concerned about matters of justice and property relating to articles 12, 13, 16, 17, 22 and 25 in the UN Declaration of Human Rights.1

In what follows I start by explaining the curious “deal” at the basis of conver‐sion work on our building. After that (under Major errors and no guarantee) I present the discovery of serious construction anomalies and the lack of viable guarantee on our building. Then (under Las Vegas and Tel Aviv, followed by Prisoners in our own homes), I examine the legal mess surrounding the status of units in the building and its dire consequences for condo owners. In Residents, government and responsibility I discuss the contribution of the City of Montréal and of the Québec government to the disaster we condo owners face at 3600 Van Horne. I conclude with a few reflections on my personal experience with the anarchy of condo property development in Québec.

The ‘deal’In 2005 the City of Montréal (“the city”) established a subsidy programme to create “affordable housing”.2 3600 Van Horne, the building in which I live, was part of that affordable housing scheme.

3600 Van Horne is a four‐storey block built in the 1950s and situated on the southeast corner of Van Horne and Côte‐des‐Neiges (see Fig. 1) in the Montréal

1. <www.unhchr.ch/udhr/lang/eng.htm> (English); <www.unhchr.ch/udhr/lang/frn.htm> (français).2. Programme de subvention pour le logement abordable.


borough of Côte‐des‐Neiges/Notre‐Dame‐de‐Grace. The building’s ground floor consists of commercial units while the top three floors have been convert‐ed into condos (Fig. 3, p.4).

In February 2005, 6309356 Canada Inc, owned by property developers Howard Rossdeutscher and Peter Gallant, bought 3600 Van Horne, and the parking lot belonging to the building, for a total of $2,350,000. The developers then spent $1,729,400 on condo conversion but were given a $468,000 subsidy by the city to cover part of those expenses.3 The developers then sold the 39 new residen‐tial units at an average of $130,000 each ($130,000 × 39 = $5,070,000). In May 2006, Rossdeutscher and Gallant sold the commercial space on the ground floor and the building’s parking lot to 9167‐0620 Québec Inc. (the current owners of those units (see p. 5‐6)), for $2,150,000 ($200,000 less than they paid for the whole building and its parking lot 15 months earlier). All in all the developers made a profit of $3,608,600 on their conversion of the building I live in (Table 1).

Table 1 Developers’ profit at 3600 Van Horne

Item Amount*

*. Negative amounts express the developers’ expenses, positive amounts their income.

Purchase of entire building plus parking [2005‐02‐04] ‐2,350,000 ‐2,350,000

Sale of parking and commercial space only [2006‐05‐26] +2,150,000 ‐200,000

Conversion costs ‐1,729,400 ‐1,929,400

$12,000 subsidy for each of 39 apartments +468,000 ‐1,461,400

Sale of 39 apartments at average each of $130,000 +5,070,000 +3,608,600

Profit made by Rossdeutscher and Gallant =3,608,600

Conversion work on 3600 Van Horne was completed in early 2006 and apart‐ments sold very quickly. In May 2006 responsibility for the building was trans‐ferred by the developers to an ad hoc Syndicat des copropriétaires (“condo association”).4 Monthly condo fees were set at the unrealistic level of $75 prom‐ised by the developers.

At the time of purchase, buyers were led to believe that they would have access to outside parking (the stationnement extérieur in Fig. 1, p. 3) and that they had, according to the contract they signed, bought a condo in a “new residential building” (the immeuble neuf in Fig. 1) or, at least, in a building that had been officially certified as new in the sense of entirely and thoroughly renovated.

3. $468,000 is equivalent to 20% of the total conversion costs or to $12,000 for each of the 39 condos. I have also heard tell that the city grant to the developers was $600,000 but prefer to avoid eventual accusa‐tions of exaggeration.

Running total

4. Two of the ad hoc association’s self‐nominating board members were, we discovered later, personally known to the developers. This was one of several reasons why I unwillingly agree, together with two other independent co‐owners, to put myself forward for election as condo association administrator. If I had known then what I know now, I would never have volunteered.


Fig. 2. (left) Part of the original sales banner hung from 3600 Van Horne in early 2006. Note Stationnement extérieur (outside parking) as a major feature in this sales pitch. (right) Actual contract headings used by the developers at sale of condos in 2006.

On the 26th of May 2006, the outside parking area (stationnement extérieur), promised in the publicity for 3600 Van Horne, was sold by the developers with‐out the knowledge or assent of the 39 new co‐owners who had completed their purchase in the belief that parking facilities were part of the deal.

Major errors and no guaranteeSceptical about the low condo fees and concerned by issues like non‐airtight windows and the non‐availability of promised parking space, co‐owners voted, at an assembly in July 2006, to hire the services of a management company.5Worried that there might be other problems with the building, the Conseil d’ad‐ministration du syndicat des copropriétaires (hereinafter the condo association’s “administrators”) commissioned a detailed report on the building from Mr G. Fallah (architect).

Mr Fallah’s report detailed about $700,000 worth of repair work to be done on the building. On 28 February 2007 our lawyers sent our denunciation of the rel‐evant errors to both the developers and to the Garantie [Habitation] des Maîtres Bâtisseurs (hereinafter “Garantie”)6 whose function, we were led to believe, was to guarantee the quality of the construction in which we had, as individual buy‐ers, each invested very substantial sums of money. Not until July 2007 were any negotiations held between ourselves, the promoters and the Garantie. One out‐come of that meeting was that the promoters were instructed by the Garantie to correct errors relating to urgent safety issues like sprinklers located directly above electrical equipment, non‐airtight fire doors, etc. It was agreed that all our other claims would be evaluated separately at a later date. The promoters finally managed to complete the few safety‐related corrections well after the agreed deadline and only after repeated reminders from our side. Meanwhile, it took the Garantie another six months to reject all of our remaining claims on the grounds that they were not covered by the guarantee for our building. This

5. A one‐year contract was signed with Gestion Immobilière Paquet (GIP) in the hope that the associa‐tion’s interests would be managed professionally. That was a disaster. For example, we never received agenda or minutes for board meetings, and our finances were never made transparent. We did not renew our contract with GIP at the end of June 2007. In the summer of 2007 we signed a contract with Mme Janine Huot of Gestion Immobilière Ville‐Marie, whose expertise we have appreciated ever since.

6. La Garantie des Maîtres Bâtisseurs is actually a Québec government body (under the Régie du bâtiment). It is supposed to offer viable home warranty plans.


Fig. 3. (left) The actual four‐storey building at 3600 Van Horne looking east; (right) The jointly owned property at 3600 Van Horne, as conceptualised by the develop‐ers, the Garantie and the City of Montréal

The “no guarantee” of the Garantie and the exclusion of the commercial space from the déclaration link directly back to the conditions of the city subsidy grant‐ed to property developers Rossdeutscher and Gallant . According to those con‐ditions, money was available for the conversion of only the interior of the building’s three upper floors (Fig. 3). Apart from the entrance hall, plus cabling and plumbing relating to the residential parts only, no part of the ground floor or basement was included in the subsidy or in the conversion work. Except for the roof, no part of the building’s external fabric, nor of its foundations, was in‐cluded in the city’s grant conditions nor in the conversion work on the building. It is of course totally absurd to notionally detach certain parts of a building as if they could physically float in the air and exist independently of foundations and external fabric; but that is exactly what both the Garantie and the City both seem to believe (see the ‘flying saucer’ version of our building in Fig. 3).

sudden revelation, about 18 months after signing our purchase contracts, of a guarantee excluding any part of the building’s foundations or external fabric, as well as any part relating to the commercial space on the ground floor, came as a severe shock. How, we wondered, could we possibly be held responsible for an entire building without any guarantee for its fundamental structural el‐ements? This shock led to two other disturbing discoveries, one relating to the notaries and the owners of the building’s commercial space, the other to the City of Montréal.

In early 2008 our manager and our lawyers discovered serious errors in our Déclaration de copropriété (hereinafter the “déclaration”),7 of which one needed immediate correction. The problem was that the commercial unit on the ground floor, although mentioned on almost every page of the déclaration, was myste‐riously absent from the section presenting the legal identification of units (état descriptif). With that one error corrected we have since been able to legally es‐tablish at least partial payment of fees owed to the association by the owners of the commercial space. Nevertheless, we have, a year and two favourable court judgements after that one correction, yet to receive a single cent.

7. Déclaration: the declaration, bye laws and regulations of the co‐ownership (condo) association.


It goes without saying that we need a single alarm system for the whole building and that we have shared walls, sidewalks, foun‐dations, roof, etc. Similarly, if the old pipes serving the commercial units burst in the basement, as they soon will (Fig. 4), there will be a flood affecting the structure of the entire building and our condo association will have to pay for the damage.8 It is for such obvious reasons that a jointly owned property has to include all parts of the building. The problem is that, having signed contracts for condos in the “new residential building” at 3600 Van Horne, we are now apparently expected not only to underwrite the developers’ $3,608,600 profits and to cover the usual costs of maintaining a building whose construction is adequately guaranteed but also to pay for the upkeep of an un‐renovated building from the 1950s with no guarantee of construction quality or durability.9 It makes no sense that neither the developers, nor the Garantie, nor the city admit any part of the responsibility for having lumbered us, without warning, with an old building in need of expensive repair and renovation. How is it logically possible that we, as condo owners at 3600 Van Horne, can be held legally responsible for an absurdity created by others at a time when we wer‐en’t even there. We didn’t hatch the city’s strange low‐cost housing pro‐gramme, we didn’t convert part of the building and leave the rest untouched. We weren’t even informed about any of this when we bought our condos. It’s as if it were our fault for not having known in advance about all these paradox‐es, contradictions and absurdities and then, when we did find out, blaming us for not viewing the madness as normality. It’s as if it’s out own fault for not knowing that “new” means from the 1950s and that Garantie just guarantees lack of protection!

Las Vegas and Tel AvivAnother obvious consequence, already mentioned, of the notional abstraction of the top three floors from the ground floor at 3600 Van Horne is that the no‐tary, Sandor Steinberg,10 who the developers instructed us all to use when pur‐chasing our condos, erroneously excluded the commercial space, situated on the ground floor, from the legal description of the units in the joint property. This consequence ties in with the fact that the anonymous Tel Aviv owners of the commercial space, through David Nordheim, their North American repre‐sentative in Las Vegas and the numbered company 9167‐0620 Québec Inc., con‐sistently refused to pay their condo fees (approx. 30% of the association’s

8. Rust and leaks on basement pipes were not noticed until November 2007 partly because they were until then concealed by thick layers of recently applied white paint.

9. The condo association found itself entirely responsible for the foundations and external fabric of the entire building.

10. Of the firm Isaacson, Levy & Steinberg.

Fig. 4. Rust on leaking pipes from the 1950s (basement)


Fig. 5. Pricey property in Las Vegas and Tel Aviv.

For nearly three years residential owners have had to cover the condo fee debt owed by the commercial space owners whose constant refusal to pay forced us to take legal action against them and to cause our condo association further ex‐pense. A court judgement in December 2008 finally ruled that the commercial owners should pay us about half ($44,000) of what they owed us in October 2008. The owners complained to the court that they had no money and ap‐pealed for a postponement of payment. After a second judge independently ruled against such postponement, the Tel Aviv/Las Vegas company (9167‐0620 Québec Inc.) quickly found the money and transferred it to the Court Clerk’s office, even though we had asked for a direct transfer to the condo association’s account. This manoeuvre, which, unlike a direct transfer, involved an adminis‐tration fee payable to the court by 9167‐0620 Québec Inc., caused us the addi‐tional legal expense involved in formulating an official request asking the court to transfer the money to the condo association so we can pay our lawyer.

Since taking steps in 2007 to include the commercial space in the déclaration the owners have not only withheld payment of dues; they are also now carrying out radical reconstruction work which affects the building as a whole but with‐out even notifying the condo association’s board members, let alone asking for our permission. Moreover, when experts arrive at agreed times to inspect the commercial units, it has happened that the owners’ representative either doesn’t turn up or claims at the last minute that he is unable to be there.11

11. Seemingly unaware of rules in our déclaration, the local representative of the commercial space accuses us of non‐cooperation because we don’t automatically provide him with keys to areas to which he has no access without our permission, just as we residents have no automatic access to the commercial units without his permission. Another example: the fan heating motor in one of the commercial units is so loud that one resident on the second floor can no longer live in her apartment. Several formal letters have been sent to David Nordheim in Las Vegas but no measures have been taken to rectify the prob‐lem. The resident is still unable to use the private domestic space for which she has paid.

Such actions cause us further expense in that we have to ask for legally correct letters and formal notices to be drawn up and sent to Las Vegas to ask for, then insist on, co‐operation in solving the building’s common problems.

revenue under normal circumstances), even though notary Steinberg’s error had, at our expense, been corrected by our lawyer with retroactive effect.


Prisoners in our own homesAccording to our calculations the commercial owners are currently in arrears to the tune of about $102,000 or, if we manage to extricate the $44,000 from the Court Clerk’s office, around $58,000. However, we cannot receive that remain‐ing amount because of further errors made by notary Steinberg in the déclara‐tion. These errors come in the shape of inaccurate part shares and relative values of units in the building, with the effect that the proportion of condo fees payable by the owners of the commercial space cannot be exactly calculated or rightly established. Correcting these errors will be an extremely costly proce‐dure involving not only legal work but also the services of a surveyor and ar‐chitect to measure and determine the relative values of each unit in the building. Of course, this work should have been carried out before we were presented with any contract of purchase. This negligence has even more dire consequences than making innocent co‐owners pay for someone else’s errors.

Since we are currently unable to pay for the legal correction of errors in the déclaration, none of us is legally allowed to sell his/her apartment. We are prisoners in our own homes. We have in effect lost the basic right to own property (UN Charter, article 17) in that we are not allowed to sell the most ex‐pensive thing we have paid for and which we de‐monstrably own. The removal of this human right has far‐reaching social and emotional, as well as fi‐nancial, consequences. For example: [1] young couples planning to start a family cannot sell and move to less cramped conditions; [2] immigrant

pensioners cannot sell up and return, as they had planned, to their country of origin. These effects contravene other rights in the UN Charter (articles 12, 13, 16). Another serious consequence, already visible, of our inability to sell is that an increasing number of co‐owners decide, or are obliged, to rent out their con‐do. The decreasing proportion of owner‐occupiers and the increasing propor‐tion of tenants can have negative consequences on the value of property and on the building’s insurance rates.

Fig. 6. Prisoners in our own homes

Residents, government and responsibilityOur condo association has over the past two and a half years had to confront a large number of serious problems, none of which is of our own making. Putting right the most urgent problems has been extremely time consuming for us as administrators and extremely expensive for condo owners in general. In order to cover basic running costs as well as unavoidable legal expenses, condo fees have risen from $75 in May 2006 to an average of $180. Two hefty special con‐tributions had also to be levied. On our current budget we are able to survive for a few more weeks but we have refused to accept the new budget which, in one sense realistically, proposes yet another hike in condo fees, this time to $240


a month, as well as another special contribution. There are many reasons for re‐fusing to adopt the new budget. I will restrict myself to just three.1. A co‐owner at 3600 Van Horne earning $30,000 a year (or $2,500 a month)

pays around $800 in taxes, another $800 in mortgage repayments and, cur‐rently, $180 in condo fees. This person is in other words left with the princely sum of $720 each month to cover heating, electricity, food, insur‐ance, travel and all other normal day‐to‐day expenses. Raising this person’s condo fees to $240 is an action which risks forcing him/her into personal bankruptcy, especially given that his/her condo cannot be sold (see Prison‐ers in our own homes, p. 7). This person will be punished for having commit‐ted no crime while the developers walk free after making a tidy profit at his/her and our expense.

2. If, as condo association administrators, we were, by adopting the proposed budget, to push even just one single co‐owner towards personal bank‐ruptcy, we would be subscribing to the totally unethical notion that the weakest members of society must be the first to suffer. As individual human beings, we administrators refuse categorically to behave so irre‐sponsibly and inhumanely. We will not give in to pressure demanding that we go against basic principles of human decency and solidarity. If the sys‐tem insists that such injustice should prevail, then let it be clearly seen by all who is truly responsible for implementing such injustice.

3. It is evident that neither individual co‐owners, nor the condo association administrators are in fact responsible for any of the woes at 3600 Van Horne. Even so, technical responsibility for our catastrophic situation is thrust upon us, and on us alone, by the current state of co‐ownership legis‐lation. Even though we have in no way caused the faults and errors dog‐ging our building we are inevitably lumbered with the burden of proof for any statement, however apparent it may be, we make about those faults and errors.12 Such inequality before the law is intolerable and must cease.

We can, in short, no longer, neither financially nor morally, even pretend to be part of the bizarre charade in which we are, in spite of obvious evidence to the contrary, unrealistically expected to assume all responsibility for all the prob‐lems bedeviling our building and its residents. Those who demonstrably

12. We have even been accused of causing some of the errors we desperately need to have rectified! In an “arbitration” document from the Garantie des Maîtres Bâtisseurs, the lack of insulation in the walls we had complained about was ‘explained’ like this: “[i]t is clear that isolation material had been present and that it had been removed” [by a third party] “for some reason or other” (pour une raison quelconque). That statement means that the authors of the document think that at least one of us wanted a cold home in mid February, a much higher heating bill, the inconvenience and expense of removing and replacing panels, the discomfort of removing insulation material and disposing of it, the risk of being sued for illegally and without permission altering aspects of building construction, the reduced sale value of the unit in question, etc. That amazing pour une raison quelconque statement —my worst students concoct better excuses for not handing in their work!— was actually used in an official document as an argu‐ment for refuting our request for the proper completion of wall insulation in our residential units. It is worth adding that one co‐owner can’t get his room temperature above 18°, even with his heating on full blast, and that he’s paying double‐sized heating bills for that privilege.


caused the misery that we experience at 3600 Van Horne should, I think, own up to their part in creating the chaos we confront on a daily basis. Of course, some of those contributing to the chaos are unlikely ever to admit to any wrongdoing but I am both surprised and shocked that public bodies involved our demise seem as prone as 9167‐0620 Québec Inc. to deny any responsibility.

The City of Montréal has in my view acted disingenuously. Having cobbled to‐gether the physically and financially intenable notion of a collection of residen‐tial units as a sort of flying saucer without walls or foundations (see p. 4), the city seems to have encouraged the developers and the notary to think and act along the same lines. As explained above, that absurdity is at the core of the ca‐tastrophe at 3600 Van Horne. Moreover, the twenty‐two on‐site inspections car‐ried out by city employees do not appear to have led to any remarks about the urgent safety issues mentioned on page 3, nor about the missing insulation ma‐terial in the walls under our windows.13

Given that the city contributed nearly half a million dollars of taxpayers’ money to the developers’ $3,608,600 profit —a profit largely made off the backs of us residential co‐owners (see p. 2)— I find the city’s lack of willingness to admit to even the slight‐est error very childish, cowardly and, frankly, morally spineless. I think it is clear that the city has, knowingly or unknow‐ingly, played a central role in creating the mess we are expected —magically, with no money, all on our own and without any help from anyone— to mop up on their be‐half. My opinion of the city’s commitment

to human values and to low‐cost housing took a further nose dive when I re‐cently learned that city employees claim to have lost the plans of our building. It is supposedly a bureaucratic error but it is one that prevents our lawyers from making any progress in further arbitration procedure with the Garantie. We (condo association administrators) have also been dismayed by the lack of con‐cern shown towards our case by Michael Applebaum, mayor of our local bor‐ough. We think that the City of Montréal should own up to its faults and accord us financial reparation for a substantial part of what we have lost dur‐ing these last three years.

Fig. 7. Admit no evil: spineless

We also think that the Québec government ought to shoulder part of the blamefor our catastrophic situation because the lack of adequate legislation in the realm of co‐ownership in this province leaves people like our condo association members with virtually no protection against less scrupulous builders, profit‐driven de‐velopers and other hard‐nosed individuals from the entrepreneurial milieu.

13. See footnote 12, p.8


Moreover, we residential co‐owners were lumbered, without any information or warning, with responsibility for the most fundamental parts of an unreno‐vated building from the 1950s that, we discovered later, totally lacked any guarantee of its structural state. It seems to me that such lack of transparency and of structural guarantee contradicts the clearly stated mission of the Régie du bâtiment du Québec, “to ensure proper quality of construction work” … through the Plan de garantie des bâtiments résidentiels neufs and, in our case, the Garantie des Maîtres Bâtisseurs whose arbitrators, despite claims of neutrality, stooped to using elementary‐school playground reasons for refuting our claims of sub‐standard construction work.14 It seems to us that this lack of adequate legisla‐tion at the provincial level is also indirectly responsible for the mess made by the City of Montréal when drawing up the disastrous conditions for the conver‐sion subsidy granted to Rossdeutscher and Gallant.15

Final considerationsI am appalled by what I have experienced at 3600 Van Horne since May 2006. I deeply resent not only those who have directly exploited my good faith but also the public bodies who seem incapable of admitting, let alone repairing, the damage they have helped cause. The compact indifference I have experienced from those bodies has shaken my faith in the justice system of Québec and of Canada. I think they have made a mockery of notions like “good governance”, especially in relation to the adjectives accountable, equitable, responsive and par‐ticipatory.16 The City of Montréal has, it seems to me, no problem in channelling $468,000 of taxpayers’ money to a company which goes on to make nearly eight times that amount in profit (p. 2), while the same administration is not prepared to give a single cent to the condo owners who suffer the consequences of the city’s own flying‐saucer notion of a joint ownership (pp. 4, 9) and from its seem‐ingly inadequate inspection procedures (p. 9). For me it’s like Robin Hood in reverse, stealing from the poor to give to the rich. These are in my view ridicu‐lous injustices that bring disgrace to Montréal and to Québec. This impression of disgrace has convinced me to take my retirement earlier than planned. I will feel very relieved when (and if) I am finally able to leave this sad, sad place.

Philip Tagg (Copropriétaire, 3600 Van Horne, Montréal)

14. For disingenuous argumentation, see footnote 12, p.8. The Garantie’s claims of neutrality can be found at <www.maitresbatisseurs.com/entrepreneurs/qui.html> and the Régie’s full mission statement at <www.rbq.gouv.qc.ca/dirEnglish/AboutRBQ/Mission.asp> (visited 2009‐02‐25).

15. We have also heard individuals, usually those who live in a detached or a semi‐detached house on its own grounds, utter the opinion that the only residents in need of public support are tenants and that co‐owners need no such support because they are supposedly rich. This view is in direct conflict with our reality and with the City of Montréal’s notion of “affordable housing”.

16. In addition to accountable, transparent, responsive and participatory, other qualities associated with good governance are effective and efficient, consensus oriented and follows the rule of law. See Bert Enserink and Joop Koppenjan: “Public participation in China: sustainable urbanization and governance” in Manage‐ment of Environmental Quality, vol. 18/4, pp. 459 ‐ 474 (2007).

Documents

3600 Van Horne - Absurdity and disgrace - Tagg · 2012. 2. 9. · 3600 Van Horne, the building in which I live, was part of that affordable housing scheme. 3600 Van Horne is a four‐storey