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Lawyer weighs in on apartment elevator dispute

A prominent Edmonton real estate lawyer is calling Gary Nash’s recent dispute with City Hall over an apartment design unfortunate, but not uncommon.

On Thursday, Global News reported that Nash wanted to buy a four-story apartment complex as a retirement investment. The City approved Nash’s design, which did not include an elevator; but after the $2 million dollar project was complete the City said that he did need an elevator, and that he could not get an occupancy permit.

“That is not an unusual situation,” said Robert Noce, an Edmonton-based real estate lawyer. “The classic question is: who should bear the brunt of that mistake? Should it be the land owner, who relied on that permit and did everything in accordance with what he thought was the law? Or should it be the municipality, who months later discovered that they made a mistake and try to take away that permit?”

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“The unfortunate thing here is someone has made a mistake,” he added.

Noce explains that the dispute centres around the words “nor” and “or”. Alberta’s building code says that a building does not need an elevator if it is “neither” greater than three stories “nor” bigger than 600 square metres. But a provincial design guide, ironically created to explain the building code in layman’s terms, uses the word “or” instead of “nor”.

Nash thought that because his building was much smaller than 600 square metres, everything would be fine.

“From a drafting perspective, it is not the best worded section in the building code,” said Noce. “I think the drafters could have done a better job of providing some clarity in terms of those requirements.”

Although Nash has filed a lawsuit against the City, and the province, Noce says there are also options to file an appeal through the Safety Codes Council.

With files from Fletcher Kent