The Claims-Free Architect

When Hurt Feelings Become Lawsuits

• Pro-Demnity Insurance Company • Season 4 • Episode 7

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In a quiet neighborhood, when a client’s home addition blocks a neighbor’s cherished view and light, tensions flare into a legal showdown. Can an architect be liable for this neighbour’s loss ?

Learn how miscommunications fuel disputes, and how sympathetic mediation can save the day.

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Thank you for listening.

We’re all aware that, as Architects, it’s our duty to consider the wellbeing not just of our clients, but also of the public at large. Sometimes, the “public” can be represented by a single person—in this case, a next-door neighbour, who felt that her quality of life had been damaged, by the otherwise exemplary work of an Architect. This kind of thing may have happened to you or someone you know. If it has, you’ll understand why we’ve chosen to call this story “ADDITIONS & ALTERCATIONS.”

Donatella de Lago had dedicated her life to music. As an internationally acclaimed pianist, she travelled constantly, for months on end, teaching in foreign schools of music and performing with international orchestras.

She felt that she had earned the right to slow down a little. With the money she had saved, she could almost afford to buy a small house—her first—and trim her schedule so she could relax and take it easy. She was overjoyed when she found a little place she could afford, in a quiet, safe neighbourhood. What really sold her was the sitting room, with its large bay window that flooded the space with natural light and offered a peaceful, unimpeded view of the garden belonging to her neighbour.

On the very day she moved in, that same next-door neighbour, Ava Porter, had stopped by to “welcome her to the neighbourhood”. Almost as an afterthought, she had Donatella sign a letter, indicating that she had no objection to the improvements that Mrs. Porter was proposing to make to her own house. 

Of course, Donatella was happy to get off on the right foot by signing the letter for Ava, her friendly new neighbour. Ava assured her that, except for a few weeks of construction noise, the alterations would not affect her enjoyment of her new house, in any way. As it happened, Donatella had already agreed to a three-month job in Austria, at precisely the same time that the construction would be going on, so she wouldn’t be inconvenienced at all.

Donatella left for Vienna a week later. Her contract included teaching and performing in Salzburg, and Innsbrück, capped by a performance of Mozart’s celebrated Piano Concerto in A major in Vienna. It was a punishing schedule, so when it finally came time to fly back, she couldn’t wait to relax in her new home.

Before she had left her house, she had arranged for a regular visit from a cleaning lady, who was to keep everything spotless, and to call her if any difficulties arose. She also had a brother living not too far away who could step in if anything went seriously wrong. She was glad not to have heard from either of them.

Donatella arrived home just after Christmas, on an icy dark evening. As she stepped from the taxi, she was shocked by what greeted her. Her front yard was a mountain of earth. Around the mountain was a path of planks laid in mud leading to her door. To reach the path, she had to balance herself and her luggage on a plank bridge spanning a two-metre-deep trench.

She somehow struggled across the makeshift bridge and reached her doorstep. Entering the house, she was relieved to find the same homey interior that she had left. Tired out after her long flight and the unwelcome obstacle course, she collapsed on her sitting-room couch and slept.

She awoke around mid-morning. She hadn’t forgotten the shock of the evening before but thought that if she could just look out the bay window and take in the backyard view, she could clear her mind and deal with the situation later. It was at this point that the full horror of her new circumstances greeted her. 

Her favourite room—where she had placed her piano in the large bay-window alcove with a lovely, if oblique, view over the neighbours’ park-like gardens—was now a dungeon. The Porters had constructed a wall, two stories high, two metres away from her bay window. There was no light and no view. The upstairs master bedroom offered no relief. It looked straight onto a wooden fence that surrounded the new rooftop-patio her neighbours had built on top of their ground-floor addition.

To put it in musical terms, Donatella’s rhapsody had ended on an extremely unpleasant dis-chord.

On her brother’s advice and with his help, Donatella filed a claim for $1 million against the Porters’ Architect Jo Green and the Contractor Herbert Viller, for all the damages she had suffered.

When he met with the Claims Specialist, Green assured him that there was no merit in the claim. His design conformed in every respect to the agreement with the Committee of Adjustment. Green’s records were excellent, and it was difficult to see how the plaintiff could produce any evidence to back up her claim. He produced before-and-after photographs of the Porter’s additions and alterations. The photos showed an extremely elegant transformation of a down-at-the-heels little house into a classy, award-worthy residence.

Elsewhere, emotions were running high. Donatella de Lago wanted her day in court, and litigation loomed. But before Discoveries, a mediation was scheduled.

The mediator, Mr. Gerald Kopinski, was not a seasoned construction mediator. He was a young lawyer with a family practice. As it turned out, his experience in dealing with the intimate details of troubled households was exactly what this case needed. He turned out to be an extremely fortunate choice.

The mediation opened with Donatella’s lawyer, a mature and soft-spoken counsel, summarizing his client’s case. He told us a story for which anyone would have had sympathy. Donna de Lago had bought a small house in a quiet neighbourhood. Shortly afterwards, her neighbour Ava Porter had built a large extension that had blotted out Ms de Lago’s light and view, despite assurances from Mrs. Porter and her Architect that this would not happen. Ms de Lago’s quiet enjoyment of her home was irreparably ruined.

Not only that but the construction process itself had turned her front yard into a lunar landscape that made it dangerous for her to access, or leave her house. 

At this point, Donatella interjected with considerable passion: Being new in the neighbourhood and having to leave her house for long periods, she had been so pleased to have made a new “friend” so quickly. She was very hurt when she found out she had been tricked.

The mediator leaned forward and thanked Donatella for expressing those feelings, but that they were there to “work it all out.” By referring to Donatella’s emotional state, it was clear that he understood instinctively what the heart of the matter was, and his kind words managed to postpone any sensitive confrontations until the appropriate time.

Donatella’s lawyer resumed his account, explaining that her case for damages was based on the solemn assurances that she had been given by the neighbours and the Architect Jo Green that the proposed addition would in no way affect her property. There was even a witness to these assurances —a loan officer of her bank who happened to have been with her at the time, to discuss mortgage arrangements.

Despite the emotional impact of Donatella’s story, her counsel was well aware that the case for “damages” was weak.

The presentation by Ava Porter’s counsel was cut-and-dried. He believed that the conversations Ms de Lago referred to as assurances and agreements constituted no such thing. The extension to the Porter’s home had required a committee of adjustment decision, and the agreement of neighbours was almost a prerequisite to the application. The Porters had simply asked Ms De Lago to sign her lack of objection in an appropriate manner, and she had willingly complied.

Porter’s counsel continued. The addition to the home had been done in an efficient and workmanlike fashion. It was unfortunate that the sewer connection, which both properties shared, ran under de Lago’s front yard, but the trench was actually on City-owned property. It was most unfortunate that Ms de Lago had had to drag her suitcase across a plank bridge in the dead of night, but the damage to de Lago’s yard had been repaired promptly.

There was one more important item of defence that surprised Donatella and would probably surprise most people: In Ontario, there is no “easement of light and view.” In other words, there is nothing to prevent the owner of one property from depriving the owner of another property of either of these things, subject to certain conditions. It was regrettable in this case that Ms de Lago had lost the things that she particularly cherished, but the loss had no legal substance, and damages could not be claimed. The lawyer fell just short of calling the matter “frivolous.”

The Plaintiff was clearly upset by the defence counsel’s speech.

The Architect’s counsel, appointed by Pro-Demnity, then stood up to speak. She had read the room and was sensitive to the issues.

Jo Green had indeed spoken with Ms de Lago. He had honestly believed that her property would not be affected and had told her as much. There was no intent to misrepresent the impact of the new addition, but at the time, he was completely unaware of the value the musician placed on the view and the light from the bay window, which overlooked the Porters’ backyard. As it was, the side wall of the addition had been set back almost a metre from the property line to provide a decent side yard, even though the local by-laws allowed construction right up to the property line.

The application to the Committee of Adjustment had been only to allow an additional 15% of lot coverage, which had no effect on the matter of concern to the Plaintiff. In fact, it had helped to enhance the value of Donatella’s home, as well as all the other properties close to the Porters. A small, mediocre house had been brought up to a size and quality closer to Ms de Lago’s home. He expressed regret that so much stress had been caused.

As to the front yard excavation, Green had no knowledge of it. The city had decided to replace an old sewer line, as they sometimes do.

The Builder Viller attended the session without representation and declined to speak. It was clear he had followed the approved drawings and there were no complaints about his work.

The mediator then did an extraordinary thing. Where the normal process consists of taking each party aside and conversing with them separately, Mr. Kopinski asked if the plaintiff and defendant would join him in private for a trilateral conversation—without prejudice, of course. No objections were raised, so all three retreated to a break-out room for a little heart-to-heart.

We twiddled our thumbs and chatted. Our mood was upbeat, since none of us had enjoyed this contest of hurt feelings, unsupported by actual evidence. We were relieved that Gerald had taken the reins.

The trio re-entered the room about 45 minutes later, with beaming faces. Kopinski announced that an agreement had been reached. The suit would be dropped on condition that the roof patio fence be made of glass to allow more light into the bedroom and sitting room. The two parties had agreed that the whole thing had been the result of an unfortunate misunderstanding, and they saw no reason why they couldn’t “mend fences,” so to speak, and become good friends and neighbours.

The Minutes of settlement were swiftly agreed upon. The Architect’s contribution was to re-design the deck to include the transparent railing. In addition, the two defendants, excluding the contractor, agreed to make a small contribution towards Ms De Lago’s expenses. The settlement was, in truth, a recognition that there had been a degree of injustice, but that a continuation of the matter would only guarantee more expense, and not necessarily a better result. 

Subsequently, the Architect re-designed the enclosure to Donatella’s satisfaction and the case was closed.

This was a case with no villains. The plaintiff had at first appeared to be unreasonable, but once her story was told and her feelings expressed, it became clear that that she had suffered. The Claims Specialist freely admitted that he would have felt the same way under the same circumstances. 

Donatella is a talented person, creatively gifted, obviously, and somewhat idealistic, as musicians (and Architects) often are. Ava is also bright and intelligent—maybe she was a little too insistent in obtaining her neighbour’s consent—but she was also building a dream home. There was no malice in her actions.

Jo Green is a sensitive and highly competent Architect. His design really had transformed the Porters’ residence and enhanced the real estate value of the neighbourhood. He would never have intentionally misled Donatella.

But the real “person of the hour” turned out to be the mediator, who had used what we assume to be his family counselling experience to bring the quarrelling parties together.

In this claim, there is one useful piece of information and one valuable lesson to be learned.

The useful information is this: Contrary to what most people believe, in Ontario, there is no protection of the views from, or light into, your windows.

The lesson is simple and universal: Hurt feelings can sometimes generate claims. Talking is better than suing.