Topper Street property owner Dale Scott has launched legal action against the District of Mission and the builders of Heritage Marketplace. He claims his property has slipped and his house has been damaged after a retaining wall was built in 2010. None of the allegations have been proven in court.

Topper Drive homeowners seek compensation in court

Plaintiffs allege improperly built retaining wall has caused land to slide

A house a Mission man bought as an investment property more than eight years ago is now bankrupting him.

Dale Scott invested in a home on Topper Street with his mom in 2006, but neither of them ever lived in it. Instead, they rented it out and received some income from it annually.

But the rent Scott is receiving now is not enough to pay for engineers to help fix the property and lawyers to conduct a court challenge to those who he alleges were responsible for the damages done to his house and land.

Scott and two of his neighbours allege a retaining wall built just below his property for Heritage Marketplace in 2010 was not properly designed, inspected and constructed.

The defendants in the case are the District of Mission, the builders of the shopping mall on Stave Lake Street and 11 Avenue, and the engineers of the project.

According to the civil claim, the slope has slipped, which has caused the three properties above it to settle.

Scott and his neighbour Finn Nielsen claim the settlement of the slope has caused structural damage to their homes.

“Inside, the walls have cracked and the foundation has cracked in the back (of the house),” said Scott.

“We’ve had sewer lines breaking because the ground is still settling,” Nielsen maintained, adding the deck at the back is tearing away from the house as the property continues to sink.

Nielsen’s father, Frede, owned the property and is listed as a plaintiff in the court documents, but he passed away last year and now Nielsen is looking after his father’s affairs.

Frede had lived in the house for 10 years before any problems surfaced.

“Everything was fine until they did that development,” added Scott, noting his house was built in 1991. The land started to slide “as soon as they dug away the bank that supported the houses.”

The plaintiffs also claim construction workers trespassed on their property to build the wall.

The Topper Drive property owners at 7938, 7942, and 7944 are seeking compensation for the damages.

All the defendants in the case deny the allegations.

In responses filed in court, the district claims it relied on the engineers to “evaluate the condition of the slope, to design the EKS Shoring System to retain the slope, and to oversee the construction of the EKS Shoring System so that there would be no subsidence or slippage of the slope.”

The district also relied on the professional certification of the engineers when a building permit was issued.

The engineers named in the suit, EKS Engineering Services Ltd. and Edwin Shu, stated in court documents, “there were and are no defects in the EKS Shoring System,” and any slippage or subsidence of the slope was not a result of services they provided.

Their response alleges the slope is comprised of soil fill material that was put there during the construction and development of the Topper Drive properties and that the material was not properly compacted.

The Topper homeowners filed the civil claim in court in 2012, but will have to wait until June 2016 to have their case heard before a judge.

“We just want fair market value for the homes,” said Nielsen. “None of us want the houses. We want them to take it over.”

Scott said he and his mother planned to sell the house before she passed away two years ago, but wouldn’t get what they put into it after disclosing the problems on the land.

“There are renters there now, but there’s a day coming when they won’t want to live there anymore,” said Scott.

The three-year ordeal has been very stressful and emotional for him.

“Now it’s a burden on me,”  said Scott, who has used all his retirement savings on the case. “Now I won’t get anything out of it.”

In a separate case, the District of Mission is also being sued by three other property owners on Best Avenue who claim their homes are sinking because they were built on an old district culvert/right of way. A mediation meeting on Jan. 13 failed to produce a resolution. No court date has been set yet for the Best Avenue residents.