CRT Roundup—unit entitlement, expense allocation, bylaw enforcement, and more

CRT Roundup—unit entitlement, expense allocation, bylaw enforcement, and more

July 26, 2018

BY Kevin Zakreski

This post is part of a monthly series summarizing the Civil Resolution Tribunal’s strata-property decisions. There have been 15 new decisions since the last post.

Fundamental changes—changes to strata lot—amending Schedule of Unit Entitlement—loft—bylaws—enforcement—validity—significant unfairness

Hassan v The Owners, Strata Plan LMS 2854, 2018 BCCRT 303, featured a dispute that came about due to alterations to a strata lot:

This dispute arises because the applicants have made alterations to the unit that increased the unit’s square footage. The strata says that the applicants failed to get the proper permits and did not receive approval from the strata to make the alterations. The applicants seek reimbursement for improper strata fines and other amounts associated with the alterations. The strata seeks either an order that the applicants take steps to bring the alterations into compliance with the Strata Property Act (SPA) or an remove the alterations.

The tribunal described the alterations in the following terms:

Originally, the unit was a residential loft unit with the majority of the living space on the first floor. There was a small mezzanine. The applicants made two sets of alterations, both of which each increased the living space of the second floor loft area (alterations). The first set of alterations was in the early 2000s. This dispute began when the strata became aware of the second set of alterations, which were completed in 2014 and 2015.

At the time of the alterations, bylaw 10.6 of the strata’s bylaws (initial bylaws) prohibited owners from making alterations to their units without all necessary permits and licenses. Bylaw 10.6 has no equivalent in the standard bylaws found in Schedule A to the SPA.

Ultimately, the strata corporation levied fines for breach of this bylaw.

The tribunal set these fines aside. The strata corporation had previously been involved in litigation (Omnicare Pharmacy Ltd v The Owners, Strata Plan LMS 2854, 2017 BCSC 256) and the tribunal found that it was bound by that case’s ruling on the validity of the strata corporation’s bylaws. As a result, the tribunal concluded that the strata corporation acted with significant unfairness in enforcing the invalid bylaw:

The court found that the strata acted significantly unfairly in imposing fines through an improperly constituted strata council and pursuant to invalid bylaws. While each case turns on its facts, I see no reason to restrict the ruling in Omnicare to the commercial owners. I rely on the fact that section 135 of the SPA gives owners the right to respond to the allegation. In order for the right to respond to be meaningful, the owner must know what bylaw the strata alleges they breached. If I permitted the strata to retroactively change the reason for the fines, it would unfairly prejudice the applicants because they would effectively lose their right under section 135 of the SPA to respond to the allegation.

Therefore, I find that the strata acted significantly unfairly by imposing the fines.

The tribunal also found that the applicants hadn’t waived their right to challenge the fines by paying them.

But, regarding the alterations to the strata lot, the tribunal found that the applicants were still required to obtain a building permit and to require with the Strata Property Act:

Sections 70(4) and 261 of the SPA state that if an owner wishes to convert a non-habitable area of the strata lot into a habitable area, the owner must amend the Schedule of Unit Entitlement at the Land Title Office and receive the unanimous support of all of the owners in the strata at a special general meeting.

The applicants rely on Barrett v. Strata Plan LMS3265, 2017 BCCA 414. I agree with the strata that Barrett does not assist the applicants. In Barrett, the Court of Appeal considered whether unfinished basements and lofts within some strata units were habitable areas within the meaning of section 70 of the SPA. The Court of Appeal confirmed that a habitable area is an area that is capable of being inhabited, regardless of its use or level of finishing. I agree with the strata that the alterations are distinguishable from the renovations in Barrett because open air is not an area could be inhabited.

Section 5.1(2) Strata Property Regulations states that an owner does not have to comply with section 70(4) if the addition to the habitable area of the unit is less than 10% of the size of the unit and less than 20 square metres. The development permit states that the increase in size to the mezzanine level of the unit is approximately 400 square feet, which is approximately 37 square metres, which is more than 10% of the size of the unit.

Therefore, I find that the applicants must comply with sections 70(4) and 261 of the SPA.

As the tribunal noted, the applicants had fallen into a bad situation due to their own actions:

It must be said that even if the applicants comply with the strata council’s demands to get a building permit, any owner will be within their rights to vote against approving the alterations. This order does not, and cannot, bind the applicants’ fellow owners to approve the alterations. The clear intention of sections 70(4) and 261 of the SPA is to have owners seek permission prior to altering the floor plan of their unit, rather than seeking forgiveness after the fact. Therefore, the unfortunate situation requiring the applicants to seek unanimous retroactive approval is of the applicants’ own making.

Complex stratas—sections and types—bylaws—expense allocation

Commercial Section of the Owners, Strata Plan LMS 1991 v The Owners, Strata Plan LMS 1991, 2018 BCCRT 333, concerned a strata property that “was created in 1995, with both residential and non-residential sections” and that contained “81 residential strata lots and 5 commercial strata lot[s].” The commercial section brought this dispute to the tribunal, making “15 separate claims against the strata,” which the tribunal “classified into four main areas: 1. Bylaw claims, 2. Governance-related claims, 3. Property-related claims, and 4. Expense-related claims.”

The tribunal found that the strata corporation’s bylaws had been adopted without separate votes of its sections and were, therefore, invalid:

I find a commercial section owner has the democratic right to vote separately from the residential owners and to have its voice heard. Here, the right to a separate vote given by the SPA and the right to separate representation on strata council given by original bylaw 118(4) are democratic rights that the strata could not remove without the separate section 3/4 votes required by the SPA.

The current bylaws were not passed in accordance with section 128(1)(c) of the SPA and I find they are not valid. Following Omnicare, supra, I find that the bylaws that currently apply to the strata are the Standard Bylaws together with those conflicting parts of the original bylaws that were not replaced by the SPA. I find that the relevant parts of the original bylaws for purposes of this decision, which continue to apply to this strata until they are properly amended, include: bylaw 118(4) and bylaws 128(2), (3)(a), (c) and (d).

The amended bylaws referred to at the end of the previous paragraph contained a number of important provisions on the strata corporation’s governance and finances, including a requirement for commercial-section representation on the strata council and rules on cost sharing.

The tribunal also found that the strata corporation’s historical approach to cost sharing was out of keeping with the act’s requirements and that its recent attempt to bring its cost sharing into compliance with the act wasn’t significantly unfair to the owners in the commercial section:

The SPA mandates calculation of strata fees according to unit entitlement. I find that the strata’s diversion from the mandated calculation in the years before 2015 was voluntary and was not carried out under section 100 of the SPA. The strata had the right therefore to correct the previous method of calculating strata fees. I find that it was not significantly unfair for the strata to calculate strata fees by unit entitlement to be in compliance with the SPA.

Since I have found that the allocation of common expenses as reflected in the strata’s strata fees charged to each section is not significantly unfair to the commercial section owners, I dismiss the commercial section’s claim for a reallocation.

The tribunal also found that “there are some residential expenses to which the strata has improperly required the commercial section to contribute in its strata fees” and that a long list of such expenses “are expenses for the sole account of the residential section.”

Governance—finances—financial statements—lien—legal expenses

In Macfarlane v The Owners, Strata Plan VIS 5717, 2018 BCCRT 305, the applicant strata-lot owner asked the tribunal to order:

removal of the liens and chargebacks against her strata lots, orders that the strata comply with the SPA, amendments to minutes of prior Annual General Meetings (AGM) and related explanations regarding expenditures.

The strata denies the owners’ claims, and asserts that the lien charges are reasonable, they have complied with the SPA, that they cannot amend minutes of the AGMs, and that all requested information has been provided.

The dispute regarding the lien concerned legal expenses:

the parties agree that the owner did not make payments for the special levy approved at a special general meeting (SGM) held August 16, 2016. The strata then filed certificates of lien under section 116 of the SPA against title to the owners 3 strata lots. The parties disagree as to whether legal charges incurred after March 22, 2017 can be included in the certificates of lien.

The tribunal found that the strata corporation was entitled to include its legal expenses within the lien:

The correspondence between the parties shows that the owner knew as early as January 2017 that amounts were outstanding, and the terms for payment to counsel. The owner says that after March 21, 2017 she should have been provided with further notice of any charges associated with collection that were being made. I disagree. In my view, the owner was aware that collection proceedings were ongoing. It was not reasonable for the owner to take the position that once she took active steps to pay the amounts owing that all enforcement steps would cease unless there was specific correspondence to that effect.

The tribunal wasn’t willing to grant orders in respect of access to and production of records, a telecommunications contract, or a walkway remediation project. The tribunal did order the strata corporation to comply with the act in its financial reporting:

I order the strata to comply with sections 45(4) and 103(2) and (3) [of the Strata Property Act]. I also order the strata to ensure financial statements containing information for the time period set out in regulation 6.7 are properly distributed with the AGM notice in future.

Governance—general meetings and strata-council meetings—standard of care—training

In Craig v The Owners, Strata Plan 1526, 2018 BCCRT 310, the tribunal was asked to resolve a wide-ranging dispute:

This dispute involves the strata’s governance, including allegations of contraventions of the Strata Property Act (SPA), alleged inconsistent application of strata bylaws, and allegations that certain council members failed to meet their standard of care, primarily related to the calling of meetings.

The owner seeks orders relating to compliance with the SPA and bylaws, the strata council’s understanding of its roles and responsibilities, and a neutral venue for future council meetings. The owner also seeks reimbursement of special levy and contingency reserve fund (CRF) monies as well as fees related to this dispute.

The strata denies the owner’s allegations and seeks dismissal of the owner’s claims.

The tribunal noted that the strata property at issue “was created in 1986 and comprises 8 strata lots. It is located in Sydney, B.C. and is self-managed.”

The tribunal found that the strata corporation had failed to meet a number of statutory requirements for general meetings. For example:

the strata contravened section 45(1) of the SPA by not providing sufficient notice and section 45(3) of the SPA by not including the agenda and proposed wording of any 3/4 vote resolutions to raise funds for building repairs in a notice package.

The tribunal provided a summary of a lengthy list of violations concerning meeting notice and procedure.

As a remedy, the tribunal ordered that the strata council attend training sessions:

I find the significant violations of the SPA noted above to be particularly troubling. I find these violations are an indication the strata does not have a good understanding of its duties and obligations and that it would be beneficial for its strata council members to improve their knowledge about strata governance.

For these reasons, I find the strata must take steps to ensure its acting strata council members attend training about strata governance and their roles and responsibilities. Appropriate training is available through strata associations and organizations. I order the strata to ensure such steps are taken within 180 days of this order, or as soon as possible thereafter, depending on available training dates.

Finally, the tribunal refused to consider aspects of this claim related to strata-council members’ standard of care, as being outside the tribunal’s jurisdiction:

The obligations under sections 31 and 32 of the SPA are not obligations of the strata, but rather obligations of individual strata council members. However, as earlier noted, the individual strata council members are not named parties in this dispute and have not had the opportunity to provide submissions. For that reason, I decline to make any finding about the owner’s allegation that certain strata council members failed to comply with sections 31 and 32 of the SPA. I decline to dismiss this aspect of the owner’s claims as to do so, would not allow the owner make application to the Supreme Court. . . .

***

Although I find that sections 31 and 32 of the SPA are within the tribunal’s jurisdiction, section 33 of the SPA is expressly outside its jurisdiction, under section 3.6(2)(a) of the [Civil Resolution Tribunal] Act.

Bylaws—enforcement—procedure—rental restrictions

In Hamaguchi v The Owners, Strata Plan LMS 3146, 2018 BCCRT 307, the applicant strata-lot owner claimed:

the strata improperly assessed fines against him for contravention of the strata’s rental bylaw and seeks reversal of the bylaw fines and dispute-related expenses. The strata says the fines were properly assessed and the dispute should be dismissed.

The tribunal found that, in enforcing its rental-restriction bylaws against the applicant, the strata corporation had failed to meet the procedure required by the Strata Property Act:

I find the notice from the strata of the alleged bylaw complaint dated September 28, 2016 to the owner did not adequately set out the details of the alleged bylaw contravention as determined by the strata. I find the owner has met the balance of probabilities in proving that the details of the alleged contravention did not meet the required standard so the owner could properly respond. I find the notice to the owner sets out an alleged contravention of bylaw 44(5) in September 2016 without adequate particulars. Subsequent correspondence from the strata further complicates the matter by referring to various letters with different time frames and new strata bylaw sections that were not part of the complaint in September. I find it would be difficult for an owner to understand and respond to the alleged bylaw contravention, especially as it continued without resolution.

I find on the facts the procedure followed for the bylaw complaint against the owner did not meet the requirements set out in section 135 of the SPA and the law and the initial $500 fine assessed for breach of the rental bylaw is not valid and must be set aside. Having found the initial $500 fine for breach of the rental bylaw was not valid I find that the continuing fines assessed at the same time are also not valid and must be set aside.

The tribunal also found that the strata corporation had failed to give a timely decision under this procedure:

In my opinion, what will meet the requirement to provide a decision as soon as feasible within section 135(2) will depend on the facts and circumstances in each case. The use of the word “feasible” in the SPA suggests there must be some flexibility and appreciation for the circumstances.

On the facts in this dispute as a whole, I find that failure to deliver a decision to the owner from September 28, 2016 to May 3, 2017—more than 7 months—is not in compliance. I also find the time line between March 3, 2017 when the strata made a decision about the bylaw complaint and May 3, 2017 when the strata provided a written decision—a time of almost 2 months—does not meet the requirement of section 135(2) that the strata “must, as soon as feasible, give notice in writing of a decision” to the owner.

In the result, the tribunal “order[ed] the strata, within 30 days of the date of this decision, to reverse all rental bylaw fines charged to the owner’s strata lot account.”

Bylaws—status—rental-restriction bylaw

Wurzbach v The Owners, Strata Plan LMS 1816, 2018 BCCRT 325, was a dispute that “involves the status of the strata’s rental restriction bylaw.” It took place in a strata property that “was created in February 1995 comprising 82 strata lots in 3 buildings located in Vancouver, B.C.”

The strata corporation had amended its bylaws in December 2001. Its strata manager “incorrectly filed” in the land title office a rental-restriction bylaw that had been defeated at the special general meeting. The strata corporation attempted over the years to correct this error. Finally, a corrected set of bylaws were approved and filed in the land title office in 2018. By this point, the applicant strata-lot owner had launched this dispute:

The owner seeks an order that a rental restriction bylaw referenced by the strata until May 2018 is invalid. She also seeks reimbursement of $225.00 for tribunal fees and $2,810.74 for dispute-related expenses.

The strata says it did not operate as if a rental bylaw was passed and considers the registered bylaws that form the subject of this dispute to be invalidly passed. Additionally, the strata says the rental bylaw issue is moot. The strata asks that the owner’s claims be dismissed.

The tribunal found that the dispute was moot:

I find that I am bound by the decision reached in Borowski relating to mootness. Based on my review of the bylaws passed at the February 2018 SGM, which were registered at the LTO on May 24, 2018, and despite the poorly worded 3/4 vote resolution, I find the rental bylaw issue to be moot given there is no further a live controversy, as no rental restriction bylaw exists. I decline to exercise my discretion to consider the moot issue, for the following reasons:

• The parties fully argued their positions and I find there are no collateral consequences of the outcome that might allow the adversarial context of the judicial system to continue.
• To address the rental bylaw dispute would not be an appropriate use of the tribunal’s resources as the issue would not reoccur.
• This dispute is not one of public interest as it involves a unique situation of filing duplicate bylaws at the LTO in an attempt to correct an error.
• There is no compelling reason for the tribunal to resolve a dispute that no longer exists.

In the result, the tribunal dismissed the claim related to the rental-restriction bylaw and the claim for dispute-related expenses. The tribunal did order reimbursement of the applicant’s tribunal fees, noting that the dispute was still live when the owner paid the application fee and when she paid the adjudication fee.

Common property—repairs and maintenance—water leak—negligence—damage to strata lot

Ford v The Owners, Strata Plan LMS 215, 2018 BCCRT 290, involved:

a claim made by an owner of a strata lot (applicant) alleging that the respondent strata corporation (respondent strata) was negligent by failing to repair and maintain its common property, and that the applicant’s strata lot was damaged by a water leak from the common property as a result. The applicant and respondent also disagree over the amount of money the applicant is entitled to receive as reimbursement for damage to his strata lot caused by the water leak.

The dispute took place in a strata property that “was constructed in 1991 and consists of 63 strata lots in two 3-storey buildings located in the resort community of Whistler.”

The tribunal found that, given the strata property’s circumstances, the strata corporation couldn’t be said to have failed in its duty to repair and maintain common property:

Where faced with a limited budget and owners who are not willing to fund proactive maintenance or improvement of the common property, the strata council must consider the urgency of repairs and balance priorities. Accordingly, the strata adopted an approach within its budget focusing on the options recommended by its engineers and consultants to address the strata’s building envelope issues while working within its financial constraints.  The evidence submitted by the parties demonstrates that the strata council and its property manager acted thoughtfully and in a timely way throughout the material time, and reasonably maintained and repaired the common property as a result.

I find that the strata has not failed to properly repair and maintain the common property.

In addition, the tribunal found that the strata corporation’s approach to repairing and maintaining the common property couldn’t be characterized as negligent:

Here, although ice damming was ongoing, the strata had adopted a maintenance program to reduce the risk of leaks by physically removing ice buildup as necessary. While more proactive or preventative options may have been available, the strata had already taken significant previous steps to avoid ice damming by undertaking roof repairs. Leaks due to ice damming were infrequent.

I find that the strata acted reasonably by taking the time to get legal advice and to strategize how to best resolve the attic encroachments without causing further owner disputes. As evidenced by the fire department’s willingness to give the owners a few months to resolve the encroachments, the attic encroachments did not present an immediate risk of harm and restoring the attic space via owner cooperation required the strata council to use its discretion to avoid simply creating disputes and hostility within the strata.

I find that the strata did not fail to act in a timely or reasonable way to prevent or lessen the ice damming issues, and so was not negligent.

Finally, the tribunal found that the strata-lot owner had failed to mitigate the damage to his strata lot:

I accept that the quote of $6,736 is a reasonable assessment of the cost to repair the strata lot had the owner acted reasonably, and accommodated the strata’s repair over an additional 2 to 3 week timeframe.

I find that the owner has failed to mitigate his damages, and that he is not entitled to reimbursement for the cost of repairing his strata lot on an urgent basis. The owner is entitled to $6,736 as reimbursement for the cost of repairs to his strata lot as offered by the strata.

In the result, the tribunal ordered:

within 30 days of the date of this order, the respondent strata:

(a) pay the applicant $6,736.00 for the cost of repairing the damage to the applicant’s strata lot; and

(b) pre-judgment interest in the amount of $65.06 under the Court Order Interest Act.

The applicant’s remaining claims are dismissed.

Common property—repairs and maintenance—rain gutter—negligence—damage to strata lot—water ingress

In Jeannotte v The Owners, Strata VIS 2899, 2018 BCCRT 288, “[t]he owner’s strata lot was damaged by a water leak allegedly from a poorly maintained exterior rooftop gutter,” for which the owner sought “reimbursement for the cost of repairing the strata lot” and “damages for lost revenue, as they were unable to rent their strata lot during the repairs.” The case occurred in a  strata property that the tribunal characterized as follows:

The strata has 9 strata lots that are owned by 4 people. The strata council president owns 6 strata lots. The owner owns 1 strata lot. The owner does not live in their strata lot and hired a management company to rent it out.

The tribunal found that the gutter was common property “as it is located outside the midpoint of the wall or ceiling of the strata lot.” Further the strata corporation was negligent in maintaining the gutter:

The strata must act reasonably in caring for common property. The owner provided photographs that show a thickly clogged exterior drainage gutter. The owner also provided an opinion by the contractor that the gutter was overflowing into the attic and installed incorrectly. The owner has provided detailed emails and letters regarding the gutter and the water damage.

The photographs do not support the strata’s explanation of the cause of the damage. The water damage is more extensive than what can be explained by what the strata says is condensation on the window from the tenant not heating the strata lot. The photographs show extensive water damage around the window but also in other parts of the ceiling and wall that I find cannot reasonably have been caused by condensation on a window.

***

I find the strata was negligent in maintaining the exterior gutter adjacent to the owner’s strata lot.

The tribunal found that the strata corporation must reimburse the owner for the cost of repairing the gutter and the damage to the strata lot, but that the owner had failed to prove that it had lost revenue as a result.

Common property—repairs and maintenance—damage to strata lot—piping—water leaks

Chan v The Owners, Strata Plan LMS 1781, 2018 BCCRT 306 was a dispute “about whether an owner or the strata is responsible for repairs to the applicant’s strata lot after a series of water leaks in a strata building.” The applicant strata-lot owner claimed that:

there were water leaks from near units 905 and 1102 (the leaks) due to the strata’s negligence in failing to repair or replace original 21 year old copper piping for the hot water heating system or to take other preventive measures. The applicant asks that the strata be held responsible for the water damage repair generally and to his unit in particular.

It is common ground, and I find, that the leaks occurred on January 10, 2017 from a water pipe located in unit 905, and on February 14, 2017 from a pipe located between units 1102 and 1101.

Although the respondent strata corporation “concede[d] that the leaks caused damage to the applicant’s strata lot,” it argued that “it is not responsible for the repair costs, under its bylaws, because the repairs were made to the owner’s strata lot.”

The tribunal found that the strata corporation was responsible for repairs and maintenance to the pipe:

Given the respondent’s admission that the pipe that leaked on February 14, 2017 was located in the wall between units 1101 and 1102, I find that the pipe was part of the common property as defined in section 1(1)(a) of SPA because it carried water between strata lots. I find the strata responsible for its repair and maintenance.

It also found the strata corporation to be negligent in carrying out this duty:

I have found that the strata had a duty to repair and maintain the pipes, as they were common property. It is uncontested, and I find, that there was damage to unit 801 as a result of the leaks.

The courts have established reasonableness as the standard of care in these circumstances. ([S]ee Weir v. Owners, Strata Plan NW17, 2010 BCSC 784 (CanLII).)

The remaining question is whether the strata has been reasonable in maintaining its common property. Below, I find it has not, because it knew that the water pipes required either a tube size increase or a water flow decrease and failed to take reasonable steps concerning maintenance once it learned of the probability of continued corrosion/erosion. Specifically, I find that, prior to the leaks, the strata failed to:

1. take steps to replace the pipes,
2. monitor the condition of the pipes more frequently than every 5 years given the concerning engineering report, and/or
3. implement a reliable system to control water pressure and temperature, pending further repair or evaluation of the pipes, to reduce the likelihood of leaks.

In the result, the tribunal ordered the strata corporation to:

• reverse the $3,571.01 charge to the applicant’s strata lot, unless it has already been paid by the applicant’s own insurer, in which case the strata must repay the $500 deductible paid by the applicant;
• pay the applicant $502.19 for the repair costs incurred due to the water leak from between units 1101 and 1102;
• pay the applicant $40.00 for the increased electrical bill associated with operating restoration equipment during the emergency repairs conducted on the strata lot;
• pay the applicant pre-judgment interest of $11.76;
• pay the applicant tribunal fees of $225; and
• reverse charges to any owner’s strata lot for repair of the damage caused by the leaks on January 10 and February 14, 2017

Common property—alteration—approval—liability for cost—gas line

Thompson v Pasini, 2018 BCCRT 292, was a dispute over:

the cost to reinstall a gas line. The gas line was installed in 2010, but relocated to the building’s interior after being removed to facilitate an extensive building envelope remediation years later.

The question is whether the cost of re-installing the gas line after remediation is the strata’s responsibility or that of the owner who had it installed originally to service her gas appliances.

While the records of the strata corporation’s decision were spotty, the tribunal found that it had approved the original installation of the gas line:

It would have been preferable for the strata council to prepare minutes of the meeting regarding the approval, but the email approval is sufficient evidence for my purposes. Under section 26 of SPA, the strata council “must exercise and perform the duties of the strata corporation,” which I find includes considering and approving this owner’s request for authorization to proceed with her renovation and gas line installation. I find that this approval by the strata council was the authorization [the respondent] was obliged to obtain under the Bylaws.

Further, the installation couldn’t be considered a significant change to common property, necessitating approval by a resolution passed by a 3/4 vote.

Moving on to the relocation of the gas line, the tribunal found was barred by the running of the limitation period. But, “[g]iven the contentious nature of the issues between the parties,” the tribunal “considered the merits of this dispute, in case my analysis of the limitation defence is incorrect.”

The tribunal found that the strata corporation should be liable for the cost of relocating the gas line:

In light of my findings that the gas line’s initial installation was properly authorized by the strata under the bylaws, was common property of the strata, and that the remediation of the common property building exterior made it necessary to move and relocate the gas line, I find that it was the strata’s responsibility to pay for the gas line relocation cost.  Since the strata did pay that cost, I dismiss the applicant’s dispute.

Common property—alteration—significant change in use or appearance—underground storage space

Mitchell v The Owners, Strata Plan BCS 2704, 2018 BCCRT 313, was a dispute that involved:

the owner’s proposed excavation of property below his limited common property (LCP) garage to create storage space connected to the owner’s strata lot for the sole use of unit 70. . . .

The owner seeks orders that the strata council approve the owner’s renovation project, plus reimbursement of fees and dispute-related expenses.

The strata says the strata council does not have the authority to approve the owner’s request as a 3/4 vote is required by the strata owners. It seeks dismissal of the owner’s claims.

As the tribunal noted:

[t]he strata was created in January 2008 and comprises 101 strata lots in 49 separate buildings. Each building contains 2 or 3 strata lots. The strata was built in 10 phases over a period of approximately 4 years (phase 10 being filed at the Land Title Office in December 2011) and is located in Surrey, B.C.

The tribunal found that the proposed renovations would amount to a significant change in the use or appearance of common property, which would require approval, under section 71 of the Strata Property Act, by a resolution passed by a 3/4 vote:

I agree with the strata’s argument that the renovation project is essentially an expansion of unit 70 that would result in the common property being used solely by the owner of unit 70. I find the circumstances here regarding the resulting use and enjoyment of the altered common property, if the renovation project was approved, match those described in Foley.

In the result, the tribunal “order[ed] the owner’s dispute is dismissed.”

Common property—alteration—significant change in use or appearance—exterior trim paint

In Solvberg v The Owners, Strata LMS 753, 2018 BCCRT 309, the applicant strata-lot owner asked the tribunal for:

an order that the strata repaint the exterior trim on the Strata buildings to its original colour, beige, an order that the strata enforce its by-laws and an order that the strata reimburse the owner for tribunal fees and additional dispute-related expenses. There is dispute as to the cost of repainting the trim.

The tribunal found that the strata council had authorized changing the exterior trim color without obtaining a resolution passed by a 3/4 vote and that this amounted to a significant change in the use or appearance of common property:

I have reviewed the photographs provided by the parties and I find that the change in the exterior trim paint from beige to black constitutes a significant change in the appearance of the common property. The colour change is highly visible and visible to the general public. The paint is permanent and the exterior trim is a significant feature of the buildings which could affect things such as marketability and enjoyment.

Further, there was a recognition on the part of the Strata that changes to the stucco colour scheme of the buildings must be made by vote. In my view, the choice of paint colour for the exterior trim will necessarily influence the colour scheme options for the stucco. It is an artificial separation of stucco from exterior trim when determining colour scheme and a vote on the exterior trim ought to have been held.

I find that when the Strata unilaterally changed the colour of the exterior trim from beige to black, the Strata significantly changed the appearance of the building common property without the 3/4 vote required under section 71 of the SPA.

As a remedy, the tribunal ordered the strata corporation to hold a meeting to consider repainting the exterior trim:

Given the that the cost to repaint the newly repainted exterior trim is significant, I find it would it not be in the best interests of the Strata for me to order the exterior trim repainted back to the original beige. I follow Foley where the Court found that it is important for owners in a strata corporation to attempt to resolve their differences by following the procedures contemplated by the SPA and bylaws. That is, all owners should be afforded an opportunity to determine whether they are satisfied with the new paint colour of the exterior trim or whether they wish to change the colour. For that reason, I order that within 3 months of this decision, the Strata must propose a 3/4 vote resolution at an Annual General Meeting (“AGM”) or Special General Meeting (“SGM”) on whether to repaint the exterior trim back to the original colour or to some other colour. The resolution should include a direction on how the repainting will be funded. Nothing in this decision restricts the Strata from including the change in stucco colour in the same resolution or a separate one.

Strata lot—repairs and maintenance—floor—tile

In Haack v The Owners, Strata Plan NW 2198, 2018 BCCRT 284, the applicant strata-lot owner claimed that “renovation work in the strata lot below (known as unit 207) damaged his strata lot, caused him personal hardship, and potentially caused structural damage to the building.” He asked the tribunal for “$5,683 to replace a sinking floor in his strata lot, confirmation that the building has no structural deficiencies, and reimbursement of $6,050 in expenses.”

The tribunal found that the evidence didn’t support the owner’s theory that renovations in the strata lot below his caused the damage to his strata lot:

While the owner asserts that renovations in unit 207 caused his kitchen floor to settle, and the tiles to crack, I find that the evidence before me does not support this assertion. I place significant weight on the reports of Mr. Curran. He is a certified engineer, and his expertise in the area of building structures is not contested. Mr. Curran inspected the areas the owner says were damaged, and the renovated areas in unit 207. He also reviewed the building’s plans. Mr. Curran provided extremely detailed reports setting out his opinion that the tiles in the owner’s kitchen did not crack due to renovations below, and that any settling in the floor was due to tile cracking. Mr. Curran provided extensive reasoning to support his opinion, and there is no contrary expert opinion before me. For these reasons, I am persuaded by Mr. Curran’s opinion, and rely on it.

Based on Mr. Curran’s expert report, I conclude that the renovations in unit 207 did not damage the owner’s floor. I therefore decline to order reimbursement for floor repairs.

The tribunal also declined to order further investigation and confirmation that the building is suffering from structural damage:

The owner disagrees with Mr. Curran, and says the unit 207 renovations caused potential structural damage to the building that Mr. Curran did not fully investigate. However, as stated above, the burden of proof in this dispute is on the owner, and he must provide evidence to support each of this claims. He has not proven structural damage in this dispute.

Also, the owner’s request for structural confirmation for the entire building goes well beyond the scope of this dispute.

For these reasons, and based on the reports of Mr. Curran, I decline to order the strata to provide further confirmation that there is no structural damage to the building.

Strata lot—alteration—approval—tribunal jurisdiction and procedure—decision to hear dispute without participation of party

The Owners, Strata Plan BCS 2662 v Rohani, 2018 BCCRT 326, was a decision that contained two components: (1) a threshold question of whether the tribunal should even resolve the dispute in the face of non-participation by the respondent strata-lot owner; (2) a substantive question of whether the respondent had made unauthorized alterations to her strata lot.

On the threshold question, the tribunal noted:

the owner filed a Dispute Response. The owner has provided no explanation about why she failed to communicate with the tribunal as required. I find the case manager made a reasonable number of attempts to contact the owner. She was told at the beginning of the tribunal proceeding, and afterwards, that she must actively participate in the dispute resolution process. Given that the owner provided updated contact information in her dispute response form, I find it is more likely than not that the owner knew about the case manager’s contact attempts and failed to respond.

The tribunal decided to exercise its discretion in favor of resolving the dispute, putting “significant weight on the following factors”:

• the extent of the non-compliance is significant;
• the strata is not prejudiced; and
• the need to conserve the tribunal’s resources.

On the substantive question, the tribunal found that the owner had made unauthorized alterations to the strata lot:

In her dispute response, the owner said she did not remove a wall, but said she removed and replaced the kitchen island, changed electrical and plumbing, changed the cabinets, and applied drywall.

Because the owner admits that she changed electrical and plumbing, I find that she made unauthorized alterations to her strata lot as contemplated under bylaw 6(1)(g). The owner says the strata was aware of ongoing construction in her strata lot. The correspondence between the parties from August 2016 confirms this fact. However, the correspondence provided in evidence establishes that while she had approval for some alterations, including flooring, she did not have prior written approval for any electrical or plumbing alterations. For that reason, I find that the owner violated bylaw 6(1).

In the result, the tribunal ordered “the owner to pay the strata $500 for bylaw violation fines” and ordered the owner to enter into an indemnity agreement with the strata corporation or restore the strata-lot to its pre-alteration condition.

Tribunal jurisdiction and procedure—jurisdiction to resolve dispute—former owner

The underlying dispute in Wiebe v The Owners, Strata Plan BCS 2606, 2018 BCCRT 311, concerned an exemption from a strata corporation’s rental-restriction bylaw. This decision concerned whether “the tribunal has jurisdiction over this dispute since [the applicant] no owner owns the property.”

The tribunal referred to the factors set out in Kervin v The Owners, Strata Plan LMS 3011, 2017 BCCRT 146, as guiding the exercise of its discretion in this case. Applying these factors, the tribunal found:

I do not have any evidence before me about the importance of this matter to other persons. The evidence I have suggests that [the applicant] was the last owner continuing to rent in the complex, and if so no other persons will be affected by the outcome of this dispute.

[The applicant] ceased to be an owner midway through the tribunal process, but well before this matter was referred to adjudication.

Given the facts, the issue of the rental bylaw is moot because while [the applicant] was the last original purchaser he has now sold his property. The rental restriction bylaw no longer applies to [the applicant] so I decline to make any decision on a general interpretation of the bylaw or its validity.

In the result, the tribunal ordered the applicant’s dispute to be dismissed.