CRT Roundup—governance, bylaws, finances, repairs, and more

CRT Roundup—governance, bylaws, finances, repairs, and more

June 28, 2018

BY Kevin Zakreski

This post is part of a monthly series summarizing the Civil Resolution Tribunal’s strata-property decisions. There have been 21 new decisions since the last post.

Governance—bylaws—amendment—cost sharing

C.2K Holdings Ltd v The Owners, Strata Plan K 577, 2018 BCCRT 236, was “a dispute about bylaw amendments and the division of certain common expenses.” The tribunal described the strata property as being

made up of 20 units. Two units are commercial, and 18 units are residential. The owner’s unit is the largest commercial unit.

The respondent strata corporation amended its bylaws at a special general meeting held in April 2016. The parties agreed that “the vote [at this meeting] was not held in compliance with section 128(1)(c) of the SPA, which requires a separate 3/4 vote by both the residential and non-residential strata lots to pass.” Nevertheless, the tribunal found that the bylaw amendments ushered in by this vote shouldn’t be cancelled:

If a separate 3/4 vote had been held for residential and commercial strata lots present at the SGM, I find that the bylaw amendments would have been approved by both the commercial and the residential owners.

I find, as the Court did in Yang v Re/Max Commercial Realty Associates (482258 BC Ltd.), 2016 BCSC 2147 (CanLII), that even though the vote was not divided into separate votes, the residential and non-residential strata lots had the opportunity to vote.

I find that not holding 2 separate 3/4 votes did not invalidate the result of the vote. In the result, I decline to order the bylaw amendments canceled.

But the tribunal ordered the strata corporation to “conduct all future votes in a way that complies with the provisions of the SPA based on the strata’s Schedule of Voting Rights.”

The tribunal dismissed the applicant’s claims that the allocation of expenses in the strata corporation was significantly unfair to the applicant, but ordered the strata corporation to reconsider it approach to cost sharing:

I find that, where the owner is paying his unit entitlement for common expenses that he derives some but not much benefit from, the division is unfair but not significantly unfair. My conclusion is supported by the British Columbia Court of Appeal’s decision in Ernest & Twins Ventures (PP) Ltd. v Strata Plan LMS 3259, 2004 BCCA 597 (CanLII). Expenses which benefit all strata lots, albeit to different degrees, must be paid by all strata lots.

I find that it is inequitable that the owner is required to pay for certain of his own expenses, while also paying his unit entitlement for common expenses that the owner derives no benefit from. I find that the division of those expenses is significantly unfair.

I order the strata, with input from the commercial owners, to review the division of common expenses to determine those that do not in any way benefit the commercial strata lots, particularly those that the commercial owners pay a separate service provider for, and those that the commercial strata lots cannot access.

Finally, the tribunal found that the strata corporation’s allocation of parking stalls wasn’t unfair to the applicant.

Governance—strata council—conflict of interest—misconduct

In Napoleone v The Owners, Strata Plan BCS 2460, 2018 BCCRT 246, the applicant owner accused the council of the respondent strata corporation of multiple conflicts of interest and incidents of misconduct. He asked for a series of orders, including the following:

• The strata must adhere to the Strata Property Act (SPA);
• An independent auditor must review the strata’s business practices;
• The property management firm must be replaced;
• An ombudsperson must be hired to mediate between owners, council, and the property manager;
• A refund of $8,500 in strata fees;
• Reimbursement of $225 in tribunal fees.

The respondent strata corporation “denies each of the owner’s claims, and says the owner’s claims are frivolous, malicious, and unsupported by evidence.”

The tribunal dismissed the owner’s dispute. The tribunal declined to make a general order of adherence to the Strata Property Act, noting that:

All strata corporations in British Columbia, including the respondent strata, are legally required to comply with the SPA. Given that, a forward-looking and generic order to adhere to the SPA would not be meaningful.

The tribunal also found that the applicant wasn’t able to demonstrate the fraud or misconduct that would support the requested orders for an independent audit or change of strata management. It also found that the owner had failed to show any misconduct to support an order appointing an ombudsperson.

The tribunal held “there is no provision in the SPA allowing for an owner to withhold strata fees for any reason.” Finally, the tribunal declined to order reimbursement of tribunal fees, given that the applicant was unsuccessful in the dispute.

Governance—finances—bylaws—charge backs—fines

In Ho v The Owners, Strata Plan LMS 1178, 2018 BCCRT 245, the applicant strata-lot owner asked the tribunal

to remove all charges on her strata account. The strata imposed these charges for two separate reasons. One charge is for reimbursement of money the strata paid to the owner and a Colin Chau to have a common property fence rebuilt. The strata now says the rebuild of the fence was not authorized. The second group of charges are fines issued by the strata to the owner because it says she failed to allow a gas company access to SL 7 to cap the gas line to her fireplace. The owner also claims for her legal fees, reimbursement for an overpayment of the strata gas account she says she made, and her tribunal fees.

The strata brought a counterclaim in this dispute. It asks the tribunal to order the owner to reimburse it for the money the strata says it paid to the owner and Colin Chau to have the fence rebuilt. The strata also asks for an award of its tribunal fees.

The tribunal found that the strata corporation’s charge back wasn’t enforceable:

The strata’s charge back against the owner’s strata lot is not a lienable charge under the SPA. In order to collect an amount that cannot form the basis of a lien against a strata lot, the strata must have the authority to do so under a bylaw that creates an obligation on the owner to pay or the authority for the strata to collect (Ward v. The Owners, Strata Plan VIS 6115, 2011 BCCA 512 (CanLII) at paras. 40-41) (Ward).

While not binding on me, I choose to follow the approach taken in Robertson v. The Owners, Strata Plan NW 87, 2017 BCCRT 37 (CanLII) (Robertson), which relies on Ward. In Robertson, the tribunal found that the strata’s chargeback of a plumbing invoice to a strata owner was invalid because there was no bylaw creating the strata’s ability to do so.

The tribunal also found that the strata corporation’s fines were invalid because the strata corporation failed to comply with the procedure imposed by the Strata Property Act:

I find that the strata has not complied with its obligations under section 135 of the SPA in assessing fines against the owner for gas bylaw breaches. Therefore, all of the fines imposed on the owner for the gas bylaw breaches are invalid.

Finally, the tribunal held that it lacked the jurisdiction to resolve the strata corporation’s counterclaim:

section 3.6(2)(a) of the [Civil Resolution Tribunal] Act says that the tribunal does not have jurisdiction over a claim under section 33 of the SPA. Therefore, I find that the tribunal does not have the jurisdiction over the strata’s counterclaim. I refuse to resolve the strata’s counterclaim under section 10 of the [Civil Resolution Tribunal] Act.

Because I have refused to resolve the strata’s counterclaim as outside the tribunal’s jurisdiction, I cannot consider whether the strata is entitled to be reimbursed for the fence repair costs under section 33 of the SPA.

Governance—finances—special levy—authorization—insurance deductible

In Wong v The Owners, Strata Plan LMS 2461, 2018 BCCRT 255, the applicant strata-lot owners claimed that:

the strata council inappropriately approved a special levy of $40,000 to pay for an insurance deductible. The owners say the strata council failed to raise the special levy issue at an annual general meeting (AGM), and that the $40,000 deductible ought to have been paid out of the contingency reserve fund (CRF) or the operating fund. The owners seek various orders, including reimbursement of the special levy contributions.

The strata says the special levy was approved and collected in compliance with the Strata Property Act (SPA) and the Strata Property Regulation (Regulation).

The special levy at issue involved an insurance deductible:

A sink back-up occurred in the strata complex on October 25, 2016, causing damage to common property. The insurance deductible for the repairs was $40,000.

The tribunal found that, while section 158 (3) of the Strata Property Act allows for a special levy without strata-corporation approval if the levy funds are used to pay an insurance deductible, in this case the deductible was paid from the strata corporation’s contingency reserve and operating funds, and the special levy was used to reimburse the money spent to the contingency reserve fund:

The minutes of the June 7, 2017 strata council meeting show that the $40,000 deductible had already been paid when the strata council voted to collect the special levy . . . .

Because the insurance deductible had already been paid out of the CRF by June 7, 2017, the $40,000 special levy funds could not have be used to pay the deductible. Rather, the purpose of special levy was to top [up] the CRF. The strata council meeting minutes go on to state that in order to eliminate a steep increase in strata fee contribution, it was moved and seconded to raise a levy of $40,000 against all owners.

In the result, the tribunal “order[ed] that within 90 days of this decision, the strata pay the applicant owners their individual proportionate share of $834.59 as a refund of their contributions to the June 2017 special levy.”

Governance—finances—strata fees—jurisdiction to order conduct of sale—order for payment

In The Owners, Strata Plan KAS 1459 v Lawlor, 2018 BCCRT 263, the applicant strata corporation asked the tribunal for “various orders regarding strata fees it says the owner has failed to pay.” The strata corporation had “registered a lien on title to the owner’s strata lot for $4,148, representing unpaid strata fees up to October 1, 2015.”

The tribunal found that it lacked jurisdiction to grant the first requested order from the strata corporation, which would have given it conduct of sale of the strata lot:

As discussed in The Owners, Strata Plan KAS 1459 v. Leonard, 2018 BCCRT 159 (CanLII), section 3.6(2)(f) of the Civil Resolution Tribunal Act states that the tribunal does not have jurisdiction to make orders under section 117 of the SPA.

The tribunal did grant the second requested order, though narrower in scope than what the strata corporation had wanted. The tribunal found there was no evidence provided of strata fees owing from November and December 2016. But the strata corporation was able to prove that strata fees were owing from a later period.

The tribunal dismissed the owner’s argument that perceived failures in the strata corporation’s governance excused her from the obligation to pay strata fees:

The owner submits that she should not have to pay some or all strata fees because the strata has been poorly managed and “plagued with interpersonal issues.” She submits that the strata has failed to hold meetings, publish minutes, keep financial records, and comply with the SPA. She says it has denied her a hearing and access to records, and has made unauthorized expenditures.

In Leonard, cited above, the tribunal member considered a similar submission from another owner in the same strata complex as in this dispute. The tribunal member found that an owner has a duty under section 99 of the SPA to pay monthly strata fees regardless of whether they agree with how the strata operates or spends its money. At paragraph 25, the tribunal member said that the evidence about the respondent’s concerns over the management, governance and finances of the strata was irrelevant to the issues in the dispute, given that the respondent did not file a claim against the strata.

While Leonard is not a binding precedent, I find its reasoning persuasive and the facts essentially the same as those before me in this case. The owner’s dissatisfaction with the strata’s management does not reduce her statutory obligation to pay strata fees. While the owner suggested the need for an audit, I decline to make that order as she did not file a counterclaim.

For all of these reasons, I order the owner to pay $976 for unpaid strata fees accrued from January to October 2017.

Governance—access to records—Form B—AGM notice—common property—repairs and maintenance—alteration—approval

Ducharme v The Owners, Strata Plan BCS 753, 2018 BCCRT 262, was a wide-ranging dispute concerning “numerous claims relating to the provision of records, a Form B—Information Certificate (Form B), repairs and alterations to common property, unapproved expenses, meeting conduct and minutes content, and bylaw enforcement.” The dispute took place in a

strata [that] was built in 4 phases between 2004 and 2005 and is located in Langley, BC. It comprises 17 separate buildings, each building comprising 5–6 strata lots for a total of 100 residential strata lots. Each strata lot is 3 levels with a garage on the ground level. I would characterize the strata a residential townhouse development.

The tribunal dismissed the bulk of the applicant strata-lot owners’ claims.

The tribunal found that the strata corporation had met the Strata Property Act’s requirements for access to records. The applicants failed to prove inaccuracies in a Form B issued by the strata corporation:

the applicants bear the burden of proof and here. I find the applicants have failed to prove their claim that the May 23, 2017 Form B contained inaccurate information. That the strata approved the expense for an updated depreciation report some 8 months earlier does not mean the updated report was complete on May 23, 2017 when the strata issued the Form B. Further, that the strata was over budget in snow removal expenses in May 2016, does not mean that the amount of expenses was expected to exceed the budgeted expenses for the fiscal year, which is what the Form B discloses.

The tribunal also dismissed the applicants’ claims regarding failure to repair and maintain common property and approval to alter common property.

The tribunal did find that the strata corporation had failed to give proper notice of its 2016 annual general meeting by issuing a financial statement that “did not comply with Strata Property Regulation (regulation) 6.9.” The tribunal ordered “the strata to comply with sections 45(4) and 97 of the SPA and any related regulations.”

Despite the applicants’ relative lack of success, the tribunal declined to order reimbursement of the strata corporation’s legal expenses on the basis that the applicants’ dispute could be characterized as frivolous:

It is my view that the applicants’ real issue is that the strata has not met the applicants’ repair and maintenance standards, which appear to be of a higher standard than the strata is required to provide. It is also my view that the applicants may have misunderstood the strata’s obligations. I do not find that the claims were frivolous.

Therefore, I do not find the applicant’s actions rose to the level of extraordinary such that I should order the strata’s legal fees be reimbursed, given the tribunal’s general mandate that parties be self-represented.

Governance—small strata corporation—deadlock—repairs and maintenance—common property—strata lot

Watson v The Owners, Strata Plan BCS2817, 2018 BCCRT 283, involved a “2 lot residential strata located in Squamish, BC.” As the tribunal noted, “[e]ach strata lot has 1 vote and so, when the two owners cannot agree, no decisions can be made on behalf of the strata corporation.”

In this case, the deadlock affected a series of repairs. The applicant strata-lot owner asked the tribunal for orders “to have the strata pay for 3 things”:

• Repairs and upgrades to the crawlspace of her property, including structural issues, cleanup of mould and replacement of a firewall in the crawlspace area between the 2 strata lots.
• Upgrades to back yard perimeter drainage.
• New eaves troughs for the outside of her strata lot.

The respondent strata-lot owner opposed this application.

The tribunal found that the crawlspace (with the exception of the firewall) was part of the applicant’s strata lot. As a result, the tribunal concluded, “the strata is not responsible for any work on the crawlspace of SL2.”

With regard to the firewall, the tribunal found that it was common property. It was the strata corporation’s responsibility to repair and maintain it:

Both parties agree the firewall must be replaced. I find that the strata corporation must pay for professional replacement of the firewall. As it has no assets, I order the strata to assess a special levy to which the parties will share the cost proportionately based on the unit entitlement of their respective strata lots. If the parties cannot agree on a contractor and cost, then I set the amount of $2,500 as the cost, based on an estimate the applicant states she received from BSV. Under sections 46 and 48.1 of the Act, I order that the applicant may arrange to have the work done without the need for strata approval. The applicant may arrange, on reasonable written notice, for the contractor to enter on onto SL1 as necessary to effect the work without obtaining approval of the respondent owner.

The applicant’s disputes regarding drainage and eaves troughs were both dismissed in the face of a lack of evidence. But the tribunal did order the strata corporation to “engage a professional engineer” to determine whether this work is necessary and to act on the report’s recommendations. (“Based on the engineering report recommendations, the parties will each obtain a quotation for the cost of the work recommended. I order that a special general meeting be called at which a 3/4 vote resolution will be presented for a special levy for the cost of the work as agreed by the parties, or otherwise based on the average of the two quotations.”).

Common property—alteration—doors and windows

Seymour v The Owners, Strata Plan VR2697, 2018 BCCRT 227, concerned a dispute “about who should pay for the sliding doors and windows that the owners installed in June 2017.” The dispute took place in a strata property consisting of “a multi-phase complex of 48 units spanning over nine acres in Gibsons.”

The tribunal found that this wasn’t a case of owners stepping in to replace deteriorating common property when the strata corporation failed to act; rather, the owners had effectively pre-empted the strata corporation’s decision-making:

From my review of the evidence, I do not find the conditions leading to the Hall decision are present here. Specifically, the owners have not established that their windows and doors had deteriorated to the point discussed in the Hall case. Unlike the owner in Hall, the owners here have not provided evidence from contractors to suggest their windows and doors could not be fixed and required replacement in June 2017. Instead, the owners rely on the energy efficiency report, and the strata’s glass contractor’s view that replacement was the “best” solution.

I find that I cannot rely on the efficiency report for the proposition that the windows and doors no longer served their purposes. In fact, the report suggested that the unit was more efficient than the average home of the same age and that the unit’s overall efficiency would only moderately improve with door, window and skylight replacements.

With respect to the sliding doors, the strata’s glass contractor suggested that he could attempt to fix the problem. I find that the strata was entitled to rely on its contractor’s opinion that other repairs could be attempted before replacing the sliding doors. Given the large costs involved in replacing the unit’s doors, I find it reasonable for the strata to take a cautious approach to such an expenditure, especially in light of the depreciation report’s suggestion that the doors and windows did not need to be replaced for many years. Of course, the depreciation report is not conclusive of the fitness of the particular windows and doors in question, but I find it provided a reasonable basis for the strata’s approach to the matter.

In proceeding with the changes, the owners unilaterally imposed the “best” solution to the problem. In doing so, they prevented the strata from exploring “good” or “better” solutions. In the event further repairs did not work, the strata may very well have decided to replace the doors at its expense, as it is required to do. However, given the owners chose to proceed as they did, I find they must bear the costs for doing so.

Further, the tribunal found that the strata corporation was justified in requiring the owners to sign an alteration agreement as a condition of approving the work.

Common property—alteration—liability—authorization—gas fireplace

In Wood v The Owners, Strata Plan VR 2646, 2018 BCCRT 261, the applicant strata lot owner carried out the following work:

The owner made changes to a gas fireplace in her strata lot. She also made related changes to the gas-vent piping connecting the fireplace to a chimney behind the wall of her strata lot. She wants the strata to pay for part of this work. The strata says it is not responsible to pay for any of the work.

The strata also applies by counter-claim. The strata says the owner made renovations without the strata’s approval. The strata says this violates the bylaws, so the owner must pay fines.

The tribunal found the strata corporation liable to reimburse the owner for the cost of work that fell within its responsibility to repair and maintain common property:

I have found that the indemnity provided by the previous owner is not effective against the current owner. The strata, therefore, cannot rely on that indemnity to deny its statutory duty under SPA section 72, which is echoed in its bylaw 12, to repair and maintain common property.

The owner has provided two invoices. One from Vaglio Fireplace is for $4,562.80 and the other, from Value Fine Finishing, is for $5,057.00.

The bulk of the work is installing a new fireplace in the owner’s strata lot. I find that the Vaglio invoice is rightly the owner’s responsibility. The finishing invoice, however, is for significant work done to both the common property and the owner’s strata lot. I find that invoice should be shared equally between the parties. I order that the strata must pay the owner 1/2 of $5,057.00, which is $2,528.50.

Regarding authorization of the work, the tribunal found both the owner and the strata corporation to have contravened the strata’s bylaws:

While I have found that the owner is in breach of the bylaws, I have also found that the strata is in breach. I find that both their breaches contributed to a climate of distrust. The owner took the work into her own hands because of that climate of distrust and because the strata, in error, refused to take any responsibility.

The tribunal concluded that both sides were responsible for making good aspects of these breaches:

I find that the owner’s contravention of the bylaws is rooted in the strata’s error over the application of the indemnity and its breach of its fireplace inspection bylaw. I order that the strata remove all charges for bylaw violations relating to the work on the owner’s fireplace.

It is reasonable, however, for the strata to know details of any alterations to strata lots and to common property. Also, the strata is entitled, under its bylaws, to be indemnified by owners who alter their strata lots, and who alter common property.

It would be unfair for the owner to be put in a better place by violating the bylaws than if she had complied with them. So I order that within 30 days of this order she must complete and deliver a signed indemnity agreement to the strata, indemnifying them for costs related to the work she did to her fireplace and to the common property.

Common property—alteration—sign—removal

Quarry v The Owners, Strata Plan LMS 2723, 2018 BCCRT 269, concerned a dispute in a strata property “comprised of 8 commercial and 11 residential strata lots.” The applicant commercial-strata-lot owners and their tenant claimed:

the strata improperly denied the tenant permission to post a 8’ x 4’ commercial sign (sign) on common property and removed the sign. The owners ask that the strata council (council) reinstall the sign and cancel the fine imposed for breach of the sign bylaw as well as the costs of removal which have been assessed against strata lot 12. The owners also ask that the strata be required to participate in voluntary dispute resolution under the strata bylaws (bylaws) to consider various issues. Further, they ask for reimbursement of expenses incurred for registered mail in the amount of $11.34, for a legal opinion in the amount of $732.62, and management fees which the strata paid to the management company for dealing with the applicants’ claim in the amount of $1,050.00, as well as reimbursement for tribunal fees.

In response, the strata corporation argued that “that the tenant breached the bylaws by not obtaining the approval of the council before affixing the sign to the common property” and that “it is not required to participate in voluntary dispute resolution.”

The tribunal found that the strata corporation’s actions were reasonable in view of the owners’ conduct:

The owners chose not to comply with the council decision made on August 14, 2017 that the 4’ x 8’ sign be removed by August 31, 2017 by permitting the tenant to proceed with the installation of the unauthorized sign. In doing so, the owners became responsible for the installation. The council was justified therefore in removal of the sign on September 12, 2017 at the owners’ expense, in accordance with bylaw 8.5 and SPA section 133. Council did so in a reasonable and responsible manner and at a reasonable cost.

The tribunal further found that the strata corporation had properly imposed fines for a breach of its bylaws and had properly charged the owners for the cost of removing the sign.

Finally, the tribunal found that participation in voluntary dispute resolution under the strata corporation’s bylaws required that “all parties must agree to this process.” The strata corporation couldn’t be compelled to participate.

In the result, the tribunal “order[ed] that the applicants’ claims are dismissed.”

Common property—repairs and maintenance—parking stalls

The dispute in Ricioppo v The Owners, Strata Plan KAS 2731, 2018 BCCRT 258, took place in a strata property “compris[ing] 26 strata lots in two buildings in the Big White Ski Resort near Kelowna.” “Although the strata is a phased strata,” the tribunal noted, “only Phase 1 has been built and deposited in the land title office.” The applicant strata-lot owner “has requested several orders that relate to maintaining common property, enforcing parking bylaws and providing documentation.” The wellspring of the dispute is the complicated parking arrangements at this resort strata corporation.

The tribunal ordered the strata corporation to post no-parking signs at an area near the boundary between the strata corporation and remainder parcel (where further phases of the strata were at one time contemplated):

Residents and visitors need to know that such parking is not permitted on the common roadway or the where the roadway meets the remainder lands. I find that the strata has not enforced the parking bylaw and has permitted a dangerous situation to develop and continue. I find that the strata must post two “no parking” signs on the northeast side of the roadway where the common property roadway abuts the remainder lands. One “no parking” sign must be installed opposite strata lot 7. One “no parking” sign must be installed opposite strata lot 20.

That said, the tribunal wasn’t prepared to order compensation for the owner’s accident in the parking area:

I agree with a number of the strata’s contentions. The owner was the operator of the vehicle. The owner is responsible for the care and control of her vehicle. The strata argues that the owner was negligent by improperly maneuvering her vehicle into the carport. I am not prepared to find the owner negligent. I am prepared to find that since the owner entered the carport without causing damage and when exiting caused damage results in the owner being responsible for her own damage.

***

In the present case, snow removal activity being impeded by parked vehicles is foreseeable. A pile of snow not being removed due to the parked vehicles is foreseeable. The possibility that the owner would recognize that danger, drive into the carport in any event, and then be unable to exit, is not foreseeable.

But the tribunal did make a number of forward-looking orders regarding parking at the strata property:

I conclude it is imperative that owners, tenants, occupants and visitors are aware the common roadway, including where it abuts the remainder lands, must be kept clear for snow removal and emergency access. I order that the strata immediately notify the owners, tenants and occupants that:

(a) the strata will enforce parking bylaw 3(5)(a) immediately;

(b) parking a vehicle on the roadway opposite the carports is prohibited; and

(c) any vehicle parked on the roadway opposite the carports will be towed at the expense of the vehicle owner/driver.

The tribunal made other orders concerning the strata corporation’s obligation to repair and maintain common property and regarding basic record keeping and governance.

Common property—limited common property—repairs and maintenance—deck

Swan v The Owners, Strata Plan LMS 410, 2018 BCCRT 241, was a dispute about “the limited common property (LCP) deck for strata lot 50 which requires repair.” As the tribunal noted, “[t]he owner wants the deck replaced in accordance with her specific requirements, and also wants compensation for her loss of use of the deck.” The tribunal also described the strata property as follows:

The strata was created in 1992. Phase 4 of the development was created in November 1993. The strata plan shows that SL 50 [the owner’s strata lot] is part of Phase 4, and identifies the LCP for SL 50 as “deck & stairs.” The dimensions of the LCP for SL 50 on the strata plan are 1.06 x 3.57 meters, or approximately 3 feet, 6 inches x 11 feet, 8.5 inches.

In the tribunal’s view, this dispute didn’t turn on the existence of the duty to repair and maintain common property but rather on the duty’s reach:

There is no dispute that, under the strata’s bylaws, the strata is responsible for the repair and maintenance of LCP. Neither is it disputed that the deck and stairs for SL 50 are LCP. What is disputed is how far the strata is required to go to repair and maintain the LCP deck and stairs.

The tribunal found that the duty didn’t extend as far as the owner had argued it did:

I find that the owner is not entitled to review and approve the contractor’s scope of work before the repair work begins. As noted above, a strata has a duty to reasonably repair and maintain common property, but there is no duty to do so in accordance with the requirements of any specific owner. The owner is not entitled to direct the strata on how to repair the LCP deck and stairs.

The tribunal also dismissed the owner’s claim for compensation, pointing to the owner’s own delays over the course of the dispute.

Common property—limited common property—repairs and maintenance—alteration—deck—skylights

Susko v The Owners, Strata Plan LMS 2226, 2018 BCCRT 249, involved a dispute in “a 47-unit 7-level residential complex located in Port Moody,” which concerned “whether the strata must a) reimburse the owner $1,580 for his replacement of deck boards on his limited common property (LCP) balcony, and b) approve the owner’s request to install 3 skylights in unit 704.”

The tribunal characterized the first issue as follows:

The issue here is that the owner replaced the balcony deck boards on his own, and now seeks reimbursement of the $1,580 cost. The owner acknowledges that he chose to replace his balcony boards with higher quality composite decking rather than “standard” decking. He says the strata has refused to tell him what it spent on replacement of other standard decks, and argues that the strata at least should reimburse him the cost of a standard deck replacement.

In the tribunal’s view, the owner’s misunderstanding of the strata corporation’s bylaws couldn’t be used as a basis for reimbursement:

The crux of this claim is that it is undisputed that the owner did not ask that the strata replace the balcony deck boards. I find the owner’s September 26, 2016 request, as quoted above, was that he be permitted to do the work at his expense, rather than a request that the strata arrange and pay for that work. It is unfortunate the owner did not realize the bylaws required the strata to repair and maintain the LCP deck boards. However, his failure to read the bylaws cannot mean the strata is responsible for paying for a balcony repair the owner asked to do at his own expense. There is no evidence before me that the strata had planned any deck repairs around the strata and the owner’s photos and submission do not prove his deck required imminent replacement.

Regarding the second issue, the tribunal found that the strata corporation had acted reasonably in refusing the owner’s request to install skylights:

on balance I accept the strata reasonably refused the owner’s request for skylight installation, because of the location and age of the building and the strata’s desire to protect the roof membrane. Given my conclusions above, I dismiss the owner’s request that I order the strata to approve his request for the installation of skylights.

In the result, the owner’s dispute was dismissed.

Strata lot—responsibility to repair—liability for cost of repairs—negligence—roof

Vasilica v The Owners, Strata Plan NW 17, 2018 BCCRT 216 was a dispute “about the strata’s alleged negligence in a roof repair performed by a third party contractor, Penfolds Roofing (Penfolds)”:

It is undisputed that the roofer did break through the drywall ceiling of the owner’s strata lot, causing debris to fall onto the owner’s daughter’s bed.

The owner wants his ceiling repaired. He also claims $2,000 in compensation for “loss of use and enjoyment and punitive damages,” plus $157.50 in reimbursement for temporary repairs he arranged.

The tribunal found that the strata corporation wasn’t negligent in engaging its roofing company:

Based on the evidence before me, I find the strata reasonably relied upon Penfolds to replace the roof in question. There is nothing in the evidence before me to support a conclusion that the strata ought to have done anything differently up to the point Penfolds’ worker fell through the ceiling. Nothing the strata did afterwards caused any further damage to the owner’s drywall ceiling, which the owner had temporarily repaired.

In the result, the tribunal dismissed all of the applicant owner’s claims.

Strata lot—responsibility to repair—liability for cost of repairs—water leak

The Owners, Strata Plan LMS 2706 v Duncan, 2018 BCCRT 248, involved a dispute over paying for repairs to damage to a strata lot caused by a water leak:

In July 2015, the owner identified a water leak inside her strata lot. As she initially believed the leak was related to the strata’s fire sprinkler system, the owner contacted the strata to investigate. The strata eventually arranged for a restoration company [to] identify the location of the leak and perform repairs within the owner’s strata lot. . . .

The strata seeks an order that the owner pay the cost ($601.08) of the repairs completed. . . .

The owner says that she should not have to pay for the repair. The owner’s position is that the strata failed to give her the opportunity to review a quote for the repair, and did not provide her with any notice that a repair was being completed, despite the fact that the leak was located wholly within her unit and did not involve common property.

The tribunal found that the owner hadn’t violated any of the strata corporation’s bylaws:

Bylaw 4.1 sets out that an owner must repair and maintain its strata lot, except for repair and maintenance that is the responsibility of the strata. The evidence before me is that the actions of the owner in late July 2015 were precisely intended to engage in the repair and maintenance of her strata lot. Rather than failing in her duty to repair and maintain her strata lot, the owner was proactively taking steps to address the leak in her unit. I do not consider the owner can be found to have been in violation of bylaw 4.1.

Strata bylaw 15 addresses the strata’s insurance. Bylaw 15.7 sets out that owners are responsible to repair, maintain and replace items such as hot water tanks, as well as hoses and water supply tubes to such an appliance/fixture. Bylaw 15.7 further explains that a failure to repair and provide maintenance on an item such as a hot water heater will be deemed negligence, and the owner of the strata lot will be responsible to pay for the cost of any insurance deductible paid as a result of any damage to a strata lot, common property, or interior strata lot property.

The strata has not provided any evidence suggesting that the owner had failed to maintain and repair her hot water tank and pipes generally, such that she could be deemed to have been negligent as contemplated by bylaw 15.7.

The tribunal concluded that the strata corporation’s claim for reimbursement should be dismissed:

the evidence before me is that the leak was associated with pipes from a hot water tank in the owner’s strata lot. Those pipes do not meet the definition of common property set out in section 1 of the SPA. The area affected by the leak was around a door frame located completely within the owner’s strata lot. There is no indication on the evidence before me that the leak involved pipes which were capable of being used in connection with the enjoyment of another strata lot or the common property of the strata. In the circumstances, the strata’s general responsibility to repair and maintain common property did not exist.

The responsibility for undertaking the repair required in this case lay with the owner. The owner specifically informed the strata that she wished to receive a quote informing her of the cost of any proposed repairs proceeding. For reasons that remain unexplained, the strata did not provide the same to the owner.

The strata at no point obtained any agreement from the owner as to the scope and cost of the repairs that were undertaken. Rather, the strata elected to proceed with and approve repairs to the owner’s property on its own initiative, without consulting with the owner further. While the strata may have felt that to be the most prudent course of action, that fact does not give the strata the power to charge the cost of the repair to the owner. The strata simply does not have such a power in the circumstances of this case.

Strata lot—responsibility to repair—water leak—negligence—governance—conflicts of interest—agreements—record keeping—access to records

In Nass v The Owners, Strata Plan BCS 2025, 2018 BCCRT 243, the applicant owner asked the tribunal for a number of orders related to repairs to common property and to a strata lot, as well as orders concerning the respondent strata corporation’s governance:

this dispute is about damage to the owner’s strata lot, a strata council member’s role in relation to film producers’ use of common property (including their standard of care and disclosure of conflicts of interest), and the records kept by the strata.

The owner seeks several orders relating to repairs of common property and her strata lot, strata records and documents, disclosure of conflicts of interest and governance assistance for the strata council.

The strata says it has repaired the common property and is not responsible for damage to the owner’s strata lot. It also says copies of most common property agreements and other documentation retained by the strata is available to the owner upon request and that one of its council members contracts directly with film production companies under a separate contract to which the strata is not privy.

The tribunal found that the owner’s strata lot had been affected by two water leaks. The first leak had been repaired: “the interior repairs relating to the first leak are moot, as they have been completed.” Further, the tribunal found “the strata was not negligent in its attendance to the second leak.”

The tribunal declined to grant the requested order on conflicts of interest:

The owner’s requested remedy is that the strata ensure each council member complies with section 32 of the SPA and if a conflict exists ensure the member leaves the meeting while the matter in conflict is voted on. I decline to make that order, given I have found the strata is not obligated to ensure its council members disclose conflicts of interest and the strata’s practice is that the council member who has a conflict leaves the meeting and does not vote on the contract, as required by the SPA.

But the tribunal did make a series of orders regarding access to the strata corporation’s records:

I order the strata to review its financial records for the 2015 calendar year and make a list of all film companies that paid a fee under a common property agreement (list). The strata must provide the owner with a copy of the list.

I further order the strata to correspond with all companies on the list for which the strata does not have a copy of the applicable agreement, requesting that the companies provide a copy of the agreement to the strata. The strata must, upon receipt of missing common property agreements, provide a copy to the owner. Upon issuing correspondence to all companies on the list, I conclude the strata will have made a reasonable attempt to obtain the missing agreements.

I further order the strata, upon receipt of a written request from the owner for records and documents set out in section 35 of the SPA, to provide access to or copies of the requested information pursuant to section 36 of the SPA.

Bylaws—enforcement—fines—aggressive dog

The Owners, Strata Plan BCS 1644 v Lukovic, 2018 BCCRT 219, involved a dispute “about whether the respondents [strata-lot owners] are in breach of the strata’s bylaws prohibiting aggressive dogs from residing on the property.” The applicant strata corporation asked the tribunal for orders that the respondents “a) pay outstanding fines assessed by the strata in the amount of $22,600; b) remove their dog from the property.” The respondents denied “that their dog is aggressive and that any fines are payable, and they refuse to remove their dog from the building.”

The tribunal found that, on the evidence, the strata corporation had made a reasonable determination that the respondents’ dog was aggressive:

I find that the strata’s March 31, 2015 determination that the dog was aggressive within the meaning of the bylaw was reasonable, and I agree with the strata’s conclusion. The dog satisfies the definition of “aggressive” in that it demonstrated a tendency to attack other pets without provocation, and bit another person without provocation.

The tribunal also found that the strata corporation had complied with the statutory procedure in levying fines. But it concluded that the total amount levied was unreasonable:

I accept that the $200 fine was prescribed by the bylaws. I also accept that the respondents’ refusal to remove the dog amounted to a continuing contravention for which the strata had discretion to assess further fines periodically. I am not, however, prepared to order payment of $26,000 in fines. The respondents are already facing the removal of their dog, which will likely have serious personal consequences to them. I also note that it took the strata more than 2 years to commence this dispute to deal with the problem. Overall, I find that the strata is only entitled to payment of fines assessed once a month, which I find was $5,000. All other fines that the strata assessed against the respondents that are part of this dispute must be reversed.

In the result, the tribunal ordered:

• within 60 days of this decision the respondents must remove the dog from strata property;
• within 30 days of this decision, the strata must reduce the pet bylaw fines assessed against the respondents to $5,000; and
• within 30 days of this decision, the respondents must pay the strata (1) $5,000 in fines for breach of the strata’s pet bylaws, (2) $80.91 in pre-judgment interest, and (3) $225 as reimbursement for its tribunal fees.

Bylaws—enforcement—towing—motorcycle

In Anderson v The Owners, Strata Plan BCS 3659, 2018 BCCRT 223, the applicant tenant said “the strata wrongly caused his motorcycle to be towed”:

He seeks an order reimbursing him for the cost of towing his motorcycle, plus $100 for his inconvenience and other costs.

The strata says the applicant has a history of parking in incorrect spaces, about which he had been warned. They say his motorcycle was towed consistent with strata bylaws.

The tribunal found that the applicant had permission to park his motorcycle in the parking stall:

A January 11, 2018 email from the strata’s caretaker states that the owner of stall 31 told her on August 19, 2017 that the applicant did not have permission to park there, but on August 23, 2017 the stall 31 owner texted to say she should have double-checked and the motorcycle was allowed to be parked there. The caretaker wrote in her email that the stall 31 owner was renting out the stall to someone else, and it was probably that person who told the applicant he could park there.

The August 19, 2018 text message provided in evidence confirms that the applicant had permission from ND, the person designated use of parking stall 31, to park in stall 31.

Based on this evidence from the caretaker and ND, I find that the applicant had permission to park his motorcycle in stall 31.

Since the applicant wasn’t in breach of “any parking bylaw,” and since the strata corporation had failed to give the applicant proper notice of a bylaw contravention, the tribunal ordered the strata corporation to “reimburse the applicant for the $96.82 towing bill.”

Tribunal jurisdiction and procedure—jurisdiction to hear dispute—strata-lot owner

The underlying dispute in Moore v The Owners, Strata Plan KAS 869, 2018 BCCRT 234, was about “interpretation of the strata’s bylaws with respect to commercial activity and whether the bylaws permit the owner to operate a licensed daycare.” As the tribunal noted, the respondent strata corporation “has so far declined to respond Ms. Moore’s request for approval in any substantive way and has declined to hold a council hearing under s. 34.1 of the Strata Property Act (SPA) on the basis that the strata bylaws do not permit any commercial activity,” so the applicant asked “for the tribunal to order the strata’s approval of her application.”

This decision only concerned “whether the tribunal has jurisdiction in this dispute, and if not, whether I should refuse to resolve this dispute.”

The tribunal found that the applicant wasn’t a registered owner or tenant, so it didn’t have jurisdiction to hear her dispute:

the tribunal reviewed Land Title Office documents relating to the strata lot. The documents show strata lot 4 was purchased by [the applicant’s] spouse on May 26, 2017. [The applicant’s] name does not appear on the title. Further, there is no agreement for sale or life estate registered against the title of strata lot 4. Therefore, I find [the applicant] is not an owner for the purposes of the SPA, which is defined in section 1 of the SPA as a person shown on title.

***

Since [the applicant] is neither an owner nor a tenant as those terms are specifically defined by the SPA I conclude that under section 3.6 of the [Civil Resolution] Act, the tribunal does not have jurisdiction over her dispute. Under section 10 of the [Civil Resolution Tribunal] Act I must refuse to resolve this dispute and [the applicant’s] claim is dismissed.

Tribunal jurisdiction and procedure—non-compliance—discretion to decide dispute

In The Owners, Strata Plan NW 178 v Moses, 2018 BCCRT 240, the applicant strata corporation “says that the owner is in violation of the strata’s occupancy and noise bylaws” and “asks for the owner to be brought into compliance with the bylaws.” But the respondent strata-lot owner stopped complying with the tribunal during the procedure, giving rise to a threshold issue, “whether I should proceed to hear the strata’s dispute, without the owner’s further participation, given her non-compliance and.”

The tribunal noted that “[t]he tribunal’s rules are silent on how it should address non-compliance issues.” The tribunal decided, in exercising its discretion, to “consider the following factors”:

• whether an issue raised by the claim or dispute is of importance to persons other than the parties to the dispute;
• the stage in the facilitation process at which the non-compliance occurs;
• the nature and extent of the non-compliance;
• the relative prejudice to the parties of the tribunal’s order addressing the non-compliance; and
• the effect of the non-compliance on the tribunal’s resources and mandate.

The tribunal decided to exercise its discretion in favor of hearing the strata corporation’s dispute, putting “significant weight on the following factors”:

• the extent of the non-compliance is significant;
• the applicant is not prejudiced if such an order is made; and
• the need to conserve the tribunal’s resources.

On the underlying bylaw dispute, the tribunal noted that the respondent agreed with the strata corporation’s claims that she was in violation of the strata corporation’s occupancy and noise bylaws.

In the result, the tribunal found “that the tribunal does not have the authority to require that the owner sell her strata lot as a remedy for the bylaw violations.” The tribunal ordered the respondent to comply with the occupancy and noise bylaws.

Tribunal jurisdiction and procedure—withdrawal of dispute—reimbursement for expenses

Pack v The Owners, Strata Plan LMS 2998, 2018 BCCRT 237, was a summary decision “about whether the applicants’ dispute should be withdrawn and payment of the respondent’s expenses.” Since both the applicant strata-lot owners and the respondent strata corporation agreed that the dispute should be withdrawn, the only live issue for the summary decision was “whether the tribunal should order the applicants to reimburse the strata’s expenses.”

The tribunal decided that reimbursement wasn’t appropriate, for the following reasons:

First, as earlier noted, the strata characterizes its expenses as time spent to “have evidence prepared to defend against this claim.” Given the status of this dispute was in the tribunal’s facilitation stage, there was no need to prepare evidence as evidence is generally not submitted until the tribunal decision process has started, which was not the case here.

Second, the strata did not agree to pay its strata council representative for time spent until after the applicants had requested to withdraw their dispute. It is unclear from the submissions if the strata’s representative requested reimbursement for time spent or if the strata offered reimbursement.

Third, given that parties are encouraged to represent themselves under section 20 of the [Civil Resolution Tribunal] Act, the tribunal does not generally order one party to pay to another party any fees charged by a lawyer or another representative except in extraordinary cases. I do not find this to be such a case.

Fourth, under section 189.4 of the Strata Property Act (SPA), an owner who brings a tribunal claim against a strata corporation is not required to contribute to the strata corporation’s expenses of defending the claim or in any monetary order issued against it. I find the request of the strata is contrary to the SPA.

In the result, the tribunal “order[ed] the applicants are permitted to withdraw their dispute and that the tribunal reimburse the applicants their tribunal fees paid of $125.”