CRT Roundup—strata fees, rental restrictions, bylaw enforcement, and nuisance

CRT Roundup—strata fees, rental restrictions, bylaw enforcement, and nuisance

February 22, 2018

BY Kevin Zakreski

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

Governance—finances—strata fees—catch-up payment

The Owners, Strata Plan NW 2729 v Haddow, 2018 BCCRT 37, was a dispute between “a 36-unit strata corporation located in Mission” and two strata-lot owners. The applicant strata corporation claimed:

the respondents have not paid a shortfall in monthly strata fees for the months of January and February 2017 (2017 shortfall). The strata says the 2017 shortfall payment was approved at a February 2017 annual general meeting. The strata requests orders that the respondents pay the 2017 shortfall and reimburse it for tribunal fees paid.

The shortfall was the result of a timing issue regarding the strata corporation’s fiscal year end and its annual general meeting:

The strata’s fiscal year end is December 31 and it regularly holds its annual general meeting (AGM) before the end of February of the following year as permitted by the Strata Property Act (SPA). As a result of the AGM’s timing, it is the strata’s practice to retroactively collect any strata fee increase for January and February of the new fiscal year after the AGM has been held.

The tribunal found that the respondents weren’t obliged to pay the shortfall. This conclusion followed from the tribunal’s interpretation of the governing legislative provisions:

Under section 103(1) of the SPA, the strata must prepare a budget for the coming fiscal year for approval at each AGM. Section 103(2) says the proposed budget must be distributed with the AGM notice. It is readily apparent that the phrase “for the coming fiscal year” can easily be applied to an upcoming budget when a strata corporation holds its AGM before its fiscal year end. However, the phrase is confusing when applied to a budget that is passed after the fiscal year end of the strata corporation, as is the case here.

One interpretation of section 103(1) would indicate that a budget approved after the fiscal year end would not take effect until the next fiscal year. However, such an interpretation would mean that the strata corporation would be without a budget every second year. That interpretation is not consistent with the requirements of the SPA that a strata corporation consider a budget at each AGM. I find the phrase “for the coming fiscal year” in section 103(1) should be interpreted as “for each fiscal year.” My conclusion is supported by section 104(1) of the SPA which requires a strata corporation to call a special general meeting to approve a budget if the budget is not approved at the AGM.

Further, under section 104(2) of the SPA, if a fiscal year to which a budget relates ends before a new budget is approved, the owners must, until the new budget is approved, continue to pay the same monthly strata fees they were required to pay under the previous budget. I interpret this to mean that strata fees collected for the months prior to the passing of a new budget must be calculated under the prior year’s budget. Bearing this in mind, a plain reading of section 104(2) would indicate the new strata fees would not start until the month after the new budget was approved given strata fees must continue to be paid based on the previous budget. I accept that interpretation. As such, I find that in the case where the fiscal year to which a budget relates ends before a new budget is approved, strata fees relating to a new budget are not owing until the first day of the month following the AGM.

Further, the tribunal concluded that nothing in the legislation authorizes a strata corporation to collect strata fees retroactively:

there are some sections of the SPA that indicate the legislation did not intend that strata fees to be collected retroactively, as it would not be practical to do so.

Sections 59 and 115 of the SPA both require a strata corporation to provide certain information, that includes the amount of strata fees and if any strata fees are outstanding, within 1 week of a request from an owner or purchaser. Information under section 59 must be provided in a prescribed Form B—Information Certificate. Under section 59(5), the information disclosed is binding on the strata corporation and under section 59(6) application must be made to the Supreme Court of British Columbia regarding an inaccurate certificate.

***

If retroactive strata fee charges were permitted, the strata fee information disclosed in the prescribed forms (B and F) could cause the forms to be inaccurate when a new budget is approved. In particular, strata fee information disclosed in a Form B would be inaccurate but would remain binding on the strata corporation and only correctable by the Supreme Court. Further, it would not be possible for a strata corporation to collect retroactive strata fees if a strata lot sold during the period between the end of the fiscal year and the date the new budget commenced.

Governance—bylaws—rental restrictions—rental of part of strata lot

K.M. v The Owners, Strata Plan ABC XXXX, 2018 BCCRT 29, concerned a dispute over the enforceability of a rental-restriction bylaw, “which the owner says does not restrict her from renting a portion of her strata lot.” The strata property “was created in April 1997 and is comprised of 137 residential strata lots.” Its rental-restriction bylaw

was filed at the Land Title Office on August 7, 2001, and amended July 13, 2011 and September 22, 2014. At no time was the bylaw’s rental limit amended. Bylaw 44.1 limits the number of “strata lots within the strata corporation that may be leased at any one time” to 10% and sets out a procedure the strata must follow to administer the limit.

The tribunal found that the strata corporation’s bylaw wasn’t unenforceable under section 121 of the Strata Property Act. In particular, enforcing the bylaw didn’t amount to discrimination under section 8 of the BC Human Rights Code.

The tribunal also found that the rental-restriction bylaw “applies to tenants renting a portion of a strata lot.” In the tribunal’s view:

Part 8 (sections 139 through 148) of the SPA addresses rentals within strata corporations. Part 8 does not distinguish between tenants renting a portion of an owner-occupied strata lot and tenants renting an entire strata lot. I find no such distinction exists to support the owner’s position. Based on a plain reading of Part 8 and the SPA’s definition of tenant, I find the SPA must be interpreted to apply equally to a tenant renting part of a strata lot or a tenant(s) renting an entire strata lot.

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

Governance—bylaws—enforceability—restricting entrance through patio doors

In Field v The Owners, Strata Plan 159, 2018 BCCRT 15, the applicant strata-lot owners claimed “the strata did not follow proper process when it adopted a bylaw restricting the use of patio or balcony doors as a means of ingress or egress to common property, something that the applicants claim had been permitted for several years.” They sought an order that the bylaw was unenforceable or, in the alternative, that its enforcement against them would be significantly unfair. The respondent strata corporation argued “the original balcony railings were installed without gates, that it never gave the required permission for any alterations made to existing railings and such permission would be contrary to the strata’s current bylaws.”

The strata property “comprises 90 strata lots in a single 3-story building located in Victoria, British Columbia.” After reviewing the strata plan, the tribunal found “the balconies and railings form part of a strata lot.” But “the strata has, at all material times, taken responsibility for repair and maintenance of balcony and patio railings within a strata lot.”

The tribunal began by finding the specific bylaw that restricted use of balcony or patio doors to have been validly adopted, despite there being some “technical irregularities” at the meeting that considered it. The tribunal also concluded that the bylaw was “valid and enforceable.” And the tribunal found nothing in the act that would exempt the applicant owners from the bylaw’s reach:

The SPA provisions that create bylaw exemptions are specific in nature and only apply to very limited types of bylaws. There is no general provision in the SPA regarding circumstances when a bylaw does not apply or an owner is exempt. As discussed earlier, bylaws can be amended by passing a 3/4 vote resolution at a general meeting. Unless the bylaw itself contains an exemption for certain owners or the SPA exemptions apply, the bylaw is changed and becomes effective when it is filed in the Land Title Office. In other words, the strata is free to change its bylaws by following the requirements of the SPA.

Here, there is no exemption under the SPA to suggest that bylaw 1.3(3)(a) does not apply to the applicants nor is there any such exemption contained in the strata’s bylaws. In the result, I find the applicants are not “grandfathered” or otherwise exempt from bylaw 1.3(3)(a).

Finally, the tribunal concluded that there was nothing in the respondent strata corporation’s actions that could be characterized as being significantly unfair to the applicant owners.

Governance—bylaws and rules—enforcement—nuisance—common property—significant change in use or appearance—trail lights

O’Neill v The Owners, Strata Plan LMS 898, 2018 BCCRT 20, was a dispute over whether “the strata has failed to enforce its bylaws and rules regarding outdoor lighting.” The strata property in this case was “a townhouse complex that backs onto a green belt and walking path.” The applicant owner claimed that a neighbor had “installed seven trail lights along the bottom of the fence that runs parallel to the green belt,” and these lights were shining into his strata lot. After complaining about this to the strata corporation, the applicant further complained that another neighbor “was leaving her patio light on all night, which lit up the applicant’s bedroom and yard.”

The tribunal found that the installation of the trail lights was a significant change in the use or appearance of common property, which hadn’t been approved by a resolution passed by a 3/4 vote:

While the lights themselves are relatively small, when turned on they illuminate both the fence and the surrounding trail. The original nature of the strata was that it was bordered by an entirely unlit greenspace, but with the lights illuminated that nature is changed. The owner of unit 132 wrote that she did not install the trail lights, but she was happy with them because she is a dog owner and the trail is very dark. I find that this evidence shows that the trail lights were a significant change, as they altered the strata’s surroundings. The trail lighting changes the visibility of the strata and its surroundings to both residents and the public, and I accept the applicant’s evidence that it changed the use and enjoyment of his unit.

The tribunal also found that that neighbor’s patio light was creating a nuisance, in breach of the strata corporation’s bylaws:

The placement and wiring of the patio light was performed by the original builder, and the replacement fixtures were approved by a past council and are standard in the complex. Having said that, the physical layout of the two units means that the unit 132 patio light does shine into the applicant’s bedroom, and creates a nuisance for him. In those circumstances, I find it is reasonable for the strata to replace the patio light fixture with one that casts light away from the applicant’s unit.

In the result, the tribunal ordered “that within 30 days of this decision, the strata remove the seven trail lights, and replace the unit 132 patio light with one that casts light away for the applicant’s unit.”

Governance—bylaws and rules—enforcement—fines—chargebacks

In The Owners, Strata Plan LMS 2706 v Morrell, 2018 BCCRT 28, the applicant strata corporation sought payment from the respondent strata-lot owners “for costs related to fire alarm testing, unpaid strata fees and interest, bylaw infractions, repairs following sewer backups, and legal fees relating to unpaid strata fees.” With the exception of one claim for damage caused by the respondents’ tenant, the tribunal dismissed the strata corporation’s claims.

The tribunal dismissed a claim for costs related to a missed fire-alarm inspection, calling into question the strata corporation’s practice of posting notice on a website:

In this proceeding, the burden of proof is on the applicants, and I find they have not proven that the respondents received notice of the initial fire alarm inspection. They did not send out a written notice, but instead posted it on a web portal. There is no way to know if the respondents checked the portal, and no indication that they were prompted to do so prior to the inspection. They applicants say that since the fire alarm inspection was the only maintenance the respondents missed, one can assume they received notice of the fire alarm inspection. I find that such an assumption is too speculative.

Also, section 61 of the SPA sets out the requirements for how strata corporations are permitting to deliver notices, including leaving it with the person or unit occupant, putting it under the door or in a mail slot, or mail, fax, or email. A web portal is not a permitted form of notice under section 61, and any policy the strata may have regarding the web portal does not replace the requirements of the SPA.

A claim for unpaid strata fees was dismissed due to lack of proof and because it was commenced after the applicable limitation period had elapsed. The tribunal disallowed a claim for legal fees associated with the alleged nonpayment of strata fees. The tribunal also dismissed claims for bylaw-contravention fines due to failure to prove compliance with the procedure set out in section 135 of the Strata Property Act.

Finally, the tribunal dismissed the strata corporation’s claims that the owners were responsible, through their negligence, for damage to the strata corporation’s plumbing system, with the exception of one chargeback:

I find that the occupant of unit 6 [the respondent’s strata lot], who was either a guest or a tenant, was negligent in refusing [the restoration company] access to the rented air scrubber. Accordingly, I find that the respondents are responsible for that fee, and that under bylaw 15.9 the strata was entitled to charge back that amount to the unit 6 strata account.

Governance—bylaws and rules—enforcement—fines—finances—special levy—limitation period

Campbell v The Owners, Strata Plan NW1018, 2018 BCCRT 36, featured claims for, among other things, “[a] declaration that no monies are owed to the strata in respect to the strata lots and issuance of a Form F reflecting that no monies are owed” and “[a] declaration that any special levies outstanding for more than two years are null and void.” The respondent strata property “consists of 186 strata lots in 11 buildings on a large property in the lower mainland.” The applicant “owns three strata lots in the respondent strata corporation,” two of which were at issue here.

The tribunal dismissed the claims with respect to the Form F, finding there were valid charges owing. These charges related to fines for bylaw contraventions by the owner’s tenants:

While it would have been prudent for the strata to better document the fact that the bylaw/rule infraction warning letters described above were delivered to the tenants of the owner, I accept that the letters were delivered in the manner described by the strata, that is, by the delivery of a copy of the letter to the owner to the tenant at the respective strata lot. . . .

I accept the evidence of the strata that the owner did not provide it with a Form K for any of his tenants. In this way, by his own actions, the owner impeded the ability of the strata to deal with the tenants by name. On the evidence before me, I accept that the strata did send copies of the notice of bylaw/rule infraction letters to both the owner and the respective tenants in compliance with s. 135 of the SPA. The strata then considered and imposed the fines at meetings of the strata council. I therefore find that the fines for the bylaw/rule infractions relating to those letters set out above are all valid and properly included in the account of each of the strata lots.

The tribunal also dismissed the owner’s claims related to a special levy on the basis that they were out of time:

In all of the circumstances, I find that the owner’s claim in respect of the fireplace special levy has been brought too late. This claim had to be made within 2 years of the owner becoming aware of the claim. The owner has not provided any factual or legal basis for me to extend the general limitation period set out in the Limitation Act.

Further, the tribunal found:

there was no wrongdoing proved against the strata relating to the special levy for fireplace remediation. Therefore, I find that there is no basis for the declaration sought by the owner, and that request is dismissed.

Common property—repair and maintenance—nuisance—errant golf balls

Moore v The Owners, Strata Plan KAS 353, 2018 BCCRT 40 was a dispute involving errant golf balls:

The [respondent] strata owns a golf course and almost half of the owners’ strata lots are adjacent to the course’s fairways. [The applicant strata-lot owner’s] SL121 is directly adjacent to the #3 hole fairway. This dispute is about whether and to what extent the strata must take further steps to stop errant golf balls from landing in [the owner’s] yard, hitting his house, and potentially injuring his family and guests.

The tribunal made the following general comments on the nature of the dispute:

I accept the owner has sustained some minor property damage and that he and his family are anxious about the golf balls entering his yard unpredictably. However, I find the 80 to 100 golf balls entering the owner’s strata lot in a golf season is, in the strata context here, not an unreasonable interference. In any event, I find the number of errant golf balls are not an actionable nuisance against the strata. However, that is not the end of the matter.

The strata has an obligation to reasonably maintain the course, in the best interests of all owners. It is not a standard of perfection. Overall, I agree with the strata that it is a shared responsibility to protect against errant golf balls entering an individual owner’s strata lot. To this end, the strata must maintain the golf course, but the bylaws require that individual owners must maintain their own strata lots, bearing in mind the neighbourhood in which they live—right on the golf course. I find that to conclude otherwise would ignore a fundamental premise of strata living, that it is a democracy that must consider the best interests of all owners. To the extent [the owner] may argue that such a conclusion is significantly unfair to him, I disagree. As noted above, under the bylaws [the owner] has the option of installing a net or other protections on his strata lot, as have several other similarly situated owners.

The tribunal added that it made these comments “not to relieve the strata from all responsibility, but rather to explain why I have taken a measured approach in the remedies granted” in the case.

These remedies were shaped to a significant degree by the opinions on golf-course design provided by the strata corporation. In the result the tribunal ordered the strata corporation to do the following:

• As soon as practical, plant 3 Freeman Maple trees on the west side of the 3rd hole fairway, in the staked locations the strata identified in its tribunal submissions,
• Within 30 days, re-shape the 3rd hole tee box, as agreed by the parties in this proceeding,
• Within 30 days, ensure that the tee blocks are oriented perpendicularly to the centerline of the #3 fairway, so that golfers cannot re-orient the blocks after being placed by staff,
• Within 30 days, place signage at the #1, 3, 4, and 5 holes warning golfers, using language as agreed by the parties in this tribunal proceeding, with the strata’s Golf Superintendent to determine size and colour so as to be reasonably visible, and
• Within 30 days, pay the owner $125 as reimbursement for tribunal fees paid.

And it dismissed “the balance of the owner’s claims.”

Common property—repair and maintenance—parkade—water damage—vehicle

In Di Lollo v The Owners, Strata Plan BCS 1470, 2018 BCCRT 24 the applicant strata-lot owner claimed that:

the respondent [strata corporation] failed to adequately repair a leak in the garage ceiling above his assigned parking stalls, resulting in damage to his vehicle. The respondent says it acted reasonably in making the necessary repairs and is not responsible for the vehicle damage.

The strata property

was created in 2005 and consists of two buildings, building A and building B. There is one large, one-level parking garage, below both buildings. The strata plan designates the parking garage as common property.

The case turned on whether “the strata failed to adequately repair the garage ceiling in February and April 2010, which failure caused the November 2016 recurrent leak.” The tribunal found that the applicant wasn’t able to show that the strata had acted negligently or unreasonably:

While it is tempting to look back in hindsight to see what could have been done differently, a standard of perfection is not required. The fact that the repair was inadequate does not show that the strata was negligent in its choice of repair method at the time.

I find that the strata also acted reasonably in repairing the November 2016 leak. The property manager took steps to address and investigate the leak upon being advised of it. It appears that the repairs consisted of applying waterproof coating to the garage ceiling again.

I acknowledge that the November 2016 repairs were inadequate, as the leak recurred on December 2 or 3, 2016. Again, the fact that the repair is inadequate does not show that the strata was negligent in its choice of repair method. I do not find that the strata should have chosen a different method of repair. As noted above, other than the owner’s expressed belief, there is no evidence that the leak was caused by water coming into the garage from the garden level.