CRT Roundup—use and alteration of common property, unauthorized spending, and more

CRT Roundup—use and alteration of common property, unauthorized spending, and more

September 28, 2017

BY Kevin Zakreski

This post is part of a monthly series summarizing the Civil Resolution Tribunal’s strata-property decisions. There have been 19 new decisions since the last post.

Bylaws—rental and pet restrictions—Airbnb

The Owners, Strata Plan VR812 v Yu, 2017 BCCRT 82 concerned the enforcement of the applicant strata corporation’s rental-restriction and pet bylaws. The strata corporation alleged that the respondent strata-lot owner had operated her strata lot “as an Airbnb unit” and had carried on a pet-sitting business from the strata lot. The owner raised arguments about the validity and application of the bylaws.

The tribunal found that there was “essentially undisputed evidence” that the strata lot was being used as an Airbnb unit. Given this, the tribunal concluded that:

the strata is entitled to an order that the owner comply with the strata’s bylaws. In particular, and without limitation, the owner must stop using SL12 as an Airbnb unit, as that use is contrary to its prescribed use as a “private dwelling home”, per bylaw 4.3 and is prohibited short-term accommodation use, contrary to bylaw 41.2.

Similarly, the tribunal found that there was “undisputed evidence” that the owner was carrying on a pet-sitting business from the strata lot, which “offered pet boarding, drop-in visits, dog walking, and dog day-care.” The tribunal rejected the owner’s argument that boarding dogs was a necessary accommodation to relieve symptoms of depression:

While the owner’s doctor supported her keeping her own 2 dogs and spending time with other dogs, I cannot conclude that her medical condition requires that she has dogs in SL12, overnight or otherwise. Based on the evidence before me, nothing prevents the owner from leaving SL12 and spending time with other dogs outside of her home, if she chooses to do so. There is no indication in the owner’s doctor’s note that this would be insufficient.

In the result, the tribunal ordered the owner to comply with the strata corporation’s bylaws and to pay the strata corporation the following amounts:

• $4,600 in fines related to her use of SL12 as an Airbnb unit, with respect to the period between February 13 and July 17, 2017,
• $1,300 in fines related to the owner’s keeping of pets in SL12 beyond the owner’s 2 dogs permitted by the strata, and
• $225 in reimbursement for the strata’s tribunal fees.

Duty to repair—common property—shower valve—access to strata lot

Lorenz v The Owners, Strata Plan NW 2001, 2017 BCCRT 65, was a case involving initially a leak in the applicant strata-lot owner’s bathroom. The applicant claimed that the strata corporation had “dismantled his bathroom and the strata then willfully or negligently delayed performing repairs.” He sought an order “requiring the strata to immediately repair his bathroom and bedroom to their original condition . . . along with loss of use and enjoyment damages and punitive damages.”

The tribunal found that the source of the leak, a malfunctioning shower diverter, was common property and therefore the strata corporation’s responsibility to repair. But the tribunal dismissed the applicant owner’s claims for compensation, finding that his repeated failure to grant access to the strata lot were the source of his losses:

The owner’s claims for loss of use of his bathroom result from his entry infraction. I say this because I find the strata never completed the repair of the owner’s SL19 bathroom because the owner never provided the strata council and/or the property manager G the access it reasonably requested under bylaw 6.1.

In the result, I do not consider it appropriate to make an order for the strata to pay the owner anything for his loss of use of his tub/shower. As noted above, had the strata been permitted that inspection, the strata would have proceeded with the repairs I find it was required to make to the SL19 bathroom.

Rental-restriction bylaw (1)—hardship exemption

In Lacoursiere v The Owners, Strata Plan KAS 989, 2017 BCCRT 64, the applicant owner claimed that the respondent strata corporation “granted the [the owner of another strata lot] a hardship exemption improperly. The owner wants the strata to conduct financial reviews of the Lot’s owners and to limit their hardship exemption. The owner wants the strata to involve legal counsel in all future hardship exemptions.” The applicant sought an apology and removal of a strata-council member.

After reviewing the evidence, the tribunal found that the strata corporation, “having failed to grant the hearing within the relevant timeframe,” was now in no position to conduct future financial reviews and limit the hardship exemption. It dismissed the applicant’s claims.

Rental-restriction bylaw (2)—validity of bylaw

In Louie v The Owners, Strata Plan LMS 2093, 2017 BCCRT 72, the applicant owner sought an order that she be allowed to continue to rent her strata lot. The strata corporation had adopted a series of rental-restriction bylaws, beginning in March 2000. This bylaw provided that “[a]ny registered owner prior to the adoption of this bylaw . . . shall be ‘Grand Fathered’ from this bylaw. Therefore, owners of record on the date this bylaw is passed will always be permitted to rent out their strata lots, but future owners will be prohibited from renting their strata lots”. Its latest bylaw was adopted in March 2012. One of the goals of this approach to rental-restriction bylaws was “to create a continuous prohibition on rentals.”

The applicant acquired a 99/100 interest in the strata lot in March 2012. At that time, she was allowed to rent the strata lot because the strata corporation was under the mistaken impression that her co-owner had purchased the strata lot from the owner-developer. Later the strata corporation attempted to enforce its rental-restriction bylaw.

The tribunal found that the applicant and the strata corporation had each made a number of mistakes about the renting the strata lot:

Based on the evidence, I find that in March 2012, the strata mistakenly believed that (1) bylaw 33 was enforceable; (2) it had successfully continued its prohibition on rentals that it began with bylaw 33 in 2000 when it adopted bylaw 6.0, in 2012, without creating a transition period; and (3) the co-owner was a “first owner” under the [rental disclosure statement] and was, therefore, eligible for an exemption from a rental prohibition bylaw, bylaw 6.0, under section 143(2) of the SPA.

Based on the evidence, I find that in March 2012, the applicant believed that SL94 was exempt from bylaw 33 because her co-owner was “grandfathered,” by bylaw 33, as an owner of record; and the applicant was not aware of proposed bylaw 6.0.

***

SL94 was rented when the strata registered Bylaw 6.0. I find, on the balance of probabilities, the 1st tenant moved out around November 2012. Bylaw 6.0 would begin to apply to SL94 in November 2013 because of the rental bylaw transition provisions in the SPA. (SPA s. 143(1))

I find that after November 2013, the applicant was in breach of the strata’s bylaw 6.0, prohibiting rentals.

Access to records—council email messages and legal opinion

Pritchard v The Owners, Strata Plan VIS3743, 2017 BCCRT 69, concerned access to certain strata-corporation records as part of a broader dispute over a sundock. The applicant owner asked the tribunal for “various declarations and orders about the strata’s disclosure of certain documentation to the owner, namely a) January 2015 to April 22, 2016 emails between council members relating to a ‘sundock’ the owner co-owns (Council Emails), and b) an April 2016 legal opinion the strata obtained on the sundock dispute (April Opinion). The owner says the Council Emails and the April Opinion are records that the strata must disclose upon request, under sections 35 and 36 of the Strata Property Act (SPA).”

The tribunal refused to grant the requested orders. On the issue of the Council Emails, the tribunal said this case was governed by Kayne v The Owners, Strata Plan LMS 2374, 2007 BCSC 1610:

Emails to the strata or from the strata are records within the meaning of section 35. However, I find that section 35 does not include emails between council members, whether or not those emails relate to council business. Just as the SPA does not require documents to be prepared and kept in any particular form or that every bill and receipt be produced, I find that emails between council members also do not have to be produced. I agree with the court in Kayne that it would be an unreasonable stretch to conclude otherwise. I find the Council Emails are not records within the meaning of section 35 of the SPA.

The tribunal also agreed with the strata corporation’s handling of the legal opinion:

Next, I will address the April Opinion. While the strata initially considered providing the April Opinion, it sought legal advice and then decided it may be appropriate to withhold it on the basis of solicitor-client privilege. I agree with the strata’s lawyer’s advice, as set out above, and find the strata reasonably relied upon it. That the strata may have on two occasions in the past provided legal opinions about the building’s remediation is not determinative in this case. Here, the material point is that the April Opinion related to a matter specifically involving the owner. Thus, while legal opinions like the April Opinion are records within the meaning of section 35 of the SPA, the strata was entitled under the common law to claim solicitor-client privilege over it in this case. In any event, the strata decided to disclose the April Opinion in advance of the November SGM, as was its right to do.

Common property—exclusive use—rooftop decks

In Previer v The Owners, Strata Plan NW 651, 2017 BCCRT 63, the respondent strata corporation “issued letters” in 1994, granting owners of two strata lots “permission to install rooftop decks” on areas understood on all sides to be common property. Both strata lots were later sold. Their new owners continued to enjoy permission to use the common property as rooftop decks. Ultimately, another strata-lot owner applied to the tribunal, asking for an order that the strata corporation “return common property currently used exclusively by these owners . . . to its ‘unoccupied and unencumbered states.’ ”

The tribunal dismissed the applicant’s claim. It found that the strata corporation had properly granted permissions in accordance with the legislation in force in 1994 (the Condominium Act), and that these permissions were grandfathered and “remain valid and in force” for the new owners and under the Strata Property Act.

Contingency reserve fund—unauthorized spending (1)

In Hodgson v The Owners, Strata Plan LMS 908, 2017 BCCRT 66, the applicant owner claimed that “the strata is spending money from the contingency reserve fund (CRF) without proper authority, contrary to the Strata Property Act (SPA). The applicant seeks an order that the strata comply with the SPA regarding CRF expenditures. The applicant further claims that the strata did not pay certain benefits to the building manager.”

The CRF claims related to funds authorized in previous fiscal years or authorized by the strata council as necessary to ensure safety or prevent significant loss or damage.

The tribunal rejected the applicant owner’s argument that the resolutions authorizing expenditure of CRF funds implicitly limited that authority to the fiscal year in which the resolution was passed. The tribunal also found that the strata council had reasonable grounds, “[b]ased and relying on all the information available at the time of council’s decision,” [emphasis in original] to spend funds from the CRF to ensure safety or prevent significant loss or damage.

On the issue of making a contribution to the strata manager’s retirement savings plan, the tribunal rejected the applicant’s argument that “because the owners voted to allocate an amount in the operating fund to an RSP for the building manager, the strata became obliged to make this contribution to the building manager’s RSP.” In the tribunal’s view, “[i]f an amount appears in the operating fund for expenditure, the expenditure of that money is discretionary and that discretion lies with the council as long as the expense is authorized by the SPA. Approval of a budget with amounts in the operating fund is not a directive.”

Contingency reserve fund—unauthorized spending (2)

In Stevenson v The Owners, Strata Plan VIS 1419, 2017 BCCRT 70, the applicant owner alleged that “the strata completed repairs for upgraded decking and other renovations that were not properly approved pursuant to the Strata Property Act (SPA) and/or the bylaws.” The expenditures related to a “comprehensive envelope replacement” authorized at a special general meeting held in 2016.

The tribunal found that the bulk of the expenditures had been “properly authorized through the broadly worded building envelope resolution of April 2016 authorizing an expenditure of up to $194,040.” But “the strata improperly paid the amount of $3,899 from the operating fund, where it should properly have been applied against the CRF because it paid for expenses that usually occur less than once a year. I therefore order that the strata either convene a special general meeting at their next Annual General Meeting to seek approval of a 3/4 vote resolution to refund the $3,899 amount into the operating fund and pay it, instead, out of the CRF.”

Operating fund—unauthorized expenditure—conflict of interest

Barnett v The Owners, Strata Plan LMS 908, 2017 BCCRT 78, concerned claims that the respondent strata corporation’s expenditures on its fire-prevention system were unauthorized expenditures from the operating fund. The applicant owner claimed that “the strata council made unapproved expenditures on the strata’s fire system in its 2015/2016 fiscal year through ‘a series of illegal, invalid or omitted contract decisions.’ He asserts that there are unresolved issues regarding conflicts of interest, lack of good faith and general dishonesty on the part of council.”

The tribunal found that the applicant had “not provided evidence to support his assertions of bad faith, collusion and dishonesty.” The expenditures were necessary as a safety measure, but they were improperly paid for out of the operating fund:

Ensuring that there is adequate fire detection and suppression measures in the strata building is clearly a safety matter. As long as the fire system was not fully operational, owners were at personal risk. The strata was likewise at risk of further loss in the form of compromised insurance coverage and monitoring expenses. As a result, I find that the expenditures approved at the council’s June 10, 2016 vote were authorized under s.98(3) of the SPA, as the council members had reasonable grounds to believe the strata was at risk of significant loss or damage and the owners’ personal safety was compromised.

Replacement of the smoke detectors and remedying deficiencies are not ordinarily an expense that would occur at least once per year. The operating budget is intended to deal with expenses which occur at least annually. The contingency reserve fund is for expenses which ordinarily occur less than once per year. Although the strata can access funds for an emergency, it must still pay the expenditures from appropriate fund. Components of the fire system are not annual expenses and so ought to have been payable from the strata’s contingency reserve fund. For that reason, I direct the council to present a motion to the owners at the next annual general meeting proposing transfer of funds from the contingency reserve fund to the operating fund for the approximate amount of the fire system expenditures which had been spent on elements which do not ordinarily require repair or replacement at least once per year.

Permission to alter common property—washing machine

In Wilchek v The Owners, Strata Plan VR 55, 2017 BCCRT 67, the applicant owner sought “an order that the strata permit the owner to install a washing machine” in her strata lot. The basis of her claim was that “there is another strata lot owner with an approved washing machine that has set a legal precedent.”

The tribunal didn’t accept the applicant owner’s argument. While the strata corporation didn’t have a bylaw specifically prohibiting washing machines, “the strata clearly has a bylaw that requires owners to first obtain the strata’s written approval before making alterations that involve piping and wiring. The owner’s request to install the washer requires the strata’s approval under bylaw 5 and bylaw 6.”

In the end, the tribunal found that “the strata is entitled to rely upon its plumbing experts’ advice” and “the strata has valid plumbing concerns that support their refusal to give permission.” “Even though unit 306 was given the ‘one-off’ permission in 2008 (after a protracted and costly dispute),” the tribunal concluded “it is not unreasonable for the strata to consider whether permission could be given to all owners if permission is given to the owner” and the owner was not treated in a significantly unfair manner.

Insurance deductible—water

In Davies v The Owners, Strata Plan 755, 2017 BCCRT 71, water ponding on the applicant owner’s balcony during a heavy rainfall overflowed, damaging a strata lot located below the owner’s strata lot. The respondent strata lot charged the owner $5000, being the deductible on its insurance claim. The owner argued he wasn’t responsible for the deductible and sought an order from the tribunal setting aside the chargeback.

While the tribunal wasn’t provided with “any physical evidence obtained through investigating the cause of the leak,” it was able “to determine the cause of the leak from the information provided by the parties.” It found the cause to lie with the owner’s tenant:

In summary, the water ingress on October 15, 2015 was caused by the owner’s tenant somehow causing the drain to become blocked. The owner is responsible for their tenant’s actions under section 131 of the SPA. The balcony and its drain cover are part of the owner’s strata lot and are the responsibility of the owner pursuant to the SPA and strata bylaws. Although the strata resurfaced the balcony in 2010 there were no leaks from the balcony since that work was completed except for the incident in question. Based on the evidence before me, the applicant has not established that the strata was negligent in its handling of the balcony resurfacing, bearing in mind the balcony and drain continue to function without leaking and I have found the leak at issue to have been caused by the blocked drain.

The tribunal noted that “[t]he strata does not have bylaws that raise the standard of responsible set out in section 158(2) of the SPA to a stricter standard such as negligence” and that “the principles of [The Owners of Strata Plan LMS 2835 v Mari, 2007 BCSC 740] apply in this case. As a result, I find the strata has the authority to charge its $5.000 insurance deductible to the owner’s strata lot.”

Common property—unauthorized alteration (1)

In Wu v Hu and The Owners, Strata Plan BCS 3579, 2017 BCCRT 81, the applicant strata-lot owner alleged that the respondent owner had “installed fencing and landscaping on common property without approval of The Owners, Strata Plan BCS 3579.” She asked the tribunal to order the respondent owner “remove the landscaping and the portion of the fencing installed on common property [and] the owner restore the common property to its original state.”

After noting that the respondent owner had not received approval for the installations, the tribunal held that “this admission is fatal to the owner”:

In the circumstances I order the owner to apply in writing to the strata for retroactive approval of the alterations and for the strata to consider the application within 30 days of receipt of the application.

If the application is not approved by the strata the owner is ordered to remove, at the owner’s cost, the fencing installed on the common property, remove the landscaping and to return the common property to its original state.

Common property—unauthorized alteration (2)

Maguire v The Owners, Strata Plan VIS5830, 2017 BCCRT 77, was a case about “the removal and topping of trees.” The applicant strata-lot owner “asks the Civil Resolution Tribunal (tribunal) to make four orders. First, an order that the strata not remove or top any trees. Second, an order that the strata provide copies to the owner of all correspondence between the strata and the City of Courtenay (City) with respect to the removal of trees. Third, an order that the strata provide copies to the owner of all correspondence or reports from ‘Skyline’ or any other contractor or consultant involved in advising on or providing services regarding trees and vegetation. Fourth, an order that the strata replace 28 trees of similar size and species.”

The tribunal found that the strata corporation was properly authorized to remove the trees at issue:

I find that the community of Crystal Shores and its adjacent nature reserve include many trees. The removal of trees, whether it is 28 as argued by the owner, or a lesser number as argued by the strata, does not affect the visibility to residents or the public. The residents still enjoy the existence of a great number of trees. I find that that the removal of the trees does not impact the marketability or value of the units. The owner bears the burden of proof that the removal of the trees has impacted the market value of the units. The owner has not provided any evidence of impact on market value. Indeed, it could be argued that the culling of trees increases the market value of a strata lot.

I find that the council had the authority to remove the trees. The change was not significant and a 3/4 vote was not required. Section 3 of the SPA requires a strata corporation to manage and maintain the common property for the benefit of the owners. Section 4 of the SPA states that the powers and duties of a strata corporation must be exercised and performed by a council. Section 31 of the SPA requires a council member to act honestly and in good faith with a view to the best interests of the strata corporation. I find that the council, on behalf of the strata, has acted within its authority and per its statutory obligations when causing trees to be removed.

Common property—unauthorized alteration (3)

In Cage v The Owners, Strata Plan KAS 1658, 2017 BCCRT 83, a strata-lot owner’s deck railing was damaged when the owner replaced a hot tub on the deck. Decks in the complex were limited common property. The strata corporation “sent a letter to the owner setting out a demand to the owner to repair the deck.” The owner replaced the railing with a new railing and lattice, but this became the source of the dispute in this case.

The strata corporation alleged that the owner had failed to obtain its consent to the new railing and lattice, and that this railing and lattice did not conform to the original design. It applied fines to the owner. The owner insisted that the strata corporation had tacitly approved the alteration of common property by virtue of its demand letter.

Although the demand letter was brief and failed to cite relevant bylaws, the tribunal found that this couldn’t be taken as tacit authorization of the owner’s repairs:

It is the responsibility of an owner of a strata lot to be aware of the bylaws that govern their behaviour. I can find no language in the 2015 letter that would otherwise indicate that tacit approval was provided for the deck repair completed by the owner.

But “poor communication by the strata did significantly contribute to the issues that led to the dispute.” “While this poor communication is not fatal to the claims of the strata,” the tribunal did find “that it provides a compelling reason to grant the order sought by the owner in regards the reversal of past penalties and fines regarding the railing and I so order.”

Tribunal jurisdiction—contempt

In Lipton v The Owners, Strata Plan VIS 4673, 2017 BCCRT 73, the applicant strata-lot owner asked the tribunal “to make a number of orders including an order of contempt.” The underlying dispute between the applicant and the respondent strata corporation concerned “a construction project to replace a common property bridge within the strata.” This decision focussed mainly on whether “the tribunal has jurisdiction to consider and make orders for contempt.”

The tribunal found that it lacked this jurisdiction:

The tribunal does not have any jurisdiction to make a finding of contempt. The tribunal has only those powers granted to it by the Act. The Act does not give the tribunal any powers with respect to contempt.

The tribunal was also unwilling to hold that the applicant had been treated with significant unfairness:

The applicant does not say that council had breached any bylaw or acted in an oppressive or unfair way toward her. She does not provide any evidence that the actions of the strata have been unfair or oppressive to her. The applicant’s position was essentially that she is unhappy about a number of strata governance issues and wants the tribunal to order the council to conduct its business as she wishes it to be done. In my view, this fails to meet the test of significant unfairness established by the Court of Appeal in Dollan so as to require a remedy to be ordered. As a result, I decline to issue any of the orders requested by the applicant.

If the applicant wishes to participate in the governance of the strata to achieve the results that she seeks, it is always open to her to seek a position on the council. In the absence of evidence of significant unfairness, it is not for the tribunal to effectively micro-manage the decisions of the strata by its duly elected council.

Bylaws—second-hand smoke

Leary v The Owners, Strata Plan VR 1001, 2017 BCCRT 76, is the latest chapter in a long-running dispute over second-hand smoke. The applicant owner asked to “make orders that the strata enforce its bylaws to prevent the ingress into her unit of cigarette smoke, for damages in the amount of $10,000 for discrimination, damages in the amount of $10,000 as compensation for exposure to cigarette smoke, and for reimbursement of fees paid to the tribunal in the amount of $225.”

The tribunal noted that the owner’s “complaints go back possibly as far as 1997.” They had been the subject of an earlier proceeding before the human-rights tribunal: Leary v Strata Plan VR1001, 2016 BCHRT 139. The applicant had obtained a number of orders from that tribunal, including one requiring the strata corporation to “retain an air quality specialist to determine the source of the smoke coming into the applicant’s unit and determine if strata owners or their guests were responsible for the smoke, and if so, how that smoke ingress could be prevented.”

In this proceeding, the tribunal started by considering whether any of the strata corporation’s bylaws had been broken. The tribunal found that there was no breach of the bylaws, relying heavily on the report the strata corporation was required by the human-rights tribunal to obtain:

I have decided to accept the report of the environmental engineering company and its conclusions. I have been given no reason not to, except for the applicant’s suspicions about its methodology and her rejection of its conclusions. There is nothing in the report itself that suggests that its approach was without logic or that its results were skewed in any way to prefer an outcome that might favour the strata. . . . In the absence of some independent third party evidence attesting to the smoke smell in the applicant’s suite, I prefer the expert opinion provided by the strata. . . .

Having accepted the expert report and its finding that there was no smoke in the applicant’s suite, I also find that there is no violation of any strata bylaw because there is no evidence to support the applicant’s position that another strata owner is creating a nuisance or adversely impacting her enjoyment of her suite. There is therefore no bylaw infraction requiring enforcement by the council.

Governance—hearings, meetings, access to records

Smiley v The Residential Section of The Owners, Strata Plan VIS 1921, 2017 BCCRT 75, involved claims from the applicant owner “that the residential section, through its executive, has failed to comply with the Strata Property Act (SPA). The owner asks for an order that residential section comply with the SPA and allow hearings requested by owners. He also asks for orders regarding restriction of in-camera discussions and votes to matters permitted by the SPA and the bylaws.” The applicant owner also asked “for an order that the residential section provide documents requested under the SPA.”

“The genesis of the complaint,” the tribunal noted, “appears to stem from an e-mail letter dated June 14, 2016 sent to the owner by the president of the residential section about written complaints received regarding the applicant’s activities in the underground parking garage on two separate occasions.” After this email was sent, the owner made repeated requests for hearings and access to records.

The tribunal found the respondent residential section to be in breach of the Strata Property Act and its bylaws on each claim. Regarding the hearing request, the tribunal concluded:

The executive may have concluded that the issue of the complaints about the alleged incidents in the parking garage had been dealt with and did not see the need to hear the owner on the complaints. However I find that by not allowing the owner an opportunity to be heard in person at the August 10, 2016 executive meeting the residential section breached section 34.1 of the SPA.

The tribunal ordered the section to comply with the act and its bylaws.

Duty to repair and maintain—common property—roadway

Rueger v The Owners, Strata Plan VR 319, 2017 BCCRT 80, concerned an application from strata-lot owners for orders that the respondent strata corporation “must maintain its common property roadway.”

The roadway “included 8–11 sections of underground heating cables which, during the winter season when snow accumulates on the roads, are used to melt two six inch wide tracks on one side of the roadway used to access approximately 70 of the strata units.” The cables began to fail in 2006. Despite repeated efforts, the strata corporation was unable to obtain authorization by a resolution passed by a 3/4 vote to fund replacement of the cables.

The tribunal declined to order the strata corporation to replace the cables, finding its approach to road maintenance to be acceptable in the circumstances:

Although the applicants say the strata should pursue the “best” option, the alternative maintenance program is sufficient. This less expensive option reflects a fair balance between the competing interests of the owners in ensuring that reasonable safety measures are taken, that the common property is not subject to loss or damages, and that the costs associated with maintaining the roads are minimized. I find that the strata is complying with its obligation to maintain and repair the common property to a reasonable standard and is not obligated to replace the in-ground heating cable system.

Limited common property—unauthorized alteration—arbour

In Zhang v The Owners, Strata Plan BCS 1115, 2017 BCCRT 79, the applicant strata-lot owner asked the tribunal to “require the strata to permit him to maintain an arbour that he has built in the backyard of his townhouse for the purpose of growing grapevines. He also asks for an order that the strata apologize to him and not ‘. . .take revenge against [him] in the future.’ ”

The tribunal found that the applicant was required to obtain the respondent strata corporation’s consent before installing the arbour, something he had failed to do:

The applicant was required to obtain the written approval of the council before building the arbour. He did not do so. It may be that the applicant confused the fact that he did not require a building permit with his obligation to obtain written approval from the strata prior to constructing the arbour, however, that does not exempt him from compliance with strata bylaw 7.3. The arbour structure has been non-compliant with the strata bylaws since the day it was built.

In the result, the tribunal declined to make the requested order, noting that “[t]his means that should the owner not remove the arbour the strata would be in a position to take reasonable steps to remedy the bylaw contravention as provided in section 133 of the SPA.”