CRT Roundup—bylaw enforcement, limited common property, repairs and maintenance, and more

CRT Roundup—bylaw enforcement, limited common property, repairs and maintenance, and more

March 29, 2018

BY Kevin Zakreski

This post is part of a monthly series summarizing the Civil Resolution Tribunal’s strata-property decisions. There have been 16 new decisions since the last post.

Governance—bylaws—enforcement—disposal of owner’s property stored on limited common property

In Figure Ski Enterprises Inc v The Owners, Strata Plan K 838, 2018 BCCRT 46, the applicant strata-lot owner claimed “the strata inappropriately removed and disposed of synthetic turf and school-type lockers that he had stored on limited common property” and sought compensation in the amount of “$10,869 to replace the turf and lockers.” The turf and lockers had been stored on a deck located outside the applicant’s strata lot, which was designated as limited common property for the benefit of the strata lot. In 2015, the respondent strata corporation advised the applicant in writing to remove the property from the deck. The applicant resisted, alleging that its presence on the deck wasn’t in breach of the strata corporation’s bylaws. The strata corporation ultimately sent the applicant a bylaw-contravention letter and removed and disposed of the property.

The tribunal concluded that the applicant was entitled to succeed with its claim, finding that:

the strata did not follow proper procedure in issuing its written warning. Section 135(1) of the Act states that a strata corporation must not require a person to pay the costs of remedying a contravention of a bylaw or rule unless the strata has given the owner particulars of the complaint in writing.

The June 7, 2016 warning letter does not cite the correct version of the Bylaws, does not say which Bylaw the applicant contravened, and does not provide any particulars of the complaint, other than that it relates to the storage of personal goods on the deck. It also does not say that the applicant’s items would be disposed of. I therefore find that the strata did not provide sufficient particulars of the complaint, contrary to section 135 of the Act.

For these reasons, I find that the strata did not have authority to dispose of the applicant’s turf and lockers, and he is entitled to reimbursement for them.

But the tribunal limited the applicant’s recovery to “half the cost of new turf and lockers,” because the applicant had failed to provide the tribunal with “evidence that used replacement items, which would be equivalent to what he lost, were unavailable.”

Governance—strata council—removal of strata-council member

Lam v The Owners, Strata Plan EPS 2328, 2018 BCCRT 73, was a dispute over “the strata’s removal of the applicant from the strata council and the alleged publication of misleading or false information by other council members.” The applicant strata-lot owner was president of the strata council for the respondent strata corporation when “he began to have disagreements with other strata council members about the operation of the strata. In particular, disagreements surrounding the strata management company and the strata’s concierge hired by the related company appear to be the catalyst for this dispute.”

The other members of the strata council removed the applicant from his position as president and “resolved to call [a special general meeting] to ‘determine whether each of the current Council should be removed from Council’ under the bylaws.” At this special general meeting, “[t]he applicant was the only council member that was removed from the strata council.”

The tribunal found that “the applicant was properly removed from his position of president of the strata council” and the special general meeting was properly called. Despite some irregularities in meeting procedure, the tribunal concluded that “the applicant’s removal from the strata council at the 2016 SGM was conducted in accordance with the strata’s bylaws.” The tribunal also dismissed the applicant’s claims of misconduct.

Governance—bylaws—contravention—fine—procedure (1)

In Tantillo v The Owners, Strata Plan NW 317, 2018 BCCRT 54, the applicant strata-lot owner claimed that “the strata inappropriately fined him for a platform installed on the balcony attached to his strata lot, and denied him a hearing contrary to section 135 of the Strata Property Act (SPA).”

The tribunal found that the owner purchased the strata lot in 2013. At that time, “there was a raised platform on the enclosed balcony attached to the strata lot.” The platform was temporarily removed as part of a window-replacement in 2015. The owner reinstalled it. In 2016, the strata corporation began demanding that the owner remove the platform.

The tribunal found that the strata corporation’s demands didn’t comply with the procedure set out in section 135:

I find that the strata did not give proper notice before imposing fines against the owner in November 2016. Section 135 requires that before issuing a fine, a strata must receive a complaint, give the owner written particulars of the complaint, and provide a reasonable opportunity to answer the complaint including a hearing if requested.

Section 135(2) of the SPA says that the strata corporation must, as soon as feasible, give an owner or tenant notice in writing of a decision on imposing a fine. While the strata sent several letters and emails threatening to fine the owner, they never gave particulars about how the platform contravened the cited bylaws. They also never gave written notice of their decision to actually impose the fines in November 2016.

***

While all of this correspondence said the strata might or “may” fine the owner, none of it actually said that a decision to do so had been made by the strata council. This is supported by the fact that while the formal warning letter was issued to the owner on June 20, 2016, the council voted to actually impose the fines at a council meeting on October 5, 2016. The owner was never given written notice of the strata council’s October 5, 2016 decision to start imposing fines on him. For that reason, the strata did not have authority to fine the owner.

Further, the tribunal found that that the owner’s conduct didn’t breach the bylaws entered into evidence by the strata corporation.

In the result, the tribunal ordered the strata corporation to “rescind all fines related to the platform, as well as any interest or other charges related to those fines. If the owner has paid such fines, they must be reimbursed.”

Governance—bylaws—contravention—fine—procedure (2)

In Reich v The Owners, Strata Plan LMS 435, 2018 BCCRT 74, the applicant strata-lot owner asked for an order that the respondent strata corporation reimburse him for fines totalling $3025. The tribunal described the fines as follows:

The owner says the fines imposed by the strata should be reimbursed because they were improper “revolving fines”, and the strata issued a letter showing lists of fines rather than sending separate notifications for each fine. He also says that some of the fines were based on unenforceable bylaws.

***

[T]he fines against the owner were all for alleged nuisance, garbage, noise, and odour infractions by his tenants.

***

The $3,025 fines at issue in this dispute were levied between May 14, 2015 and September 29, 2015. The correspondence from the property manager shows that the alleged bylaw infractions related to three issues: garbage left on a patio, marijuana odours and smoke, and a domestic dispute involving fighting, arguing, and threats.

The tribunal found that the various hadn’t been levied in accordance with the procedure set out in section 135 of the act. In one case, “the letter setting out the fine does not set out particulars of the complaint, such as when the infraction occurred or how it breached the cited bylaw about using coming property for its intended purpose.” In another, the strata corporation’s letter failed to give a warning on the behavior that was the basis of the fine; it simply asserted a bylaw contravention. The letter also appeared to stretch the boundaries of the concept of “continuing contravention”:

Also, section 24.1 of the bylaws allow the strata to impose a fine every 7 days if an activity that contravenes bylaws continues without interruption for longer than 7 days. The strata’s June 25, 2015 letter referred to a specific altercation on June 23, 2015, which did not continue without interruption for longer than 7 days. Even if the tenants engaged in confrontational behaviour, as asserted in the strata’s letter, that conduct did not occur without interruption for longer than 7 days.

In the result, the tribunal ordered that “within 30 days of this decision, the strata pay the owner a total of $3,174.66, broken down as follows”:

• $3,025 as reimbursement of fines, plus $24.66 in pre-judgment interest under the [Court Order Interest Act], and
• $125 as reimbursement of tribunal fees.

Common property—limited common property—significant change in use or appearance—patio—gazebo

In Giddings v The Owners, Strata Plan BCS 3620, 2018 BCCRT 61, the applicant strata-lot owners sought “an order from the tribunal that the strata’s direction to remove the gazebo is void.” The gazebo was placed on a limited-common-property patio. In 2010, the owners placed the original gazebo, which had a fabric roof, on the gazebo. “In April 2015,” as the tribunal noted:

the owners replaced the fabric roof of the gazebo with a solid roof. Photographs of the structure show that the new roof has a wooden framework covered by opaque roofing material, which the owners say is polycarbonate. The wooden roof frame sits on an angle, on top of the legs of the former fabric gazebo. The roof slants downwards away from the building, and covers the patio from the side of the building to the brick garden wall. It resembles an awning. The roof covers the entire width of the patio, but not the entire length.

The tribunal rejected the applicants’ argument that the strata corporation was estopped from ordering the removal of the gazebo:

I do not agree that estoppel applies in this case, because the previous gazebo was significantly changed when the hard-surfaced roof was installed in April 2015. Pictures provided by the owners show that the original structure with the fabric roof was like a tent. Photographs of the current roof show that it is a larger structure, with visible wooden frame. The photographs show that the new roof significantly changes the gazebo’s appearance and function.

The tribunal found that installation of the gazebo was a significant change to common property, which required the strata corporation’s approval:

The fact that the patio is limited common property is not in dispute. The owners say the gazebo is not a significant change to the use of common property because it is free-standing, it is not attached to the building, and it covers less than a third of the patio. They say their gazebo was purchased as part of a patio furniture set, and functions no differently than patio umbrellas installed elsewhere in the strata complex.

I disagree with these submissions. While the original tent-like gazebo was somewhat similar to an umbrella, the current wooden structure and polycarbonate roof is not. The constructed roof was not purchased as part of the patio furniture set, and looks substantially different from the fabric-roofed gazebos shown in the catalogue photograph provided in evidence. The solid-roofed gazebo is not similar to an umbrella in its form, function, or appearance. Rather, it has a solid roof with a span of several feet, and it could not be collapsed or removed by a single person in a few minutes.

Common property—limited common property—use—storage locker

In Lo v The Owners, Strata Plan LMS 3094, 2018 BCCRT 78, the applicant strata-lot owner claimed:

the strata removed her personal property from a storage locker assigned to SL 417 (locker 57). The owner seeks: reimbursement for the value of the property, legal expenses and tribunal fees paid, a partial credit of strata fees, damages and the exclusive right to continued use of locker 57.

The tribunal found that the storage locker had been designated as limited common property benefiting the applicant’s strata lot and another strata lot:

The LCP document clearly shows locker 57 is designated as LCP for SL 417 and SL 490.

Given the format of the LCP document and that parts were handwritten and typed, I doubt the strata’s LCP designation of locker 57 to 2 separate strata lots was intentional. However, that is what happened and it is permitted under the SPA.

Based on the evidence before me, I can see no irregularities with respect to the LCP assignments of the storage lockers. I conclude that the strata has properly designated locker 57 as LCP to both SL 417 and SL 490. I therefore find that the owner is not entitled to exclusive use of locker 57. Rather, use of locker 57 is shared exclusively between SL 417 and SL 490.

The tribunal also found that the respondent’s strata council failed to meet their statutory duties when the ordered the removal of the applicant’s personal property from the storage locker:

As previously noted, the LCP storage lockers designations were effective September 27, 2000. The owner purchased SL 417 in April 2011 and used storage locker 57 from that date until August 2016 without incident. The strata was aware of the LCP designations when it posted the notice asking the user of locker 57 to retrieve and clean out their belongings and did not contact the owner to discuss the issue. Based on these actions of the strata or its council members, I find the strata council members did not exercise the care, diligence and skill of a prudent person. It would have taken very little effort for the strata to review the LCP document to determine quite easily that the owner was likely using locker 57.

The tribunal ordered the strata corporation to compensate the owner:

In light of the unreasonable conduct of the strata and its council and their agreement that the owner should receive reimbursement for her personal property of which it disposed, I find it appropriate to order the strata to reimburse the owner $11,619 for her personal property.

The tribunal also ordered compensation of $750 for legal expenses and $225 for tribunal fees. The remainder of the applicant’s claims were dismissed.

Common property—grant of exclusive use—storage locker & governance—hearings

Hales v The Owners, Strata Plan NW 2924, 2018 BCCRT 91, concerned two disputes: (1) “grants to strata lots of exclusive use of common property storage lockers and the production and retention of records and documents of the strata”; (2) “the alleged failure of the strata to hold council hearings in compliance with s. 34.1 of the Strata Property Act.”

The tribunal found that the strata corporation had failed to comply with the act in granting exclusive use to storage lockers:

If the strata has granted exclusive use of storage lockers pursuant to section 76 of the SPA, I find that the strata has not complied with the provisions of section 76 of the SPA. First, there are no minutes of the strata council or the strata granting exclusive use of common property. Second, the grants appeared to survive sales and hence were to strata lots. That contravenes section 76(1). The grants may be made to owners and tenants. Third, the grants were for longer than one year. That is a contravention of section 76(2). The grants could only be made for one year at which time they needed to be renewed.

***

In making this finding, I acknowledge that it is not the standard practice of the strata property industry. The standard practice does not comply with SPA. It will prove onerous, but the result of my finding is that any grant of exclusive use pursuant to section 76 of the SPA will need to be renewed annually by written strata council resolutions, unless the initial grant contains automatic annual renewal periods.

The tribunal also found that, while it was reasonable to require security at a council hearing involving the applicant (in light of a previous hearing that ended badly), it wasn’t within the strata corporation’s power to require the owner to pay for that security:

I find that it was reasonable and appropriate in the circumstances to insist that a security person attend any future meeting of council at which the owner attended. However, it is not appropriate to charge the expense to the owner. The expense would have to be incurred by the strata. In other words, either the hearing request is declined, or if accepted the cost is that of the strata. There is no provision in the SPA or the Strata Property Regulation to impose a special fee for hiring security and renting a location for a meeting a condition of the meeting.

That said, the tribunal found that a hearing could be denied in the circumstances of this case:

I have read the SPA in its entire context, including section 27(1) (subject to the direction of a majority of the owners), section 34.1, section 43, section 46(1), section 135, section 144 and all the sections consistent with the concept that council governs the strata.. I find there can be circumstances when a request for a hearing can be denied.  Circumstances exist in the present dispute. They include the following:

(a) The owner has not been fined, nor has he been penalized;

(b) The owner has made previous requests and was granted a hearing;

(c) The owner acted abusively at the August 2015 hearing and the council could expect the same conduct at the four requested  hearings;

(d) The owner wished to discuss alleged contraventions of the strata and reparations to the owner due to the alleged contravention; and

(e) The reasons for the requests were with respect to the governance of the strata and would be more properly addressed at a meeting of the owners, or by majority direction of the owners.

If the owner wishes to dictate governance to the council, the owner has the opportunity to attempt to do that by requisitioning a meeting per section 43 of the SPA. The owner must garner support; essentially he needs himself and the owners of 30 other strata lots to accomplish having his demands heard at a special general meeting (section 43 of the SPA) or be added as an agenda item to an annual general meeting or a special general meeting (section 46 of the SPA).

Strata lot—damage to strata lot—negligence—perforated water pipe

Lake v The Owners, Strata Plan LMS 445, 2018 BCCRT 47, was a dispute over liability for damage to a strata lot that occurred during a relatively small-scale renovation:

While installing a television bracket on a bedroom wall in his strata lot on June 7, 2016, the applicant drilled a hole into a water pipe in the wall which resulted in a leak.

The applicant strata-lot owner claimed “the water pipe was incorrectly installed, which caused flood damage to his strata lot. He requests that the strata pay $5,000.00 in repair costs.” The respondent strata corporation counterclaimed, arguing that “the applicant caused damage to his strata lot and an adjoining when he drilled a hole in the water pipe. The strata requests an order that the applicant pay $8,281.87 for emergency restoration services and pipe repair.”

The tribunal rejected the applicant’s argument that the strata corporation had negligently installed the water pipe:

The applicant says the strata is negligent because they approved improper water pipe installation, in which the pipes are located too close to the surface of the wall. I do not agree.

The documents provided by the strata show that the installation was inspected by the municipality and approved in August 2008. The engineering firm also issued a certificate of completion on August 25, 2008. I find that the strata was not negligent in relying on these documents, particularly since there is no evidence before me of other water pipe problems until June 2016.

The burden of proof is on the applicant in this dispute, and I find he has not established that the water pipes were incorrectly installed. He asserts that two plumbers who attended the site said the pipes were installed incorrectly, but he did not provide evidence from either plumber. The June 7, 2016 invoice from the plumber who repaired the pierced pipe does not mention any plumbing problem, other than the fact that the applicant hit the pipe with a drill.

The tribunal found that the applicant was responsible for the amounts claimed in the strata corporation’s counterclaim:

I find that the restoration fee and pipe repair costs were rendered necessary by the applicant’s act in drilling into the wall. In their October 17, 2016 letter to the applicant, the strata property manager said the strata’s insurance deductible at the time of the pipe incident was $25,000 which the applicant did not dispute. I accept that evidence, and find that the applicant is obligated to pay $8,281.87 in cleanup and repair costs under the provisions of [the strata corporation’s] bylaw 36(4).

Strata lot—alteration—approval—walls

Grant v The Owners, Strata Plan BCS 337, 2018 BCCRT 70, involved a claim and counterclaim for damages in connection to the renovation of a strata lot. The tribunal noted that the strata property at issue “consists of 1 building with 8 residential strata lots,” located in Vancouver. The dispute flowed from renovations undertaken by the applicant shortly after purchasing the strata lot:

[the applicant] began renovations, including removing internal walls, without seeking permission of the strata. The strata claims that the renovations have caused structural damage to unit 301, unit 401 and the building generally, which [the applicant] denies. Both [the applicant] and the strata have obtained opinions from their own engineers on the matter.

In December 2016 [the applicant] and the strata entered into an indemnity agreement in which the strata provided its consent for [the applicant] to complete her renovations, except for the walls. The agreement also set out that [the applicant] would indemnify the strata for any costs associated with her renovations and that she would pay for all direct and indirect costs related to the renovations. [The applicant] claims that she signed the agreement under duress.

The applicant sought an order granting permission to complete her renovations, the strata sought an order enforcing the agreement, and a neighboring owner (and applicant by counterclaim) sought an order that the applicant compensate her for the cost of restoring her strata lot to its condition before the renovations.

Despite hearing extensive evidence, the tribunal ordered that another engineering report be obtained to clarify the effect of the renovations on the building’s structure:

The strata has the responsibility to repair and maintain the structure of the building. Given that it remains unclear whether there is any ongoing structural issue with [the applicant’s] renovations, the opinion of a third structural engineer is necessary to determine whether the renovations affected, or continue to affect, the structural integrity of the building. Depending on the contents of such a report, a plan may need to be developed to address any structural integrity issues. As of May 2017, such a report has not been provided, and such an inspection has not occurred.

The tribunal found that the strata corporation hadn’t unreasonably withheld its consent to the renovations:

Overall, I do not find that the strata unreasonably delayed in providing their consent for either a portion of, or all of, [the applicant’s] renovations. As the strata acted reasonably, they are not liable for [the applicant’s] living expenses, or the cost of her extended renovation timeframe. [The applicant] chose to commence her renovations without consent of the strata, and also chose to give up her prior residence in March 2016, when the renovations began. [The applicant’s] further expenses, including living expenses, are not the responsibility of the strata.

Further, the tribunal found that the alteration agreement between the applicant and the strata corporation wasn’t entered into under duress, and that it was enforceable:

I do not find that [the applicant] had “no realistic alternative” but to sign the agreement. She could have allowed a third party structural engineer to inspect and report on the renovations which would have sped up the entire process. She could have sought the consent of the strata prior to starting the renovations, and either lived in unit 301 or maintained her former residence until consent was granted. I acknowledge that [the applicant] wanted to complete her renovations and return to her residence, but that does not amount to being coerced into signing the agreement. She has not proven duress. I find the alteration agreement applies.

In the result, the tribunal dismissed the applicant’s claims, ordered the applicant to “pay the strata $2,126.25 for structural engineering fees and $175 for tribunal fees,” and ordered the strata corporation to “obtain 3 independent quotes” for repairs to the neighboring strata lot. The applicant was also ordered to pay to the neighboring owner (and applicant by counterclaim “the value of the least expensive of those 3 quotes, within 30 days of receiving the quotes from the strata.”

Repairs and maintenance—strata lot—water-damaged bathroom

Fung v The Owners, Strata Plan LMS 683, 2018 BCCRT 52, was a dispute “over who is responsible for paying the cost of repairing a water-damaged bathroom in the applicant’s strata lot, and for the expenses associated with its loss of use.”

The tribunal began by noting the Strata Property Act’s allocation of responsibilities for repairs and maintenance:

The SPA says that each owner must pay the costs of repairing and maintaining their own strata lot. If the owner is trying to hold the strata responsible to pay for repair to a strata lot, the owner must prove that it is more likely than not that the source of the damage was the common property or the strata’s actions.

In order for the strata to be responsible for the cost of repairing the interior damage to the owner’s bathroom in this case, the owner must prove:

(a) The damage to the bathroom was, more likely than not, caused by water from the exterior common property, and,

(b) That the strata acted unreasonably in failing to repair or maintain the building’s exterior.

The tribunal concluded that the applicant owner had failed to prove that the strata corporation was responsible for the damage:

The damage to the bathroom appears to have happened over a long period of time, given the extent of visible rot, mold and mildew and the contractor’s opinion that it took years of decay to reach that state.

I find that a reasonable person who became aware of something causing damage to the common property or their own strata lot would have reported the issue to the strata at the first reasonable opportunity.

That reporting did not occur in this case. No problem was reported to the strata until water leaked into the strata lot below the owners. By that point, the source of the problem within the owner’s strata lot had been obscured. It was not the strata’s action or inaction that made it impossible to find the source of the water and mold damage. It was the owner’s actions, through her tenant, that made it impossible to determine whether the water could have come from the exterior.

***

As the damage was within the strata lot, the onus is on the owner to prove that the problem came from the common property or another strata lot. Even if the initial damage to the bathroom might be attributable to a leak from the common property, the extreme decay and mold which necessitated major repairs made it impossible for the owner to prove its original source.

The owner’s argument assumes that because there was some water ingress elsewhere in the building, the issues in her strata lot must also be a result of water ingress. Her submissions characterize the strata as holding her responsible simply because the bathroom “was not clean and thus neglect was the root cause of the damage.”

It is not enough to point to the possibility of a source of damage outside her strata lot: the owner must prove that the damage to her strata lot is more likely to have been caused by an exterior leak than from her failure to maintain the bathroom enclosure within her strata lot.

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

Repairs and maintenance—common property—sewer pipe & insurance—deductible

In Keith v The Owners, Strata Plan K 284, 2018 BCCRT 49, the applicant strata-lot owners claimed that:

the strata is responsible for repairing and maintaining [a common property sewer pipe]. The applicants want the strata to permanently repair the Pipe at its cost. The applicants also want reimbursement of a $500 insurance deductible.

The respondent was the strata corporation for a strata property described in the following terms:

The strata was constructed in approximated 1980 and is comprised of 28 strata lots in 13 separate buildings. The building comprising SL 13 [the applicants’ strata lot] is three levels and includes SL 13 plus SL 14 which is owned by a different owner. SL 13 includes the lower 2 levels of the building and is located below SL 14 which is the upper level.

The pipe was described as follows:

It is undisputed that the Pipe connects the plumbing fixtures, including the kitchen and bathroom sinks in SL 14, to the plumbing fixtures in SL 13 and runs below the floor joists of the upper floor of SL13. That is, sections of the Pipe run vertically from SL 14 to SL 13 and one section of the Pipe is located in the ceiling space of the ground floor level of SL 13

From 2013 to 2017, the applicants recorded problems with the pipe backing up, causing “waste water to overflow the SL13 kitchen sink.”

The tribunal found that “the Pipe is clearly the strata’s responsibility, given the common property definition and section 72(1) of the SPA.”

As a remedy, the tribunal ordered the strata corporation to complete work set out in accordance with a quotation from a plumber entered in evidence.

The tribunal also ordered the strata corporation to reimburse the applicants for an amount paid on an insurance deductible:

In weighing all the evidence, I find it is more likely than not, that the strata knew of additional instances of the Pipe backing up between November 2013 and March 2017 and made no attempt to maintain or repair it. Further, I find the damage caused to SL 13 was as a direct result of the strata not reasonably maintaining the Pipe or taking steps to repair it.

For these reasons, I find the strata was negligent in repairing and maintaining the Pipe and responsible for the damage that occurred to SL 13 in March 2017.

I find the strata must reimburse the applicants $500 relating to their insurance deductible payment and I so order.

Repairs and maintenance—water ingress—duplex

Bolkan v The Owners, Strata Plan VIS 7077, 2018 BCCRT 64, was a “dispute [that] highlights the perils and potential pitfalls of ownership in a strata duplex where the owners do not take care to fulfill their responsibilities under the Strata Property Act.” As the tribunal noted:

There are no minutes of any meetings of the strata council of this strata. No contingency fund was ever created. There is no evidence of who was on the strata council. In short, although the property became a strata on May 30, 2011, it appears that none of the requirements of the SPA, with the possible exception of maintaining common property insurance, have been complied with . . . .

In this dispute, the applicant owner asked the tribunal “to require the strata to pay costs for work done and to be done at SL 2 [the applicant’s strata lot] relating primarily to damage and water ingress at that strata lot and for other maintenance to common property that [the applicant] says is necessary. [The respondent owner] does not agree that she owes any money to either the strata or to [the applicant] either for work done or for work that [the applicant] says needs to be done.”

The tribunal found that the Form B issued to the respondent was the key piece of evidence that led to its conclusions on responsibility for the major part of the repairs:

In my view, the issuance of the Form B by the strata on June 29, 2016 is determinative of the issue for responsibility for repairs to the foundation. [The previous owners] signed the Form B on behalf of the strata as strata council members. It is not disputed or contested by [the applicant] that [the previous owners] had the authority to issue that document on behalf of the strata. The Form B is a certification by the strata of the facts contained in that document. It is designed to ensure that a purchaser of a strata lot has full notice of the status of the strata, including notice about outstanding major repair work known to the strata. A purchaser of a strata lot is entitled to rely on this document. This is confirmed by section 59(5) of the SPA which makes the information in the Form B binding on the strata. I note as well that although each strata lot is entitled to only one vote, the SPA, at section 29(2), permits all owners to be on the strata council.

I find that [the respondent] relied on the Form B that the strata issued and that the owners at the date of issuance of the Form B are therefore responsible for the repairs that were known to the strata at that time, including repair of the foundation wall at SL 2 and the drainage issues that are related to that repair.

Given the state of the evidence, the tribunal decided it couldn’t resolve the portions of the dispute relating to other repair issues. It ordered that:

Within a month of the date of this decision [the respondent] and [the applicant] each select a contractor and obtain a quote for repair work unrelated to any addition proposed by [the applicant]. The contractors will meet with [the respondent] and [the applicant] together so that both parties know what is said to the contractors. The contractors will produce their quotes without any communication from either party that is not joint. The strata council will be responsible for selecting a bid and retaining the contractor to do the work. I appreciate that this requires [the applicant] and [the respondent] to work together, but the fact is that they constitute the strata council which is obliged to act in the best interest of the strata and this will not change as long as they are both owners. The strata will credit [the respondent] with $3,368.02 towards the cost of any window repair/placement it determines is required.

Repairs and maintenance—common property—garage door

In Weyerman v The Owners, Strata Plan VIS 4816, 2018 BCCRT 69, the applicant tenant claimed that “the strata is responsible for the costs to replace the back window and back window wiper motor of her vehicle when it was hit by the parkade garage door.” The applicant was leaving the strata’s parkade when she yielded to a group of pedestrians and “the garage door lowered directly on to her vehicle, striking and shattering the back window.”

The tribunal found that the strata wasn’t responsible for the damage as the applicant was unable to prove that it had failed to maintain the garage door to a reasonable standard:

The standard of care owned by the strata in repairing and maintaining common property is one of reasonableness and if the strata has not acted reasonably in the circumstances it can be found negligent.

I find on the evidence that the strata acted reasonably in ensuring that there was a regular maintenance schedule in place for the garage door and that it was in a good state of repair at the time of the incident. An inspection of the garage door by the strata’s garage door contractor after the incident confirmed that the garage door and sensor in question was working properly and identified no problems with the garage door operation.

I find that the strata was not negligent in repairing and maintaining the garage door and is not liable to the tenant for the costs to repair the tenant’s vehicle.

Insurance—deductible—water leak

In The Owners, Strata Plan NWS 3429 v Oughton, 2018 BCCRT 62, the applicant strata corporation claimed that the respondent strata-lot owner was “responsible for water damage assessment and remediation in the amount of $3,136.35.”

As the tribunal noted, the case turned on the strata corporation’s bylaws:

The burden of proof is on the strata in this dispute. Given the particular bylaws, they must demonstrate that it is more likely than not, that the leak (a) originated in Unit 318 [the owner’s strata lot] or that (b) the owner is responsible for it.

The tribunal found that the strata corporation wasn’t able to meet this burden of proof:

I have found that there is no reliable evidence establishing a so-called one-time event in the bathroom of unit 318.

As the strata put it in submissions “Neither strata council, nor the 2 companies involved have any proof.” As well, much of the strata’s initial position on the cause of the leak was disproven upon further inspection.

In The Owners Strata Plan LMS 2446 v. Morrison 2011 BCPC 519, court found an owner responsible for a toilet overflow despite there not being any direct evidence that the owner caused the overflow. However, this case is different because in Morrison, the first person to respond to the leak observed an overflowing toilet bowl in the subject unit.

The strata does not meet the burden of proof on it to assert that because Unit 318 is on the top floor, and had areas of moisture in the bathroom, the leak must have arisen inside that strata lot. This is particularly so given that water lines run between the second and third floors, in common property areas, and inside the wall behind unit 318 where it backs onto a common area hallway.

Finances—allocation of expenses—types & governance—bylaws—enforcement

Paterson v The Owners, Strata Plan VIS 6371, 2018 BCCRT 94, concerned two claims, with the applicant strata-lot owner alleging: (1) “the strata is not following the Strata Property Act (SPA) requirements in terms of its financial allocations and in the election of council members, and that it is improperly maintaining strata lot interiors that are the responsibility of individual strata lot owners”; (2) “the strata breached the SPA by not following the proper procedure for enforcing bylaws and rules, and not holding a hearing and delivering a written decision in accordance with the required timeframes set out in the SPA. This dispute relates to the strata’s decision to remove some of the owner’s items from common property.”

The tribunal described the strata property as:

[a] 93-unit strata is a phased residential complex in Victoria, with 51 apartments in 2 buildings and 42 townhouses. The owner has co-owned SL84, an apartment style strata lot, since 2009. The strata’s bylaws refer to “Townhouse type strata lots” and to “Apartment type strata lots” as discussed further below. Further, since at least 2012 the strata does not have separate sections within the meaning of the SPA.

The applicant sought:

a variety of declarations that the strata has acted improperly. She also seeks orders that the strata be required to re-allocate certain monies, adopt new bylaws, and charge-back certain interior repairs to a particular strata lot. The owner also wants a declaration that the strata breached section 31(b) of the SPA because it allegedly discriminated against her when the strata removed certain of her items from common property.

The applicant’s claims met with mixed success. The tribunal found that the strata corporation was failing to allocate certain expenses correctly:

Hydro is a common operating expense that should be paid from the operating fund, as it occurs more often than once a year. A hydro expense is not exclusive to only 1 strata lot type. Rather, it relates to both the apartment and the townhouse strata lot types. This fact is supported in the evidence about how the various hydro meters supply electricity to areas common to both strata lot types. Therefore, hydro is an operating expense that must be assessed to all strata lots based on unit entitlement, as submitted by the owner. I order the strata to do so, in accordance with the SPA and the strata’s bylaws.

I find the owner is also correct in her submission that other line items set out in the annual budget are operating expenses to be shared by all strata lots by unit entitlement, which include:  window cleaning, gutter cleaning, electrical, and plumbing. In summary, without limitation, I order the strata to allocate an operating expense to a type of strata lot only if that budget line item expense is exclusive to that type.

The tribunal also found that the strata corporation had paid for expenses out of its operating fund that were more appropriately paid for out of the contingency reserve fund and that it had improperly paid for repairs to strata lots.

But the tribunal also dismissed claims related to the holding of a strata-council election and the enforcement of its bylaws and holding a hearing.

Tribunal procedure and jurisdiction—lack of jurisdiction—former owner—limitations

In 542456 BC Ltd v Section 2 of The Owners, Strata Plan VIS 5030, 2018 BCCRT 84, the respondent strata corporation and its sections asked the tribunal to “refuse to resolve the applicant’s revised claims for lack of jurisdiction and/or dismiss any of them based on their having been filed out of time.”

The underlying dispute between the parties concerned “4 substantive claims” touching on a range of financial issues:

• claim 1: “The strata placed liens on the applicant’s property, which the applicant says were unreasonable and inaccurate. The applicant says it was overcharged for interest and legal fees for use of common areas, which the strata improperly treated as limited common property.”
• claim 2: “The applicant wants reimbursement of invoices for damages the strata caused to the applicant’s property, when the strata restricted the applicant’s use of common property.”
• claim 3: “[The applicant claimed] [t]he strata refused to provide a proper accounting on which the applicant could pay and settle disputed amounts of strata fees, contrary to the BC Supreme Court’s rulings.”
• claim 4: “[The applicant claimed] [t]he strata, the section executives, and their agents interfered with the applicant’s right to properly occupy, or benefit from a full market value sale of its property, resulting in a $150,000 loss, plus $20,000 in legal expenses and ‘additional expenses of $25,000.’ ”

The tribunal dismissed all four claims. It found that “at the time the new Claims 3 and 4 were first made . . . the applicant was not an ‘owner’ within the meaning of the SPA,” as the applicant had sold its strata lot. Claim 2 was “statute barred as it was filed out of time.”

Finally, the tribunal concluded that “all of the elements of Claim 1 are captured within the BC Supreme Court’s exclusive jurisdiction to determine whether a lien or related charges should be removed from the property’s title.” Further, this claim is also subject to the policy of discouraging a multiplicity of proceedings:

The respondents submit that there is a question about the extent to which res judicata applies given email correspondence between counsel. The respondents submit that if an interpretation of the BC Supreme Court Orders is required, then directions must be sought from the BC Supreme Court. I agree.

More significantly, even if Claim 1 involved undecided issues that fall within the tribunal’s jurisdiction, I find I must consider the valid goal of avoiding multiplicity of proceedings. Given my conclusions about Claims 3 and 4 that I find must be heard by the BC Supreme Court, and the apparent intertwined nature of the various claims, I find the tribunal should refuse to resolve Claim 1 under section 11 of the [Civil Resolution Tribunal] Act, on the basis that it would be impractical to do so given the other matters that must be heard by the BC Supreme Court.