CRT Roundup—bylaw enforcement, pets, smoking, short-term accommodation, and more
April 26, 2018
BY Kevin Zakreski
Bylaws—enforcement—discretion—conflict of interest
In Curtain v The Owners, Strata Plan VIS 4673, 2018 BCCRT 100, the applicant strata-lot owner claimed that “the strata refuses to enforce its bylaws” and asked the tribunal for “orders that the strata issue fines for continuing bylaw contraventions and that it remove footings or foundations on parts of certain strata lots.” The owner also claimed that “2 strata council members failed to disclose a conflict of interest when they participated in a strata council hearing involving the owner” and asked for “a declaration to that effect and that the strata council’s hearing was significantly unfair to the owner.”
The decision involved what the tribunal described as “a unique residential strata corporation comprising strata lots made up of storage units and private yard areas,” which was “not a bare land or phased strata.” As the tribunal noted “[i]t is undisputed that building footings or foundations have been completed on 6 private yard areas in the strata.” The strata corporation had a bylaw addressing “construction, additions, and improvements to private yard areas” that was at the heart of the decision.
the strata has discretion to enforce its bylaws in limited circumstances. I find that in exercising its discretion, the strata must be reasonable, and consider the expectations of the owners with respect to prior enforcement of the bylaw. That is, if the strata has consistently enforced the bylaw, it might be unreasonable for the strata not to continue to enforce it.
In this case, the tribunal found that the strata corporation’s decision not to levy fines was a reasonable exercise of this discretion:
I find the strata was reasonable in its discretion not to assess continuing fines in August 2015 and in May 2017. I also find the 1 1/2 year delay of the owner’s April 11, 2017 letter leads me towards a conclusion that a continuing fine is not appropriate.
Further, the Court of Appeal in Abdoh found the following considerations of the Supreme Court appropriate when determining if a contravention of the SPA or bylaws was of a trifling nature:
- the number of owners seeking relief,
- whether the order sought is in the best interests of the strata, and
- whether inaction would unfairly prejudice the applicant.
Applying this test to the circumstances before me, I find it is only the owner that is seeking relief, and she would not be unfairly prejudiced if the strata did not assess fines.
I also find the request to levy ongoing fines would not be in the best interests of the strata. In saying this I agree with the strata’s submissions that taking a positive approach of encouraging development of private yard areas within the strata is a better approach than deterring development by assessing fines.
The tribunal also found that the applicant had failed to prove that strata-council members were in a conflict of interest:
It is clear from the minutes of that the 2 members left the council meeting while the owner’s concerns about ongoing contraventions was discussed. However, there is no evidence to suggest they did not fully and promptly disclose to the council the nature and extent of their interest, although in this case it was apparent.
In the result, the applicant’s claims were dismissed.
Bylaws—enforcement—pet bylaw—weight limit—reasonable accommodation—disability
The disputes in N.K. v The Owners, Strata Plan LMS YYYY, 2018 BCCRT 108, were “about whether the tenant should be able to keep his German Shepherd dog, given its weight exceeds the 25 pound limit in the strata’s bylaws.” The tenant claimed “the strata has unreasonably refused him permission to keep his dog, because after he bought the dog the strata’s property manager told the landlord there was no weight restriction. The tenant wants an order that he can keep his dog, in part because it helps with his depression.” The strata corporation asked the tribunal for “an order that the tenant’s dog be removed from the strata lot, within 30 days.”
The tribunal found that the tenant “did not rely upon the [strata] manager’s errors regarding the bylaws, because he had already bought the dog when the manager made those errors” and that “the tenant and landlord signed a Form K, ‘Notice of Tenants Responsibilities,’ ” in which “they agreed that the tenant must comply with all bylaws in force from time to time, and if bylaws change the tenant must comply with the changed bylaws.” Further, the tenant wasn’t able to take advantage of section 123 of the act because “the bylaw was passed in 2012, four years before the tenant bought his dog.”
The tribunal also came to the following conclusions on the issue of reasonable accommodation:
I accept the tenant has formed a bond with his German Shepherd and that the relationship has been beneficial for his mental health. However, there is no evidence before me as to why the tenant did not inform himself of the effective bylaws as the SPA and the Form K required him to do.
Further, and more significantly, there is no evidence before me as to why the tenant must keep this particular oversized dog in the strata lot or why he could not form a similar bond with another pet that complied with the strata’s bylaws. In other words, I have no evidence before me that the tenant could not obtain beneficial pet therapy by having a pet in the strata that complies with the strata’s bylaws. I find that keeping a dog that exceeds 25 pounds in the strata is not necessary to accommodate the tenant’s disability.
In the result, the tribunal dismissed the tenant’s dispute and ordered the tenant to “remove the tenant’s oversized German Shepherd dog from the strata property and in future comply with the SPA and the strata’s bylaws” within 45 days of the date of the decision.
Bylaws—enforcement—pet bylaw—size of pet
The strata says the dogs are larger than those allowed under the strata’s pet bylaw, when they are measured by veterinarian standards. The strata requests that the owner be ordered to remove her dogs from the complex and pay the fines that have been assessed by the strata.
The owner says that the dogs are not larger than allowed under the bylaw, when measured according to the advice she received from the strata’s property manager prior to purchasing her strata lot. She requests an order stating that her dogs comply with the bylaw, that the fines be cancelled, and that the bylaw be amended to require strata approval for pets prior to a potential pet-owner purchasing a strata lot in the future.
The dispute turned on the interpretation of the strata corporation’s bylaws. The tribunal found that the applicable bylaw wasn’t concerned with a dog’s actual height so much as whether it was of a breed that normally exceeds a given height:
Bylaw 3.1(1)(d) specifically states that no dogs are permitted “of a breed known to normally exceed 16 inches in adult height. . . .” It does not exclude dogs which are, individually, over 16 inches in adult height. To determine whether the owner’s dogs are permitted under bylaw 3.1(1)(d) I must consider not the actual height of each of the two dogs, but whether they are a breed “known to normally exceed 16 inches.” As such the proper way to measure an individual dog’s height at the shoulder is not particularly relevant to this dispute. What is relevant is whether the dogs’ breed is known to normally exceed 16 inches. I find that it is.
The tribunal also found that the owner was liable to pay a portion of the fines that had been levied by the strata corporation. The remaining portion weren’t enforceable due to the strata corporation’s failure to comply with section 135 of the Strata Property Act in their case.
Finally, the granted an order that the dogs be removed from the strata property.
Maslek v The Owners, Strata Plan LMS 2778, 2018 BCCRT 106, concerned the application of a pet bylaw. As the tribunal noted, the “dispute arises because the owners have 4 pet ferrets, which they keep in their strata lot.” The applicant strata-lot owners sought “an order allowing them to keep their ferrets, and an order that they are not required to pay bylaw fines and legal fees charged against their strata lot account related to alleged breaches of the pet bylaw.” The respondent strata corporation counterclaimed, asking the tribunal for “an order that the owners pay the fines and charges related to the pet bylaw, and an order that the owners remove their ferrets.”
The tribunal’s decision turned on which bylaws were in force at the time the applicants acquired their ferrets. The tribunal found that bylaws prohibiting all pets except cats and dogs came into force after the applicants acquired the ferrets. The tribunal also found that:
the owners’ expectation that the strata council would allow them to keep their ferrets was objectively reasonable. They apologized in writing [for initially failing to seek approval or register their pets, as required under the bylaws], explained their request, and offered a compromise solution such as payment of extra fees. Because the strata council did not provide any explanation for why the owners’ request was denied (other than the incorrect assertion that they could not grant permission), I cannot find that their decision to deny the owners’ request was made on reasonable grounds. There appear to have been no grounds for the decision, other than an inaccurate interpretation of the January 2002 pet bylaw. There is no suggestion in the evidence or submissions that the ferrets caused damage, odour, or noise. While it is possible that other residents objected to them, there is no evidence or submissions before me to support that conclusion.
For these reasons, I find that the strata’s decision to deny the owners’ request was significantly unfair. Under section 48.1(2) of the [Civil Resolution Tribunal] Act, in resolving a strata property dispute the tribunal may make an order directed at the strata if it is necessary to remedy a significantly unfair decision. Accordingly, I order that the owners are entitled to keep their current 4 ferrets in their strata lot. I also order that the bylaw fines must be removed from their strata lot account.
Bylaws—enforcement—procedure—denial of access to recreational facility—pet bylaw
In Hassani-Hosseini v The Owners, Strata Plan BCS 3325, 2018 BCCRT 118, the applicant strata-lot owner claimed “the strata incorrectly denied access to certain common property areas, including the amenity building, while fines assessed against their strata lot for dog noise and a dog kennel were under dispute.” The owner asked the tribunal to order the strata corporation “to properly investigate the alleged bylaw contraventions, reinstate access to the amenity building and other common areas, and partially reimburse them for strata fees paid while they were denied access to common areas of the strata.”
The dispute related to “complaints [the strata corporation] received about the owner’s barking dog and a dog kennel located on the balcony of the owner’s strata lot.” The strata corporation ultimately levied “2 bylaw fines of $200 each for the owner’s barking dog and one $50 bylaw fine for the owner not removing the dog kennel from their balcony.” Later, the strata corporation “denied the owner access to the strata’s amenity building by disabling their FOB key,” under the authority of “a strata rule that allegedly permits the strata to deny access to the amenity building if an owner owes more than $50 in arrears.”
The tribunal affirmed the fines for barking and set aside the fine regarding the kennel:
I find that the 2 letters referencing the dog kennel do not comply with section 135 because placing a dog kennel on a strata lot balcony does not contravene the strata’s bylaws and specifically does not contravene bylaw 43 as stated in the strata’s 2 letters to the owner. Therefore, I find the $50 bylaw fine for the dog kennel was improperly imposed against the owner’s strata lot.
I find the 4 letters referencing the owner’s barking dog did comply with section 135 of the SPA. In accordance with section 135, the strata gave the owner the opportunity of a hearing. That hearing was held on November 7, 2016 and the strata’s written decisions were provided to the owner in letters dated November 18, 2016. Nothing turns on the fact that the strata, in its letters, incorrectly stated that the owner did not respond to the complaint letters or request a hearing, because clearly the hearing was held.
The tribunal also concluded that the strata corporation couldn’t deny the owner access to the recreational facility:
Section 129 of the SPA permits the strata to enforce its bylaws by denying access to the recreation facility under section 134 of the SPA. I infer the amenity building contains the recreation facilities of the strata. However, section 134 permits the strata to deny access to the amenity building only if the contravention relates to the recreation facility. Here, the bylaw contravention relates to a pet bylaw. Therefore, I find the strata did not have the authority to deny the owner access to the amenity building. I order the strata to re-instate access to the amenity building and all other common areas of the strata to the owner immediately if it has not already done so.
To the extent the strata has a rule that permits it to deny access to the amenity building, or any other common property area, if an owner owes any amount of money to the strata, I find the rule to be invalid and unenforceable under section 121(1)(a) of the SPA, given the limitation set out in section 134 as noted above.
Bylaws—enforcement—short-term-accommodation bylaw (1)
In The Owners, Strata Plan VR 164 v Hawco, 2018 BCCRT 134, the applicant strata corporation asked the tribunal to “order the respondent owner . . . to comply with the strata’s short-term rental bylaw and pay $4,000 in outstanding bylaw fines.”
The tribunal noted:
The owner admits he used Air BnB to advertise use of a spare bedroom in his strata lot and that this activity is licencing the use of the bedroom as opposed to renting the bedroom. He does not deny he has received fees for the use of the bedroom and says that because he continues to occupy his strata lot during the times others use his spare bedroom, he has not contravened the short-term rental bylaw. Given the overall evidence, I find the owner received payment for allowing others to use his strata lot.
The tribunal found that the strata corporation’s bylaws prohibited the owner’s conduct:
The February 2015 bylaws and April 2016 bylaws prohibit an owner from using their strata lot for commercial purposes, short-term rentals and for any purpose other than a private dwelling home. By his own admission, I find the owner has used and continues to use his spare bedroom in a way that is contrary to the bylaws that have been in place since February 20, 2015. That is, he is using his strata lot for commercial purposes by charging a fee for its short-term accommodation use, which I find is clearly a purpose other than a private dwelling home.
The strata corporation was entitled to an order that the owner comply with the bylaws:
I find it clear that the strata is entitled to an order that the owner comply with the strata’s bylaws. In particular, and without limitation, I find the owner must stop offering the use of his strata lot, or any portion of it, through Air BnB or in any other way that is contrary to the strata’s bylaws. The current bylaws prohibit the use of his strata lot for any purpose other than a private dwelling home, which means commercial purposes are not permitted.
The tribunal also found that the strata corporation had validly imposed $1200 in fines against the owner and was entitled to their payment. The remainder of the fines claimed were dismissed due to failure to comply with section 135 of the Strata Property Act.
Bylaws—enforcement—short-term-accommodation bylaw (2)
NCAH BC Holdings Ltd v The Owners, Strata Plan EPS 1231, 2018 BCCRT 137, concerned a series of claims, focused mainly on alleged breaches of the respondent strata corporation’s short-term accommodation bylaw and application of a pre-authorized debit agreement between the strata corporation and the applicant strata-lot owner.
The tribunal described the bylaw and agreement as follows:
On April 5, 2016 the strata amended its bylaws again. The amendment to bylaw 34 restricted short term rentals of any unit in the building to a period shorter than the existing City of Vancouver Rental bylaw for a residential building. At the time of the amendment, the City of Vancouver bylaws restricted rentals in a residential building to not less than 30 days. The amendments were registered with the Land Title Office on April 25, 2016.
On June 3, 2016 the owner signed a pre-authorized debit agreement with the strata. Section 1 of the agreement permits the strata to withdraw from the owner’s account monthly operating fees, as well as fines and penalties less than $1,000.
There is a legal distinction between a rental of a property and a license to occupy a property. A rental gives a party exclusive use and possession of a property for a specific period of time. A license to occupy gives a party non-exclusive permission to use a property for a period of time. Short-term rentals of less than 30 days are generally considered to be a license to occupy.
During the time period the owner was fined for contraventions of the rental restriction bylaw, SL 275 was rented to WOW604 Enterprises Inc. under a long term lease. During that period, the owner was controlled by WOW604 Enterprises Inc. through a power of attorney. There is no evidence that any long term tenants were residing in SL275 during that period. I find that the owner was primarily renting out SL275 during that period to short term tenants. I further find that any short-term rentals of SL 275 during that period constituted licenses to occupy.
Section 143 of the SPA provides certain exemptions for some strata lots from rental restriction bylaws, however, I find those exemptions do not apply here.
In HighStreet Accommodations Ltd. v. The Owners, Strata Plan BCS2478, 2017 BCSC 1039 the court ruled that section 143 of the SPA does not provide protection for the type of licenses to occupy for which the owner was fined. Given I have found the rentals at issue to be licences to occupy, section 143 of the SPA does not protect the owner from those fines.
The tribunal also found that pre-authorized debit agreement formed a binding contract between the strata corporation and the owner, which had been validly invoked in this case:
Section 1 of the agreement allows the strata to withdraw recurring monthly operating fees, as well as fines and penalties up to $1,000. None of the fines withdrawn by the strata were greater than $1,000.
I find that the agreement was a binding contract that gave the strata the right to withdraw all of the fines levied against the owner from its account.
In the result, the tribunal dismissed all of the owner’s claims.
The applicant strata corporation . . . wants an order that the respondents . . . stop smoking in their strata lot #9, also known as unit 206. The strata also wants the [respondents] to pay $2,800 in fines for past breaches of its smoking bylaw. The respondents deny they breached the smoking bylaw.
The strata property at issue “has 21 residential strata lots (units)”:
The respondents’ strata lot #9 is a first floor northwest corner unit, with 2 limited common property patios. South of the respondents’ strata lot is a boiler room. Thus, there is only one other strata lot adjacent to the respondents’, on its east side. The same configuration applies to the complainants’ strata lot directly above the respondents’, except it has a second adjacent strata lot to the south.
Since November 2016, the strata corporation has had a bylaw prohibiting smoking “on the common property, limited common property, or in a strata lot.”
The tribunal found that the respondent owners were in contravention of this bylaw:
Given the evidence before me, I find the [the respondents] were smokers at all material times, which the respondents have not expressly denied. I also accept that [a respondent] stated he and his wife were not likely to quit smoking. As noted, I also accept that the respondents incorrectly assumed they would somehow be “grandfathered” such that the smoking bylaw would not apply to them. The council member’s notes are consistent with the respondents’ failure to respond to the strata’s bylaw fines.
Here, given the respondents failed to respond to the strata’s letters until after May 3, 2017, I find the strata did not act unreasonably in accepting the respondents were responsible for the smoke. Given the configuration of the strata and the relative locations of the respondents’ and the complainants’ units, I find the strata reasonably sent the respondents the bylaw infraction letters, which as noted gave the respondents an opportunity to respond and they chose not to do so.
Given the overall evidence before me, I find it is more likely than not that the respondents were smoking in their strata lot at all times material to this dispute. Thus, I find the respondents breached the strata’s smoking bylaw.
I order the respondents to comply with bylaw 3(9) and in particular to stop smoking in their strata lot.
Bylaws and rules—enforcement—tailgating rule
In Waldman v Ng, 2018 BCCRT 143, the dispute “arose because the strata fined the owner $10 for tailgating in the strata’s parkade.” The applicant strata-lot owner also asked for orders reversing the fine and prohibiting complaints in Chinese.
The tribunal commented generally that the strata corporation had acted reasonably in the circumstances:
The owner provided evidence and submissions about his view that the tailgating complaints were not adequately substantiated. Given my conclusions below, I find I do not need to address this in great detail. However, given the tribunal’s mandate that recognizes the ongoing relationship between parties, I will say this. The strata must act reasonably, and in my view what is reasonable will depend on the circumstances. A relatively minor tailgating fine likely does not require intensive corroboration and photos of the tailgating when it happened, which may not be possible. It is open to the strata to hear the evidence before it and come to a reasonable conclusion. I have no evidence before me that the strata unreasonably concluded the owner had been tailgating when he entered the parkade on the 2 occasions in question. Further, I am not prepared to find the strata was unreasonable in limiting the amount of time the owner had to present his 16-point case about the $10 fine or in failing to follow Robert’s Rules of Order in conducting the owner’s council hearing about the $10 fine.
That said, the tribunal did set aside the fine because the strata corporation wasn’t able to establish that its rule was in force at the relevant time:
I have no evidence the tailgating rule was in force on December 5 and 10, 2016, when the owner was found to be tailgating. The owner submits that it was not in force and the strata did not address this submission or provide any evidence about when the rule was implemented or ratified. Therefore, I find the strata was not entitled to fine the owner for tailgating. For clarity, I come to this conclusion because I find on the evidence before me that the tailgating rule was not in force at the material time, which is when the alleged tailgating occurred and not when the strata first wrote the owner about it.
Finally, the tribunal dismissed the owner’s claim about the language of the complaint:
I turn then to the owner’s claim that the strata council members received one or both of the tailgating complaints in Chinese, via an application called WEChat, and/or communicated with other council members in Chinese. There is nothing inappropriate in their doing so, contrary to the owner’s submission. It may be that the strata has forms for complaints, but it is not necessarily inappropriate for the strata to receive a complaint that was not set out in the form. The owner submits that a council hearing or strata meeting should be conducted in English (or French), rather than Chinese. The owner’s hearing was conducted in English. However, there is nothing in the SPA or the strata’s bylaws that says council members cannot communicate with each other in whatever language they prefer. Those communications between council members are not producible as records under sections 35 and 36 of the SPA. Further, there is nothing in the SPA or the strata’s bylaws that require a complaint to be made in writing. Thus, there was nothing improper in the strata receiving the complaint in Chinese and reducing its substantial terms to writing in its correspondence to the owner, which was written in English. Contrary to the owner’s submission, I cannot agree the strata has acted significantly unfairly towards him with respect to its investigation of the tailgating complaints or in its conduct of the council hearing. I dismiss the owner’s request on the issue of using WEChat or communicating in Chinese.
Governance—general meetings and strata-council meetings—chair—strata manager
In Lodto v The Owners, Strata Plan VIS4612, 2018 BCCRT 131, the tribunal noted that the “dispute arises because the strata appoints a representative from its property manager to chair its strata council meetings and annual general meetings (AGM).” As there was “no dispute about the facts that give rise to the dispute,” the case turned on “the correct interpretation of the SPA and bylaws.”
The tribunal found, that the strata corporation’s bylaws didn’t prohibit a strata manager from acting as chair of a general meeting:
the strata passed a bylaw to determine who may chair its general meetings. I find that the language used in bylaw 30 (3) is clear. The only restriction that the bylaws place on who the strata may elect to chair a general meeting is that the person must be present at the meeting. If the strata intended to restrict who may chair a general meeting, it could have easily passed a bylaw that created such a restriction. . . .
Therefore, I find that bylaw 30 (3) permits the strata to elect any person present at a general meeting to chair the meeting, including a property manager representative, as long as the president and vice president are unwilling or unable to act as chair.
The tribunal also found that there were no restrictions in the act, its regulations, or the strata corporation’s bylaws on a strata manager acting as chair for this strata council’s meetings.
In the result, the applicant strata-lot owner’s claims were dismissed.
Governance—strata council—role of non-council volunteer—significant unfairness
In Hope v White, 2018 BCCRT 128, the applicant strata-lot owner claimed she had been treated significantly unfairly when the respondent owner (and strata-council president) and strata corporation “dismissed” her from volunteering her services with the strata corporation. She asked the tribunal for the following remedies: “to be able to volunteer in the roles she previously occupied, an apology from [the respondent owner], exploration of avenues to prevent a recurrence, and the adoption of protocols for dismissal, such as a code of conduct.”
The tribunal noted that the applicant was a “volunteer” and “not a council member.” While “some of the AGM minutes and a 2014 rule contemplate participation of owners on committee and ‘work bees’,” there is “nothing in the SPA or the strata’s bylaws, (the 2014 rule was never ratified and therefore no longer exists), that dictate how the council must handle any decision to stop using the assistance of unpaid volunteers.”
The tribunal found that the strata’s treatment of the applicant wasn’t significantly unfair:
I find the strata’s position in the above note was not unreasonable. I find that there was nothing significantly unfair in the strata’s decision, either in the decision itself or in how it was communicated to the applicant. Even if [the respondent owner] was abrupt in his conversation with the applicant about his decision that her services were no longer required, that does not rise to the threshold of significantly unfair. I do not accept the applicant’s submission that a protocol for handling “volunteer dismissals” is required.
The owner is mistaken when she submits that she has lost her freedom of choice and most of her rights as an owner. Nothing in the strata’s decision, or that of its individual council members, precludes the owner from participating as an owner in the strata’s business. Like any other owner, the applicant can participate by voting at general meetings, asking for a vote to be held, requesting a hearing, speaking at a council meeting to the extent the bylaws permit owners to do so, or volunteering to the extent the strata requests her assistance. Nothing prevents the applicant from running for a council position.
In the result, the tribunal dismissed the applicant’s dispute.
Common property—use—guest room
Masse v The Owners, Strata Plan VIS 6348, 2018 BCCRT 112, involved “a 22 unit mixed use (commercial and residential) complex,” whose “common property includes a guest suite which can be booked by owners for their guests at a nominal cost.” In this dispute, two strata-lot owners argued that another owner had used the guest suite “in a way that may have contravened strata bylaws.” Specifically, the applicants alleged that the respondent had made use of the guest room for periods exceeding a maximum (set by rule) of 14 days and that the respondent’s “guest was a sex worker who was actively using the guest suite to solicit and carry on her trade.”
The tribunal found that the respondent had monopolized the guest room:
Based on the documents submitted by both parties, I find that the respondent owner was the primary user of the guest suite, and that he unilaterally changed the locks to the suite. The accounting documents indicate that he was using the suite without paying user fees, that he was not complying with the booking procedures set out in the rules and was exceeding the 14-day maximum stays. Correspondence from the respondent owner to the applicants confirms that he intended to continue occupying the guest on a monthly basis contrary to the rules. As a result, the common property was unavailable to the other owners when they sought to use it, despite contributing to its maintenance and the expenses associating with its occupancy, and this was significantly unfair to them.
Based on the applicant’s evidence, I find that a guest was operating a business out of the guest suite contrary to the bylaws. The respondent owner is responsible for the actions of his visitor.
The tribunal granted the following remedy:
I find that an appropriate remedy for the respondents’ failures to enforce and comply with the rules and bylaws pertaining to the guest suite is that the respondent owner should lose the use of the guest suite for a reasonable period of time. The applicants have asked that the respondent owner lose access for one year. The respondent owner has not argued that this is an unreasonable length of time. Given that the strata owners’ respective entitlement to use the guest suite is based on annual maximum use, restricting his use for less than one year may only serve to interfere with the timing of his use, which is not the intended result. I find that it is reasonable for the respondent owner to lose use of the guest suite for one year.
Common property—significant change in use or appearance—fence
In Carlsen v The Owners, Strata Plan LMS 533, 2018 BCCRT 124, the applicant strata-lot owner asked the tribunal for “an order that a fence installed by the strata in 2015 be removed, and the original fence line restored.”
The dispute related to a major repair project to fix a failure in a waterproof membrane over the strata’s parkade. As part of this project, changes were made to an existing fence, which led to concerns:
In particular, owners asserted that the new fence was taller, and that it was moved out from the previous fence line thereby enclosing larger patios for the first floor strata lots and eliminating access to common property.
The tribunal found that these were significant changes to the appearance of common property:
Based on the July 20, 2015 meeting minutes, the emails from owners to the strata council, and the photographs provided by the parties, I find that the new fencing was a significant change in common property. These documents show that the new fencing looks markedly different from the fencing that was in place prior to April 2015. The new fencing is taller, and follows different height contours than the previous fencing. In some places it does not follow the original fence line. The higher fence, along with larger enclosed patio spaces, changes the use and appearance of both the front patios and of the common property entrance to the building.
In addition, the tribunal concluded that the vote authorizing the repair project couldn’t be taken as also authorizing changes to the fence.
The tribunal ordered the strata corporation give the owners the option to restore the fence:
The remedy in this dispute will affect all strata owners, since restoring the fencing to its pre-2015 specifications will cost money and cause disruption.
For that reason, I order the strata to obtain at least 3 quotations for restoring the fencing to its pre-2015 height, style, and placement. These 3 quotations must be put to a 3/4 vote resolution for a special levy before the strata owners. This voting meeting must be held before September 30, 2018.
Common property—limited common property—exclusive use—significant change in use or appearance
In O’Connor v The Owners, Strata Plan VR 2105, 2018 BCCRT 153, the applicant strata-lot owner claimed that “her backyard is 5 feet shorter than what it should be, according to the strata plan.” As a remedy,
[s]he requests an order requiring the strata to remove the pathway and hedges currently located on that five feet of LCP in her backyard and to extend the fencing on the east and west edges of her yard by five feet. She also requests an order requiring the owner of unit 109 to remove his privacy fence from his east side fence post, and that the strata be required to pay for it.
The case unfolded on a strata property “consisting of 60 residential strata lots in 3 buildings, in Vancouver.”
The tribunal found that even though the strata corporation must restore exclusive use of the backyard limited common property to the applicant by removing the pathway and hedges currently occupying it, the strata corporation wasn’t required to go further and extend the fencing around backyards:
I accept that the owner currently does not have exclusive use of the southern 5 feet of LCP yard area designated to her strata lot on the strata plan. As the owner says that the common pathway and hedges encroach on that 5 feet, and the strata has not provided any evidence to the contrary, I accept that this is so. In order to provide exclusive use of that area to the owner, the common pathway and hedges must be removed from the LCP designated area. I find this to be the responsibility of the strata, under [its] duty to maintain and repair common property established under section 72 of the SPA and Bylaw 8.
Bylaw 8 also requires the strata to maintain and repair LCP fencing that encloses patios and yards. Such an obligation applies to fencing already in place. It does not, however, require the strata to install new fencing which was not previously there, either between strata lots or to fully enclose designated LCP. There is no requirement, under either the strata’s bylaws or the SPA, for the strata to physically barricade or enclose designated LCP areas.
I do not find that the strata has an obligation to extend the fencing on both sides of the owner’s backyard patio a further 5 feet. However, given that the strata has installed fences between the strata lots, it may wish to extend those fences a further 5 feet, even if there is no obligation to do so. I leave that to the strata to determine.
As I do not order the strata to extend the fencing along the sides of the owner’s backyard, it is not necessary for me to address the owner’s request to have the privacy fencing removed from the joint fence post between her strata lot and strata lot 5.
The tribunal also found that, in carrying out this work, the strata corporation would be making a significant change to the use or appearance of common property. So it must have the work authorized by a resolution passed by a 3/4 vote:
Strata lot 6 is one of 8 ground floor units with back gardens in this building. Extending the fencing of strata lot 6 would affect the owner’s neighbours, particularly as the owner’s backyard intersects with her the backyard of strata lot 5 at an angle, meaning that any changes to the south 5 feet of strata lot 6 will likely change the shape of the backyard of strata lot 5. I accept that the owners of other units on the floors above the ground floor will be able to see the change to the pathway and hedges currently located in the owner’s LCP. Furthermore, all residents of that building will be affected by the relocation of a common pathway and hedges bordering that path. For these reasons, I find that removing the path, and removing the hedge is a significant change in use and appearance of common property, which requires the approval of a 3/4 vote before the strata can move forward.
In the result, the tribunal ordered
the strata to, within 60 days of the date of this decision, obtain at least two quotes to remove the common path and hedges that are located in the south LCP of strata lot 6. I order the strata to call a general meeting of the strata to consider a 3/4 vote resolution to alter the south LCP of strata lot 6 consistent with the quotations by, within 30 days of receiving the quotes.
In The Owners, Strata Plan BCS 983 v Rempel, 2018 BCCRT 130, the applicant strata corporation asked the tribunal for “an order that the owner remove 9 inches from the north side of the canopy installed over his patio, and an order that the owner pay $100 in fines related to the canopy.”
The strata council approved the canopy after “the owner submitted a written request to the strata asking for approval to install an aluminum canopy over the patio adjacent to his strata lot.” “A document attached to the application,” the tribunal noted, “which includes a drawing of the proposed canopy, indicate that it was to measure 17 feet by 9 feet, with a 12 inch overhang on the front and south ends.” After the canopy was installed, the “strata’s property manager wrote to the owner on June 19, 2017, and said there had been a complaint that the installed canopy was different from the drawing submitted with the alteration request the owner made in November 2016.”
The tribunal found that the installed canopy wasn’t in accordance with the request for approval and did encroach on a neighboring patio:
bylaw 7.1 says an owner must obtain written approval from the strata corporation before altering common property or limited common property. The drawing of the canopy attached to the owner’s alteration application sets out the specific alteration that was approved. In his June 27, 2017 letter, the owner conceded that the installed canopy is larger than that shown on the drawing, and that it was a small distance over from where he had planned. Under bylaw 7.1, it was not open to him to install a larger and differently positioned canopy without further permission from the strata.
Because the finished canopy is bigger and differently positioned than that in the approved alteration drawings, and because it encroaches on the neighbour’s patio, I find that the owner did not have the approval required under bylaw 7.1, and must remove 9 inches from the north side of the canopy as requested by the strata.
The tribunal “decline[d] to order the owner pay the bylaw fine,” as the strata corporation wasn’t able to demonstrate that it had complied with the procedure set out in section 135 of the Strata Property Act.
Common property—limited common property—parking stalls—bike rack
Zanatta v Kedgley, 2018 BCCRT 140, was a dispute over “the allocation of common property (CP) parking stalls, limited common property (LCP) used as parking stall, and the installation of bike racks.” The applicant owner argued that the respondent owner “took over use of one of her parking stalls and that a bike rack has not been installed at the head of both of her parking stalls as approved by the strata’s owners.”
The tribunal described the strata property and its parking stalls as follows:
The strata is a 16-unit, 4 storey, residential strata corporation located in Vancouver, British Columbia. It was created March 10, 1986 under the Condominium Act (CA), the preceding legislation to the Strata Property Act (SPA).
The strata plan shows the underground parking area, including its 16 parking stalls, is CP.
The tribunal found that the applicant owner had been using “stalls 11 and 12” under what “amounted to short term exclusive use under section 76 of the SPA.” “At some point,” the tribunal found, “the strata essentially cancelled the short term designation of stall 11, which it was entitled to do.” In the result, the tribunal dismissed this part of the applicant’s claim.
But the applicant’s claim regarding the bike rack proved to be successful:
The strata installed a bike rack at the head of the owner’s LCP stall [which was not at issue in the aspect of the dispute described earlier]. The owner wants a bike rack installed at the head of her assigned CP stall 12, which currently does not have a bike rack. Given the resolution approved only 16 bike racks, it is not reasonable for the strata to install an additional bike rack at the head of her second parking stall 12 and I decline to make that order.
However, the evidence does not show the owner, or any owner, was consulted regarding the location of bike racks. It appears the strata made an arbitrary decision to install the owner’s bike rack at the head of her LCP stall. Given the owner’s LCP stall is not identified as a parking stall on the strata plan, and that the vast majority of the bike racks were installed at the head of CP parking stalls, I find it reasonable for the owner to have expected a bike rack would be installed at the head of her CP stall.
Therefore, I find the owner is entitled to request the strata relocate the bike rack currently installed at the head of her LCP stall to the head of stall 12, at the strata’s expense.
Insurance—deductible—water leak—washing machine
In The Owners, Strata Plan KAS 1357 v Amos, 2018 BCCRT 105, the applicant strata corporation asked the tribunal for “an order that the owner pay $5,000 for an insurance deductible, as well as dispute-related fees and expenses.” The genesis of the dispute was a water leak that had damaged other strata lots and common property. The tribunal found that “the source of the leak was the washing machine hookup water tap” in the respondent owner’s strata lot.
The dispute turned on application of the strata corporation’s bylaws. The applicable bylaw made a strata-lot owner responsible for payment of an insurance deductible in cases in which damage was the result of the owner’s “carelessness or negligence.”
The tribunal concluded that the owner’s conduct in this case wasn’t careless or negligent:
The owner says she did not know about the leak until the strata president came to investigate on June 17, 2015. I accept that evidence. Photographs provided by the owner show that the hookup taps are located behind the washing machine. They are invisible unless the machine is pulled away from the wall, as the control panel of the machine entirely covers the taps and hoses. Therefore, it is not reasonable to conclude the owner could have known about the leak. I find that a “person of ordinary prudence” would not have checked for such a leak.
Based on these facts, I find that the owner was not careless or negligent in relation to the leaking tap. In Clark v. The Owners, Strata Plan LMS 3938, 2017 BCCRT 62 (CanLII), a tribunal vice chair concluded that a strata lot owner was not negligent when their aging washing machine overflowed, as there was no indication that they should have known the washer’s overflow sensor would fail. Although this prior tribunal decision is not a binding precedent, I find that the facts are analogous to the leaking tap situation in this dispute, and I rely on its reasoning.
In the result, the tribunal ordered that, “within 30 days of this decision, the strata remove the $5,000 charge relating to the insurance deductible.
Strata lot—alteration—bare-land strata plan—privacy wall
the strata failed to comply with its bylaws when it approved the installation of a solid screen wall (privacy wall) on [a neighboring owner’s] strata lot. The applicant seeks removal of the privacy wall, justification from the strata as to the exceptional circumstances under which it approved the privacy wall installation, and reimbursement of dispute-related expenses and tribunal fees paid totalling $2,325.
The tribunal described the strata property as “a large bare land strata corporation comprising 645 strata lots located on Vancouver Island.” The dispute largely turned on the interpretation and application of the strata corporation’s bylaws.
The tribunal found that criteria governing alterations to strata lots had been repealed as part of a previous bylaw amendment:
I doubt it was the intention of the strata to repeal all of its criteria forming part of the Schedule “A” to its bylaw 31 but that is what has happened. Accordingly, the strata is not obligated to follow the unregistered criteria when considering owner alterations. In other words, nothing turns on the fact the strata did not follow its 2012 criteria because that criteria was not registered in June 2015.
Even if the full criteria had been properly registered and referenced in bylaw 31, the strata granted its council sole discretion to completely deviate from the criteria.
I do not accept the applicant’s argument that the strata must make the decision to approve an owner’s alteration request, because bylaw 14 permits the strata to delegate its powers and duties to any person. That one council member made the decision to accept the alteration request of SL 282 was in keeping with bylaw 14.
In the absence of this guiding criteria, the tribunal found that the strata corporation had “complied with its bylaws when it approved the privacy wall at SL 282.”
In the result, the applicant’s claims were dismissed.