CRT Roundup—bylaws, finances, meetings, and more


30 August 2018

By Kevin Zakreski

This post is part of a monthly series summarizing the Civil Resolution Tribunal’s strata-property decisions. There have been 31 new decisions since the last post.

Governance—bylaws—adoption—reconsideration—strata council—election—enforcement of bylaws—short-term accommodation

Howe-Smith v The Owners, Strata Plan KAS 1201, 2018 BCCRT 348, concerned a dispute over the validity of bylaws and short-term accommodation in a bare-land strata:

2. The owner says that the respondent strata failed to follow proper procedures in approving bylaws. The owner also says that the current strata council has not been properly elected.3. The strata denies the applicant’s claims and makes a counterclaim. The strata says that the owner rents her strata lot in contravention of the bylaws. The strata wants an order permanently barring her from conducting a short-term rental business on her strata lot.

The bylaws at issue were adopted after the owners reconsidered and voted again on them at a general meeting. The tribunal found that this procedure was acceptable in this case:

42. The SPA is still silent on the issue of reconsideration. I find that the SPA does not prohibit a reconsideration or re-vote, and that the reconsideration vote was valid. In reaching this conclusion, I rely on the court’s decision in Loveys, given the same process to re-vote on the bylaws was followed here. The bylaws were approved as presented.

The tribunal also found that the strata council had been validly elected:

49. The earlier draft version of the AGM minutes says the entire strata council resigned following defeat of the bylaws. The later revised minutes clarify that only 2 of the 5 council members offered to resign. The owner did not attend the AGM. For a report of what happened, I prefer the version in the revised minutes.

50. Further, even if tempers flared and people talked of resigning, the BC Supreme Court has recognized that strata council members are volunteers. Mistakes will be made. Within reason, the conduct of council is allowed some latitude. See Hill v. The Owners, Strata Plan KAS 510, 2016 BCSC 1753.

51. According to both versions, someone continued to maintain order. Someone continued taking minutes. At the close of the meeting a new council was elected that consisted of all 5 members who had been the council at the start of the meeting, and 2 new members from the floor.

52. The revised AGM minutes say all council members were voted in unanimously. Candidates who stood for election and 16 owners who voted for council at that AGM have all provided signed confirmation that there was an election.

53. I find that the strata council in place at the close of the 2017 AGM was validly elected.

Finally, the tribunal found that the strata corporation was entitled to enforce its bylaws against the owner:

65. I have found that the strata bylaws requiring owners to obtain strata approval for rentals, and for business use of the strata lot, are enforceable. The owner and her spouse have admitted offering their strata lot for short-term rentals. Strata has told them that this violates the bylaws. The owner and her spouse do not accept strata’s authority to restrict their livelihood, and find it “laughable.” I find that this is an appropriate situation for an order enforcing the bylaws.

Governance—privacy policy—access to records

L.S. v The Owners, Strata Plan ABC XXXX, 2018 BCCRT 376, involved a dispute in a strata “located in Burnaby, B.C.,” which “was created in August 1988 comprising 23 strata lots in 1 4-storey building.” As the tribunal noted:

3. This dispute involves document requests, privacy issues, alleged lack of building maintenance, and financial issues.

4. The owner seeks orders that the strata establish a privacy policy, disclose certain documents, undertake a building envelope condition assessment (BECA), and retain an accounting firm to complete a financial review and report on its finances.

The tribunal ordered the strata corporation to prepare a privacy policy and distribute it to the owners:

36. First, I confirm the strata is an organization as defined under [Personal Information Protection Act] and it must comply with the legislation. Under section 5 of PIPA, the strata must develop and follow policies and practices necessary to ensure compliance with PIPA, develop a process to respond to complaints that may arise relating to PIPA, and make the information about its privacy policy available on request.

37. Given section 5 of PIPA, I find the strata must prepare written policies and practices relating to compliance with and responding to complaints arising from PIPA (privacy policy). While my reading of PIPA does not require the strata to communicate its privacy policy to its owners, I find given it is not currently in compliance, it is reasonable for it to do so.

38. For these reasons, I grant the owner’s requested relief and order the strata to prepare its written privacy policy and provide a copy of it to all of its strata lot owners not later than September 1, 2018. When preparing its privacy policy, the strata is encouraged to review the documents entitled Privacy Guidelines for Strata Corporations and Strata Agents and PIPA and Strata Corporations: Frequently Asked Questions (PDF) prepared by the [Office of the Information and Privacy Commissioner] and available on its website.

As for the remainder of the owner’s claim for access to strata-corporation records, the tribunal was only willing to reiterate the strata corporation’s general duties:

43. Given the relatively unclear nature of the owner’s claim, I am prepared to make a general order that to the extent the strata has not provided the documents listed in section 35 of the SPA requested by the owner in her reply to this claim, it do so within 2 weeks of the date of this decision.

Governance—finances—operating fund—surplus

Lo v The Owners, Strata Plan VR 2100, 2018 BCCRT 366, was a dispute over the strata corporation’s operating fund:

2. The owner says the strata is incorrectly using operating funds and therefore not complying with the Strata Property Act (SPA). The owner wants the strata to comply with the SPA. The owner also wants the strata to issue him an apology and pay his tribunal fees.

3. The strata says it is using operating funds correctly and complying with the SPA. The strata seeks dismissal of the owner’s claims.

The tribunal found that the strata corporation was entitled to use an operating-fund surplus to carry out repairs:

28. In this case, there is an important distinction to be made between the operating fund budget and operating fund surplus. Section 92 of the SPA requires operating fund expenditures to be made on items that usually occur not less than once per year. While there was no specific evidence on this point, I find that it is more likely than not that the proposed repairs were required less than once per year. As such, section 97 of the SPA required that those repairs come from the CRF as opposed to the operating fund. Section 105 requires the strata to transfer any operating surplus to the CRF or to carry it forward in the operating fund. However, section 105 also allows the strata to deviate from the prescribed allocation of the operating surplus if a 3/4 vote resolution is passed at an annual or special general meeting. There is no limitation in section 105 that requires the operating surplus allocation to comply with section 97 of the SPA if the 3/4 vote is passed. The general wording of section 97 relating to the use of the operating funds should not limit the specific wording of section 105 in relation to the use of the operating surplus. I find that section 105 of the SPA allows the strata to use the operating surplus for expenditures outside of the purview of section 97.

29. I find that the allocation of the surplus to the repairs at the May 17, 2017 general meeting was authorized by the SPA and that the strata was in compliance with the SPA.

Governance—finances—purchase of geothermal heating system—disclosure

Adrian v The Owners, Strata Plan KAS2849, 2018 BCCRT 357, was a dispute over a strata corporation’s decision to purchase a geothermal heating system.

The dispute turned on the disclosure of information before the meeting to consider the purchase. The tribunal found that the strata corporation had made adequate disclosure:

41. As a strata council member, I find that the applicant had full access to information relating to the demand, the decision to purchase the system, financing for the system, and the corresponding cost to the owners.

42. By October 2013 when the applicant’s complaints began, it appears that he was no longer a strata council member. However, as set out above, I find that the strata responded appropriately to his requests for information, and that at no material time was he deprived of the information at issue in this dispute.

43. Based on these findings, the applicant’s claim that the strata failed to disclose material information about the system prior to the SGM is dismissed.

Governance—finances—lien—notice

The Owners, Strata LMS 1755 v Leidl, 2018 BCCRT 371, was a dispute over a lien on the applicant’s strata lot:

3. The applicant seeks a refund of legal fees and disbursements incurred by the respondent to place a lien on her strata lot and commence enforcement proceedings as a result of the non-payment of strata fees.

While the applicant was an owner when she commenced this dispute, she subsequently sold her strata lot. The tribunal exercised its discretion to hear the dispute of a former owner for the following reasons:

a. While there is disagreement about whether the tribunal has jurisdiction to hear this matter, the respondent’s argument focused on the nature of the claim rather than the tribunal’s discretion to hear it.

b. The issue raised in this claim is of importance to other persons, namely other owners because of the consequences to their strata fees and the strata council because of its express obligation under section 31 of the SPA to exercise a reasonable standard of care.

c. The dispute process was well underway by the time the applicant’s status changed.

d. If the dispute is dismissed the applicant will be significantly prejudiced by having to commence a court action against the respondent to recover the disputed sum of money.

e. The dispute in this case is over a relatively small sum of money and ought to be resolved, as contemplated under section 2 of the [Civil Resolution Tribunal] Act, in a speedy, economical, informal and flexible fashion.

The tribunal found that the strata corporation had failed to give proper notice to the applicant:

29. The applicant delivered a Form K, Tenant’s Undertaking under section 146 of the SPA containing the Nicola Street address when she purchased her unit in 2015 as required under amended bylaw 4(2)(a) because she rented-out the unit and had a mailing address ‘outside’ the strata. After her tenant left in October 2016, she decided to move into the unit and both she and a friend sent several emails to the agent about her pending move-in in November. The emails were acknowledged. In one email, the Rental Property Manager/Strata Agent thanked her for giving “notice” of the move-in. The applicant subsequently obtained keys from the strata council president and moved-in.

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31. The respondent relies on section 61(1)(a) as authority for notice by mail to the address given by the applicant in 2015 being sufficient. I disagree. In the absence of a bylaw requiring owners to give notice of a change of address in writing, the emails sent to the strata in October and November 2016 before her return to the unit, one of which was specifically acknowledged as notice of her return, were more than sufficient to allow the agent to effect a change of address in the strata records. With that change of address in hand, the strata was bound to comply with section 61(1)(b).

32. The notice provisions in the SPA evidence a legislative intention to allow for the use of email in communications in the conduct of strata business. It is up to the strata or its agent to ensure such communications are governed by effective practices and procedures to ensure records are kept current.

33. I conclude the respondent has not proven it gave proper notice to the applicant as required under sections 61, 112 and 116 of the SPA because it was advised of a change of address and did not give notice at the address provided or in any other of the prescribed ways.

The tribunal ordered the strata corporation to reimburse the applicant:

36. Taking into account my finding that the applicant was not given notice of the debt nor of the strata’s intention to file a lien, and considering the authority given to me under section 48.1 of the CRTA, I find the strata incurred no reasonable legal costs in this case and order the strata reimburse the $500 lien registration and removal costs and the $4,805.29 legal costs paid by the applicant to the respondent.

Governance—general meetings—voting—procedures—access to records

Ringler v The Owners, Strata Plan LMS 4555, 2018 BCCRT 396, concerned a dispute over voting procedure at a strata corporation’s general meetings:

1. This dispute relates to the voting procedures used by the respondent, The Owners, Strata Plan LMS 4555 (strata), at annual and special general meetings.

2. The 8 applicants (owners) own 6 lots within the strata. The owners, who are self-represented, say that the strata has failed to adopt voting practices which comply with the Strata Property Act (SPA). The owners also say that, contrary to section 36 of the SPA, the strata has refused to provide them with the opportunity to review and obtain copies of records regarding votes that occurred at an April 5, 2017 annual general meeting. The owners seek an order allowing them to review and obtain copies of those voting records, an order allowing them to observe future voting processes without restriction, and an order that the strata adopt written voting procedures.

3. The strata, which is also self-represented, takes the position that it is in compliance with the SPA and asks that the owners’ claim be dismissed.

The strata property was very large; as the tribunal noted it “consists of approximately 400 strata lots.”

The applicant owners requested copies of documents (including “voter/proxy sign in registration sheets; “filled in” proxy forms; official scrutineer election results tally sheets; election voting slips; and the strata management company’s procedures and protocols for annual general and special general meetings and voting”) that fell outside the scope of records they were entitled to access:

33. Section 35 of the SPA provides a detailed list of the records that a strata “must” prepare, and the records that a strata “must” maintain. I find that none of the documents requested by the owners is a record that the strata must maintain as described by section 35. Given that fact, and the fact that section 36 of the SPA requires only that the strata make records and documents referred to in section 35 available, I find that the owner’s position that the strata must produce the documents that they have must be dismissed.

The tribunal also refused to order that the strata corporation adopt changes to its voting procedures:

36. First, I note that the strata already has a written procedure for voting, set out at bylaw 28. Bylaw 29 further contains a written requirement that the strata must certify proxies. In my view, those bylaws, provided they are followed, are sufficient to enable the strata to conduct votes at annual and special general meetings in an appropriate fashion such that the strata will meet its duties under the SPA.

37. If the owners wish for strata bylaws 28 and 29 to be amended to contain a different voting procedure than that which the strata currently operates under, they should seek to bring forward a resolution for such an amendment. Section 46 of the SPA provides a mechanism for the owners to undertake such action.

38. Second, and similarly, I consider that if the owners wish for there to be some sort of “observer” role for votes of the strata, the proper forum is to bring forward a resolution for an amendment to bylaw 28.

39. The owners’ claim is dismissed on these issues.

Governance—general meetings—notice—procedure

In Farrell v The Owners, Strata Plan K 414, 2018 BCCRT 382, the applicant owner asked the tribunal for orders in connection with a strata corporation’s annual general meeting:

2. This dispute involves the validity of the strata’s annual general meeting (AGM) held May 21, 2017 (May 2017 AGM).

3. The owner says the strata did not conduct the May 2017 AGM in accordance with the Strata Property Act (SPA) due to an incomplete notice package and improper voting procedure. She seeks orders that the AGM be declared “null and void” and that a new AGM be conducted.

4. In its Dispute Response, the strata agreed the May 2017 AGM was held contrary to the SPA but it now denies the owner’s allegations. It asks that the owner’s claims be dismissed.

The tribunal found that the strata corporation had failed to follow the proper meeting-notice procedure:

45. I turn now to the matters I find are problematic for the strata, which are those matters that require input from the strata owners by way of a vote and for which advance information is required. Namely, adopting a budget, changing LCP parking stalls (if such LCP designations exist), waiving the requirement to obtain a depreciation report, and raising money to obtain a new survey and to complete roof replacement.

46. Which the exception of the proposed budget, I find all other remaining votes required the passing of a 3/4 vote for which the proposed wording was not contained in the May 2017 AGM notice. A change in use of LCP designations, if that is what the parking stall designations include, requires 2 3/4 votes to be passed under section 75 and 74 of the SPA; a 3/4 vote to remove the LCP designation under section 75 and a 3/4 vote to re-designate LCP under section 74.

47. Section 94(3)(a) of the SPA and regulation 6.2 state a deprecation report is mandatory unless the strata waives the requirement by a 3/4 vote at a general meeting. The draft May 2017 AGM minutes state the depreciation report was “tabled” which is entirely different than a 3/4 vote.

48. I find that the manner in which funds were raised by “cash call” to be contrary to the SPA. Specifically, I find the cash calls to be special levies under section 108 of the SPA, which require specific things to be included in proposed 3/4 vote resolutions. Given the proposed wording of the 3/4 vote resolutions for the special levies to raise funds for a new survey and roof replacement were not included with the May 2017 AGM notice, I find the strata did not comply with section 108(3) of the SPA and was therefore in contravention of section 45(3) of the SPA.

49. I find that handing out the proposed budget at the beginning of the May 2017 AGM does not constitute reasonable notice under section 45(4) of the SPA. The purpose of section 45(4)is to give strata owners the opportunity to review the proposed budget in advance of the meeting. The procedure followed by the strata for the May 2017 AGM did not give the strata owners that opportunity.

50. For these reasons, I find voting at the May 2017 AGM was improperly conducted in relation to adopting a budget, changing the LCP parking stalls designations (if such LCP designations exist), waiving the requirement to obtain a depreciation report, and raising money to obtain a new survey and to complete roof replacement. If parking stall designations do not involve changes in LCP, then I find the vote on parking stall designations stands.

Governance—strata-council meetings—attendance as observer

Hugo v The Owners, Strata Plan 1601, 2018 BCCRT 346, was a dispute about “the strata’s authority to exclude owners from attending a strata council meeting.” The dispute took place at “a large bare land strata corporation comprising 645 strata lots located in Cobble Hill, B.C. on Vancouver Island.”

The tribunal found that the strata corporation’s bylaws allowed it to exclude the applicants”

31. However, based on my review of the submissions and evidence, I find that I do not need to look past strata bylaw 10(3) registered at the Land Title Office on June 22, 2015. The bylaw states that, owners may attend meetings of the strata council as an observer except those portions of meetings that deal with, among other things, “personnel issues.” I find the term “personnel issues” includes any matter involving strata employees. I also find that a decision to exclude owners from attending portions of meetings involving personnel issues is at the strata council’s discretion.

32. Based on emails sent to the strata council president by the affected employee on December 8, 2016, in which the employee stated the December 2, 2016 letter of [the second applicant] “went beyond harassment” and insisted on “complete separation” from the applicants until the issue was resolved, I conclude a personnel issue existed between the employee and both applicants.

33. I accept the strata’s submissions that, given the employee’s position and the need for their attendance at strata council meetings to provide information to the strata council to allow it to perform strata business, it was necessary to exclude the applicants from the entire meeting, rather than a portion of it.

34. For these reasons, I conclude the strata, through its council, exercised its reasonable authority to exclude the applicants from strata council meetings while it investigated the employee’s concerns. Practically speaking, the time of the exclusion was December 10, 2016 through January 24, 2017 for [the first applicant] and from December 10, 2016 to a time before January 30, 2017 for [the second applicant] when the exclusion was lifted. It appears from the submissions that this period included 1 strata council meeting on December 14, 2016 at which [the second applicant] was not permitted to attend.

Bylaws—enforcement—rental restrictions—hardship exemption (1)

Armitage v The Owners, Strata Plan PGS 204, 2018 BCCRT 352, was a dispute “about whether the applicants should be permitted to rent their strata lot.” The dispute turned on the Strata Property Act’s hardship exemption:

22. The applicants say the strata has been unreasonable in refusing to grant them a hardship exemption. They ask for an order requiring the respondent to allow them to rent the unit until it is sold.

23. The applicants also seek an order against the strata for reimbursement for “lost rental income” of $1,500 a month, from the date of their Dispute Notice to present, compensation for realtors’ fees of $11,000 and tribunal fees of $125.

24. The respondent says the bylaws no longer permit rentals, and that the applicants did not present evidence that it was an extreme hardship if they were unable to rent. The respondent asks that I dismiss the claim.

The tribunal found that the applicants weren’t able to establish hardship:

44. On the issue of hardship, the applicants provided evidence that

(i)     they could not sell their property largely due to interested parties being unable to sell their existing homes; and

(ii)    they continue to pay utilities, strata fees, insurance and property taxes (of about $950/month) without being able to offset those expenses through rental income.

45. The strata says that unit 216 is not the applicants’ primary residence. They also indicated that the applicants rented unit 216 for six years, taking in about $100,000 in rental income. The applicants did not address these issues in their evidence or submissions.

46. Turning to the Als criteria for hardship, I find that the applicants have not established hardship on a balance of probabilities. They are still able to obtain insurance for their unit, and ongoing property related expenses are modest when considering the unit’s value.

47. The applicants provided scant information about their financial position. The evidence available suggests the unit is a secondary property asset for them. While they demonstrated some inconvenience associated with paying ongoing expenses for a property they have been unable to sell for their asking price, the situation falls short of establishing hardship. There is no evidence of a substantial decrease in sale value making up “all or substantially all” of the owner’s assets.

Bylaws—enforcement—rental restrictions—hardship exemption (2)

In Belotte v The Owners, Strata Plan NW 1878, 2018 BCCRT 437, the applicant strata-lot owner asked the tribunal for an exemption from the respondent strata corporation’s rental-restriction bylaw:

2. This dispute involves the owner’s request for a hardship exemption from the strata’s rental restriction bylaw.

3. The owner asks for orders that the strata grant her a 3-year exemption from the strata’s rental restriction bylaw. She asks that the 3-year period start when a tenant moves into her strata lot. I infer the strata asks that the owner’s claim be dismissed.

The strata property was “an 18-unit residential strata corporation located in White Rock, B.C. created under the Condominium Act (CA).”

The tribunal found that the owner was entitled to the exemption because the strata corporation had failed to meet the act’s deadlines:

26. I find the strata failed to meet both the timeline to hold the owner’s requested hearing and the timeline to provide the owner its written decision regarding her exemption request. Based on [section] 144 (4) (a) and (b) of the SPA, the exemption is allowed. My conclusion is supported by the decision of the British Columbia Supreme Court in The Owners, Strata Plan LMS 3442 v. Storozuk, 2014 BCSC 1507, where the court found that the strata corporation was 1 day late in providing its written decision to the owner who requested a hardship exemption, and thus the owner’s exemption request was allowed.

Bylaws—enforcement—short-term accommodation

The Owners, Strata Plan BCS 4294 v Truong, 2018 BCCRT 378, was a dispute about enforcement of a short-term accommodation bylaw:

1. The applicant in both disputes, The Owners, Strata Plan BCS 4294 (strata), is a strata corporation consisting of 338 residential strata lots located in four multi-unit buildings and one three story townhouse building located in Pitt Meadows, British Columbia. The strata is represented by the strata president.

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4. The strata says the respondents are renting out their strata units in violation of the strata bylaws and owe unpaid fines and fees. The strata wants an order directing the respondents to cease their business rental activities, an order of compensation for the fines and fees, and reimbursement for expenses and dispute fees.

5. The respondents say the strata has no basis to prohibit them from renting their strata lots. The Rental Disclosure Statement (rental statement) provided to them by the owner developer prior to purchasing their strata lots, permits the rental of SL 167 and SL 139 (units). The strata bylaws have no application to the respondents’ rental circumstances and cannot be relied upon to justify the strata’s fees or fines.

As the tribunal put it, “[t]he issue in this dispute is whether the respondents’ rental of their respective strata lots is a breach of the strata bylaws and if so, what are the appropriate remedies including whether the strata should be reimbursed for tribunal preparation expenses and for tribunal filing fees.”

The tribunal found that the respondents were in breach of valid strata-corporation bylaws:

46. I find the rental disclosure statement in combination with the application of section 143(2) of the SPA to mean the strata can’t pass a bylaw that would prevent an owner from renting out their unit for a residential purpose until 2111. I do not find however, that either the SPA or the rental statement prohibits the strata from changing the bylaws to restrict owners from the short term temporary rental use of their units for a business purpose.

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49. The respondents draw a distinction between their commercial rental activities and the activities of the temporary rental housing businesses listed in bylaw 3.2(m) such as Air BnB and hotels which are licensed operations. In substance, I find the respondents are renting out their units to provide what is an essentially a hotel-like temporary rental accommodation service.

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51. I find the respondents’ rental use of the units is not a true residential use of the units. The renters are “residing” in the units but they are living there on a short term temporary accommodation basis pursuant to the unit being used for a business rental purpose. They do not have the full possession connection that distinguishes a temporary from a permanent housing possession connection.

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54. I have concluded the bylaws are not in conflict with the right given to owners in the rental statement to rent out their units until 2111. I find the fact that [the respondents’ representative] executes residential tenancy leases with the tenants does not transform what is in essence a commercial short-term temporary rental use arrangement. The strata acted to prohibit the short-term business accommodation rental exercise of the “right to rent” as that use is not consistent with the residential use only restriction in the rental statement and in bylaw 3.1. The units can be rented out only on a primary residential use basis, and not for a primarily short-term accommodation business basis.

In the result, the tribunal granted the strata corporation an “order [that] the respondents to comply with the strata’s bylaws.”

Bylaws—enforcement—parking—alteration to strata lot—approval—immaterial change

The Owners, Strata Plan BCS 945 v Miller, 2018 BCCRT 414, involved a parking dispute that engaged bylaw enforcement and strata-lot alteration:

3. This dispute involves the manner in which the owner parks his truck halfway inside his garage and halfway on the parking pad outside of the garage, with the garage door open, and his construction of a false door in his garage.

4. The strata claims that by parking with the garage door open and failing to remove the false door in the garage, the owner is in contravention of its bylaws and has levied fines against him, which remain outstanding.

5. The owner argues that he is not in contravention of the bylaws and should be permitted to park in the manner he has.

The dispute took place in a strata property that the tribunal described as follows:

14. The strata was built in 7 phases between July 2004 and June 2005 and is located in Surrey, BC. It comprises 23 separate buildings, with a total of 175 strata lots. Each strata lot is 3 levels with a garage on the ground level.

15. The strata plan shows that each strata lot’s garage forms part of the strata lot and the corresponding parking pad, or driveway, is common property.

The tribunal found that the owner’s manner of parking his truck didn’t amount to a contravention of the strata corporation’s bylaws:

32. The owner argues that the term “not in use” is not defined in the bylaws and under a plain language definition of “use,” parking his vehicle constitutes use of the garage area such that the garage door may remain open.

33. I agree with the owner. The language used in the bylaws is to be given its plain and ordinary meaning (Great Western Railway Co. v. Carpalla United China Clay Co. (1990), 1 Ch. 218 (C.A.), referred to in Harvey v. Strata Plan NW 2489, 2003 BCSC 1316 (B.C.S.C.)). On a plain reading of the definition of “use,” I find that the parking of the owner’s truck halfway in and out of the garage is use of the garage area and as such, his garage door need not be kept closed.

34. I find, therefore, that the owner is not in contravention of bylaw 45(4). Accordingly, I decline to order him to stop parking his truck in the manner he has with the garage door open. This claim is dismissed.

The tribunal also found the owner’s installation of a false door on the garage wasn’t a bylaw contravention:

37. The photographs submitted in evidence show that the false door is inside the garage, which forms part of the strata lot and is therefore not common property. As such, bylaw 7.1 rather than bylaw 8.1 applies. Accordingly, I find that the owner was not in contravention of bylaw 8.1.

The door was an immaterial change to the owner’s strata lot and, as such, didn’t require the strata corporation’s approval:

40. In determining what constitutes an alteration in the context of strata bylaws, where a change to the structure of the property is not required, it cannot be an immaterial change (see Allwest International Equipment Sales Co. Ltd. v. Strata Plan LMS 4591, 2018 BCCA 187). Although the Allwest decision refers to alterations made to common property, this analysis applies equally to alterations made to a strata lot, as is the case here.

41. In my view, the construction of the false door is an immaterial change to the garage. It is impermanent and movable, and once taken off its hinges, the garage remains in its original condition.

42. For these reasons, I find that the construction of the false door is not an alteration that requires the strata’s approval such that the owner is in contravention of bylaw 7.1.

Bylaws—enforcement—improper storage—enforcement procedure

The Owners, Strata Plan KAS 2660 v Kwan, 2018 BCCRT 386, involved a dispute over enforcement of the strata corporation’s bylaws:

2. This dispute involves collection of a bylaw fine.

3. The strata fined the owner for storing his boat in the strata’s underground parkade contrary to its bylaws. It asks that the owner be ordered to pay fines totalling $200.

4. The owner says the strata is out of time to file its dispute due to the 2-year limitation period set out in the Limitation Act (LA). Alternatively, the owner says he was not notified of the infraction until May 13, 2016 and that the strata did not follow proper procedures before imposing the fine. The owner asks that the strata’s claim be dismissed.

The tribunal found that the strata corporation began its enforcement action within the limitation period:

26. . . . I note the letter assessing the fine was issued on August 14, 2015 and assessed against the owners strata lot on September 1, 2015. Allowing a reasonable period time for the owner to pay the fine, I would not find the cause of action arose prior to September 1, 2015, which means the strata had to start the claim had to start by September 1, 2017. The claim was started within the 2-year limitation period.

But the strata corporation had failed to follow the statutory enforcement procedure:

33. That the owner admits to receiving the bylaw contravention letter by email on May 13, 2016 does not correct the procedure the strata is required to follow under section 135 of the SPA, given the fine had already been assessed in September 2015. In Cheung v. The Owners, Strata Plan VR 1902, 2004 BCSC 1750, the court found that a procedural error under section 135 of the SPA may be corrected by reversing the fines, and essentially re-starting the procedural requirements of section 135. That is not the case here as the fine was not reversed and the procedural requirements were not restarted.

34. Given my conclusion, the strata has not met its burden of proof that the owner received the bylaw letters at the material times of this dispute. I dismiss the strata’s claim for payment of $200 in bylaw fines.

Bylaws—enforcement—pet bylaw—unleased dog—statutory procedure

Himmelmann v The Owners, Strata Plan LMS 2064, 2018 BCCRT 426, concerned a dispute over enforcement of a strata corporation’s pet bylaw:

3. The strata assessed the owner’s strata lot two $200 fines for the tenant’s alleged contraventions of the strata’s pet bylaws. The tenant alleges the strata did not receive a complaint about the dogs and acted contrary to section 135 of the Strata Property Act (SPA) when assessing the fines.

4. The applicant asks for orders that the strata reimburse him $400 for the bylaw fines he paid and $9,000 for “his time, undue stress and opportunity costs.”

The strata property was “a 382-unit residential strata corporation located in Vancouver, B.C.”

The tribunal found that defects in the procedure used by the strata corporation in enforcing its bylaw led to the conclusion that it couldn’t collect its fines:

38. However, the procedure followed by the strata in assessing fines creates 2 fatal errors that I find deny the strata the ability to collect those fines from the tenant.

39. First, the evidence shows the strata did not give the tenant any written particulars of the complaint as it only wrote to the owner, contrary to section 135(e) of the SPA. It was not until the tenant requested a hearing to discuss the bylaw fines assessed against the owner’s strata lot that the strata wrote directly to him. While, the procedural defect could have been cured if the strata had reversed the fines, given the tenant written particulars of the complaint(s), with a copy to the owner and landlord, and given the tenant a reasonable opportunity to respond, that is not what occurred. (See Cheung v. Strata Plan VR 1902, 2004 BCSC 1750). I do not find that the procedural defect was cured when the hearing was held. Further, that the owner may have notified the tenant does not relieve the strata from notifying the tenant directly.

40. Second, I find the fines were assessed before the tenant was given the opportunity to be heard. As earlier noted, the September 5, 2017 strata council meeting minutes refer to a dispute about fines that had been charged.

But the tribunal dismissed the owner’s claims for compensation.

Bylaws—amendment—rental pool

Jedmen Holdings Inc v The Owners, Strata Plan NES 3120, 2018 BCCRT 425, was “a dispute about bylaw amendments and whether the strata corporation, The Owners, Strata Plan NES 3120 (strata), is making all owners subject to a rental management contract between the strata and a third party (rental manager) that should not apply to all owners.”

The tribunal characterized the strata property and its rental pool in the following terms:

10. The disclosure documents produced when the strata property was being built and marketed describe the strata as a “condominium hotel.” Other documents filed at the land title office describe the strata in the same way. Regardless of this description, the Strata Property Act (SPA) applies to the strata.

11. The strata is made up of 1 commercial strata lot, and 48 residential strata lots. The residential strata lots, including the owner’s strata lot, have restrictive covenants registered against them, that restrict the owners’ ability to rent their strata lots on a short-term basis, except through an agreement with the rental manager in an optional rental pool.

12. 28 of 48 owners participate in the rental pool. Each owner who participates in the rental pool has a separate agreement with the rental manager for their participation in the rental pool.

13. The strata owns the commercial strata lot, and leases it to the rental manager. The lease between the strata and the rental manager was provided as evidence.

14. The rental manager manages the rental pool. The rental manager also provides some services to the strata that are separate from the rental pool (other services). At least some of the other services, including creating new key cards for owners or their visitors, are provided to all owners, not just owners who are part of the rental pool.

The tribunal found that the strata corporation’s involvement in the rental pool wasn’t in the interests of all owners:

34. I find that by being a party to the [Master Rental Management Agreement] and by having the [Owners Rental Committee] be a committee of the strata council, the strata is involved in the management of the rental pool, which is not in the interests of all owners. I find, on a balance of probabilities, that the strata council is not able to act in the interests of all owners when it is involved in the management of the rental pool, because the interests of rental pool owners and non-rental pool owners sometimes compete.

This led the tribunal to conclude that the rental pool wasn’t enforceable:

38. Section 141 of the SPA explains that the strata cannot restrict the rental of strata lots, except to prohibit rentals, or place limits on the number of number of strata lots that may be rented. The MRMA places restrictions on the rental of strata lots in a way that is not permitted by section 141 of the SPA. I find that the MRMA is not enforceable.

In the result, the tribunal ordered:

  • the strata stop its involvement in the management of the rental pool,
  • the strata council stop having the ORC as a committee of the strata council,
  • the MRMA is not enforceable, and
  • the strata not enter into another agreement with any rental manager that deals with the rental pool.

Insurance—deductible—responsibility—burst irrigation pipe

In The Owners, Strata Plan EPS 518 v Litke, 2018 BCCRT 342, the applicant strata corporation asked the tribunal for “a determination of whether an owner is responsible for reimbursing the strata an insurance deductible that it paid”:

13. The strata admits that the water damage was not a result of the negligence of the owner. The strata also admits that the water damage was a result of a ruptured irrigation line on common property. They say that pursuant to section 158(2) of the Strata Property Act (SPA) they have the right to claim back the deductible from the owner. The strata also claims reimbursement for $790.56 legal fees incurred when they retained legal counsel to review and advi[c]e regarding case law presented to them by the owner’s legal counsel as well as $225.00 for tribunal filing fees.

In view of the strata corporation’s admissions, the tribunal found that it could not prove that the owner was responsible for the damage:

18. The strata must prove that the owner is responsible for the loss or damage that gave rise to the claim to be entitled to payment of its deductible by the owner. The strata has acknowledged that the loss arose from a faulty irrigation pipe on common property and has not provided any evidence of responsibility on the part of the owner. The cause of the loss did not originate with the owner’s strata lot or personal property. There is no evidence that the owner’s negligence or carelessness caused the loss.

19. I therefore find that the owner is not responsible for the payment of the insurance deductible.

Common property—definition—repairs and maintenance—retaining wall

In Erdmann v The Owners, Strata Plan KAS 2452, 2018 BCCRT 398:

2. The owner seeks a declaration that all assets built by the developer that support the strata lots, whether on common property or individual lots, are common property to be maintained by the strata. In particular, he says the retaining wall on the perimeter of his lot is common property to be maintained by the strata.

3. The strata disputes the relief sought by the owner. In particular, the strata says that all lots owners are responsible for the maintenance of their lots, including retaining walls on their property.

The case took place in a strata property described as follows:

12. The strata is a bare land strata and was created in November 2002. It consists of 37 lots and is located in Osoyoos, British Columbia.

The parties agreed that the retaining wall was located on the owner’s strata lot.

Since the strata corporation hadn’t agreed to take responsibility for property located on a strata lot, the tribunal found it was the owner’s responsibility to repair and maintain the retaining wall:

35. . . . at the August 30, 2017 SGM, the strata voted against assuming responsibility for the perimeter retaining walls. In his submission, the owner notes that he objected to the July 2017 motion to set the SGM for August 30, 2017 on the basis that he would be out of town until mid-September 2017. Nonetheless, the owner does not dispute the voting procedure deployed for the question, nor does he dispute the results. On my review of the minutes, I find that the voting procedure in respect of the question was consistent with bylaw 29, which outlines the voting procedure.

36. Further, as shown in photographs provided by the parties, the retaining wall is comprised of interlocking blocks and is not a continuous wall. As a result, the section of the wall on the owner’s lot provides support only to his property, just as the sections of it on the other lots provide support only to those respective lots.

37. I disagree with the owner’s submission that section 69 of the Strata Property Act somehow makes the wall common property. While section 69 does allow for an easement for each strata lot for vertical and sideways support by common property and for common property, it does not create common property.

38. In summary, given the evidence, I find that the owner is responsible to repair and maintain the retaining wall on the owner’s property. Accordingly, I dismiss the owner’s claim.

Common property—significant change in use or appearance—wooden septic tank cover

In Farrell v The Owners, Strata Plan K 414, 2018 BCCRT 369, the applicant owners asked for an order to remove a wooden cover that the strata corporation had installed on a septic tank:

3. This dispute involves the addition of wooden septic tank cover on common property adjacent to the respondent owner’s SL7 (cover).

4. The applicants say the cover approved by the strata is significant within the meaning of section 71 of the Strata Property Act (SPA) and that a 3/4 vote of the strata is required. They ask that that the cover be removed.

5. The strata denies the cover is significant and asks that the applicants’ claims be dismissed.

The dispute took place in “a 9-unit residential strata corporation located in Sicamous, B.C.”

The tribunal dismissed the applicant’s dispute, finding that the addition of the wooden cover didn’t amount to a significant change in the appearance of common property:

31. Here, the altered property is to the rear of SL7 between the building and fence. The dimensions of the cover have not been provided but from the photographs, I would estimate the cover to be approximately 8 feet by 12 feet standing approximately 1 foot above the ground. The ground below the cover is relatively level and appears from the photographs to be covered in gravel and large flat rocks, except for the septic tank access. There is a hinged access through the cover to access the septic tank lid located at ground level.

32. Given the location of the cover and based on the photographs provided, I find it is visible to SL7 and likely from the bathroom window of strata lot 8.

33. Except for SL7, access to the common property would be from behind the building between the building and a fence. SL 7 has access to the cover because of another alteration approved for an exterior door that is not the subject of this dispute. I understand that SL7 is the only strata lot with a rear exterior door and therefore find the change benefits only SL7.

34. I do not find that the cover causes a direct interference or disruption given access to the rear of the building can be made by either walking beside the cover or over it.

***

37. In the past, the strata says it has put decisions about alterations and other matters before the general ownership. This is evident from the May 2017 AGM minutes and the May 1998 AGM minutes that were provided as evidence. Examples include the removal of trees and stumps from common property, cancelling cable channels, installation of copper piping extending an exterior hose bib, removal of cedar shrubs, pumping of septic tanks to name several. None of these decisions were voted on.

38. The May 2012 AGM minutes say all owners were present and all approved the requested alterations to SL7. The applicants say the SL7 alterations were not voted on. However, from the examples cited above, I find it was common practice for the strata to approve matters affecting common property and common expenses by owner agreement without a vote.

39. Applying the above criteria, I find the change in use or appearance of common property caused by the cover was not significant. In reaching this conclusion I have placed significant weight on the fact all owners, including some of the applicants, were present at the May 2012 AGM and approved the changes, and that it was not uncommon for decisions to be made by the general ownership rather than the strata council.

Common property—significant change in use or appearance—cutting down trees

Tuddenham v The Owners, Strata Plan K 660, 2018 BCCRT 421, was a dispute over whether cutting down trees on a strata corporation’s common property amounted to a significant change in the appearance of that common property:

1. Does the cutting down of 12 pine trees by a strata corporation on its common property constitute a significant change in the use or appearance of that common property? If so, does it require prior authorization by resolution passed by a 3/4 vote of strata owners in a general meeting? Or is it a matter of repair of property which falls within the strata corporation’s mandate and requires no vote? That is the issue I have to determine on the facts of this case.

The tribunal noted the following background to this dispute:

8. The strata is a 40 unit townhouse development in the lower Mission area of Kelowna called Fascieux Creek. It was constructed in the late 1980’s and has mature landscaping. As with any construction of that age, there are ongoing issues with repair, maintenance and replacement that the strata must undertake from time to time.

9. The strata states that in early 2017 owners complained that roots from some pine trees were causing problems in crawlspaces of units. The strata council was advised by the strata manager that sales of units were failing to complete due to foundation and structural issues discovered during home inspections.

In the tribunal’s view, removing the trees was a significant change in the appearance of common property:

27. From a review these factors and of the photographs provided of the area where the trees were cut, I find as a fact that this tree-cutting was a significant change in appearance under Section 71 of the SPA. The area had mature trees that sheltered the adjacent townhouses. There are now stumps and no shelter. The change is highly visible to anyone who sees the stumps. The change is not aesthetically pleasing, and it detracts from the use and enjoyment of the adjacent units. I find it can easily affect the marketability and value of the adjacent townhouses. No evidence has been provided for any similar changes in the past. The test is met.

This change wasn’t authorized by a resolution passed by a 3/4 vote and the tribunal found it couldn’t be justified within the scope of the strata property’s duty to repair and maintain common property:

37. In this case, no evidence was provided that the strata member who instructed Aloha to cut the trees had any delegated or other authority to do so, and there was no evidence of any majority vote of the strata council to have the trees removed.

38. For these reasons, I do not need to consider whether, had the strata council decided by a majority vote to cut the trees, it would have been authorized by Section 72 to do so. The strata did not authorize cutting the trees. A person with no authority to do so arranged it.

39. Consequently, the tree removal was not lawful under the SPA or strata bylaws. It could only have been done lawfully with a prior 3/4 vote of all strata owners present at a general meeting.

The tribunal granted the applicants the following remedies:

41. Applying my discretionary authority to this case, I find that the strata is obliged to remediate the unlawful removal of the trees. As noted earlier, the strata has an obligation to repair common property. The scope of that duty to repair has been interpreted broadly. In the Frank case at paragraph 54, the court noted that the words “maintain” and “repair” are broad enough to include alterations of the finish or appearance. That will necessarily be the case here.

42. Applying that principle, I find that the remedies proposed by the applicants are a reasonable way to remediate. The strata will grind down the 12 stumps and plant 12 paper bark maple trees. I will not fix an amount for that work, but leave it to the strata to get quotations on the work and its cost. This work is to be done within 90 days of this decision.

Common property—fire-safety sprinklers—closet

The Owners, Strata Plan VIS 4925 v Stokhof, 2018 BCCRT 367, was a dispute over the installation of sprinklers in a strata-lot’s closet:

1. The Owners, Strata Plan VIS 4925 (strata) asks the Civil Resolution Tribunal (tribunal) to order the respondent owners . . . to install sprinklers in two closets in their strata lot (unit) or alternatively to grant the strata permission to install the sprinklers and charge the owners the cost of installation. . . .

2. The owners deny that their unit is in contravention of either any fire or City of Victoria regulations or the strata bylaws.

The tribunal found that there was a legal requirement to install the sprinklers:

25. I find that there is a legal requirement for the installation of sprinklers in the closets in the owners’ unit. This is set out clearly in the letter of the Chief Plumbing Inspector, Permits and Inspections, City of Victoria dated December 14, 2016. Not only does that letter confirm the requirement, it also expressly states that the only exception to the requirement for sprinklers in closets relates to hotels and motels, which is an answer to one of the owners’ defenses. This is a full answer to the exception claimed by the owners. There is nothing in the evidence that rebuts the content of this letter, which I accept as accurate and governing the present situation.

26. Further, I find that the December 14, 2018 letter from the City of Victoria which was delivered both to the owner and to the strata, is a notice from a public or local authority for the purpose of section 84 of the SPA.

The tribunal also found that, since the sprinklers would be considered common property, the strata corporation is liable to pay the cost of their installation:

33. The question arises as to whether the owners must pay for the work if they have the required sprinklers installed. The answer to this question is determined by whether the sprinklers are common property. If they are common property, then the strata is required to pay the cost of installation. In my view, the sprinklers are common property. While they are located in the owners’ strata lot, they are an extension of the fire protection infrastructure for the entire building. For this reason, I find that the cost of installing and maintaining the sprinklers is a cost of the strata no matter who initiates the installation.

Common property—repairs and maintenance—snow removal—parkade ramp—negligence

In van Bodegom v The Owners, Strata Plan LMS 2704, 2018 BCCRT 406, the applicant strata-lot owner claimed the respondent strata corporation was responsible for damage to the applicant’s car due to the respondent’s negligent performance of its duty to repair and maintain common property:

2. This dispute is about whether the owner or the strata is responsible for damage to the owner’s car caused when it came into contact with the strata parkade’s overhead door.

3. The applicant says he reversed down the ramp when, on December 31, 2016, when his car failed to “make it” out of the strata parkade. His evidence is that he decided to put the car in reverse and slowly back down the ramp. He contends that he would not have had to do so if the ramp had been properly cleared of snow and salted. He asks for an order that the strata remove the overhead gate repair levy from his account ($551.25), and pay for his car repairs ($2,665.85) and tribunal fees ($225.00).

4. The strata says the ramp was cleared of snow and ice at least twice that day, that there was a weather warning advising people not to drive, and that the applicant should not have reversed into the parkade door before it was fully open. The strata says it met its maintenance responsibilities regarding clearing snow and ice, and keeping the overhead door functioning normally. It asks that I dismiss the dispute.

The tribunal found that the strata corporation had met the standard of care in the circumstances:

30. I find that the strata met its obligation to maintain the parking ramp reasonably clear of snow and ice, by contracting with the site manager, who cleared the snow at least twice on New Year’s Eve 2016.

31. In making these findings I place particular weight on the evidence of at least 2 snow clearings by the site manager that day, along with salting and sanding the ramp, and in the context of residents having been cautioned by Environment Canada not to drive their cars in the severe winter conditions. Given the winter weather warning, I find that a reasonable person, using a car without four wheel drive and mountain snowflake (rather than only M & S) tires, would not have attempted to exit the parkade that evening.

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

Common property—repairs and maintenance—drainage pipe

Buschau v The Owners, Strata Plan LMS 1816, 2018 BCCRT 413, was a dispute over a strata corporation’s duty to repair and maintain common property:

3. The owner says the strata has failed to meet various duties under the Strata Property Act (SPA) and its bylaws. She seeks a number of remedies related to the expense of investigating and repairing drainage pipes, plus compensation for loss of use and enjoyment of her strata lot. The owner also seeks reimbursement of legal fees and expenses.

***

15. The owner says that since 2006, waste water has been backing up into the kitchen sink in her strata lot. She says the strata has been aware of this problem since then, but failed to properly investigate and repair it.

The tribunal ordered the strata corporation to investigate the applicant’s concerns:

42. Based on [the applicant’s engineer’s] expert opinion, I order that the strata, at its cost, engage a qualified contractor to expose the horizontal offset pipe below the owner’s floor. A certified engineer selected and paid by the strata (who may or may not be [the applicant’s engineer]) must inspect the pipe to determine if the slope is less than 2%, and if it is, the slope must be corrected at the strata’s expense.

The tribunal also found the applicant to be “entitled to $6,000 in damages for the strata’s failure to take steps toward a permanent repair of the drain problems after they became frequent rather than intermittent.”

Common property—repairs and maintenance—water ingress

In Fraser v The Owners, Strata Plan LMS 1023, 2018 BCCRT 423, the applicant strata-lot owners asked the tribunal for orders in connection with damages caused by water ingress:

2. The owners describe water ingress, mould, and ant infestation in their strata lot. They say the strata has failed to make proper repairs. The strata says that it made adequate repairs. The strata agrees to pay for ant extermination, but not for other claims by the owner.

The tribunal found that the respondent strata corporation had adequately carried out its duty to repair and maintain common property:

44. In the owners’ strata lot, the strata repaired the lower part of the north exterior wall. The owners are concerned that the repair might not prevent deterioration or damage in the future. Nothing in these reasons prevents the owners from reporting to the strata in the future if their strata lot needs repair then.

45. The strata also obtained its own report and is prioritizing repairs in the strata complex as its budget permits.

46. For the reasons discussed above, I find that the strata has made adequate repairs in the owners’ strata lot. The strata need not perform the specific repairs demanded by the owners to comply with the owners’ engineering report. I dismiss this aspect of the owners’ claim.

Common property—limited common property—parking stall

In Tan v Mermut, 2018 BCCRT 410, two strata-lot owners were locking in a dispute over a parking stall:

1. The applicant is the co-owner of strata lot 36 (SL 36) in the building of the respondent strata corporation, The Owners, Strata Plan LMS 2731 (strata). The respondent [strata-lot owner] (respondent owner) owns strata lot 42 (SL 42) in the same building. The applicant says that the respondent owner has wrongfully been using parking space #15, which the applicant says is designated as the limited common property (LCP) of SL 36. The applicant asks for an order that the respondent owner stop parking in parking space #15 and for an order that the strata enforce parking space #15’s LCP designation in favour of SL 36. The applicant also seeks reimbursement of legal fees and tribunal fees.

2. The respondent owner says when he bought SL 42, he acquired in the agreement of purchase and sale the right to use parking space #15 in exchange for parking space #31, the parking space designated as the LCP of SL 42. As such, he says the applicant should use parking space #31.

The tribunal found that the parking stall had been designated as limited common property for the benefit of the applicant’s strata lot and that this designation hadn’t been removed:

42. While I am sympathetic to the respondent owner’s position and acknowledge the hardship he says he will suffer if he is not able to park his work vehicle in parking space #15, I agree with the applicant that the applicant (and his co-owner) have the legal right to exclusively use that parking space.

43. Because parking space #15 is LCP allocated to SL 36, there would have to be some enforceable transfer of the legal right away from SL 36 or the applicant in order to affect the applicant’s right to exclusive use, such as a change in the LCP designation. The respondent owner pointed to his agreement of purchase and sale that made reference to a swap of parking spaces. However, a reference to a different parking space in an agreement of purchase and sale does not have the effect of changing legal rights as registered in the land title office.

***

49. I conclude that the applicant as a co-owner of SL 36, is entitled to the exclusive use of parking space #15 as the LCP of SL 36. I order that the respondent owner immediately stop using parking space #15 and cease doing so unless and until:

a. he receives an authorized licence to do so, or

b. parking space #15 is designated as LCP for the benefit of a strata lot that he owns or occupies.

The tribunal also ordered the respondent strata corporation to enforce this limited-common-property designation:

57. I order the strata to enforce the LCP designation of parking space #15. In addition I order the strata to enforce bylaw 49 to allow the applicant (or his co-owner or authorized tenant) exclusive use of parking space #15. Also, in order to eliminate future confusion, I order the strata to immediately correct the current parking rent roll to show that parking space #15 is assigned to and “owned” by SL 36 or Unit 219, in compliance with bylaw 59.

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

In Edgar v The Owners, Strata Plan LMS 2207, 2018 BCCRT 439, the applicant strata-lot owner asked the tribunal for orders in connection with balcony repairs:

2. This dispute involves payment for balcony repairs. The owner says the strata failed to repair balconies in the strata complex, which are limited common property (LCP), and failed to follow its bylaws in dealing with balcony repairs. She seeks various orders relating to balcony repairs, including reimbursement of $18,828 she paid for repairs to the balcony attached to her strata lot and $12,000 for costs related to LCP.

3. The strata admits that it failed to repair the balconies and failed to follow its bylaws, but disagrees about the appropriate remedies.

The tribunal described the strata property and its balconies as follows:

14. The strata complex consists of 7 townhomes. The parties agree that the balconies attached to the front of each strata lot are LCP. Sometime before December 2016, balcony damage was discovered. According to documents from the strata, water was seeping into the balcony structures, resulting in mold and mildew spreading to the adjacent garage ceiling.

The tribunal found that the owner was entitled to partial reimbursement for amounts she spent to repair her balcony:

32. The April 2018 SGM minutes show that the owners approved a $45,000 special levy for balcony repairs, to be paid only by the 3 strata lot owners whose balconies had not yet been repaired. The schedule included in the Strata Plan shows that each of the 7 strata lots has almost the same unit entitlement, so each of the 3 strata lots subject to the April 2018 special levy paid about $15,000. This is almost the same as the $15,246 paid by the owner.

33. In the circumstances, I find that it is reasonable for the strata to reimburse the owner $246 for balcony repairs. This makes her contribution to balcony repairs equal to the contributions of those owners who did not repair their balconies in 2017. The remaining 3 strata lot owners who paid to repair their own balconies in 2017 have not filed claims, and the evidence before me does not establish what they paid. Thus, I find their costs are not determinative of this dispute.

Common property—use—parking stall—fence

Parkinson v The Owners, Strata Plan VIS 5086, 2018 BCCRT 438, involved a dispute in “a 10-unit bare land strata corporation located in Langford, British Columbia”:

2. This dispute is about a fence and rock wall installed by the applicants on the strata’s common property and the use of a parking stall located on SL9 [the owner’s strata lot].

3. The applicants seek orders for permission to keep an existing fence and rock wall, the continued use of their parking stall, that the strata refrain from painting lines identifying common property boundaries, and that all bylaw fines assessed against SL9 by the strata be rescinded.

The tribunal found that the strata corporation had approved construction of the fence:

47. In its submissions, the strata admits the applicants were given permission to install a fence but says the permission was for a fence to be installed along common property but not on it. It is undisputed that the applicants’ letter submitted by their proxyholder at the March 2011 AGM, which details their request, has been lost and that a copy does not exist. Both parties rely on the March 2011 AGM minutes that state the applicants’ request for a fence was approved.  The actual language of the minutes is that the applicants’ request “to place a fence along the common property roadway, adjacent to their property” was approved. I find the statement at the end of the March 2011 AGM minutes is consistent with the applicants’ position and contrary to the strata’s position. The applicants did precisely what the minutes show and installed a fence along the common property roadway adjacent to their strata lot.

The tribunal came to the following conclusion on ownership of the enclosed common property:

59. Another issue created by the current situation is that of ownership of the enclosed common property. While the common property must be maintained and insured by the strata, every strata lot owner owns an undivided interest in the common property in proportion to the unit entitlement of their strata lot under section 66 of the SPA. This raises the question of access to the enclosed common property by every other strata lot owner in the strata.

60. Given the current circumstances, I find the situation must be corrected. However, I am not prepared to make either requested order. Instead, I adopt the view taken by the Supreme Court of British Columbia that the democratic government of a strata corporation should not be overridden by the court except where absolutely necessary and that it is important that owners in a strata corporation attempt to resolve their differences by following the procedures contemplated by their bylaws and the SPA. (See Foley v. The Owners, Strata Plan VR 357, 2014 BCSC 1333 at paragraph 30 citing Lum v. Strata Plan VR 519 (Owners of), 2001 BCSC 493.).

61. For me to make an order before the strata and applicants have properly considered available options would be to interfere with the democratic rights of the strata owners, given the options involve the either 3/4 vote or majority vote of the owners.

The tribunal found that the strata corporation couldn’t prevent the applicant from using the parking spot:

67. I find the evidence clearly shows that the City’s zoning bylaw required the parking space for the applicants’ house to be built. This is confirmed by the City staff in their email discussions with both parties’ representatives, and contained in both parties’ submissions relating to verbal conversations with City staff. Clearly, the house was built and therefore the zoning bylaw applies.

Finally, the tribunal set aside the strata corporation’s fines:

84. In all cases, there is no evidence to suggest the applicants were given an opportunity to respond to the allegations including the right to a council hearing as required under section 135 of the SPA. The sample letters provided simply noted the bylaw infraction and that a fine had been assessed. This alone is sufficient for me to find all bylaw fines invalid.

Strata lot—damage—nuisance—negligence—water leak

In Shura v The Owners, Strata Plan LMS 1104, 2018 BCCRT 339, the applicant strata-lot owner owned the strata lot below that of the respondent owners and:

Water leaked through the ceiling into the applicant’s unit and damaged his bathroom. He asks for the strata and respondent owners to pay for the repairs.

Based on an “inspector’s opinion,” the tribunal found “the water escaped from unit 702 and not from the common property.”

The tribunal found that the water escape constituted a nuisance:

34. [The respondent owner] has interpreted the inspection report to say that the leak had “absolutely nothing to do with” her unit. In my view, [he respondent owner] mischaracterized the inspection report. The report clearly says that the water came from her unit. The respondent owners did not provide any evidence from themselves or anyone else to refute the inspector’s opinion that the water escaped from their unit.

35. The inspector’s opinion, which all parties have accepted and relied on, determined that the damage caused to unit 603 came from an accidental water escape event from unit 702. I accept the inspector’s findings that there were no mechanical problems with the pipes or fixtures in unit 702 which would lead to a leak. With mechanical failures ruled out, I find it is more likely than not that the action or inaction of someone in unit 702 led to the water’s escape from the unit that damaged unit 603.

36. Given the damage to unit 603, I conclude that the escaped water constituted a nuisance. By allowing water to escape their unit, the respondent owners, or someone under their charge, substantially and unreasonably interfered with the applicant’s use and enjoyment of his property. As such, I find the respondent owners liable to the applicant in nuisance.

It also constituted negligence:

40. As noted, I accept the inspector’s finding that there was no mechanical failure of the pipes or fixtures in unit 702 that led to the water’s escape, such as a leaky toilet, shower or pipe. Further, I accept the inspector’s opinion that the damage caused to unit 603 was caused by an unknown isolated water escape event originating in unit 702. Without evidence of a mechanical failure or any evidence from the respondent owners as to the cause of the escape, the only reasonable inference is that someone in the respondent owners’ unit turned on the water in the unit and did not properly supervise its progress. By failing to track the water after turning the water on—whether that be an overflowed sink, toilet or bathtub—I find the respondent owners, or someone under their charge, breached the standard of care.

41. As noted in the applicant’s evidence and in the photographs provided, the amount of water that was allowed to seep into his unit was not a trivial amount. I find that it was reasonably foreseeable that allowing such an amount of water to escape the sink, bathtub or toilet in unit 702 could cause damage to the unit below.

42. With all of the necessary factors satisfied, I find that the respondent owners are liable to the applicant in negligence.

In the result, the tribunal ordered “the respondent owners must pay to the applicant $1,419.16.”

Strata lot—damage—negligence—water leak

In Wang v Kabli, 2018 BCCRT 338, the applicant strata-lot owner asked the tribunal for an orders that the respondent strata-lot owner “pay for the damage caused to his unit by a water leak from the respondent’s unit” and to compensate the applicant for “lost rental income.”

The tribunal found that the respondent’s actions amounted to negligence:

25. In my view, a reasonable response to finding water in one’s kitchen would be to immediately explore the cause of the escaped water and make efforts to ensure the problem did not continue and spread. One would expect an owner in such circumstances to turn off the water to the affected area, inspect areas in the kitchen where water could leak (such as the sink’s pipes), and immediately call a professional for assistance. In my view, an unreasonable response would be to do nothing to address the issue for 2 days.

26. I find the respondent took an unreasonable approach to the problem. The respondent found water in his kitchen on July 26, 2017. He did not obtain professional help until 2 days later. In the interim, there is evidence that people in his unit continued to use the sink where the leak was ultimately found.

In the result, the tribunal ordered the respondent to compensate the applicant as follows:

37. I order that, within 30 days, the respondent pay the applicant a total of $3,601.85, consisting of the following:

a. $2,999.43 for the repairs;

b. $350.00 for the lost rental income;

c. $27.42 pre-judgment interest pursuant to the Court Order Interest Act (COIA)

d. $225.00 for tribunal fees.

Strata lot—alteration—approval—sun tunnel

In Francoeur v The Owners, Strata Plan EPS 288, 2018 BCCRT 351, the applicant strata-lot owner asked the tribunal for an order allowing an alteration to the owner’s strata lot:

2. The owner wants to install a dome tube light, also referred to as a sun tunnel, in his strata lot. The owner was refused strata’s approval to install the sun tunnel. The owner is seeking an order that the strata allow him to install the sun tunnel.

The tribunal found that the strata corporation’s decision was reasonable in the circumstances of this case:

17. There is ample case law that a court or tribunal should be cautious in interfering with a strata council’s decision.

18. I find the roof is common property based on definition of common property under the SPA. Under section 72 of the SPA and bylaw 8, the strata is responsible for the maintenance of the roof. The installation of the sun tunnel will place a maintenance burden on the strata. I find that the strata is within their rights to refuse to take on this burden. Although the owner has offered to maintain the sun tunnel, the strata has refused this offer as they would have to take on the burden of monitoring the maintenance. I find the strata’s position is reasonable.

19. The owner has not provided information about how he came to the conclusion that the roof is no longer under warranty. As the strata is in the best position to access information about the warranty, I accept the strata’s evidence that the roof is under a warranty and that the installation of the sun tunnel will void the roof warranty.

Tribunal jurisdiction and procedure—discretion to hear dispute—former tenant—negligence—damage to car

Kelly v The Owners, Strata Plan K 218, 2018 BCCRT 412, was a dispute “about whether the strata is liable for alleged damage to a former tenant’s car,” which “also raises issues about strata governance and jurisdiction and procedure of the Civil Resolution Tribunal”:

3. The tenant claims his car was damaged by a contractor hired by the strata. The tenant says the strata is liable in failing to give prior notice about the contractor so the tenant could move his car. The tenant also claims the strata does not follow the Strata Property Act (SPA) and other laws such as privacy law and fire codes and requests orders requiring the strata to pay for damage to his car and to follow the SPA and other laws.

4. The strata says the correct procedures were followed and the tenant’s dispute should be dismissed.

The tribunal exercised its discretion to hear this dispute:

29. I find the same rule applies to a tenant [as to a former owner]. I find the tribunal has jurisdiction and can consider disputes filed by a former owner or tenant, so long as the owner or tenant was still an owner or a tenant living in the strata when the dispute was filed. As the tenant was living in the strata building when the dispute was filed on September 13, 2017, I find the tribunal has jurisdiction to consider this dispute.

In the underlying dispute, the tribunal dismissed the tenant’s claims regarding the strata corporation’s governance:

38. I find there is not a live dispute between the tenant and the strata concerning the strata governance issues in these circumstances when the applicant tenant has moved away and no longer lives in the strata. I find there would be no purpose in deciding strata governance issues in this dispute other than to “score points” for or against one or the other party in the dispute. In my opinion, that is not a proper use of this tribunal’s resources or within the mandate of the tribunal towards efficient and accessible justice. I find the use of tribunal resources for disputes such as this where there is no live controversy takes away resources from other live disputes waiting to be resolved. The tribunal’s resources are valuable and I find it would be wasteful for the tribunal to continue to apply resources on the dispute issues where the former tenant is not affected by the outcome.

The tribunal also found that the tenant was unable to prove that the strata corporation had been negligent:

50. I am unable to find the tenant has met the required onus to prove his case. Considering the evidence as a whole, I find the tenant has not proven the strata was negligent or failed to act reasonably. I find it more likely than not the strata provided notice of the contractor’s visit in the email notices on March 28, 2017. I have considered the tenant’s submission about whether the email was sent March 28 or 29, but find it is not material. The SPA section 61 (1) (b) (vii) specifically provides for notices to be sent by email to an email address provided for the purpose of receiving notices. Based on the evidence as a whole, I find the strata properly distributed notice as required by the SPA.

Tribunal jurisdiction and procedure—non-compliance—dispute heard without party’s participation

In Tsai v Huang, 2018 BCCRT 350, the underlying dispute concerned the applicants’ claim that “respondent repeatedly allowed a dog to urinate on a patio above theirs, and the urine falls onto the applicants’ patio and patio furniture.” The respondent did not comply with the tribunal’s directions, so much of the focus of this decision was on the tribunal to decide the claim in the absence of the respondent’s participation.

The tribunal found that it should exercise its discretion to hear this claim:

20. In weighing all of the factors, I find the applicants’ claims should be heard. In deciding to hear the applicants’ dispute I have put significant weight on the following factors:

a. the extent of the non-compliance is significant;

b. the applicants are not prejudiced; and

c. the need to conserve the tribunal’s resources.

The tribunal granted the requested orders to cease the conduct complained of and compensate the applicants:

34. I order that the respondent must not allow a dog to urinate on any patio in the strata.

35. I also order that within 30 days of this decision, the respondent must pay the applicants a total of $2,036.93, broken down as:

a. $288.75 for patio cleaning,

b. $1,523.18 for replacement patio furniture, and

c. $225 in tribunal fees.

 


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