CRT Roundup—common property, repairs and maintenance, insurance, finances, and more

CRT Roundup—common property, repairs and maintenance, insurance, finances, and more

October 26, 2017

BY Kevin Zakreski

This post is part of a monthly series summarizing the Civil Resolution Tribunal’s strata-property decisions. There have been 14 new decisions since the last post.

Limited common property—significant change in use and appearance—patios & governance—strata council—conflict of interest

Page v Section 1 of The Owners, Strata Plan NW 2099, 2017 BCCRT 84, concerned a dispute “about certain alterations to the limited common property patios of three residential strata lots in the section . . . . which sit underneath an outdoor gazebo or canopy.” “[A]t issue,” the tribunal noted, “are 2 change orders made after the original Project design: 1) the change from a wood to a steel trellised gazebo or canopy over the Patios, and 2) the placement of stairs that the applicant says extended the Patios out by 40” to the benefit of those 3 strata lot owners. The Project was approved by a 3/4 vote resolution of the owners. However, the Changes at issue were not approved by a 3/4 vote resolution.” The applicant strata-lot owner sought the following orders:

an order declaring that the section permitted common property alterations contrary to section 71 of the SPA. The owner also wants an order that a strata council member Frank Furesz was in a conflict of interest and benefitted from unapproved upgrades to his patio and canopy. The owner further wants an order that the section is not responsible to pay the additional costs of the upgrades.

The tribunal decided not to grant the requested orders. Regarding the conflict-of-interest allegation, the tribunal found that the council member’s involvement with the project didn’t rise to the level of a conflict:

all executive members are also owners and may benefit from decisions. Something more is required than the fact that Mr. Furesz might have received some benefit, in order to establish a conflict of interest. This conclusion is consistent with the court’s conclusion in Dockside Brewing Co. Ltd. v. Strata Plan LMS 3837, 2007 BCCA 183 (CanLII), and I agree with the respondent section that if the conflict provisions apply to any interest of a council member then the strata council’s work would be stymied because everyone would be in a conflict.

The tribunal also found that the two change orders (which involved moving the location of staircase and switching from wood to steel canopies) did not require authorization by a further resolution passed by a 3/4 vote.

Insurance—responsibility for payment of deductible—water leak (1)

In The Owners, Strata Plan VIS 6634 v Brown, 2017 BCCRT 86, the applicant strata corporation asked the tribunal for an order that the respondent strata-lot owner “is responsible to pay the remaining unpaid portion of the strata’s insurance deductible in the amount of $2,428.84.” The claim related to a water leak, which “[t]he parties do not dispute . . . originated from the owner’s refrigerator.”

The nub of the dispute in this case turned on the strata corporation’s bylaws. The owner argued that the strata corporation had amended its bylaws and “that the amendments in the bylaws, as written, imposed a finding of negligence, inadvertence or carelessness on the part of the owner for the occurrence which gave rise to the loss.” The owner further argued that she had met the relevant standard of care.

The tribunal found that the “bylaws” referred to by the owner hadn’t been filed in the land title office. The relevant bylaws were found in the Schedule of Standard Bylaws, which didn’t contain bylaw specifically addressing responsibility for payment of an insurance deductible.

In the absence of a specific bylaw, the tribunal found that the Strata Property Act’s provision on insurance deductibles governed:

I note that section 158(2) of SPA does not require a strata corporation, as a precondition to suing an owner to recover the deductible portion of an insurance claim, to have a bylaw that stating that an owner who is responsible for damage that originated in the owner’s strata lot is responsible to pay the insurance deductible.

In my view section 158(2) of SPA can stand on its own and can be relied on to allow the strata to sue the owner to recover the insurance deductible if the owner is responsible for the loss or damage that gave rise to the claim.

Insurance—responsibility for payment of deductible—water leak (2)

In The Owners, Strata Plan BCS 1589 v Nacht, 2017 BCCRT 88, the applicant strata corporation claimed that the respondent owners were responsible for damage caused by a pipe failure and were liable to reimburse the strata corporation for payment of its insurance deductible. The case turned on the interpretation of the strata corporation’s bylaws:

In this case, as in Morrison, the strata’s bylaw 4.4 specifies a specific type of responsibility which attracts liability, that being some affirmative act or a failure to act sounding in negligence, before an owner will be liable to indemnify the strata council for losses not covered by insurance.

However, this case contains the further indication in bylaw 4.4(b) that bylaw 4.4(a) does not limit, in any way, “the ability of the strata corporation to sue an owner pursuant to section 158(2) of the Act.”

If bylaw 4.4(b) was not present, I would have no difficulty concluding that here, as in Morrison, bylaw 4.4(a) would require proof of negligence on behalf of the owners if it were to recover the expense of the insurance deductible from them.

The question, therefore, lies in the effect of bylaw 4.4(b).

The tribunal found that the bylaws had the effect of requiring more than mere responsibility for the damage:

I find it is more likely than not that in adopting bylaw 4.4(a), the strata intended to ensure that unless an owner was at fault (in the sense of being negligent as described in Morrison) for the loss giving raise to the payment of the insurance deductible by the strata, the deductible would be treated as a common expense. I consider that the application of bylaw 4.4(b) was not intended to alter the standard for repayment of the deducible set out in bylaw 4.4(a), but was in fact intended simply to ensure that bylaw 4.4(a) was not removing the ability of the strata to sue an owner for repayment of a deductible, as provided for in section 158(2).

The strata corporation was unable to prove that the owners were negligent and the claim was dismissed.

Governance—strata council & common property—repair and maintenance

In Zhen v The Owners, Strata Plan BCS 1772, 2017 BCCRT 87, the applicant strata-lot owner claimed that there was “gross misconduct and negligence on the part of the strata council and its property manager with respect to governance of the strata and maintenance and repair of the building.” The applicant sought orders that the respondent strata corporation not use a specified contractor (referred to as “R”) for repairs, to confirm warranty coverage for the applicant’s strata lot, to recover a payment made to the contractor, to hire a new contract to carry out building-envelope repair at a specified cost, and to terminate its relationship with its strata manager.

The driving force behind the claims was the applicant’s partner, who had a fraught relationship with the strata council and the strata manager.

With regard to the repairs, the tribunal found “the applicant’s claims of substandard work and overpayment are without merit.” The tribunal noted:

The strata council members obtained three quotes and reviewed them. They obtained and checked references with respect to quality of work. They decided to proceed with a contractor who was licensed and insured, and who offered to do a wider scope of work for a price less than the other bidders. I find that a reasonably prudent person in similar circumstances would have done just what the strata council members did in this case, and that the strata did not act improperly in hiring R to do the exterior work.

The tribunal also dismissed the applicant’s claims of mismanagement:

The evidence submitted by both parties suggests that it is Mr. Kiss [the applicant’s partner] who fundamentally misunderstands the obligations and duties of the strata council and property manager. It indicates that he has resorted to any possible avenue to challenge or interfere with work being done to the strata building and the strata’s governance. When he has raised these concerns to the owners, they have considered his position and ultimately disagreed with him. This is reflected in the owners’ unanimous ratification of the council’s conduct at the 2016 AGM.

Common property—repair and maintenance—small strata corporation

The strata corporation at issue in Deane v The Owners, Strata Plan VIS 3224, 2017 BCCRT 90, consisted of two strata lots. The applicant strata-lot owners sought an order compelling the other strata-lot owners to “reimburse them 50% of the costs to repair an exterior wall of the building plus legal expenses and tribunal fees paid.”

The tribunal found the repairs to be necessary and the invoices for them to be reasonable. Even though the strata corporation consisted of a mere two strata lots, the act applies to it as it would to any strata corporation:

I have found the SPA applies to this dispute, the exterior of the south east wall of the building is common property and the strata is responsible to repair and maintain common property. That the strata has not historically paid for repairs to common property does not now excuse the strata from its statutory obligation to do so.

The tribunal concluded that the applicants were entitled to their order:

On review of the overall evidence and for the reasons set out above, I find the owners proceeded in a reasonable fashion to keep the Grahams informed and completed repairs that were the responsibility of the strata. Of significance is the fact that the strata was not following the requirements and provisions of the SPA, such that it did not conduct meetings, elect a strata council or adopt a budget. Given the position taken by the Grahams, I find it was necessary for the repairs to be completed to stop the water ingress from continuing.

Had the strata operated in accordance with the SPA, the strata’s costs would have been contributed to with each strata lot paying 50%. The evidence shows the owner paid the total repair costs for which the strata is responsible. It follows that the Grahams should reimburse the owner 50% of that amount, or $4,602.69.

Common property—repair and maintenance—dryer vents & proceedings before the tribunal—limitations

In Corner v The Owners, Strata Plan K 833, 2017 BCCRT 89, the applicant strata-lot owner claimed “that the strata is not properly managing dryer vent installation and cleaning and that she is entitled to reimbursement of amounts paid by her.” The claims related to various fees for the inspection of dryer vents connected to “old, existing stovetop exhaust vents and did not meet fire code because the pipes were undersized.”

The tribunal held that the claim for an inspection fee was barred by the Limitation Act because it was commenced more than two years after being discovered by the applicant. The tribunal found that the applicant would have been aware of her claim “when the applicant had to pay the strata for the cost of a professional inspection of her dryer exhaust vent in December 2013.” This was more than two years before the date on which the applicant commenced her claim (21 April 2017).

But the tribunal found that the strata corporation was not authorized under its bylaws to charge an administration fee. This fee was levied under what the tribunal found to be an unenforceable bylaw:

The strata must repair and maintain common property and common assets. (SPA s. 72(1)) The definition of “common property” includes ducts and other facilities for the passage of water, sewage, drainage, gas, oil, electricity, telephone, radio or other similar services, if they are located within a floor wall or ceiling that forms a boundary between a strata lot and the common property. (SPA s. 1, Definition of common property)

Therefore, by definition, the dryer venting ducts are common property because they are located between a strata lot and the common property roof.

The strata may, by bylaw, make an owner responsible for the repair and maintenance of common property, other than limited common property, but only if the regulations to the SPA permit it and subject to prescribed restrictions. (SPA s. 72(2)(b)).

At present, there are no regulations to the SPA that permit a strata corporation, by bylaw, to make an owner responsible for the repair and maintenance of common property. Therefore, bylaw 3.3 is contrary to the SPA because it makes owners of super suites responsible for the cost of cleaning common property dryer vents. I find bylaw 3.3 is unenforceable.

Common property—repair and maintenance—negligence—drain pipe

In Tam v The Owners, Strata Plan BCS 282, 2017 BCCRT 93, the applicant strata-lot owner sought “orders that the strata is responsible to repair damage to SL 29 resulting from the backup of water from the common property plumbing drain and that they be reimbursed for tribunal fees paid.” The owner alleged that the damage was due to “the strata and its plumbing contractor [being] negligent in not properly maintaining a common property drain pipe given the strata’s duty to repair and maintain common property.”

The parties agreed that the pipe was common property and its blockage had caused damage. At issue was the strata corporation’s regular maintenance plan, which the tribunal ultimately found to be reasonable in the circumstances:

the strata reasonably relied on the expertise of Werner Smith in determining what preventative maintenance work should be completed with respect to drain cleaning and the scope of work did not include the drain line.

The strata is not an insurer. The courts have found that a strata corporation, when repairing and maintaining common property, is not held to a standard of perfection but is required to act reasonably when fulfilling its obligations. If the strata’s contractor failed to carry out work effectively, the strata should not be found negligent if the strata acted reasonably in the circumstances. . . .

The standard of the strata when meeting its obligations to repair and maintain common property is therefore one of reasonableness. That Werner Smith did not clean all common property drain lines, and specifically the drain line, does not mean the preventative maintenance program adopted by the strata is unreasonable.

The tribunal found that the strata corporation wasn’t responsible to reimburse the owner for damage to the strata lot, except for an amount connected to an emergency repair call, which the strata corporation purported to charge back to the owner:

The owner has requested the strata be responsible for all costs related to the damages and repair of SL 29 and I infer that includes the emergency repair. expenses contained in the Platinum invoice.

As noted earlier, the strata does not have a bylaw that gives it authority to charge back a non-lienable amount to an owner’s strata lot or an owner’s account. Given that such a bylaw does not exist, I find the charge back of Platinum’s invoice to the owner’s account was not permitted and is therefore invalid.

In summary, I find that the owner is responsible for repairing the damage to SL 29 caused by the blocked drain line, save and except the $955.74 paid by the strata for emergency repairs completed by Platinum.

Common property—repairs and maintenance—window washing

Mellor v The Owners, Strata Plan VIS 2316, 2017 BCCRT 92 was a dispute “about whether the 26-unit largely single-story strata is responsible for window cleaning as part of its responsibility to repair and maintain common property.” The tribunal described the composition of the strata property as follows:

The strata is comprised of 26 units in 9 buildings. It is undisputed that 22 of those units being a single story where windows can be reached with a stool or stepladder by the owner. The owner’s unit 302 is 1 of 4 two-storey strata lots. The strata has no limited common property.

The strata corporation’s bylaws were the standard bylaws.

The tribunal found the strata corporation to be responsible for window cleaning:

Strictly speaking, cleaning may not appear to fall within the common definition of maintain, which is to keep something in good working order but also includes “keep in proper condition.” It may be that window cleaning does not affect its function or performance, although as noted above the BC Housing documentation submitted appears to suggest that it could. In any event, there are a variety of things a strata does in maintaining common property that would appear to be primarily for aesthetic reasons, such as regular lawn mowing or weeding of garden beds or cleaning up transient litter from common areas. Overall, given the case law and the evidence submitted, I find that cleaning falls within the common sense meaning of “repair and maintenance.” Given bylaw 8, I find the strata is responsible for the exterior window cleaning in the strata.

The tribunal ordered the strata corporation to “implement a reasonable exterior window washing schedule within 30 days of its next annual general meeting.”

Reimbursement for repairs—windows

In Atlas v The Owners, Strata Plan 991, 2017 BCCRT 96, the applicant strata-lot owner asked the tribunal for “reimbursement of $16,511.25 she says she spent on replacing the windows of two enclosed balconies that formed part of her strata lot.” The owner was suffering from water entering her strata lot through the windows. After investigation and ineffective repairs, the owner received “permission to undertake repair work on the windows on both of her balconies.” Later, as a result of continuing water issues, the strata corporation “approved the enclosure of all the building balconies,” with the result that “the windows that the owner had paid to be replaced were all removed.”

In the tribunal’s view, “this is not, however, a dispute over the strata’s responsibility to repair balconies. Rather, this is a dispute about the strata’s responsibility to reimburse the owner for the expense of replacing windows that formed part of her balcony enclosures.”

The tribunal decided that the strata corporation’s bylaws led to the conclusion that the strata corporation wasn’t required to reimburse the owner in this case:

In sum, I find that the bylaws of the strata provide a clear answer to the owner’s claim in this dispute. In my view, the unambiguous meaning of the bylaws is that maintenance and repair of windows that form part of a balcony enclosure improvement is the responsibility of the individual strata lot owner, not the strata. As the owner is seeking reimbursement for repair/replacement of her balcony enclosure windows, I find that her claim must fail.

Governance—access to records—contracts—significant unfairness

In Wang v The Owners, Strata Plan LMS 2970, 2017 BCCRT 97, the applicant strata-lot owner claimed the respondent strata corporation had treated her with significant unfairness in setting conditions on her access to strata-corporation records concerning a contract for the rental of water-treatment equipment. She also claimed that the strata council didn’t have authorization from the owners to enter into that contract.

The tribunal noted that there “are 3 issues that concern access to records and documents”:

• Was it reasonable for the strata to require the owner to be supervised while inspecting records and documents?
• Was it reasonable for the strata to limit the inspection periods to one hour increments or should other arrangements have been made to accommodate the owner’s request?
• Was the owner denied access to certain records and documents and did the strata meet the time limits provided in the SPA?

“While the SPA is silent on the issue” of supervision, the tribunal found “it reasonable for a strata to maintain security over its original records and documents. Here, the owner was not asked to pay for the supervision and was not charged for inspecting the records, which is consistent with the SPA that does not allow a strata to charge for inspection. Therefore, I find the actions of the strata requiring supervision of its original records to be reasonable.”

But the tribunal did find the strata corporation’s imposition of a one-hour time limit to inspect records concerning:

The SPA is silent on the issue of limiting the amount of time an authorized person can inspect records. Absent any statutory guidelines, it is my view that the strata must be reasonable in establishing any time limits for inspection of records and documents based on the circumstances at hand. Some factors that should be considered include the specific records and documents requested and the number of, if any, prior requests made by the same individual. While the strata’s cost to provide access to the requested documents should also be considered, cost cannot be the sole determining factor given the SPA does not permit the strata to charge for inspection.

***

Given there appears to have been options available to the strata to arrange for supervision of the inspection, the large volume of records requested that could not possibly have been reviewed in a short period of time, and that the owner had to take 8 vacation days from her employment to complete her inspection, I find the actions of the strata in limiting the owner’s access to 1-hour increments to be burdensome, harsh and wrongful and therefore, significantly unfair.

I see no reason why the timeframe of the inspection arrangements could not in future be extended to 4 or more hours at a time so as to allow the owner sufficient time to complete her inspection in 2 or 3 days rather than 8 days. To this end, the owner should give the strata reasonable notice of the estimated time she requires for such an inspection, so that the strata could make the appropriate arrangements. Nothing in this decision changes the strata’s obligation to provide the documents for inspection within the two-week timeframe set out in the SPA.

Finally, the tribunal found that the strata corporation had also effectively denied the owner access to certain records through delay.

On the issue of authority to enter into the agreement itself, the tribunal found that “section 38 of the SPA gives it permission to enter into the agreements.”

In the result, the tribunal ordered the strata corporation to comply with section 36 of the Strata Property Act and that “with respect to inspection of its records and documents, the strata”

• May, at its discretion, require the inspection to be supervised,
• May set a reasonable time limit for the inspection considering the circumstances of the request, and
• May not deny multiple inspections of the same record or document.

The owner’s other claims were dismissed.

Special levy—unauthorized expenditures—roof

In Mbolekwa v The Owners, Strata Plan LMS 3719, 2017 BCCRT 95 insert link, the applicant strata-lot owners claimed “the strata exceeded its authority and breached the Strata Property Act (SPA) when it made expenditures from a special levy that the applicants claim were not authorized by the resolution.” They also claimed that the strata corporation denied them access to records and hampered their ability to make their concerns known to other owners. They sought an order compelling the “strata to refund the total amount of the unauthorized expenditures to all of the owners.”

The gist of the applicants’ concerns was:

the resolutions authorizing the special levies were for roof replacement, eaves and enhanced insurance and any surplus must be returned to the owners in accordance with the SPA. The applicants claim that council acted beyond the scope of its authority and breached the SPA by not making expenditures from the roof contingency without informing strata owners in advance and thereby giving owners an opportunity to have input on the decision to use funds from special levies for non-emergency items that are not the roof, eaves or insurance. The applicants claim that the expenditures from the roof contingency were unapproved expenditures because they were not specified directly in the resolutions and, as ‘unapproved expenditures’ the strata did not follow the SPA to approve them.

The tribunal declined to accept this reasoning:

the applicants claim that the expenditures made by the strata from the roof contingency are unauthorized because these expenditures were not “explicitly stated in the resolutions.” I cannot agree that the resolution must include absolutely every possible expenditure that may arise for the purpose set out in the resolution. I do not believe that is what is required by section 108 of the SPA. To anticipate every possible expenditure for a project of this size and scope is not possible or reasonable. To include in a resolution the explicit wording for every possible expenditure in order for the expenditure to qualify as meeting the purpose of the resolution is beyond the requirements of section 108 of the SPA.

The applicant’s other claims based on this purported unauthorized expenditure were also dismissed.

Finances—expenditures from the contingency reserve fund—legal fees

Chao v The Owners, Strata Plan LMS1509, 2017 BCCRT 99, involved a strata property that had fallen “into disrepair as a result of water ingress.” Its owners were at odds on how to proceed. At a special general meeting, a 3/4 vote resolution to retain a lawyer was defeated. With a petition to appoint an administrator coming on quickly for a hearing, the strata council decided to retain a different lawyer. This was paid for out of the strata corporation’s contingency reserve fund “initially,” but was ultimately allocated against the strata corporation’s operating budget.

The tribunal noted three issues for resolution:

• whether the strata council acted improperly in retaining legal counsel for the strata to attend at the hearing of a Petition brought by some of the owners to have an administrator appointed, in the context of significant and expensive repairs needed to address water ingress problems;
• if so, whether the strata acted appropriately in allocating those expenses to the operating fund under a budget line item for legal expenses and;
• whether the individual respondents are personally liable for a proportionate share of the legal expenses related to the Petition.

The tribunal found that the council hadn’t acted improperly in retaining a lawyer:

Based on the nature of an application to appoint an administrator, which clearly impacts the strata, and on the direction that there is a duty to obtain proper representation . . . I find that it was appropriate for the strata council to retain a lawyer to appear at those proceedings on behalf of the strata, even though a 3/4 resolution did not pass in respect of a similar proposal earlier.

While the tribunal did find that “using the CRF funds was not appropriate, because the purpose did not meet the criteria in SPA s. 96 for a 3/4 vote, nor did it fall under an emergency exception,” it ultimately held that the expenditure was properly paid for out of the operating fund:

While it is preferable not to use the CRF as a borrowing source and retroactively apply an invoice against a budget line item, the situation here appeared to involve a stalemate on how to proceed with repairs, which extended to a practical inability to pass a 3/4 resolution, leaving the strata council in the unenviable position of considering how to fulfil their duty to obtain appropriate representation for the strata on the Petition.

I find that the application of the expenditure of $33,072 against the operating fund as part of the majority approved budget line item for legal expenses of up to $50,000, was appropriate and consistent with SPA s.97(b)(i) which provides that expenditures from the operating fund can be made if authorized in the budget.

On the final issue, the tribunal found that “the strata council members acted honestly and in good faith, and therefore cannot be personally liable even if they were wrong to retain and pay [the lawyer].”

Nuisance—noise—air conditioner

Raincock v Burton, 2017 BCCRT 91, involved a two-unit, duplex strata corporation. Both strata lots were serviced by air conditioners, located side by side on the strata property’s roof. One strata-lot owner asked for an order against the other owner that her air conditioner “causes noise and vibrations and that [it] be relocated to a ground location.” This other owner made counterclaims based on what she characterized as retaliation.

The tribunal declined to make the order, citing a lack of evidence that the air conditioner was causing a nuisance:

Ms. Raincock has not discharged the onus on her to prove that the Burton AC causes unreasonable noise or excessive vibration. Based on the evidence before me, I find that the Burton AC is not defective and does not cause noise or excessive vibration.

The tribunal also concluded that the evidence supplied on the counterclaims regarding retaliation wasn’t sufficient to support any of the orders requested. The tribunal did make the following general comments on the nature of duplex strata properties:

I reiterate that living in a duplex can be strained and very stressful if the residents are not getting along. In delivering this decision and making orders, I have not intended to criticize either owner for their conduct. I have attempted to make the future easier for owners living so close together in the future. They do not need to be friends, but they do need to respect and be civil with each other

Nuisance—noise

In A.P. v The Owners, Strata Plan ABC, 2017 BCCRT 94, the applicant strata-lot owner claimed that the respondent strata corporation had failed to enforce its nuisance bylaw with respect to the owner’s complaints about noise from a neighbouring strata lot and had failed “to properly investigate and respond to the owner’s noise complaints about unit 801, noting in particular that since January 2016, the unit 801 owner has been a strata council member.”

The tribunal found that the owner had failed to provide evidence of any negligence or bad faith in the strata corporation’s investigations:

I turn first to the owner’s allegation that the strata was improperly investigating itself, given the unit 801 owner was a council member since January 2016. I find this allegation is not proven, simply because there is no evidence to contradict the strata’s evidence that the unit 801 owner did not participate as a council member in the noise complaint investigation or in the strata’s decisions. . . . The owner has not provided any evidence to suggest the strata has been improperly swayed by unit 801, other than speculation and his interpretation of the strata’s position that to date has not substantiated the owner’s noise complaints. Based on the evidence before me, I find the strata has not failed to act in good faith. I say the same of the owner’s broad allegations that the strata has been negligent in its investigation of the noise complaints. While it might have been easier to adjudicate this dispute if the strata had maintained more internal documentation of its investigation, there is no requirement for the strata to document the investigation and the evidence above simply does not support that negligence allegation. . . .

Further, the owner wasn’t able to point to any objective evidence of nuisance:

The primary and significant challenge for the owner is that, with perhaps the exception of January 16, 2016, he has failed to contact the strata while the noise was occurring, even after being given phone numbers to do so. Based on the owner’s own log that he later provided, there were a number of occurrences where the alleged noise occurred during the daytime or early evening, and yet he did not contact the strata. I find that based on the owner’s own evidence, he invited the strata to unit 701 only three times (November 2015, January 16, 2016, and November 2016), and on 2 of those occasions they attended (November 2015 and for the November 2016 noise testing). Overall, I find the owner has not provided an adequate explanation for why he did not contact the strata to witness the noise first-hand on the alleged numerous other occasions, given his evidence that the noise continued essentially daily.

In the result, the tribunal dismissed the claim.

Limited common property—parking stall—access

In Kuo v The Owners, Strata Plan LMS 4350, 2017 BCCRT 98, the applicant strata-lot owner claimed “the strata has mistakenly used one of his parking stalls for storage and refuses to remove the stored items.” He asked the tribunal for “an order that the strata give him 24 hours’ notice to access his parking stalls and that he should be reimbursed for tribunal fees paid.”

While the strata corporation appeared at the hearing, it “did not provide submissions with respect to the owner’s claim for advance notice and reimbursement of tribunal fees paid.” Since it didn’t “[dispute] any of the owner’s evidence or submissions,” the tribunal “accept[ed] the owner’s submissions for that reason.”

“While it is not clear why the strata may still require access to the owner’s LCP parking stalls,” the tribunal decided, “to give the order requested by the owner as it is most certainly reasonable.”