CRT Roundup—repair and maintenance, bylaw enforcement, and more
November 30, 2017
BY Kevin Zakreski
Repair and maintenance—solarium
In Allard v The Owners, Strata Plan VIS 962, 2017 BCCRT 111, the respondent strata corporation “entered into a renewal project of its building, which includes the replacement of windows and frames.” This led to a dispute between the parties over “whether the strata must include the [applicant owner’s] solarium in the renewal project and replace windows and frames, or alternatively whether the strata must enter into negotiations with the owner about other solutions.”
The installation of the solarium by a previous owner was apparently controversial and the strata corporation insisted that their approval was granted “based upon a number of conditions,” including the strata-lot owner’s agreement “they would be responsible for any future repair and maintenance.” But the strata corporation wasn’t able to produce any such agreement. The strata corporation amended its bylaws in 2016, providing among other things that “[a]n owner shall repair and maintain an alteration to the common property, limited common property, strata lot or a fixture made by an owner or his or her predecessor no matter how often the repair or maintenance occurs.”
The tribunal found that the bylaw amendment didn’t cover this case and that the strata corporation was responsible for the solarium’s repair and maintenance:
the November 2016 bylaw amendment was aimed directly at the owner and instituted after the owner commenced his claim before the tribunal. In those circumstances, I find that the November 2016 bylaw is retroactive as it pertains to the owner with respect to the present claim before the tribunal, and cannot apply to require the owner to be responsible for the repair and maintenance of the solarium, for the purposes of this decision.
The repair and maintenance of the solarium for the purposes of this decision is governed by the February 2015 bylaws. The bylaws passed November 2016 are enforceable, but not with respect to repair and solarium when the renewal project was conducted. The solarium is an attachment. I therefore order that the strata was responsible for the repair and maintenance of the solarium when the renewal project was conducted.
But that didn’t conclude the matter, as the tribunal also found that the strata corporation had reasonably determined that the solarium shouldn’t be included in the renewal project:
I find that the solarium was not included in the renewal project and that is was reasonable that the solarium not be included. The solarium is not in need of repair, maintenance or replacement. The solarium was installed 16 years after the construction of the building.
And, further, the strata corporation’s decision wasn’t significantly unfair to the owner. In view of its conclusions, the tribunal recommended that a “dialogue” take place between the strata corporation and the owner about future repair and maintenance for the solarium.
Bylaws—hearing—seizure of personal property
Chafeeva v The Owners, Strata Plan NW 3353, 2017 BCCRT 101, was a dispute over enforcement of bylaws and seizure of personal property. The tribunal spelled out the claims of the applicant tenant and respondent strata corporation as follows:
The tenant claims that the strata seized her personal property without authority and when she requested a hearing with council, the council refused to hold a hearing. She claims that her request for information from the strata about alleged bylaw contraventions was ignored. She wants to retrieve her personal property and get reimbursement for bylaw fines. The strata claims that the tenant’s use of the common property for storage was unauthorized. The strata claims its actions were appropriate.
There was a lengthy background to the dispute, which the tribunal related in detail. The tenant had a part-time job with the strata corporation, which gave her access to a “common property electrical room.” She stored some items of personal property there.
After a change in the strata council’s composition, the tenant’s position was terminated and she was denied access to the electrical room. She also had a falling out with the strata council’s new president.
Despite repeated requests, the tenant was never granted access to the electrical room to retrieve her belongings. She was also denied a hearing to discuss this matter and an alleged bylaw contravention involving the removal of notices from common property.
There is no evidence why the tenant was denied access to her personal belongings. There is no evidence that anyone else laid claim to these items. The strata notified residents that items stored on common property not in storage lockers or bicycle lockers had to be removed by a specified date. There is no evidence that anyone else was denied access to their items stored in other areas of the common property. The council knew that the tenant needed a key to access the 7th floor electrical room to remove her belongings. When the deadline passed, council told her she was too late and refused to allow the tenant access. Council told her that these things would be discarded.
Finally, the tribunal found that removing a notice could not be characterized as a nuisance or an unauthorized alteration of common property, and therefore was not a contravention of the strata corporation’s bylaws.
In the result, the tribunal ordered that the strata corporation
- return to the applicant all personal property belonging to the applicant it has in its possession;
- credit the applicant’s strata lot $100.00 being the amount of the fine levied for the alleged breaches of bylaws the respondent was not entitled to levy;
- reimburse the applicant for filing fees and expenses.
Repair and maintenance—common property—dryer vent—booster fan—damage to strata lot
McKellar v The Owners, Strata Plan LMS 3317, 2017 BCCRT 123, involved a claim that the strata corporation “has failed to properly repair and maintain a common property dryer vent associated with their strata lot resulting in damage to #701 [the applicants’ strata lot]. The applicant strata-lot owners asked the tribunal for orders “that the strata replace the booster fan the strata installed, permanently repair the dryer vent and damage resulting from dryer vent condensation in #701.” The strata corporation argued that “replacement of the booster fan is the owner’s responsibility” and that “the applicants failed to properly maintain the booster fan causing it to breakdown thereby creating the recurring problem with condensation in the dryer vent.”
The strata property “comprises one 11 storey, mixed used building.” The dryer vent “runs through the concrete slab that forms the boundary between #701 and the strata lot above it, beginning inside #701 and exiting in #701’s balcony soffit.”
The building had a history of problems with condensation in some of the dryer vents, including the owners’. This led to the installation of booster fans. Ultimately, the fan broke down, the vent became full of condensation, and this led to water damage and to mould appearing on the strata-lot’s ceiling.
In coming to its decision, the tribunal reviewed responsibility to repair and maintain the dryer vent and the fan, the level of maintenance required, and responsibility for damage caused to the owners’ strata lot.
The tribunal found that the dryer vent was common property, which the strata corporation must repair and maintain:
Under section 72 of the SPA the strata must repair and maintain common property. This obligation is subject to a bylaw which requires a strata to take responsibility for repair and maintenance of specified portions of a strata lot. The strata has no such bylaw. Therefore, I find the strata is clearly responsible to repair and maintain the dryer vent.
The booster fan was also found to be the strata corporation’s responsibility to repair and maintain:
the strata’s contractor, National Air, essentially says the dryer vent cannot perform properly without a booster fan because of its length. I have found earlier that the dryer vent is common property and that it is not in need of repair. The strata has not offered to re-design or otherwise modify the dryer vent to allow proper performance but has relied on National Air’s recommendation to install a booster fan. It is not unreasonable for the applicants to expect a common property dryer vent to perform properly. If the strata chooses to install a booster fan to meet that expectation, rather pursuing some other means of achieving proper performance of the dryer vent, it follows that the strata should be responsible for the installation, repair and maintenance of the booster fan.
But “there is insufficient evidence for me to conclude that the installation of a booster fan is not a permanent solution” to the condensation issue.
Finally, the tribunal found that the strata corporation and the owners shared responsibility for damage to the strata lot: “the applicants are responsible for 75% of the damage and mould remediation of #701 and the strata is responsible for 25%.” In coming to this allocation of responsibility, the tribunal noted that the owners had repeatedly delayed taking steps to address problems from the vent or to notify the strata corporation of those problems.
In K.Y. v The Owners, Strata Plan LMS XXXX, 2017 BCCRT 102, the applicant owner asked the tribunal for “a retraction and an apology from the strata for allegedly falsely claiming he did not attend a strata council hearing and for denying him the council hearing, contrary to the requirements in the strata’s bylaws and the Strata Property Act (SPA).”
The hearing concerned an alleged bylaw contravention “with respect to disposal of renovation materials in the garbage room.” The strata council decided not to pursue the alleged contravention and advised the owner “to disregard the letter.” But there followed considerable back-and-forth communication over whether the strata corporation had “rescinded” the letter and the status of the hearing.
The tribunal characterized this communication as being shot through with misunderstandings, but found that the strata corporation had failed, at any point, to actually extend an invitation to a hearing:
There is no dispute that the owner did not attend that December 19, 2016 council meeting. Ultimately, this dispute entirely turns on the fact that the strata did not expressly extend an invitation to attend it.
The misunderstanding between the parties is unfortunate. Arguably, the strata believed that the owner was advised that the hearing opportunity was at the December 19, 2016 council meeting, given the minutes from that meeting to that effect.
However, I find the strata manager ought to have clearly stated that the council hearing requested would be held on December 19, 2016 at the scheduled council meeting. The fact that the owner’s representative wrote again on December 12, 2016 suggests she was waiting for a formal invitation, which may have stemmed from the manager’s phrasing “can certainly advise,” as though council would still determine whether the owner could in fact attend.
Ultimately, the owner’s representative had made 2 requests for a hearing and did not receive a clear invitation in response from the strata. On balance, I find the strata failed to reasonably inform the owner’s representative of the council hearing, namely the December 19, 2016 council meeting. That being the case, I also find the strata failed to hold a council meeting to hear the applicant, as required by section 34.1 of the SPA. I say this because I find the owner’s representative could not reasonably have been expected to attend the December 19, 2016 council meeting based on her communications with the strata to that point.
Turning to remedies, the tribunal declined to order the strata corporation to apologize to the owner. It did order the strata corporation to “state in its next council meeting minutes that the previous references to the owner’s failure to attend a council meeting were inaccurate as the owner had not been clearly invited to attend and thus had not understood he should attend on December 19, 2016” and to reimburse the owner for tribunal filing fees and related expenses.
Common property—repair and maintenance—heat pumps, plumbing, wiring, ducting, interior gas fireplaces
Newman v The Owners, Strata Plan EPS 680, 2017 BCCRT 122, was a dispute over whether specified items of property were common property or part of a strata lot, and whether the strata-lot owner or the strata corporation was responsible for the property’s repair and maintenance. The strata property was a development “comprised of 21 townhouse strata lots.” The items of property at issue were heat pumps located on either common property or limited common property, the plumbing, wiring, and ducting connected to the heat pumps as part of the HVAC system, and gas fireplaces located within the strata lots.
The applicant owner argued that (1) the heat pump associated with his strata lot was his property and he had the responsibility to repair and maintain it; (2) the plumbing, wiring, and ducting were common property that the strata corporation was responsible to repair and maintain; and (3) the gas fireplace was his property, which he was responsible to repair and maintain. The strata corporation asserted that all these items of property were either common property or “treated” as common property and asked for clarification on the responsibility to repair and maintain the property.
The tribunal found that the heat pump at issue was located on common property or limited common property and it was the strata corporation’s responsibility to repair and maintain it:
All of the heat pumps are on common property. Based on my review of the marked up copy of the strata plan some of the heat pumps happen to be on a portion of the common property to which a limited common property designation is attached.
I find that the placement of any of the heat pumps on any common property designated as limited common property does not change the fact that the heat pumps form part of the common property rather than part of a strata lot.
Section 72 of the SPA says that the strata must repair and maintain common property. Based on my finding that the heat pumps are part of the common property of the strata I find that pursuant to section 72 of the SPA and bylaw 16(1)(d) that the strata is responsible to repair and maintain the heat pumps.
The tribunal also found that the plumbing, wiring, and ducting was part of the common property:
I am however prepared to acknowledge that these components pass under a portion of the common property and also pass through the building envelope where they would connect to the heat exchanger in a strata lot. Based on my review of the strata plan and the definition of common property in section 1(1) of the SPA I find that the building envelope is also part of the common property of the strata.
I also find that these components are integral to the operation of the heat pumps as part of the mechanical heating system of the development and are common property.
The strata corporation was responsible to repair and maintain this property.
Common property—nuisance—noise—hot-tub pump
While the tribunal didn’t find that the strata corporation had “acted dishonestly or in bad faith” in dealing with the owner’s concerns, it did fail to carry out a suitable inspection of noise that the tribunal characterized as a nuisance:
Overall, I find the ongoing noise from the Pumps constitute a nuisance for which the strata is responsible, given the hot tub and Pumps are together a common asset the strata is obliged to manage and maintain. I also find that the strata has failed to conduct an appropriately complete investigation of the owner’s noise concerns about the Pumps.
Bylaws—enforcement—alteration to strata lot—fines
The Owners, Strata Plan NW 2170 v Broadbent, 2017 BCCRT 114, concerned a dispute over “a renovation project . . . completed in the owner’s strata lot,” which “involved the widening of the walkthrough doorway between the dining room area and the kitchen area of the owner’s strata lot.” The strata property was “made up of a number of townhouses style residences.” The applicant strata corporation asked for an order “requiring the owner to pay for the cost of an engineering inspection of the renovation and an order requiring the owner to pay all of the cumulative bylaws fines the strata has levied against her strata lot for her breach of strata bylaw.” The strata-lot owner counterclaimed, seeking an order that “the strata has proceeded against her in a manner that is frivolous, vexatious, and in a conflict of interest,” among other orders.
The tribunal found that the owner was in breach of the strata’s bylaws by “completing the renovation without obtaining such written approval prior to doing so.” The strata corporation acted reasonably, in view of “the strata’s duty to maintain the structure of not only the general buildings of the strata but also the structure of the individual strata lots as set out in bylaw 9” and the owner was found liable for the cost of that report. The strata corporation made a “clumsy” attempt to impose fines on the owner, which failed to comply with the procedure set out in section 135 of the Strata Property Act. The tribunal “dismissed” these fines.
On the owner’s counterclaims, the tribunal found that the strata corporation had acted in good faith and refused to grant the owner’s requested orders.
In The Owners, Strata Plan LMS XXX v D.B., 2017 BCCRT 117, the applicant strata corporation alleged “the respondent owner D.B. (owner) has repeatedly failed to comply with the strata’s noise and nuisance bylaws, including by permitting a visitor known as R to violate the bylaws,” and asked the tribunal for an order “to pay associated fines totaling over $3,000.00.” The respondent owner suffered from “impaired capacity” and was represented by her mother.
The tribunal found that the nuisance claims related to noise were made out, despite the respondent’s mental disability:
In particular, while I acknowledge the owner has a mental disability that causes her to have loud outbursts, I find her disability in the circumstances does not outweigh the owners’ right to quiet enjoyment of their property. I am satisfied that the owner’s conduct has significantly disrupted the lives of the other owners in the strata. It would be unreasonable to require those other owners to continue living with that conduct. I am not prepared to accept the owner’s representative’s promise that the owner will no longer be disruptive because she has started to change the company she keeps. I say that because, again, there has been an escalation in the behaviour rather than any reduction.
It may be that the strata’s bylaws have an adverse impact on the owner due to her disability, in that her disability often prevents her from being able to comply with the noise bylaw. In that sense, the owner has established a prima facie case of discrimination. The question then is whether the strata has what is known in law as a “bona fide and reasonable justification” for enforcing the strata’s bylaws with respect to the owner. I find the answer is yes. The strata’s bylaws are reasonable on their face and I accept they were adopted in good faith. Based on the evidence before me, I also conclude that the strata cannot reasonably accommodate the owner’s disability in the manner requested, without incurring undue hardship. I find that hardship is undue if it threatens the viability of the strata’s co-operative framework, which I conclude is what would happen here if the strata were required to act with leniency towards the owner at this point.
The tribunal noted that fines were essentially the only enforcement option available at this hearing:
The strata’s means of enforcing the owners’ rights are, essentially, progressive fines and ultimately eviction or forced sale. As noted above, I have decided my jurisdiction is limited to the issue of fines, and have left it to the strata to pursue an eviction or forced sale in Supreme Court should that prove necessary.
Mundel v Hastings-Evans, 2017 BCCRT 108, was a dispute over second-hand smoke. The applicant strata-lot owners had medical conditions that made them particularly sensitive to second-hand smoke. The respondent owner, their upstairs neighbour, admitted that she smokes on her balcony “every day,” but countered that “she is 80 years old and addicted to cigarette smoking,” “her ‘rights’ to smoke on her balcony have been grandfathered” in the strata corporation’s recently passed no-smoking bylaw,” and “asking her to walk to the edge of the property to smoke is ‘unfair and unsafe,’ particularly in the evenings or in winter weather.”
The tribunal didn’t accept the respondent’s arguments. It characterized her exemption from the no-smoking bylaw to be irrelevant to the application of the strata corporation’s nuisance bylaw, which she was found to be contravening by her smoking. With regard to her other arguments, the tribunal found that “[t]here is no evidence before me that the respondent owner has a disability and needs to be accommodated in that disability by being allowed to smoke in her unit or on her patio.”
In the result, the tribunal ordered that the respondent:
- is prohibited from smoking tobacco or vaping on any property of The Owners, Strata Plan VIS 4072, including in any strata lot, common asset, limited common property or common property, whether indoors or outdoors, including patios, gardens, walkways, and balconies,
- must pay $150 for cleaning costs of the blinds and walls in the den, to the applicants, within 30 days of the date of this decision and
- must reimburse the applicants for $150, the tribunal fees paid under this dispute within 30 days from the date of this decision.
D.W. v The Owners, Strata Plan BCS XXX, 2017 BCCRT 107, was a “dispute is about the strata’s alleged failure to enforce its noise bylaws.” The applicant owner had made repeated complaints, going back to 2015, about “noise . . . from the Tenants’ children, one of whom was under the age of 2 at the material time. The owner says it is not normal living noise to hear in unit 29 a child’s screaming, running back and forth in unit 30, with the unit 29 windows closed and TV on. Similarly, the owner complains that it is not normal living noise to have someone running into a wall dividing the two units 29 and 30, such that it shakes unit 29.” “The strata on the other hand had,” the tribunal noted, has “taken the position that daytime noises from children are normal living noises that are a part of strata living, apparently including the activities complained of by the owner.”
The tribunal found that the strata corporation hadn’t adequately addressed the owner’s concerns:
The strata submits it had “made every reasonable effort” with “limited support” from the owner. I disagree. The owner has been entirely responsive to the strata’s communications and has provided the noise logs at the strata’s request. If by “limited support” the strata means the owner has not done things to be less bothered by the noise, I find that is not the test.
The challenge with the strata’s position is that it has not acted reasonably. In March 2016, the strata’s contractor K did some testing and found that loud thumping, banging, jumping on stairs all produced excessive noise. It is actually that sort of noise that the owner had been complaining about. Contrary to the strata’s January 2017 letter, the owner’s complaints are for the most part not “normal living noises.” I note that I do include a young child’s occasional screaming or yelling as being a normal living noise and find that that it is not unreasonable. However, I find there is no reason why the occupants of unit 30 cannot reasonably avoid running, banging walls, jumping up and down, and that their persistence in doing so is unreasonable. Isolated instances of children running or jumping may well be “normal living noise” and not unreasonable, but there is no dispute about the frequency of the owner’s complaints that were made to the strata both contemporaneously often and contained in the log that the strata directed him to keep and submit.
The tribunal found the strata corporation’s lack of diligence to be significantly unfair to the owner:
The strata’s failure to properly investigate whether the pre-10 p.m. Noise was excessive, as suggested it would be by K, was significantly unfair to the owner. The result of that failure is that for the most part the strata has failed to enforce its noise bylaws to the extent violations may have occurred.
In the result, the tribunal made the following orders:
I order the respondent strata to properly investigate any future noise complaints from the owner, which includes attending unit 29 to hear the noise while it is occurring. If upon attendance at unit 29 and hearing the offending noise the strata concludes the noise is not unreasonable, the strata must arrange for a qualified sound professional to do noise testing if noise complaints continue to be received by the strata.
I order the strata to enforce its noise bylaws to the extent violations of the noise bylaws have been determined. Enforcement may include fines, and if the noise bylaw violations continue it may include collection of any unpaid fines and eviction, as provided under the SPA. I order the strata to comply with sections 35 and 36 of the SPA in respect of any requests for documentation from the owner.
Bylaws—permission to alter strata lot—laminate flooring
In Flury v The Owners, Strata Plan NW 2729, 2017 BCCRT 115, the applicant owner argued that the respondent strata corporation had “unfairly applied the strata’s bylaws in refusing to permit the owner to install laminate flooring.” In 2008, the strata corporation had amended its bylaws by adding a requirement that an owner obtain the strata council’s permission before installing laminate or hardwood flooring. Sometime prior to that amendment, one strata-lot owner in the building had installed laminate flooring.
The tribunal dismissed the owner’s claims, finding that rejecting his application even though one other strata lot had laminate flooring didn’t amount to evidence of bias:
As for the owner’s bias claims, I find they are unsupported. Those claims are based simply on the fact unit 24 was some years ago granted permission to install laminate flooring and that the strata has refused the owner such permission under the current bylaws. That alone is not evidence of bias. There is no evidence before me that the strata has arbitrarily or unfairly singled out the owner for different treatment.
Further, the owner had not himself complied with the strata corporation’s requests for information in his application for permission.
Tribunal procedure—addition of strata-lot owner as party
Masse v The Owners, Strata Plan VIS 6348, 2017 BCCRT 103, was a preliminary (as opposed to final) decision on “whether the tribunal should exercise its discretion to order that Mr. Magnus be added as a party to this dispute.” The tribunal summarized the underlying dispute as follows:
The substantive issues in this dispute revolve around an allegation that an owner in the strata continuously occupied the guest suite to the prejudice of the other strata owners. The applicants allege that an owner, Mr. Magnus, contravened the strata’s rules and bylaws because he rented the guest suite to sex workers for the purpose of their commercial activities. They also allege that the strata failed to appropriately deal with his infractions and that Mr. Magnus, who was a strata council member, interfered with the strata owner’s vote at the strata’s annual general meeting.
Mr. Magnus is an owner of multiple strata lots (directly and through corporations), and who has also been strata council president throughout the relevant time. The applicants allege that Mr. Magnus’s use of the common property was for personal gain and unethical and he should be punished for his actions as an owner, proxy holder and council member. They have said that orders should be made against Mr. Magnus even though he is not named as a respondent.
In the tribunal’s view, its enabling statute gave it the authority to order the addition of the owner as a party. Section 61 of the Civil Resolution Tribunal Authority Act gives the tribunal the power to “make any order or give any direction in relation to a tribunal proceeding it thinks necessary to achieve the objects of the tribunal in accordance with its mandate.” Further, the tribunal noted “[t]he issues in this dispute fall within the kind set out in s. 3.6 and are not captured as an exception to the tribunal’s jurisdiction.” Finally, the tribunal observed that denying the order in this case wouldn’t prevent the applicants from commencing an unrelated tribunal proceeding against the owner, which would be an undesirable result:
Addressing Mr. Magnus’s involvement by way of a separate dispute would only lead to increased delay, expense and be inefficient. The tribunal’s statutory mandate is to provide accessible, speedy, economical, informal and flexible dispute resolution services, and split processes do not serve those purposes. Fairness would suggest that Mr. Magnus should be entitled to provide submissions on his own behalf in his personal capacity given the allegations made against him.
Bylaws—enforcement—denying access to strata lot
In The Owners, Strata Plan K 77 v Bourgault du Coudray, 2017 BCCRT 105, the applicant strata corporation sought an order for “payment of certain fines and repair costs from an owner who failed to allow the strata representative to enter his unit to investigate two separate water leaks.” The respondent strata-lot owner resisted the order “on the basis that the requests for entry were unreasonable” and that he wasn’t responsible for the repair costs.
The tribunal found that the strata corporation was reasonable in its requests and was authorized by its bylaws to fine the owner:
It is not clear from the evidence presented whether a repair was made to a common property pipe or other such facility within the ceiling at issue or within the owner’s strata lot. However, I find it was reasonable for the strata to approach the leak as if a pipe or drainage facility requiring repair was common property. As such, I find that the strata was entitled to rely on s. 7(1)(b) of the bylaws when issuing its notice on July 9, 2016.
I further find that on July 8, 2016 and January 8, 2017, when the leak was active, the strata was entitled to treat the leak as an emergency and was not required to give prior notice to Mr. Bourgault Du Coudray of the need to access his unit.
But the strata corporation had “failed to prove that it was more likely than not that Mr. Bourgault Du Coudray’s actions created the leak in the unit below him in either 2016 or 2017.”
In the result, the owner was ordered “to pay the strata $150.00 in relation to unpaid fees within 30 days of this decision” and the strata corporation’s claims for repair costs were dismissed.