CRT roundup—significant unfairness, use of limited common property, chargebacks, and jurisdiction and procedure
July 27, 2017
BY Kevin Zakreski
This post is part of a monthly series summarizing the Civil Resolution Tribunal’s strata-property decisions. There have been six new decisions since the last post.
Significant unfairness and use of limited common property—application to install hot tub on roof deck
Doig v The Owners, Strata Plan VR 1712, 2017 BCCRT 36, involved a dispute over “whether a strata corporation’s council acted fairly in regard to the owners’ requests concerning the use and renovation of a strata lot’s limited common property deck located on roof above the strata lot.”
Shortly before purchasing their strata lot, the applicant owners sought permission from the respondent strata corporation for renovations to the roof-top deck above the strata lot. There was some back-and-forth correspondence between the parties over plans and reports, but ultimately the respondent’s council approved the renovation request. The correspondence didn’t disclose the plans to add a hot tub. As the tribunal noted, the owners “put a hot tub on their expanded deck without telling the strata in advance, giving it the hot tub report, or asking for its permission to do the deck renovations specified in [an engineering report the owners obtained for their own use concerning the hot tub].”
The respondent demanded that the hot tub be removed. In the face of potential fines, the owner relented, removing the hot tub. Shortly thereafter, the owners applied to the tribunal for relief.
After briefly reviewing the legislation and a handful of previous cases on significant unfairness, the tribunal analyzed the owners’ claim. It began by noting “[t]he owners have three procedural concerns and one substantive concern about whether they were fairly treated by council when it made decisions about the unit’s deck.”
The tribunal dismissed the first two procedural concerns, relating to strata-council procedure and the strata corporation’s bylaws.
The owners were successful on the third concern, which related to a hearing organized under section 135 of the Strata Property Act. The tribunal found that the strata council had failed to comply with the requirement to give the owners written reasons of its decision.
I find that the strata’s failure to provide the owners with a written decision was significantly unfair to them. As a consequence, despite the delay of more than a year since the council hearing, I order that in no more than 35 days, it will provide the owners with a written decision explaining the basis upon which council’s June 2, 2016 decision was made. An adequate decision in this case will list who was present at the meeting, who voted on its outcome, the process followed, the facts council relied upon in reaching its conclusion, the reasons why it reached its conclusion and the hearing’s outcome.
Finally, the owners were unsuccessful on their substantive complaint. The tribunal concluded “that the council was reasonable in concluding that hot tubs do not qualify as summer furniture and accessories within the meaning of bylaw 40.11.”
In the result, the tribunal ordered that the applicant owners not reinstall the hot tub until such time that they receive permission from the strata corporation and the required approvals from the City of Vancouver.
Chargeback—reimbursement of plumbing costs
In Robertson v The Owners, Strata Plan NW 87, 2017 BCCRT 37, the applicant owner asked the tribunal “to order the strata to reimburse him $220.00 for part of a plumbing invoice he says he paid to the strata in trust.”
The invoice related to a leak affecting the strata lot below the owner’s. This leak was the result of a “plugged dishwasher drain” in the owner’s strata lot. Its cause was determined on the plumber’s third visit, the first two being made in vain as the plumber was unable to gain access to the owner’s strata lot. The dispute between the owner and the strata corporation turned on whether the owner was given adequate notice of these first two visits.
The tribunal found that the owner hadn’t received adequate notice.
I find the property manager mistakenly understood the response from the owner passed on by the resident of #212 to mean the owner would be home in the afternoon of June 6. This is confirmed by the caretaker’s email to the property manager recounting the events wherein he advises the property manager the second attempt was arranged based on the property manager’s email that the owner would be home in the afternoon of June 6. Contrary to the property manager’s email and Statutory Declaration I find the owner was not aware of and did not make the June 6 appointment with the plumber (the second attempt). Further, I find the owner did not confirm they were available to grant access to the plumber in the afternoon of June 6.
The tribunal went on to consider whether the strata corporation had authority to impose a chargeback on the owner.
The charge back of a plumbing invoice is not captured by section 116 of the SPA and is commonly referred to as a non-lienable amount as it cannot be included in the amount of a Certificate of Lien filed under section 116 of SPA. In order to collect a non-lienable amount the strata must have the authority to do so under a valid and enforceable bylaw or rule that creates the debt. (see Ward v. Strata Plan VIS #6115, 2011 BCCA 512).
The strata corporation lacked such a bylaw.
In the result, the tribunal ordered that the strata corporation “reimburse the owner $220.00 the owner paid to strata for the plumbing invoice.”
Preliminary decision on jurisdiction and procedure
Y.R.N. Holdings Ltd v The Owners, Strata Plan LMS 2241, 2017 BCCRT 41, involved a dispute in a strata property that “consists of 16 commercial strata lots in a 4-storey building.” The applicant owner owned one strata lot. The rest of the strata lots in the strata property were “owned by a single corporate owner.”
In the dispute before the tribunal, the applicant claimed “the strata refuses to allow the owner access to common property service rooms which the owner needs to install equipment affecting the owner’s strata lot.” The hitch in this case was that the corporate owner had previously commenced an action in the Supreme Court of British Columbia over rightful ownership of the strata lot. In this preliminary decision, the tribunal had to decide, first, whether the tribunal had jurisdiction to resolve the underlying dispute, and, second, as a procedural matter, “if the tribunal finds it has jurisdiction, should it proceed to resolve this dispute in light of the court action.”
On the first (jurisdictional) issue, the “fundamental” question was whether the applicant was an “owner,” as that term is defined in the Strata Property Act. The tribunal found that the application was the “person shown in the register of a land title office as the owner of a freehold estate in a strata lot,” and therefore fit within the act’s definition.
On the second (procedural) issue, the tribunal “considered the options available to the tribunal” and concluded:
this dispute should be suspended and placed on hold until a decision is rendered in the court action. I reach this conclusion bearing in mind the dispute resolution services of the tribunal are to apply the principles of law and fairness, recognizing the potential continuing relationship between the parties.
Default orders—smoking and fines, acting in good faith and adhering to bylaws and rules, and payment of strata fees and pre-authorized payment
In The Owners, Strata Plan K 756 v Thompson, 2017 BCCRT 38, the applicant strata corporation asked the tribunal for a default order against the respondent strata-lot owner. The order requested required the owner to “(a) stop smoking in his strata lot or in any way that causes a nuisance or hazard to another person; and, (b) pay outstanding bylaw fines or $5,000 assessed against the owner’s strata lot for their breach of nuisance and no smoking bylaws.”
The tribunal granted the order, noting:
Liability is assumed for a default claim and I find the owner must refrain from smoking and causing a nuisance as required by the strata bylaws. I note the strata’s request listed on the Dispute Notice was for an order for the owner to stop smoking in their strata lot yet the bylaw does not permit smoking in any strata lot or on common property. My order will be consistent with the bylaw’s wording and not limited to the owner’s strata lot, in order to avoid the owner causing a nuisance by smoking on common property. Further, with respect to the default debt claim for bylaw fines, there is no need for the tribunal to confirm the amount of the bylaw fines or that proper procedures were followed by the strata in assessing fines. I find the owner owes the strata $5,000 for fines.
In Siebring v The Owners, Strata Plan NW 2275, 2017 BCCRT 39, the applicant owner sought six orders against the respondent strata corporation, which didn’t participate in the hearing. The orders ranged from removing a strata-council member to paying the owner $15 000 in damage.
After noting that “generally, the tribunal will assume liability for a default claim. That is, it is assumed that the strata has acted in the way the owner says it has acted,” the tribunal granted the owner orders concerning acting in good faith, following bylaws and rules, and ceasing threatening behaviour toward the owner.
The tribunal also examined the evidence provided by the owner and found that it didn’t support removal of a council member or payment of damages.
The Owners, Strata Plan KAS 2814 v Bauman, 2017 BCCRT 40, concerned an owner with “a long history of failing to pay strata fees on time resulting in the assessment of $3,200 in bylaw fines.” The applicant strata corporation sought orders from the tribunal for payment of these fines and for completion of a pre-authorized payment form, as required by the strata corporation’s bylaws. When the owner failed to respond to the strata corporation’s dispute notice, the strata corporation asked for a default decision.
Regarding the fines for failing to pay strata fees, the tribunal noted:
generally, the tribunal will assume liability for a default claim. That is, it is assumed that the owner has acted in the way the strata says they has acted. As a result, I have not reviewed the merits of the strata’s claim for bylaw fines including the amount or any limitation period issues. I order the owner to pay the strata $3,200 for outstanding bylaw fines.
Regarding the “non-debt claim” compelling the owner to complete a pre-authorized payment form, the tribunal did assess the evidence submitted by the strata corporation. The tribunal was satisfied that the bylaw was valid. It then distinguished this case from the BC Supreme Court’s decision in The Owners, Strata Plan BCS3648 v Podwinski, 2016 BCSC 2253:
The preauthorized payment form in Podwinski permitted the strata to only collect strata fees. The court found the bylaw to be invalid as it might preclude an owner from contesting or refusing to pay fines while continuing to pay strata fees. While the circumstances here are different than in Podwinski, I want to be very clear on my reading of the strata’s current bylaws. I do not want the parties to potentially face a similar dispute to that of the parties in Podwinski nor do I want the strata to feel it is authorized to collect any fees other than strata fees. As a result, the owner is at liberty to choose the form of agreement they prefer and is only required to authorize the strata to collect its strata fees from the owner’s bank account.
In the result, the strata corporation was granted its orders and orders for compensation for tribunal fees and dispute-related expenses.