Installation of air conditioner on patio was an alteration of common property requiring strata corporation’s approval
11 May 2018
By Kevin Zakreski
In Allwest International Equipment Sales Co Ltd v The Owners, Strata Plan LMS4591, 2018 BCCA 187, the BC Court of Appeal dismissed an appeal from a decision of a chambers judge, holding that a strata-lot owner had breached a strata corporation’s bylaws in installing an air conditioner without the consent of the strata corporation. As the court noted:
In early November, 2015 [the owner’s principal] installed a “mini-split” air conditioner in a bedroom within his unit. He also installed a heat pump, attaching it to the lower patio area outside of his strata unit. He connected the air conditioner to the heat pump by means of pipes that he installed within an exterior wall of the building. A 2-inch hole cut into the bottom part of the exterior wall allowed the pipes to connect to the heat pump.
In the court’s view, these facts presented a “straightforward” case, in which “no extensive parsing of the authorities is needed.” The court found that it was clear that the owner had altered common property:
The pipes, in my view, clearly became common property under subsection (b)(i)(B) of the definition of “common property” in the Strata Property Act as soon as they were installed in the exterior wall. The installation of the pipes was the “making [of] an alteration to a strata lot that involve[d] common property within the boundaries of a strata lot.” Accordingly, [the owner’s principal] required permission under Bylaw 5(1) to install the pipes in the exterior wall. As he did not get permission, he was in violation of the Bylaw. Equally, the installation of the pipes served to modify the common property (by adding to it), thus engaging bylaw 6(1).
In the court’s view, the chambers judge also didn’t make “a palpable and overriding error in exercising his discretion not to excuse the appellant from the Bylaw requirements, using s. 164 of the Strata Property Act” (which empowers the court to remedy significantly unfair acts). The court found that “[t]he chambers judge applied the correct legal test in his consideration of s. 164 of the Strata Property Act.”
In the result, the court dismissed the appeal.