Strata corporation held responsible to replace common-property drainage pipes servicing restaurant

7 September 2018

By Kevin Zakreski

The Owners, Strata Plan LMS 1162 v Triple P Enterprises Ltd, 2018 BCSC 1502, was a dispute “over the allocation of responsibility for repairing or replacing drainage pipes that the parties agree are common property.” In it, the “strata corporation seeks orders, pursuant to s. 173(1) of the Strata Property Act, S.B.C. 1998, c. 43, requiring Triple P to replace 63 drainage pipes that serve strata lots 14 and 15.” “Triple P,” the respondent in the case, was the owner of “strata lots 14 and 15 in the large strata complex known as President Plaza,” from which it operated a restaurant.

The strata corporation “relies on two alternative bases for imposing liability on Triple P”:

  • the 63 Pipes in question are limited common property that exclusively serves strata lots 14 and 15, and the strata corporation has, by bylaw, made Triple P, as owner of strata lots 14 and 15, responsible for repairing and maintaining limited common property allocated to the exclusive use of Triple P’s strata lots; or alternatively
  • the Restaurant’s use of de-greasing and anti-clogging agents in the Pipes is causing a nuisance, or is unreasonably interfering with the owners or occupiers of other strata lots, contrary to the strata corporation’s bylaws.

The strata corporation’s first argument ran aground on its inability to show that the pipes had been designated as limited common property:

There is no evidence that the requirements of ss. 73 or 74  have been met in relation to any of the Pipes. The strata corporation has not established that the Pipes, or any of them, are designated as limited common property on the strata plan or any amendment to it, or that a resolution has been passed that complies with the requirements of s. 74. Accordingly, the strata corporation has failed to establish that any of the Pipes are limited common property.

The court pointedly refused to accept an argument based on Louie v The Owners of Strata Plan VR-1323, 2015 BCSC 1832. The strata corporation had argued that “the fact the Pipes serve only the Restaurant is sufficient to find that they are limited common property,” since it was the “best evidence” pointing to that conclusion. The court rejected this approach:

I am not bound by principles of judicial comity to follow Louie because it appears that, in deciding whether the ducting was limited common property, the judge did not consider the requirements of ss. 73 and 74 of the Strata Property Act. . . .

There is no reference in the discussion on this point, in [Louie], of either ss. 73 and 74 of the Strata Property Act, which, as already explained, set out in express terms the limited ways in which common property may be designated as limited common property. There is no indication in Louis that the ducting was designated as limited common property in any of the ways contemplated by those provisions. In these circumstances, the second principle expressed in Re Hansard Spruce Mills is engaged. I decline to follow [Louie] for that reason.

In its closing comments on this issue, the court emphasized the importance of following the act’s provisions:

It almost goes without saying that it would be possible for the strata corporation to designate the Pipes or some of them as limited common property by resolution passed at an annual or special general meeting and then file the resolution in the land title office all in accordance with s. 74  of the Strata Property Act. If it did that, it could then pass a bylaw making the owner of strata lots 14 and 15 responsible for the repair and maintenance of the Pipes so designated. Of course, there is uncertainty about whether it would succeed in getting the votes required but the point is that the legislation provides a mechanism for imposing responsibility on individual owners for the repair and maintenance of limited common property. The problem for the strata corporation is that this mechanism has not been employed.

On the second issue, the court noted that both the general law of nuisance and the strata corporation’s specific nuisance bylaw turn on “a standard of unreasonableness by prohibiting the use of common property in a manner that will ‘unreasonably interfere with the use and enjoyment’ of others.” So, in this case, “[t]he primary question then is whether the use of anti-clogging agents by the Restaurant has ‘unreasonably’ interfered with other owners or occupiers.”

The court concluded that such “a finding of unreasonableness . . . is not available on the evidentiary record”:

Guided by the elements of the private tort of nuisance, the nature of the act complained of and the nature of the injury should be considered. The act is the use, by a restaurant, of de-greasing or anti-clogging agents in pipes that are used to drain effluent way from the restaurant. The injury is the risk of failure arising from the need to replace 30-year-old pipes that are common property in a large commercial strata. Specifically, consideration should be given to whether the other owners are entitled to expect to prevent the use of anti-clogging agents by a restaurant in circumstances where the operation of a restaurant is not prohibited and where the evidence does not suggest that there has been improper or excessive use of such agents. Having considered these matters, I am not persuaded that the Restaurant has been or is using the strata lots or the Pipes unreasonably or that there has been unreasonable interference with the rights of the other owners or occupiers.

In the result, the court dismissed the petition with costs awarded to the respondent strata-lot owner.

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