Strata corporation ordered to reimburse owner for cost of replacing windows and patio door
December 22, 2016
BY Kevin Zakreski
In a case heard on appeal from small claims court, the BC Supreme Court has upheld an order that “the Strata Corporation to pay the respondent $3,950, together with court filing and service fees and court-ordered interest,” to compensate a strata-lot owner for costs he incurred in “replacing four windows and the patio door of his strata unit.” The Owners of Strata Plan NWS 254 v Hall, 2016 BCSC 2363, contained comments on section 72 (repair of property) of the Strata Property Act and sections 6 (obtain approval before altering common property) and 8 (repair and maintenance of property by the strata corporation) of the standard bylaws.
Facts and issues
The strata corporation in this case was “a 44-unit complex built in 1974.” The respondent was a strata-lot owner who had purchased his strata lot in June 2013. Shortly after moving in, he “noticed condensation, leaking, and mould around all of his windows and the patio door.” His strata lot “had the original single-pane glass windows, which were then almost 40 years old.”
The respondent and the strata corporation got into a dispute over what was needed to address the condensation, mold, and leaking, which the court summarized as follows:
After observing condensation, leaks and mould around all of the windows and the patio door in October, 2013, Mr. Hall negotiated with the Strata Corporation for 10 months concerning the repair or replacement of the affected windows and door. The Strata Corporation offered to pay $742 to clean and re-seal the four windows and the patio door. The respondent, relying upon the advice received from four contractors from whom he sought bids for remedial work, insisted that only replacement would provide a permanent solution.
In the end, “after notifying the Strata Corporation of his intention to do so,” the respondent, “had the four windows and patio door replaced by the contractor who had provided the lowest bid for that work.” He then successfully sued the strata corporation in small claims court.
The court set out as issues for this case the following four grounds for appeal raised by the strata corporation:
- the trial judge erred in holding that the Strata Corporation’s duty to repair and maintain included the duty to replace the four windows and patio door;
- the trial judge failed to consider that both the Schedule of Standard Bylaws made pursuant to the SPA and the Registered Bylaws of the Strata Corporation prohibited the respondent from making an alteration to common property without the written approval of the Strata Corporation;
- the respondent, in breach of s. 7 of the Standard Bylaws, refused to permit contractors authorized by the Strata Corporation to enter his strata unit and make the repairs approved by the Corporation; and
- the trial judge erred in law by refusing to admit in evidence the insurance policy of the Strata Corporation, which the Strata Council used to determine the extent of its obligation to repair or replace common property.
Did the trial judge err in finding that the strata corporation’s duty to repair and maintain included the duty to replace the four windows and patio door?
The court began its analysis of this issue by noting “[b]oth s. 72 of the SPA and s. 8 of the Standard Bylaws require the Strata Corporation to maintain common property.” It set out the following propositions on this obligation to repair and maintain common property:
- “The word ‘repair’ as used in the SPA includes the operation of making an article good, regardless of whether the article had been sound or good before”: see Taychuk v Owners, Strata Plan LMS 744, 2002 BCSC 1638 at para 29.
- “The duty to repair and maintain can involve a duty to replace”: see Fudge v Owners, Strata Plan NW 2636, 2012 BCPC 409.
- “The strata corporation’s obligation to repair and maintain is measured against a test of what is reasonable in all of the circumstances”: see Taychuk at para 30; Wright v The Owners, Strata Plan No 205 (1996), 1996 CanLII 2460 (BCSC), aff’d (1998), 1998 CanLII 5823 (BCCA).
- “[T]he starting point for the analysis should be deference to the decision of the Strata Council as approved by the owners”: see Weir v Owners, Strata Plan NW 17, 2010 BCSC 784 at paras 28–29.
Applying these propositions, the court concluded that “the trial judge made no error of law, or mixed fact and law, in concluding that the Strata Corporation’s obligation to repair and maintain extended to the cost of replacing the windows and door in this case.”
Did the trial judge err in failing to consider that both the standard bylaws and the registered bylaws of the strata corporation prohibited the respondent from making an alteration to common property without the written approval of the strata corporation?
The court noted that “the issue which the appellant seeks to raise is whether ‘an alteration to common property’ within the meaning of s. 6(1) of the Standard Bylaws includes ‘replacement.’ ” The court, relying on an Ontario decision (Wentworth Condominium Corp No 198 v McMahon, 2009 ONCA 870) ruled that there was no “alteration” within the meaning of the bylaw:
The decision of the Ontario Court of Appeal in Wentworth is persuasive authority for the proposition that the term ‘alteration,’ as it is used in the Standard Bylaws, applies where there is a change to the structure of the common property or a strata unit.
Here, the work involved the removal and replacement of four windows and the patio door. The replacement of the windows and door did not change the structure of the respondent’s unit, or the common property. I conclude that the replacement of the four windows and the patio door was not an ‘alteration’ within the meaning of ss. 5(1) or 6(1) of the Standard Bylaws requiring the prior approval in writing of the Strata Corporation.
Did the respondent, in breach of section 7 of the standard bylaws, refuse to permit contractors authorized by the strata corporation to enter his strata unit and make the repairs approved by the corporation?
This issue largely turned on a factual narrative. The court noted that contractors “attended at the respondent’s unit on two occasions.” Both times, they were admitted to the strata lot, but for a variety of reasons the work wasn’t done. The court concluded:
The appellant has not shown that the respondent refused to allow its contractor to enter his unit to inspect, repair or maintain common property. There was no breach by the respondent of his obligations to allow entry under s. 7(1)(b) of the Standard Bylaws.
Did the trial judge err in law by refusing to permit the strata corporation to adduce in evidence its insurance policy?
The small claims judge refused to admit evidence of the strata corporation’s insurance policy for two reasons: (1) the strata corporation failed to disclose the document to the respondent before trial; and (2) the judge ruled that “the terms of the insurance policy were irrelevant to the determination of the Strata Corporation’s statutory duty to repair and maintain common property.”
On appeal, the court considered the second reason. It noted that:
The Strata Corporation argued that it based its decision to repair rather than replace the windows in the respondent’s unit on an analogy to its insurance contract, which limited the insurer’s liability to replace broken glass to ‘the same with same.’ Because the windows which failed were single paned, the Strata Corporation took the position that its obligation was limited to payment of the amount required to repair those windows, rather than to replace them with the double-pane windows currently required by the Building Code.
The court rejected this argument, finding no basis to overturn the judge’s ruling:
Judge Oulton went on to observe that ‘it was difficult to reconcile’ the Strata Corporation’s practice with its repeated admission of responsibility to repair and maintain the windows and doors. Ultimately, the trial judge concluded that in this case the statutory obligation of the Strata Corporation to repair and maintain extended to the cost of replacing the windows and patio door.
In my view, the trial judge was correct in ruling that the insurance policy was irrelevant to her determination of the scope of the Strata Corporation’s statutory obligation. In short, the trial judge made no error of law in excluding the insurance policy.