Strata corporation’s duty to repair “may include work necessary to make good or sound that which may never have been good or sound”: BC Court of Appeal
27 February 2017
By Kevin Zakreski
In Frank v The Owners, Strata Plan LMS 355, 2017 BCCA 92, the Court of Appeal for British Columbia considered an appeal from a supreme-court decision that had held a strata corporation responsible to install railings needed to bring a recreational rooftop deck up to code. The court of appeal upheld the earlier decision, noting that the duty to repair found in section 72 of the Strata Property Act includes “work necessary to make good or sound that which may never have been good or sound.”
The penthouse strata lot had access to “an area on the roof designated as limited common property and identified on the strata plan as ‘roofdeck.’ ” This roofdeck was used “for recreational purposes.”
After purchasing the strata lot, the owner “discovered the exterior walls of the roof deck were lower than the height required by Vancouver Building Bylaw No. 10908.” This discovery touched off a lengthy and complex series of negotiations between the owner, the strata corporation, and the city of Vancouver. During these negotiations it came to light that there was “a discrepancy between the development permit pursuant to which the building was constructed and the strata plan describing [the owner’s] title: the limited common property on the roof had apparently been intended by the building’s architect to be used by owners of penthouse suites to install mechanical systems and to gain access to that equipment and no other purpose.”
Eventually, the strata corporation “advised the Owner it considered the proposed work to entail a significant change in the use of common property, which would require the approval of 3/4 of its members, and it organized a special general meeting for May 17, 2016 to consider a resolution. The resolution was defeated.” The owner responded with a petition to the supreme court. That court “made the following orders”:
There will be a declaration that:
- the Strata Corporation’s actions as described herein are significantly unfair to [the Owner]; and
- the addition of railings and related safety measures on the roof deck fall within the Strata Corporation’s duty to repair and do not require the approval of ¾ of the members of the Strata Corporation under s. 71(a) of the SPA.
There will be an order that the Strata Corporation perform its duty to repair in relation to the work which has been authorized by the development/ building permit issued by the City of Vancouver on March 9, 2016.
The strata corporation appealed from this decision, advancing three grounds of appeal. The appeal primarily turned on one ground, the interpretation of the strata corporation’s duty to “repair and maintain common property and common assets” found in section 72 of the act.
After noting that the strata corporation appeared to have “difficulty stating the ground of appeal clearly,” the court characterized the strata corporation as arguing “no work is necessary to make the roof suitable for the only use for which it is presently approved by the City. In that sense, the property is not defective or in need of repair.” The court rejected this argument.
In the court’s view there was “neither an error of law nor a misapprehension of the evidence, much less a palpable and overriding error, in the judge’s conclusions.” The judge’s decision that the duty to repair includes “work necessary to make good or sound that which may never have been good or sound” was supported by authority. In respect of the evidence, there was
an evidentiary foundation upon which the judge could properly rely in concluding that the work in question was not done to effect a change in use, but rather to ensure the Owner could once again use the limited common property in accordance with the strata plan. In these circumstances, the installation of the railings could properly be regarded as a repair.
In the result, the court dismissed the appeal.