Governance—bylaws—adoption—reconsideration—strata council—election—enforcement of bylaws—short-term accommodation

Howe-Smith v The Owners, Strata Plan KAS 1201, 2018 BCCRT 348, concerned a dispute over the validity of bylaws and short-term accommodation in a bare-land strata:

2. The owner says that the respondent strata failed to follow proper procedures in approving bylaws. The owner also says that the current strata council has not been properly elected.3. The strata denies the applicant’s claims and makes a counterclaim. The strata says that the owner rents her strata lot in contravention of the bylaws. The strata wants an order permanently barring her from conducting a short-term rental business on her strata lot.

The bylaws at issue were adopted after the owners reconsidered and voted again on them at a general meeting. The tribunal found that this procedure was acceptable in this case:

42. The SPA is still silent on the issue of reconsideration. I find that the SPA does not prohibit a reconsideration or re-vote, and that the reconsideration vote was valid. In reaching this conclusion, I rely on the court’s decision in Loveys, given the same process to re-vote on the bylaws was followed here. The bylaws were approved as presented.

The tribunal also found that the strata council had been validly elected:

49. The earlier draft version of the AGM minutes says the entire strata council resigned following defeat of the bylaws. The later revised minutes clarify that only 2 of the 5 council members offered to resign. The owner did not attend the AGM. For a report of what happened, I prefer the version in the revised minutes.

50. Further, even if tempers flared and people talked of resigning, the BC Supreme Court has recognized that strata council members are volunteers. Mistakes will be made. Within reason, the conduct of council is allowed some latitude. See Hill v. The Owners, Strata Plan KAS 510, 2016 BCSC 1753.

51. According to both versions, someone continued to maintain order. Someone continued taking minutes. At the close of the meeting a new council was elected that consisted of all 5 members who had been the council at the start of the meeting, and 2 new members from the floor.

52. The revised AGM minutes say all council members were voted in unanimously. Candidates who stood for election and 16 owners who voted for council at that AGM have all provided signed confirmation that there was an election.

53. I find that the strata council in place at the close of the 2017 AGM was validly elected.

Finally, the tribunal found that the strata corporation was entitled to enforce its bylaws against the owner:

65. I have found that the strata bylaws requiring owners to obtain strata approval for rentals, and for business use of the strata lot, are enforceable. The owner and her spouse have admitted offering their strata lot for short-term rentals. Strata has told them that this violates the bylaws. The owner and her spouse do not accept strata’s authority to restrict their livelihood, and find it “laughable.” I find that this is an appropriate situation for an order enforcing the bylaws.

Governance—privacy policy—access to records

L.S. v The Owners, Strata Plan ABC XXXX, 2018 BCCRT 376, involved a dispute in a strata “located in Burnaby, B.C.,” which “was created in August 1988 comprising 23 strata lots in 1 4-storey building.” As the tribunal noted:

3. This dispute involves document requests, privacy issues, alleged lack of building maintenance, and financial issues.

4. The owner seeks orders that the strata establish a privacy policy, disclose certain documents, undertake a building envelope condition assessment (BECA), and retain an accounting firm to complete a financial review and report on its finances.

The tribunal ordered the strata corporation to prepare a privacy policy and distribute it to the owners:

36. First, I confirm the strata is an organization as defined under [Personal Information Protection Act] and it must comply with the legislation. Under section 5 of PIPA, the strata must develop and follow policies and practices necessary to ensure compliance with PIPA, develop a process to respond to complaints that may arise relating to PIPA, and make the information about its privacy policy available on request.

37. Given section 5 of PIPA, I find the strata must prepare written policies and practices relating to compliance with and responding to complaints arising from PIPA (privacy policy). While my reading of PIPA does not require the strata to communicate its privacy policy to its owners, I find given it is not currently in compliance, it is reasonable for it to do so.

38. For these reasons, I grant the owner’s requested relief and order the strata to prepare its written privacy policy and provide a copy of it to all of its strata lot owners not later than September 1, 2018. When preparing its privacy policy, the strata is encouraged to review the documents entitled Privacy Guidelines for Strata Corporations and Strata Agents and PIPA and Strata Corporations: Frequently Asked Questions (PDF) prepared by the [Office of the Information and Privacy Commissioner] and available on its website.

As for the remainder of the owner’s claim for access to strata-corporation records, the tribunal was only willing to reiterate the strata corporation’s general duties:

43. Given the relatively unclear nature of the owner’s claim, I am prepared to make a general order that to the extent the strata has not provided the documents listed in section 35 of the SPA requested by the owner in her reply to this claim, it do so within 2 weeks of the date of this decision.

Governance—finances—operating fund—surplus

Lo v The Owners, Strata Plan VR 2100, 2018 BCCRT 366, was a dispute over the strata corporation’s operating fund:

2. The owner says the strata is incorrectly using operating funds and therefore not complying with the Strata Property Act (SPA). The owner wants the strata to comply with the SPA. The owner also wants the strata to issue him an apology and pay his tribunal fees.

3. The strata says it is using operating funds correctly and complying with the SPA. The strata seeks dismissal of the owner’s claims.

The tribunal found that the strata corporation was entitled to use an operating-fund surplus to carry out repairs:

28. In this case, there is an important distinction to be made between the operating fund budget and operating fund surplus. Section 92 of the SPA requires operating fund expenditures to be made on items that usually occur not less than once per year. While there was no specific evidence on this point, I find that it is more likely than not that the proposed repairs were required less than once per year. As such, section 97 of the SPA required that those repairs come from the CRF as opposed to the operating fund. Section 105 requires the strata to transfer any operating surplus to the CRF or to carry it forward in the operating fund. However, section 105 also allows the strata to deviate from the prescribed allocation of the operating surplus if a 3/4 vote resolution is passed at an annual or special general meeting. There is no limitation in section 105 that requires the operating surplus allocation to comply with section 97 of the SPA if the 3/4 vote is passed. The general wording of section 97 relating to the use of the operating funds should not limit the specific wording of section 105 in relation to the use of the operating surplus. I find that section 105 of the SPA allows the strata to use the operating surplus for expenditures outside of the purview of section 97.

29. I find that the allocation of the surplus to the repairs at the May 17, 2017 general meeting was authorized by the SPA and that the strata was in compliance with the SPA.

Governance—finances—purchase of geothermal heating system—disclosure

Adrian v The Owners, Strata Plan KAS2849, 2018 BCCRT 357, was a dispute over a strata corporation’s decision to purchase a geothermal heating system.

The dispute turned on the disclosure of information before the meeting to consider the purchase. The tribunal found that the strata corporation had made adequate disclosure:

41. As a strata council member, I find that the applicant had full access to information relating to the demand, the decision to purchase the system, financing for the system, and the corresponding cost to the owners.

42. By October 2013 when the applicant’s complaints began, it appears that he was no longer a strata council member. However, as set out above, I find that the strata responded appropriately to his requests for information, and that at no material time was he deprived of the information at issue in this dispute.

43. Based on these findings, the applicant’s claim that the strata failed to disclose material information about the system prior to the SGM is dismissed.

Governance—finances—lien—notice

The Owners, Strata LMS 1755 v Leidl, 2018 BCCRT 371, was a dispute over a lien on the applicant’s strata lot:

3. The applicant seeks a refund of legal fees and disbursements incurred by the respondent to place a lien on her strata lot and commence enforcement proceedings as a result of the non-payment of strata fees.

While the applicant was an owner when she commenced this dispute, she subsequently sold her strata lot. The tribunal exercised its discretion to hear the dispute of a former owner for the following reasons:

a. While there is disagreement about whether the tribunal has jurisdiction to hear this matter, the respondent’s argument focused on the nature of the claim rather than the tribunal’s discretion to hear it.

b. The issue raised in this claim is of importance to other persons, namely other owners because of the consequences to their strata fees and the strata council because of its express obligation under section 31 of the SPA to exercise a reasonable standard of care.

c. The dispute process was well underway by the time the applicant’s status changed.

d. If the dispute is dismissed the applicant will be significantly prejudiced by having to commence a court action against the respondent to recover the disputed sum of money.

e. The dispute in this case is over a relatively small sum of money and ought to be resolved, as contemplated under section 2 of the [Civil Resolution Tribunal] Act, in a speedy, economical, informal and flexible fashion.

The tribunal found that the strata corporation had failed to give proper notice to the applicant:

29. The applicant delivered a Form K, Tenant’s Undertaking under section 146 of the SPA containing the Nicola Street address when she purchased her unit in 2015 as required under amended bylaw 4(2)(a) because she rented-out the unit and had a mailing address ‘outside’ the strata. After her tenant left in October 2016, she decided to move into the unit and both she and a friend sent several emails to the agent about her pending move-in in November. The emails were acknowledged. In one email, the Rental Property Manager/Strata Agent thanked her for giving “notice” of the move-in. The applicant subsequently obtained keys from the strata council president and moved-in.

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31. The respondent relies on section 61(1)(a) as authority for notice by mail to the address given by the applicant in 2015 being sufficient. I disagree. In the absence of a bylaw requiring owners to give notice of a change of address in writing, the emails sent to the strata in October and November 2016 before her return to the unit, one of which was specifically acknowledged as notice of her return, were more than sufficient to allow the agent to effect a change of address in the strata records. With that change of address in hand, the strata was bound to comply with section 61(1)(b).

32. The notice provisions in the SPA evidence a legislative intention to allow for the use of email in communications in the conduct of strata business. It is up to the strata or its agent to ensure such communications are governed by effective practices and procedures to ensure records are kept current.

33. I conclude the respondent has not proven it gave proper notice to the applicant as required under sections 61, 112 and 116 of the SPA because it was advised of a change of address and did not give notice at the address provided or in any other of the prescribed ways.

The tribunal ordered the strata corporation to reimburse the applicant:

36. Taking into account my finding that the applicant was not given notice of the debt nor of the strata’s intention to file a lien, and considering the authority given to me under section 48.1 of the CRTA, I find the strata incurred no reasonable legal costs in this case and order the strata reimburse the $500 lien registration and removal costs and the $4,805.29 legal costs paid by the applicant to the respondent.

Governance—general meetings—voting—procedures—access to records

Ringler v The Owners, Strata Plan LMS 4555, 2018 BCCRT 396, concerned a dispute over voting procedure at a strata corporation’s general meetings:

1. This dispute relates to the voting procedures used by the respondent, The Owners, Strata Plan LMS 4555 (strata), at annual and special general meetings.

2. The 8 applicants (owners) own 6 lots within the strata. The owners, who are self-represented, say that the strata has failed to adopt voting practices which comply with the Strata Property Act (SPA). The owners also say that, contrary to section 36 of the SPA, the strata has refused to provide them with the opportunity to review and obtain copies of records regarding votes that occurred at an April 5, 2017 annual general meeting. The owners seek an order allowing them to review and obtain copies of those voting records, an order allowing them to observe future voting processes without restriction, and an order that the strata adopt written voting procedures.

3. The strata, which is also self-represented, takes the position that it is in compliance with the SPA and asks that the owners’ claim be dismissed.

The strata property was very large; as the tribunal noted it “consists of approximately 400 strata lots.”

The applicant owners requested copies of documents (including “voter/proxy sign in registration sheets; “filled in” proxy forms; official scrutineer election results tally sheets; election voting slips; and the strata management company’s procedures and protocols for annual general and special general meetings and voting”) that fell outside the scope of records they were entitled to access:

33. Section 35 of the SPA provides a detailed list of the records that a strata “must” prepare, and the records that a strata “must” maintain. I find that none of the documents requested by the owners is a record that the strata must maintain as described by section 35. Given that fact, and the fact that section 36 of the SPA requires only that the strata make records and documents referred to in section 35 available, I find that the owner’s position that the strata must produce the documents that they have must be dismissed.

The tribunal also refused to order that the strata corporation adopt changes to its voting procedures:

36. First, I note that the strata already has a written procedure for voting, set out at bylaw 28. Bylaw 29 further contains a written requirement that the strata must certify proxies. In my view, those bylaws, provided they are followed, are sufficient to enable the strata to conduct votes at annual and special general meetings in an appropriate fashion such that the strata will meet its duties under the SPA.

37. If the owners wish for strata bylaws 28 and 29 to be amended to contain a different voting procedure than that which the strata currently operates under, they should seek to bring forward a resolution for such an amendment. Section 46 of the SPA provides a mechanism for the owners to undertake such action.

38. Second, and similarly, I consider that if the owners wish for there to be some sort of “observer” role for votes of the strata, the proper forum is to bring forward a resolution for an amendment to bylaw 28.

39. The owners’ claim is dismissed on these issues.

Governance—general meetings—notice—procedure

In Farrell v The Owners, Strata Plan K 414, 2018 BCCRT 382, the applicant owner asked the tribunal for orders in connection with a strata corporation’s annual general meeting:

2. This dispute involves the validity of the strata’s annual general meeting (AGM) held May 21, 2017 (May 2017 AGM).

3. The owner says the strata did not conduct the May 2017 AGM in accordance with the Strata Property Act (SPA) due to an incomplete notice package and improper voting procedure. She seeks orders that the AGM be declared “null and void” and that a new AGM be conducted.

4. In its Dispute Response, the strata agreed the May 2017 AGM was held contrary to the SPA but it now denies the owner’s allegations. It asks that the owner’s claims be dismissed.

The tribunal found that the strata corporation had failed to follow the proper meeting-notice procedure:

45. I turn now to the matters I find are problematic for the strata, which are those matters that require input from the strata owners by way of a vote and for which advance information is required. Namely, adopting a budget, changing LCP parking stalls (if such LCP designations exist), waiving the requirement to obtain a depreciation report, and raising money to obtain a new survey and to complete roof replacement.

46. Which the exception of the proposed budget, I find all other remaining votes required the passing of a 3/4 vote for which the proposed wording was not contained in the May 2017 AGM notice. A change in use of LCP designations, if that is what the parking stall designations include, requires 2 3/4 votes to be passed under section 75 and 74 of the SPA; a 3/4 vote to remove the LCP designation under section 75 and a 3/4 vote to re-designate LCP under section 74.

47. Section 94(3)(a) of the SPA and regulation 6.2 state a deprecation report is mandatory unless the strata waives the requirement by a 3/4 vote at a general meeting. The draft May 2017 AGM minutes state the depreciation report was “tabled” which is entirely different than a 3/4 vote.

48. I find that the manner in which funds were raised by “cash call” to be contrary to the SPA. Specifically, I find the cash calls to be special levies under section 108 of the SPA, which require specific things to be included in proposed 3/4 vote resolutions. Given the proposed wording of the 3/4 vote resolutions for the special levies to raise funds for a new survey and roof replacement were not included with the May 2017 AGM notice, I find the strata did not comply with section 108(3) of the SPA and was therefore in contravention of section 45(3) of the SPA.

49. I find that handing out the proposed budget at the beginning of the May 2017 AGM does not constitute reasonable notice under section 45(4) of the SPA. The purpose of section 45(4)is to give strata owners the opportunity to review the proposed budget in advance of the meeting. The procedure followed by the strata for the May 2017 AGM did not give the strata owners that opportunity.

50. For these reasons, I find voting at the May 2017 AGM was improperly conducted in relation to adopting a budget, changing the LCP parking stalls designations (if such LCP designations exist), waiving the requirement to obtain a depreciation report, and raising money to obtain a new survey and to complete roof replacement. If parking stall designations do not involve changes in LCP, then I find the vote on parking stall designations stands.

Governance—strata-council meetings—attendance as observer

Hugo v The Owners, Strata Plan 1601, 2018 BCCRT 346, was a dispute about “the strata’s authority to exclude owners from attending a strata council meeting.” The dispute took place at “a large bare land strata corporation comprising 645 strata lots located in Cobble Hill, B.C. on Vancouver Island.”

The tribunal found that the strata corporation’s bylaws allowed it to exclude the applicants”

31. However, based on my review of the submissions and evidence, I find that I do not need to look past strata bylaw 10(3) registered at the Land Title Office on June 22, 2015. The bylaw states that, owners may attend meetings of the strata council as an observer except those portions of meetings that deal with, among other things, “personnel issues.” I find the term “personnel issues” includes any matter involving strata employees. I also find that a decision to exclude owners from attending portions of meetings involving personnel issues is at the strata council’s discretion.

32. Based on emails sent to the strata council president by the affected employee on December 8, 2016, in which the employee stated the December 2, 2016 letter of [the second applicant] “went beyond harassment” and insisted on “complete separation” from the applicants until the issue was resolved, I conclude a personnel issue existed between the employee and both applicants.

33. I accept the strata’s submissions that, given the employee’s position and the need for their attendance at strata council meetings to provide information to the strata council to allow it to perform strata business, it was necessary to exclude the applicants from the entire meeting, rather than a portion of it.

34. For these reasons, I conclude the strata, through its council, exercised its reasonable authority to exclude the applicants from strata council meetings while it investigated the employee’s concerns. Practically speaking, the time of the exclusion was December 10, 2016 through January 24, 2017 for [the first applicant] and from December 10, 2016 to a time before January 30, 2017 for [the second applicant] when the exclusion was lifted. It appears from the submissions that this period included 1 strata council meeting on December 14, 2016 at which [the second applicant] was not permitted to attend.

Bylaws—enforcement—rental restrictions—hardship exemption (1)

Armitage v The Owners, Strata Plan PGS 204, 2018 BCCRT 352, was a dispute “about whether the applicants should be permitted to rent their strata lot.” The dispute turned on the Strata Property Act’s hardship exemption:

22. The applicants say the strata has been unreasonable in refusing to grant them a hardship exemption. They ask for an order requiring the respondent to allow them to rent the unit until it is sold.

23. The applicants also seek an order against the strata for reimbursement for “lost rental income” of $1,500 a month, from the date of their Dispute Notice to present, compensation for realtors’ fees of $11,000 and tribunal fees of $125.

24. The respondent says the bylaws no longer permit rentals, and that the applicants did not present evidence that it was an extreme hardship if they were unable to rent. The respondent asks that I dismiss the claim.

The tribunal found that the applicants weren’t able to establish hardship:

44. On the issue of hardship, the applicants provided evidence that

(i)     they could not sell their property largely due to interested parties being unable to sell their existing homes; and

(ii)    they continue to pay utilities, strata fees, insurance and property taxes (of about $950/month) without being able to offset those expenses through rental income.

45. The strata says that unit 216 is not the applicants’ primary residence. They also indicated that the applicants rented unit 216 for six years, taking in about $100,000 in rental income. The applicants did not address these issues in their evidence or submissions.

46. Turning to the Als criteria for hardship, I find that the applicants have not established hardship on a balance of probabilities. They are still able to obtain insurance for their unit, and ongoing property related expenses are modest when considering the unit’s value.

47. The applicants provided scant information about their financial position. The evidence available suggests the unit is a secondary property asset for them. While they demonstrated some inconvenience associated with paying ongoing expenses for a property they have been unable to sell for their asking price, the situation falls short of establishing hardship. There is no evidence of a substantial decrease in sale value making up “all or substantially all” of the owner’s assets.

Bylaws—enforcement—rental restrictions—hardship exemption (2)

In Belotte v The Owners, Strata Plan NW 1878, 2018 BCCRT 437, the applicant strata-lot owner asked the tribunal for an exemption from the respondent strata corporation’s rental-restriction bylaw:

2. This dispute involves the owner’s request for a hardship exemption from the strata’s rental restriction bylaw.

3. The owner asks for orders that the strata grant her a 3-year exemption from the strata’s rental restriction bylaw. She asks that the 3-year period start when a tenant moves into her strata lot. I infer the strata asks that the owner’s claim be dismissed.

The strata property was “an 18-unit residential strata corporation located in White Rock, B.C. created under the Condominium Act (CA).”

The tribunal found that the owner was entitled to the exemption because the strata corporation had failed to meet the act’s deadlines:

26. I find the strata failed to meet both the timeline to hold the owner’s requested hearing and the timeline to provide the owner its written decision regarding her exemption request. Based on [section] 144 (4) (a) and (b) of the SPA, the exemption is allowed. My conclusion is supported by the decision of the British Columbia Supreme Court in The Owners, Strata Plan LMS 3442 v. Storozuk, 2014 BCSC 1507, where the court found that the strata corporation was 1 day late in providing its written decision to the owner who requested a hardship exemption, and thus the owner’s exemption request was allowed.

Bylaws—enforcement—short-term accommodation

The Owners, Strata Plan BCS 4294 v Truong, 2018 BCCRT 378, was a dispute about enforcement of a short-term accommodation bylaw:

1. The applicant in both disputes, The Owners, Strata Plan BCS 4294 (strata), is a strata corporation consisting of 338 residential strata lots located in four multi-unit buildings and one three story townhouse building located in Pitt Meadows, British Columbia. The strata is represented by the strata president.

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4. The strata says the respondents are renting out their strata units in violation of the strata bylaws and owe unpaid fines and fees. The strata wants an order directing the respondents to cease their business rental activities, an order of compensation for the fines and fees, and reimbursement for expenses and dispute fees.

5. The respondents say the strata has no basis to prohibit them from renting their strata lots. The Rental Disclosure Statement (rental statement) provided to them by the owner developer prior to purchasing their strata lots, permits the rental of SL 167 and SL 139 (units). The strata bylaws have no application to the respondents’ rental circumstances and cannot be relied upon to justify the strata’s fees or fines.

As the tribunal put it, “[t]he issue in this dispute is whether the respondents’ rental of their respective strata lots is a breach of the strata bylaws and if so, what are the appropriate remedies including whether the strata should be reimbursed for tribunal preparation expenses and for tribunal filing fees.”

The tribunal found that the respondents were in breach of valid strata-corporation bylaws:

46. I find the rental disclosure statement in combination with the application of section 143(2) of the SPA to mean the strata can’t pass a bylaw that would prevent an owner from renting out their unit for a residential purpose until 2111. I do not find however, that either the SPA or the rental statement prohibits the strata from changing the bylaws to restrict owners from the short term temporary rental use of their units for a business purpose.

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49. The respondents draw a distinction between their commercial rental activities and the activities of the temporary rental housing businesses listed in bylaw 3.2(m) such as Air BnB and hotels which are licensed operations. In substance, I find the respondents are renting out their units to provide what is an essentially a hotel-like temporary rental accommodation service.

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51. I find the respondents’ rental use of the units is not a true residential use of the units. The renters are “residing” in the units but they are living there on a short term temporary accommodation basis pursuant to the unit being used for a business rental purpose. They do not have the full possession connection that distinguishes a temporary from a permanent housing possession connection.

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54. I have concluded the bylaws are not in conflict with the right given to owners in the rental statement to rent out their units until 2111. I find the fact that [the respondents’ representative] executes residential tenancy leases with the tenants does not transform what is in essence a commercial short-term temporary rental use arrangement. The strata acted to prohibit the short-term business accommodation rental exercise of the “right to rent” as that use is not consistent with the residential use only restriction in the rental statement and in bylaw 3.1. The units can be rented out only on a primary residential use basis, and not for a primarily short-term accommodation business basis.

In the result, the tribunal granted the strata corporation an “order [that] the respondents to comply with the strata’s bylaws.”

Bylaws—enforcement—parking—alteration to strata lot—approval—immaterial change

The Owners, Strata Plan BCS 945 v Miller, 2018 BCCRT 414, involved a parking dispute that engaged bylaw enforcement and strata-lot alteration:

3. This dispute involves the manner in which the owner parks his truck halfway inside his garage and halfway on the parking pad outside of the garage, with the garage door open, and his construction of a false door in his garage.

4. The strata claims that by parking with the garage door open and failing to remove the false door in the garage, the owner is in contravention of its bylaws and has levied fines against him, which remain outstanding.

5. The owner argues that he is not in contravention of the bylaws and should be permitted to park in the manner he has.

The dispute took place in a strata property that the tribunal described as follows:

14. The strata was built in 7 phases between July 2004 and June 2005 and is located in Surrey, BC. It comprises 23 separate buildings, with a total of 175 strata lots. Each strata lot is 3 levels with a garage on the ground level.

15. The strata plan shows that each strata lot’s garage forms part of the strata lot and the corresponding parking pad, or driveway, is common property.

The tribunal found that the owner’s manner of parking his truck didn’t amount to a contravention of the strata corporation’s bylaws:

32. The owner argues that the term “not in use” is not defined in the bylaws and under a plain language definition of “use,” parking his vehicle constitutes use of the garage area such that the garage door may remain open.

33. I agree with the owner. The language used in the bylaws is to be given its plain and ordinary meaning (Great Western Railway Co. v. Carpalla United China Clay Co. (1990), 1 Ch. 218 (C.A.), referred to in Harvey v. Strata Plan NW 2489, 2003 BCSC 1316 (B.C.S.C.)). On a plain reading of the definition of “use,” I find that the parking of the owner’s truck halfway in and out of the garage is use of the garage area and as such, his garage door need not be kept closed.

34. I find, therefore, that the owner is not in contravention of bylaw 45(4). Accordingly, I decline to order him to stop parking his truck in the manner he has with the garage door open. This claim is dismissed.

The tribunal also found the owner’s installation of a false door on the garage wasn’t a bylaw contravention:

37. The photographs submitted in evidence show that the false door is inside the garage, which forms part of the strata lot and is therefore not common property. As such, bylaw 7.1 rather than bylaw 8.1 applies. Accordingly, I find that the owner was not in contravention of bylaw 8.1.

The door was an immaterial change to the owner’s strata lot and, as such, didn’t require the strata corporation’s approval:

40. In determining what constitutes an alteration in the context of strata bylaws, where a change to the structure of the property is not required, it cannot be an immaterial change (see Allwest International Equipment Sales Co. Ltd. v. Strata Plan LMS 4591, 2018 BCCA 187). Although the Allwest decision refers to alterations made to common property, this analysis applies equally to alterations made to a strata lot, as is the case here.

41. In my view, the construction of the false door is an immaterial change to the garage. It is impermanent and movable, and once taken off its hinges, the garage remains in its original condition.

42. For these reasons, I find that the construction of the false door is not an alteration that requires the strata’s approval such that the owner is in contravention of bylaw 7.1.

Bylaws—enforcement—improper storage—enforcement procedure

The Owners, Strata Plan KAS 2660 v Kwan, 2018 BCCRT 386, involved a dispute over enforcement of the strata corporation’s bylaws:

2. This dispute involves collection of a bylaw fine.

3. The strata fined the owner for storing his boat in the strata’s underground parkade contrary to its bylaws. It asks that the owner be ordered to pay fines totalling $200.

4. The owner says the strata is out of time to file its dispute due to the 2-year limitation period set out in the Limitation Act (LA). Alternatively, the owner says he was not notified of the infraction until May 13, 2016 and that the strata did not follow proper procedures before imposing the fine. The owner asks that the strata’s claim be dismissed.

The tribunal found that the strata corporation began its enforcement action within the limitation period:

26. . . . I note the letter assessing the fine was issued on August 14, 2015 and assessed against the owners strata lot on September 1, 2015. Allowing a reasonable period time for the owner to pay the fine, I would not find the cause of action arose prior to September 1, 2015, which means the strata had to start the claim had to start by September 1, 2017. The claim was started within the 2-year limitation period.

But the strata corporation had failed to follow the statutory enforcement procedure:

33. That the owner admits to receiving the bylaw contravention letter by email on May 13, 2016 does not correct the procedure the strata is required to follow under section 135 of the SPA, given the fine had already been assessed in September 2015. In Cheung v. The Owners, Strata Plan VR 1902, 2004 BCSC 1750, the court found that a procedural error under section 135 of the SPA may be corrected by reversing the fines, and essentially re-starting the procedural requirements of section 135. That is not the case here as the fine was not reversed and the procedural requirements were not restarted.

34. Given my conclusion, the strata has not met its burden of proof that the owner received the bylaw letters at the material times of this dispute. I dismiss the strata’s claim for payment of $200 in bylaw fines.

Bylaws—enforcement—pet bylaw—unleased dog—statutory procedure

Himmelmann v The Owners, Strata Plan LMS 2064, 2018 BCCRT 426, concerned a dispute over enforcement of a strata corporation’s pet bylaw:

3. The strata assessed the owner’s strata lot two $200 fines for the tenant’s alleged contraventions of the strata’s pet bylaws. The tenant alleges the strata did not receive a complaint about the dogs and acted contrary to section 135 of the Strata Property Act (SPA) when assessing the fines.

4. The applicant asks for orders that the strata reimburse him $400 for the bylaw fines he paid and $9,000 for “his time, undue stress and opportunity costs.”

The strata property was “a 382-unit residential strata corporation located in Vancouver, B.C.”

The tribunal found that defects in the procedure used by the strata corporation in enforcing its bylaw led to the conclusion that it couldn’t collect its fines:

38. However, the procedure followed by the strata in assessing fines creates 2 fatal errors that I find deny the strata the ability to collect those fines from the tenant.

39. First, the evidence shows the strata did not give the tenant any written particulars of the complaint as it only wrote to the owner, contrary to section 135(e) of the SPA. It was not until the tenant requested a hearing to discuss the bylaw fines assessed against the owner’s strata lot that the strata wrote directly to him. While, the procedural defect could have been cured if the strata had reversed the fines, given the tenant written particulars of the complaint(s), with a copy to the owner and landlord, and given the tenant a reasonable opportunity to respond, that is not what occurred. (See Cheung v. Strata Plan VR 1902, 2004 BCSC 1750). I do not find that the procedural defect was cured when the hearing was held. Further, that the owner may have notified the tenant does not relieve the strata from notifying the tenant directly.

40. Second, I find the fines were assessed before the tenant was given the opportunity to be heard. As earlier noted, the September 5, 2017 strata council meeting minutes refer to a dispute about fines that had been charged.

But the tribunal dismissed the owner’s claims for compensation.

Bylaws—amendment—rental pool

Jedmen Holdings Inc v The Owners, Strata Plan NES 3120, 2018 BCCRT 425, was “a dispute about bylaw amendments and whether the strata corporation, The Owners, Strata Plan NES 3120 (strata), is making all owners subject to a rental management contract between the strata and a third party (rental manager) that should not apply to all owners.”

The tribunal characterized the strata property and its rental pool in the following terms:

10. The disclosure documents produced when the strata property was being built and marketed describe the strata as a “condominium hotel.” Other documents filed at the land title office describe the strata in the same way. Regardless of this description, the Strata Property Act (SPA) applies to the strata.

11. The strata is made up of 1 commercial strata lot, and 48 residential strata lots. The residential strata lots, including the owner’s strata lot, have restrictive covenants registered against them, that restrict the owners’ ability to rent their strata lots on a short-term basis, except through an agreement with the rental manager in an optional rental pool.

12. 28 of 48 owners participate in the rental pool. Each owner who participates in the rental pool has a separate agreement with the rental manager for their participation in the rental pool.

13. The strata owns the commercial strata lot, and leases it to the rental manager. The lease between the strata and the rental manager was provided as evidence.

14. The rental manager manages the rental pool. The rental manager also provides some services to the strata that are separate from the rental pool (other services). At least some of the other services, including creating new key cards for owners or their visitors, are provided to all owners, not just owners who are part of the rental pool.

The tribunal found that the strata corporation’s involvement in the rental pool wasn’t in the interests of all owners:

34. I find that by being a party to the [Master Rental Management Agreement] and by having the [Owners Rental Committee] be a committee of the strata council, the strata is involved in the management of the rental pool, which is not in the interests of all owners. I find, on a balance of probabilities, that the strata council is not able to act in the interests of all owners when it is involved in the management of the rental pool, because the interests of rental pool owners and non-rental pool owners sometimes compete.

This led the tribunal to conclude that the rental pool wasn’t enforceable:

38. Section 141 of the SPA explains that the strata cannot restrict the rental of strata lots, except to prohibit rentals, or place limits on the number of number of strata lots that may be rented. The MRMA places restrictions on the rental of strata lots in a way that is not permitted by section 141 of the SPA. I find that the MRMA is not enforceable.

In the result, the tribunal ordered:

• the strata stop its involvement in the management of the rental pool,

• the strata council stop having the ORC as a committee of the strata council,
• the MRMA is not enforceable, and
• the strata not enter into another agreement with any rental manager that deals with the rental pool.

Insurance—deductible—responsibility—burst irrigation pipe

In The Owners, Strata Plan EPS 518 v Litke, 2018 BCCRT 342, the applicant strata corporation asked the tribunal for “a determination of whether an owner is responsible for reimbursing the strata an insurance deductible that it paid”:

13. The strata admits that the water damage was not a result of the negligence of the owner. The strata also admits that the water damage was a result of a ruptured irrigation line on common property. They say that pursuant to section 158(2) of the Strata Property Act (SPA) they have the right to claim back the deductible from the owner. The strata also claims reimbursement for $790.56 legal fees incurred when they retained legal counsel to review and advi[c]e regarding case law presented to them by the owner’s legal counsel as well as $225.00 for tribunal filing fees.

In view of the strata corporation’s admissions, the tribunal found that it could not prove that the owner was responsible for the damage:

18. The strata must prove that the owner is responsible for the loss or damage that gave rise to the claim to be entitled to payment of its deductible by the owner. The strata has acknowledged that the loss arose from a faulty irrigation pipe on common property and has not provided any evidence of responsibility on the part of the owner. The cause of the loss did not originate with the owner’s strata lot or personal property. There is no evidence that the owner’s negligence or carelessness caused the loss.

19. I therefore find that the owner is not responsible for the payment of the insurance deductible.

Common property—definition—repairs and maintenance—retaining wall

In Erdmann v The Owners, Strata Plan KAS 2452, 2018 BCCRT 398:

2. The owner seeks a declaration that all assets built by the developer that support the strata lots, whether on common property or individual lots, are common property to be maintained by the strata. In particular, he says the retaining wall on the perimeter of his lot is common property to be maintained by the strata.

3. The strata disputes the relief sought by the owner. In particular, the strata says that all lots owners are responsible for the maintenance of their lots, including retaining walls on their property.

The case took place in a strata property described as follows:

12. The strata is a bare land strata and was created in November 2002. It consists of 37 lots and is located in Osoyoos, British Columbia.

The parties agreed that the retaining wall was located on the owner’s strata lot.

Since the strata corporation hadn’t agreed to take responsibility for property located on a strata lot, the tribunal found it was the owner’s responsibility to repair and maintain the retaining wall:

35. . . . at the August 30, 2017 SGM, the strata voted against assuming responsibility for the perimeter retaining walls. In his submission, the owner notes that he objected to the July 2017 motion to set the SGM for August 30, 2017 on the basis that he would be out of town until mid-September 2017. Nonetheless, the owner does not dispute the voting procedure deployed for the question, nor does he dispute the results. On my review of the minutes, I find that the voting procedure in respect of the question was consistent with bylaw 29, which outlines the voting procedure.

36. Further, as shown in photographs provided by the parties, the retaining wall is comprised of interlocking blocks and is not a continuous wall. As a result, the section of the wall on the owner’s lot provides support only to his property, just as the sections of it on the other lots provide support only to those respective lots.

37. I disagree with the owner’s submission that section 69 of the Strata Property Act somehow makes the wall common property. While section 69 does allow for an easement for each strata lot for vertical and sideways support by common property and for common property, it does not create common property.

38. In summary, given the evidence, I find that the owner is responsible to repair and maintain the retaining wall on the owner’s property. Accordingly, I dismiss the owner’s claim.

Common property—significant change in use or appearance—wooden septic tank cover

In Farrell v The Owners, Strata Plan K 414, 2018 BCCRT 369, the applicant owners asked for an order to remove a wooden cover that the strata corporation had installed on a septic tank:

3. This dispute involves the addition of wooden septic tank cover on common property adjacent to the respondent owner’s SL7 (cover).

4. The applicants say the cover approved by the strata is significant within the meaning of section 71 of the Strata Property Act (SPA) and that a 3/4 vote of the strata is required. They ask that that the cover be removed.

5. The strata denies the cover is significant and asks that the applicants’ claims be dismissed.

The dispute took place in “a 9-unit residential strata corporation located in Sicamous, B.C.”

The tribunal dismissed the applicant’s dispute, finding that the addition of the wooden cover didn’t amount to a significant change in the appearance of common property:

31. Here, the altered property is to the rear of SL7 between the building and fence. The dimensions of the cover have not been provided but from the photographs, I would estimate the cover to be approximately 8 feet by 12 feet standing approximately 1 foot above the ground. The ground below the cover is relatively level and appears from the photographs to be covered in gravel and large flat rocks, except for the septic tank access. There is a hinged access through the cover to access the septic tank lid located at ground level.

32. Given the location of the cover and based on the photographs provided, I find it is visible to SL7 and likely from the bathroom window of strata lot 8.

33. Except for SL7, access to the common property would be from behind the building between the building and a fence. SL 7 has access to the cover because of another alteration approved for an exterior door that is not the subject of this dispute. I understand that SL7 is the only strata lot with a rear exterior door and therefore find the change benefits only SL7.

34. I do not find that the cover causes a direct interference or disruption given access to the rear of the building can be made by either walking beside the cover or over it.

***

37. In the past, the strata says it has put decisions about alterations and other matters before the general ownership. This is evident from the May 2017 AGM minutes and the May 1998 AGM minutes that were provided as evidence. Examples include the removal of trees and stumps from common property, cancelling cable channels, installation of copper piping extending an exterior hose bib, removal of cedar shrubs, pumping of septic tanks to name several. None of these decisions were voted on.

38. The May 2012 AGM minutes say all owners were present and all approved the requested alterations to SL7. The applicants say the SL7 alterations were not voted on. However, from the examples cited above, I find it was common practice for the strata to approve matters affecting common property and common expenses by owner agreement without a vote.

39. Applying the above criteria, I find the change in use or appearance of common property caused by the cover was not significant. In reaching this conclusion I have placed significant weight on the fact all owners, including some of the applicants, were present at the May 2012 AGM and approved the changes, and that it was not uncommon for decisions to be made by the general ownership rather than the strata council.

Common property—significant change in use or appearance—cutting down trees

Tuddenham v The Owners, Strata Plan K 660, 2018 BCCRT 421, was a dispute over whether cutting down trees on a strata corporation’s common property amounted to a significant change in the appearance of that common property:

1. Does the cutting down of 12 pine trees by a strata corporation on its common property constitute a significant change in the use or appearance of that common property? If so, does it require prior authorization by resolution passed by a 3/4 vote of strata owners in a general meeting? Or is it a matter of repair of property which falls within the strata corporation’s mandate and requires no vote? That is the issue I have to determine on the facts of this case.

The tribunal noted the following background to this dispute:

8. The strata is a 40 unit townhouse development in the lower Mission area of Kelowna called Fascieux Creek. It was constructed in the late 1980’s and has mature landscaping. As with any construction of that age, there are ongoing issues with repair, maintenance and replacement that the strata must undertake from time to time.

9. The strata states that in early 2017 owners complained that roots from some pine trees were causing problems in crawlspaces of units. The strata council was advised by the strata manager that sales of units were failing to complete due to foundation and structural issues discovered during home inspections.

In the tribunal’s view, removing the trees was a significant change in the appearance of common property:

27. From a review these factors and of the photographs provided of the area where the trees were cut, I find as a fact that this tree-cutting was a significant change in appearance under Section 71 of the SPA. The area had mature trees that sheltered the adjacent townhouses. There are now stumps and no shelter. The change is highly visible to anyone who sees the stumps. The change is not aesthetically pleasing, and it detracts from the use and enjoyment of the adjacent units. I find it can easily affect the marketability and value of the adjacent townhouses. No evidence has been provided for any similar changes in the past. The test is met.

This change wasn’t authorized by a resolution passed by a 3/4 vote and the tribunal found it couldn’t be justified within the scope of the strata property’s duty to repair and maintain common property:

37. In this case, no evidence was provided that the strata member who instructed Aloha to cut the trees had any delegated or other authority to do so, and there was no evidence of any majority vote of the strata council to have the trees removed.

38. For these reasons, I do not need to consider whether, had the strata council decided by a majority vote to cut the trees, it would have been authorized by Section 72 to do so. The strata did not authorize cutting the trees. A person with no authority to do so arranged it.

39. Consequently, the tree removal was not lawful under the SPA or strata bylaws. It could only have been done lawfully with a prior 3/4 vote of all strata owners present at a general meeting.

The tribunal granted the applicants the following remedies:

41. Applying my discretionary authority to this case, I find that the strata is obliged to remediate the unlawful removal of the trees. As noted earlier, the strata has an obligation to repair common property. The scope of that duty to repair has been interpreted broadly. In the Frank case at paragraph 54, the court noted that the words “maintain” and “repair” are broad enough to include alterations of the finish or appearance. That will necessarily be the case here.

42. Applying that principle, I find that the remedies proposed by the applicants are a reasonable way to remediate. The strata will grind down the 12 stumps and plant 12 paper bark maple trees. I will not fix an amount for that work, but leave it to the strata to get quotations on the work and its cost. This work is to be done within 90 days of this decision.

Common property—fire-safety sprinklers—closet

The Owners, Strata Plan VIS 4925 v Stokhof, 2018 BCCRT 367, was a dispute over the installation of sprinklers in a strata-lot’s closet:

1. The Owners, Strata Plan VIS 4925 (strata) asks the Civil Resolution Tribunal (tribunal) to order the respondent owners . . . to install sprinklers in two closets in their strata lot (unit) or alternatively to grant the strata permission to install the sprinklers and charge the owners the cost of installation. . . .

2. The owners deny that their unit is in contravention of either any fire or City of Victoria regulations or the strata bylaws.

The tribunal found that there was a legal requirement to install the sprinklers:

25. I find that there is a legal requirement for the installation of sprinklers in the closets in the owners’ unit. This is set out clearly in the letter of the Chief Plumbing Inspector, Permits and Inspections, City of Victoria dated December 14, 2016. Not only does that letter confirm the requirement, it also expressly states that the only exception to the requirement for sprinklers in closets relates to hotels and motels, which is an answer to one of the owners’ defenses. This is a full answer to the exception claimed by the owners. There is nothing in the evidence that rebuts the content of this letter, which I accept as accurate and governing the present situation.

26. Further, I find that the December 14, 2018 letter from the City of Victoria which was delivered both to the owner and to the strata, is a notice from a public or local authority for the purpose of section 84 of the SPA.

The tribunal also found that, since the sprinklers would be considered common property, the strata corporation is liable to pay the cost of their installation:

33. The question arises as to whether the owners must pay for the work if they have the required sprinklers installed. The answer to this question is determined by whether the sprinklers are common property. If they are common property, then the strata is required to pay the cost of installation. In my view, the sprinklers are common property. While they are located in the owners’ strata lot, they are an extension of the fire protection infrastructure for the entire building. For this reason, I find that the cost of installing and maintaining the sprinklers is a cost of the strata no matter who initiates the installation.

Common property—repairs and maintenance—snow removal—parkade ramp—negligence

In van Bodegom v The Owners, Strata Plan LMS 2704, 2018 BCCRT 406, the applicant strata-lot owner claimed the respondent strata corporation was responsible for damage to the applicant’s car due to the respondent’s negligent performance of its duty to repair and maintain common property:

2. This dispute is about whether the owner or the strata is responsible for damage to the owner’s car caused when it came into contact with the strata parkade’s overhead door.

3. The applicant says he reversed down the ramp when, on December 31, 2016, when his car failed to “make it” out of the strata parkade. His evidence is that he decided to put the car in reverse and slowly back down the ramp. He contends that he would not have had to do so if the ramp had been properly cleared of snow and salted. He asks for an order that the strata remove the overhead gate repair levy from his account ($551.25), and pay for his car repairs ($2,665.85) and tribunal fees ($225.00).

4. The strata says the ramp was cleared of snow and ice at least twice that day, that there was a weather warning advising people not to drive, and that the applicant should not have reversed into the parkade door before it was fully open. The strata says it met its maintenance responsibilities regarding clearing snow and ice, and keeping the overhead door functioning normally. It asks that I dismiss the dispute.

The tribunal found that the strata corporation had met the standard of care in the circumstances:

30. I find that the strata met its obligation to maintain the parking ramp reasonably clear of snow and ice, by contracting with the site manager, who cleared the snow at least twice on New Year’s Eve 2016.

31. In making these findings I place particular weight on the evidence of at least 2 snow clearings by the site manager that day, along with salting and sanding the ramp, and in the context of residents having been cautioned by Environment Canada not to drive their cars in the severe winter conditions. Given the winter weather warning, I find that a reasonable person, using a car without four wheel drive and mountain snowflake (rather than only M & S) tires, would not have attempted to exit the parkade that evening.

In the result, the applicant’s dispute was dismissed.

Common property—repairs and maintenance—drainage pipe

Buschau v The Owners, Strata Plan LMS 1816, 2018 BCCRT 413, was a dispute over a strata corporation’s duty to repair and maintain common property:

3. The owner says the strata has failed to meet various duties under the Strata Property Act (SPA) and its bylaws. She seeks a number of remedies related to the expense of investigating and repairing drainage pipes, plus compensation for loss of use and enjoyment of her strata lot. The owner also seeks reimbursement of legal fees and expenses.

***

15. The owner says that since 2006, waste water has been backing up into the kitchen sink in her strata lot. She says the strata has been aware of this problem since then, but failed to properly investigate and repair it.

The tribunal ordered the strata corporation to investigate the applicant’s concerns:

42. Based on [the applicant’s engineer’s] expert opinion, I order that the strata, at its cost, engage a qualified contractor to expose the horizontal offset pipe below the owner’s floor. A certified engineer selected and paid by the strata (who may or may not be [the applicant’s engineer]) must inspect the pipe to determine if the slope is less than 2%, and if it is, the slope must be corrected at the strata’s expense.

The tribunal also found the applicant to be “entitled to $6,000 in damages for the strata’s failure to take steps toward a permanent repair of the drain problems after they became frequent rather than intermittent.”

Common property—repairs and maintenance—water ingress

In Fraser v The Owners, Strata Plan LMS 1023, 2018 BCCRT 423, the applicant strata-lot owners asked the tribunal for orders in connection with damages caused by water ingress:

2. The owners describe water ingress, mould, and ant infestation in their strata lot. They say the strata has failed to make proper repairs. The strata says that it made adequate repairs. The strata agrees to pay for ant extermination, but not for other claims by the owner.

The tribunal found that the respondent strata corporation had adequately carried out its duty to repair and maintain common property:

44. In the owners’ strata lot, the strata repaired the lower part of the north exterior wall. The owners are concerned that the repair might not prevent deterioration or damage in the future. Nothing in these reasons prevents the owners from reporting to the strata in the future if their strata lot needs repair then.

45. The strata also obtained its own report and is prioritizing repairs in the strata complex as its budget permits.

46. For the reasons discussed above, I find that the strata has made adequate repairs in the owners’ strata lot. The strata need not perform the specific repairs demanded by the owners to comply with the owners’ engineering report. I dismiss this aspect of the owners’ claim.

Common property—limited common property—parking stall

In Tan v Mermut, 2018 BCCRT 410, two strata-lot owners were locking in a dispute over a parking stall:

1. The applicant is the co-owner of strata lot 36 (SL 36) in the building of the respondent strata corporation, The Owners, Strata Plan LMS 2731 (strata). The respondent [strata-lot owner] (respondent owner) owns strata lot 42 (SL 42) in the same building. The applicant says that the respondent owner has wrongfully been using parking space #15, which the applicant says is designated as the limited common property (LCP) of SL 36. The applicant asks for an order that the respondent owner stop parking in parking space #15 and for an order that the strata enforce parking space #15’s LCP designation in favour of SL 36. The applicant also seeks reimbursement of legal fees and tribunal fees.

2. The respondent owner says when he bought SL 42, he acquired in the agreement of purchase and sale the right to use parking space #15 in exchange for parking space #31, the parking space designated as the LCP of SL 42. As such, he says the applicant should use parking space #31.

The tribunal found that the parking stall had been designated as limited common property for the benefit of the applicant’s strata lot and that this designation hadn’t been removed:

42. While I am sympathetic to the respondent owner’s position and acknowledge the hardship he says he will suffer if he is not able to park his work vehicle in parking space #15, I agree with the applicant that the applicant (and his co-owner) have the legal right to exclusively use that parking space.

43. Because parking space #15 is LCP allocated to SL 36, there would have to be some enforceable transfer of the legal right away from SL 36 or the applicant in order to affect the applicant’s right to exclusive use, such as a change in the LCP designation. The respondent owner pointed to his agreement of purchase and sale that made reference to a swap of parking spaces. However, a reference to a different parking space in an agreement of purchase and sale does not have the effect of changing legal rights as registered in the land title office.

***

49. I conclude that the applicant as a co-owner of SL 36, is entitled to the exclusive use of parking space #15 as the LCP of SL 36. I order that the respondent owner immediately stop using parking space #15 and cease doing so unless and until:

a. he receives an authorized licence to do so, or

b. parking space #15 is designated as LCP for the benefit of a strata lot that he owns or occupies.

The tribunal also ordered the respondent strata corporation to enforce this limited-common-property designation:

57. I order the strata to enforce the LCP designation of parking space #15. In addition I order the strata to enforce bylaw 49 to allow the applicant (or his co-owner or authorized tenant) exclusive use of parking space #15. Also, in order to eliminate future confusion, I order the strata to immediately correct the current parking rent roll to show that parking space #15 is assigned to and “owned” by SL 36 or Unit 219, in compliance with bylaw 59.

Common property—limited common property—balcony—repairs and maintenance

In Edgar v The Owners, Strata Plan LMS 2207, 2018 BCCRT 439, the applicant strata-lot owner asked the tribunal for orders in connection with balcony repairs:

2. This dispute involves payment for balcony repairs. The owner says the strata failed to repair balconies in the strata complex, which are limited common property (LCP), and failed to follow its bylaws in dealing with balcony repairs. She seeks various orders relating to balcony repairs, including reimbursement of $18,828 she paid for repairs to the balcony attached to her strata lot and $12,000 for costs related to LCP.

3. The strata admits that it failed to repair the balconies and failed to follow its bylaws, but disagrees about the appropriate remedies.

The tribunal described the strata property and its balconies as follows:

14. The strata complex consists of 7 townhomes. The parties agree that the balconies attached to the front of each strata lot are LCP. Sometime before December 2016, balcony damage was discovered. According to documents from the strata, water was seeping into the balcony structures, resulting in mold and mildew spreading to the adjacent garage ceiling.

The tribunal found that the owner was entitled to partial reimbursement for amounts she spent to repair her balcony:

32. The April 2018 SGM minutes show that the owners approved a $45,000 special levy for balcony repairs, to be paid only by the 3 strata lot owners whose balconies had not yet been repaired. The schedule included in the Strata Plan shows that each of the 7 strata lots has almost the same unit entitlement, so each of the 3 strata lots subject to the April 2018 special levy paid about $15,000. This is almost the same as the $15,246 paid by the owner.

33. In the circumstances, I find that it is reasonable for the strata to reimburse the owner $246 for balcony repairs. This makes her contribution to balcony repairs equal to the contributions of those owners who did not repair their balconies in 2017. The remaining 3 strata lot owners who paid to repair their own balconies in 2017 have not filed claims, and the evidence before me does not establish what they paid. Thus, I find their costs are not determinative of this dispute.

Common property—use—parking stall—fence

Parkinson v The Owners, Strata Plan VIS 5086, 2018 BCCRT 438, involved a dispute in “a 10-unit bare land strata corporation located in Langford, British Columbia”:

2. This dispute is about a fence and rock wall installed by the applicants on the strata’s common property and the use of a parking stall located on SL9 [the owner’s strata lot].

3. The applicants seek orders for permission to keep an existing fence and rock wall, the continued use of their parking stall, that the strata refrain from painting lines identifying common property boundaries, and that all bylaw fines assessed against SL9 by the strata be rescinded.

The tribunal found that the strata corporation had approved construction of the fence:

47. In its submissions, the strata admits the applicants were given permission to install a fence but says the permission was for a fence to be installed along common property but not on it. It is undisputed that the applicants’ letter submitted by their proxyholder at the March 2011 AGM, which details their request, has been lost and that a copy does not exist. Both parties rely on the March 2011 AGM minutes that state the applicants’ request for a fence was approved.  The actual language of the minutes is that the applicants’ request “to place a fence along the common property roadway, adjacent to their property” was approved. I find the statement at the end of the March 2011 AGM minutes is consistent with the applicants’ position and contrary to the strata’s position. The applicants did precisely what the minutes show and installed a fence along the common property roadway adjacent to their strata lot.

The tribunal came to the following conclusion on ownership of the enclosed common property:

59. Another issue created by the current situation is that of ownership of the enclosed common property. While the common property must be maintained and insured by the strata, every strata lot owner owns an undivided interest in the common property in proportion to the unit entitlement of their strata lot under section 66 of the SPA. This raises the question of access to the enclosed common property by every other strata lot owner in the strata.

60. Given the current circumstances, I find the situation must be corrected. However, I am not prepared to make either requested order. Instead, I adopt the view taken by the Supreme Court of British Columbia that the democratic government of a strata corporation should not be overridden by the court except where absolutely necessary and that it is important that owners in a strata corporation attempt to resolve their differences by following the procedures contemplated by their bylaws and the SPA. (See Foley v. The Owners, Strata Plan VR 357, 2014 BCSC 1333 at paragraph 30 citing Lum v. Strata Plan VR 519 (Owners of), 2001 BCSC 493.).

61. For me to make an order before the strata and applicants have properly considered available options would be to interfere with the democratic rights of the strata owners, given the options involve the either 3/4 vote or majority vote of the owners.

The tribunal found that the strata corporation couldn’t prevent the applicant from using the parking spot:

67. I find the evidence clearly shows that the City’s zoning bylaw required the parking space for the applicants’ house to be built. This is confirmed by the City staff in their email discussions with both parties’ representatives, and contained in both parties’ submissions relating to verbal conversations with City staff. Clearly, the house was built and therefore the zoning bylaw applies.

Finally, the tribunal set aside the strata corporation’s fines:

84. In all cases, there is no evidence to suggest the applicants were given an opportunity to respond to the allegations including the right to a council hearing as required under section 135 of the SPA. The sample letters provided simply noted the bylaw infraction and that a fine had been assessed. This alone is sufficient for me to find all bylaw fines invalid.

Strata lot—damage—nuisance—negligence—water leak

In Shura v The Owners, Strata Plan LMS 1104, 2018 BCCRT 339, the applicant strata-lot owner owned the strata lot below that of the respondent owners and:

Water leaked through the ceiling into the applicant’s unit and damaged his bathroom. He asks for the strata and respondent owners to pay for the repairs.

Based on an “inspector’s opinion,” the tribunal found “the water escaped from unit 702 and not from the common property.”

The tribunal found that the water escape constituted a nuisance:

34. [The respondent owner] has interpreted the inspection report to say that the leak had “absolutely nothing to do with” her unit. In my view, [he respondent owner] mischaracterized the inspection report. The report clearly says that the water came from her unit. The respondent owners did not provide any evidence from themselves or anyone else to refute the inspector’s opinion that the water escaped from their unit.

35. The inspector’s opinion, which all parties have accepted and relied on, determined that the damage caused to unit 603 came from an accidental water escape event from unit 702. I accept the inspector’s findings that there were no mechanical problems with the pipes or fixtures in unit 702 which would lead to a leak. With mechanical failures ruled out, I find it is more likely than not that the action or inaction of someone in unit 702 led to the water’s escape from the unit that damaged unit 603.

36. Given the damage to unit 603, I conclude that the escaped water constituted a nuisance. By allowing water to escape their unit, the respondent owners, or someone under their charge, substantially and unreasonably interfered with the applicant’s use and enjoyment of his property. As such, I find the respondent owners liable to the applicant in nuisance.

It also constituted negligence:

40. As noted, I accept the inspector’s finding that there was no mechanical failure of the pipes or fixtures in unit 702 that led to the water’s escape, such as a leaky toilet, shower or pipe. Further, I accept the inspector’s opinion that the damage caused to unit 603 was caused by an unknown isolated water escape event originating in unit 702. Without evidence of a mechanical failure or any evidence from the respondent owners as to the cause of the escape, the only reasonable inference is that someone in the respondent owners’ unit turned on the water in the unit and did not properly supervise its progress. By failing to track the water after turning the water on—whether that be an overflowed sink, toilet or bathtub—I find the respondent owners, or someone under their charge, breached the standard of care.

41. As noted in the applicant’s evidence and in the photographs provided, the amount of water that was allowed to seep into his unit was not a trivial amount. I find that it was reasonably foreseeable that allowing such an amount of water to escape the sink, bathtub or toilet in unit 702 could cause damage to the unit below.

42. With all of the necessary factors satisfied, I find that the respondent owners are liable to the applicant in negligence.

In the result, the tribunal ordered “the respondent owners must pay to the applicant $1,419.16.”

Strata lot—damage—negligence—water leak

In Wang v Kabli, 2018 BCCRT 338, the applicant strata-lot owner asked the tribunal for an orders that the respondent strata-lot owner “pay for the damage caused to his unit by a water leak from the respondent’s unit” and to compensate the applicant for “lost rental income.”

The tribunal found that the respondent’s actions amounted to negligence:

25. In my view, a reasonable response to finding water in one’s kitchen would be to immediately explore the cause of the escaped water and make efforts to ensure the problem did not continue and spread. One would expect an owner in such circumstances to turn off the water to the affected area, inspect areas in the kitchen where water could leak (such as the sink’s pipes), and immediately call a professional for assistance. In my view, an unreasonable response would be to do nothing to address the issue for 2 days.

26. I find the respondent took an unreasonable approach to the problem. The respondent found water in his kitchen on July 26, 2017. He did not obtain professional help until 2 days later. In the interim, there is evidence that people in his unit continued to use the sink where the leak was ultimately found.

In the result, the tribunal ordered the respondent to compensate the applicant as follows:

37. I order that, within 30 days, the respondent pay the applicant a total of $3,601.85, consisting of the following:

a. $2,999.43 for the repairs;

b. $350.00 for the lost rental income;

c. $27.42 pre-judgment interest pursuant to the Court Order Interest Act (COIA)

d. $225.00 for tribunal fees.

Strata lot—alteration—approval—sun tunnel

In Francoeur v The Owners, Strata Plan EPS 288, 2018 BCCRT 351, the applicant strata-lot owner asked the tribunal for an order allowing an alteration to the owner’s strata lot:

2. The owner wants to install a dome tube light, also referred to as a sun tunnel, in his strata lot. The owner was refused strata’s approval to install the sun tunnel. The owner is seeking an order that the strata allow him to install the sun tunnel.

The tribunal found that the strata corporation’s decision was reasonable in the circumstances of this case:

17. There is ample case law that a court or tribunal should be cautious in interfering with a strata council’s decision.

18. I find the roof is common property based on definition of common property under the SPA. Under section 72 of the SPA and bylaw 8, the strata is responsible for the maintenance of the roof. The installation of the sun tunnel will place a maintenance burden on the strata. I find that the strata is within their rights to refuse to take on this burden. Although the owner has offered to maintain the sun tunnel, the strata has refused this offer as they would have to take on the burden of monitoring the maintenance. I find the strata’s position is reasonable.

19. The owner has not provided information about how he came to the conclusion that the roof is no longer under warranty. As the strata is in the best position to access information about the warranty, I accept the strata’s evidence that the roof is under a warranty and that the installation of the sun tunnel will void the roof warranty.

Tribunal jurisdiction and procedure—discretion to hear dispute—former tenant—negligence—damage to car

Kelly v The Owners, Strata Plan K 218, 2018 BCCRT 412, was a dispute “about whether the strata is liable for alleged damage to a former tenant’s car,” which “also raises issues about strata governance and jurisdiction and procedure of the Civil Resolution Tribunal”:

3. The tenant claims his car was damaged by a contractor hired by the strata. The tenant says the strata is liable in failing to give prior notice about the contractor so the tenant could move his car. The tenant also claims the strata does not follow the Strata Property Act (SPA) and other laws such as privacy law and fire codes and requests orders requiring the strata to pay for damage to his car and to follow the SPA and other laws.

4. The strata says the correct procedures were followed and the tenant’s dispute should be dismissed.

The tribunal exercised its discretion to hear this dispute:

29. I find the same rule applies to a tenant [as to a former owner]. I find the tribunal has jurisdiction and can consider disputes filed by a former owner or tenant, so long as the owner or tenant was still an owner or a tenant living in the strata when the dispute was filed. As the tenant was living in the strata building when the dispute was filed on September 13, 2017, I find the tribunal has jurisdiction to consider this dispute.

In the underlying dispute, the tribunal dismissed the tenant’s claims regarding the strata corporation’s governance:

38. I find there is not a live dispute between the tenant and the strata concerning the strata governance issues in these circumstances when the applicant tenant has moved away and no longer lives in the strata. I find there would be no purpose in deciding strata governance issues in this dispute other than to “score points” for or against one or the other party in the dispute. In my opinion, that is not a proper use of this tribunal’s resources or within the mandate of the tribunal towards efficient and accessible justice. I find the use of tribunal resources for disputes such as this where there is no live controversy takes away resources from other live disputes waiting to be resolved. The tribunal’s resources are valuable and I find it would be wasteful for the tribunal to continue to apply resources on the dispute issues where the former tenant is not affected by the outcome.

The tribunal also found that the tenant was unable to prove that the strata corporation had been negligent:

50. I am unable to find the tenant has met the required onus to prove his case. Considering the evidence as a whole, I find the tenant has not proven the strata was negligent or failed to act reasonably. I find it more likely than not the strata provided notice of the contractor’s visit in the email notices on March 28, 2017. I have considered the tenant’s submission about whether the email was sent March 28 or 29, but find it is not material. The SPA section 61 (1) (b) (vii) specifically provides for notices to be sent by email to an email address provided for the purpose of receiving notices. Based on the evidence as a whole, I find the strata properly distributed notice as required by the SPA.

Tribunal jurisdiction and procedure—non-compliance—dispute heard without party’s participation

In Tsai v Huang, 2018 BCCRT 350, the underlying dispute concerned the applicants’ claim that “respondent repeatedly allowed a dog to urinate on a patio above theirs, and the urine falls onto the applicants’ patio and patio furniture.” The respondent did not comply with the tribunal’s directions, so much of the focus of this decision was on the tribunal to decide the claim in the absence of the respondent’s participation.

The tribunal found that it should exercise its discretion to hear this claim:

20. In weighing all of the factors, I find the applicants’ claims should be heard. In deciding to hear the applicants’ dispute I have put significant weight on the following factors:

a. the extent of the non-compliance is significant;

b. the applicants are not prejudiced; and

c. the need to conserve the tribunal’s resources.

The tribunal granted the requested orders to cease the conduct complained of and compensate the applicants:

34. I order that the respondent must not allow a dog to urinate on any patio in the strata.

35. I also order that within 30 days of this decision, the respondent must pay the applicants a total of $2,036.93, broken down as:

a. $288.75 for patio cleaning,

b. $1,523.18 for replacement patio furniture, and

c. $225 in tribunal fees.

 

The post CRT Roundup—bylaws, finances, meetings, and more first appeared on British Columbia Law Institute.

This case asked the court to rule on the following issues, which were “appropriately stated as whether the CRT”:

• accepted expert opinion evidence contrary to the CRT’s rules of procedure;
• applied an erroneous legal test in determining that the [petitioner’s] conduct on her strata lot constitutes a “nuisance” within the meaning of the strata’s bylaws;
• was without authority to order that a home inspector make binding recommendations for implementation on maintenance and repair issues;
• was functus officio at the time the Decision was amended and re-issued; and,
• if so, whether the Decision erroneously sub-delegated a binding dispute resolution power to [the Condominium Home Owners Association].

The court dismissed the petitioner’s arguments on four of the five issues. The evidentiary issue more properly concerned acceptable lay opinion, rather than expert opinion. The court found the tribunal to have “considered, and applied, a functionally equivalent analytical framework” to the law of private nuisance. The tribunal’s governing legislation grants it broad authorization to issue clarifications, so it wasn’t functus officio at the time its decision was amended and re-issued:

On a combined reading of ss. 48(4), 51 and 64 of the [Civil Resolution Tribunal Act], it is apparent that the legislature intended the CRT to have relatively broad discretion to make amendments to its final decisions, as well as the orders crafted to give effect to those decisions. This includes the authority to amend for the purposes of “clarification.”

And, given that the clarification removed the binding power from CHOA, this finding rendered the last issue “moot.”

The petitioner only met with some success on the third issue. Here, the court found that the tribunal went too far in ordering that the strata corporation was bound to implement the home inspector’s reports:

The real issue on this ground of appeal is whether the CRT went too far in ordering that within 30 days of receiving the inspection reports, “the strata must retain an appropriately qualified contractor to implement the remedies recommended by the home inspector, unless otherwise agreed by the parties in writing.” [Underlining by the court.]

***

In my view, the CRT was entitled to order under s. 48.1(1) of the CRTA that the strata corporation arrange for annual inspections by a qualified home inspector; that the inspection reports be produced and shared with the strata owners, including recommendations for maintenance and repair; and that the strata retain a qualified contractor to implement the recommendations.

However, the strata must be able to maintain an element of control over which of the recommendations it will act upon, when and in what form.  It is reasonable to order that the strata corporation have regard to the specifics of the recommendations in determining next steps, but the recommendations themselves cannot completely fetter the strata’s discretion. In my view, that would constitute an unreasonable outcome.

The court held that the appropriate remedy would be to vary the tribunal’s order: “In light of my conclusion, and the fact that it is only the binding nature of the inspector’s recommendations that is at issue on this ground of appeal, not the existence of mandated inspections, per se, the remedy I consider appropriate is to vary the wording of paragraphs 14, 15 and 18 of the Amended Order.”

The court confirmed the remainder of the tribunal’s amended order.

The post BC Supreme Court varies CRT order in long-running dispute over maintenance for a strata duplex first appeared on British Columbia Law Institute.

Fundamental changes—changes to strata lot—amending Schedule of Unit Entitlement—loft—bylaws—enforcement—validity—significant unfairness

Hassan v The Owners, Strata Plan LMS 2854, 2018 BCCRT 303, featured a dispute that came about due to alterations to a strata lot:

This dispute arises because the applicants have made alterations to the unit that increased the unit’s square footage. The strata says that the applicants failed to get the proper permits and did not receive approval from the strata to make the alterations. The applicants seek reimbursement for improper strata fines and other amounts associated with the alterations. The strata seeks either an order that the applicants take steps to bring the alterations into compliance with the Strata Property Act (SPA) or an remove the alterations.

The tribunal described the alterations in the following terms:

Originally, the unit was a residential loft unit with the majority of the living space on the first floor. There was a small mezzanine. The applicants made two sets of alterations, both of which each increased the living space of the second floor loft area (alterations). The first set of alterations was in the early 2000s. This dispute began when the strata became aware of the second set of alterations, which were completed in 2014 and 2015.

At the time of the alterations, bylaw 10.6 of the strata’s bylaws (initial bylaws) prohibited owners from making alterations to their units without all necessary permits and licenses. Bylaw 10.6 has no equivalent in the standard bylaws found in Schedule A to the SPA.

Ultimately, the strata corporation levied fines for breach of this bylaw.

The tribunal set these fines aside. The strata corporation had previously been involved in litigation (Omnicare Pharmacy Ltd v The Owners, Strata Plan LMS 2854, 2017 BCSC 256) and the tribunal found that it was bound by that case’s ruling on the validity of the strata corporation’s bylaws. As a result, the tribunal concluded that the strata corporation acted with significant unfairness in enforcing the invalid bylaw:

The court found that the strata acted significantly unfairly in imposing fines through an improperly constituted strata council and pursuant to invalid bylaws. While each case turns on its facts, I see no reason to restrict the ruling in Omnicare to the commercial owners. I rely on the fact that section 135 of the SPA gives owners the right to respond to the allegation. In order for the right to respond to be meaningful, the owner must know what bylaw the strata alleges they breached. If I permitted the strata to retroactively change the reason for the fines, it would unfairly prejudice the applicants because they would effectively lose their right under section 135 of the SPA to respond to the allegation.

Therefore, I find that the strata acted significantly unfairly by imposing the fines.

The tribunal also found that the applicants hadn’t waived their right to challenge the fines by paying them.

But, regarding the alterations to the strata lot, the tribunal found that the applicants were still required to obtain a building permit and to require with the Strata Property Act:

Sections 70(4) and 261 of the SPA state that if an owner wishes to convert a non-habitable area of the strata lot into a habitable area, the owner must amend the Schedule of Unit Entitlement at the Land Title Office and receive the unanimous support of all of the owners in the strata at a special general meeting.

The applicants rely on Barrett v. Strata Plan LMS3265, 2017 BCCA 414. I agree with the strata that Barrett does not assist the applicants. In Barrett, the Court of Appeal considered whether unfinished basements and lofts within some strata units were habitable areas within the meaning of section 70 of the SPA. The Court of Appeal confirmed that a habitable area is an area that is capable of being inhabited, regardless of its use or level of finishing. I agree with the strata that the alterations are distinguishable from the renovations in Barrett because open air is not an area could be inhabited.

Section 5.1(2) Strata Property Regulations states that an owner does not have to comply with section 70(4) if the addition to the habitable area of the unit is less than 10% of the size of the unit and less than 20 square metres. The development permit states that the increase in size to the mezzanine level of the unit is approximately 400 square feet, which is approximately 37 square metres, which is more than 10% of the size of the unit.

Therefore, I find that the applicants must comply with sections 70(4) and 261 of the SPA.

As the tribunal noted, the applicants had fallen into a bad situation due to their own actions:

It must be said that even if the applicants comply with the strata council’s demands to get a building permit, any owner will be within their rights to vote against approving the alterations. This order does not, and cannot, bind the applicants’ fellow owners to approve the alterations. The clear intention of sections 70(4) and 261 of the SPA is to have owners seek permission prior to altering the floor plan of their unit, rather than seeking forgiveness after the fact. Therefore, the unfortunate situation requiring the applicants to seek unanimous retroactive approval is of the applicants’ own making.

Complex stratas—sections and types—bylaws—expense allocation

Commercial Section of the Owners, Strata Plan LMS 1991 v The Owners, Strata Plan LMS 1991, 2018 BCCRT 333, concerned a strata property that “was created in 1995, with both residential and non-residential sections” and that contained “81 residential strata lots and 5 commercial strata lot[s].” The commercial section brought this dispute to the tribunal, making “15 separate claims against the strata,” which the tribunal “classified into four main areas: 1. Bylaw claims, 2. Governance-related claims, 3. Property-related claims, and 4. Expense-related claims.”

The tribunal found that the strata corporation’s bylaws had been adopted without separate votes of its sections and were, therefore, invalid:

I find a commercial section owner has the democratic right to vote separately from the residential owners and to have its voice heard. Here, the right to a separate vote given by the SPA and the right to separate representation on strata council given by original bylaw 118(4) are democratic rights that the strata could not remove without the separate section 3/4 votes required by the SPA.

The current bylaws were not passed in accordance with section 128(1)(c) of the SPA and I find they are not valid. Following Omnicare, supra, I find that the bylaws that currently apply to the strata are the Standard Bylaws together with those conflicting parts of the original bylaws that were not replaced by the SPA. I find that the relevant parts of the original bylaws for purposes of this decision, which continue to apply to this strata until they are properly amended, include: bylaw 118(4) and bylaws 128(2), (3)(a), (c) and (d).

The amended bylaws referred to at the end of the previous paragraph contained a number of important provisions on the strata corporation’s governance and finances, including a requirement for commercial-section representation on the strata council and rules on cost sharing.

The tribunal also found that the strata corporation’s historical approach to cost sharing was out of keeping with the act’s requirements and that its recent attempt to bring its cost sharing into compliance with the act wasn’t significantly unfair to the owners in the commercial section:

The SPA mandates calculation of strata fees according to unit entitlement. I find that the strata’s diversion from the mandated calculation in the years before 2015 was voluntary and was not carried out under section 100 of the SPA. The strata had the right therefore to correct the previous method of calculating strata fees. I find that it was not significantly unfair for the strata to calculate strata fees by unit entitlement to be in compliance with the SPA.

Since I have found that the allocation of common expenses as reflected in the strata’s strata fees charged to each section is not significantly unfair to the commercial section owners, I dismiss the commercial section’s claim for a reallocation.

The tribunal also found that “there are some residential expenses to which the strata has improperly required the commercial section to contribute in its strata fees” and that a long list of such expenses “are expenses for the sole account of the residential section.”

Governance—finances—financial statements—lien—legal expenses

In Macfarlane v The Owners, Strata Plan VIS 5717, 2018 BCCRT 305, the applicant strata-lot owner asked the tribunal to order:

removal of the liens and chargebacks against her strata lots, orders that the strata comply with the SPA, amendments to minutes of prior Annual General Meetings (AGM) and related explanations regarding expenditures.

The strata denies the owners’ claims, and asserts that the lien charges are reasonable, they have complied with the SPA, that they cannot amend minutes of the AGMs, and that all requested information has been provided.

The dispute regarding the lien concerned legal expenses:

the parties agree that the owner did not make payments for the special levy approved at a special general meeting (SGM) held August 16, 2016. The strata then filed certificates of lien under section 116 of the SPA against title to the owners 3 strata lots. The parties disagree as to whether legal charges incurred after March 22, 2017 can be included in the certificates of lien.

The tribunal found that the strata corporation was entitled to include its legal expenses within the lien:

The correspondence between the parties shows that the owner knew as early as January 2017 that amounts were outstanding, and the terms for payment to counsel. The owner says that after March 21, 2017 she should have been provided with further notice of any charges associated with collection that were being made. I disagree. In my view, the owner was aware that collection proceedings were ongoing. It was not reasonable for the owner to take the position that once she took active steps to pay the amounts owing that all enforcement steps would cease unless there was specific correspondence to that effect.

The tribunal wasn’t willing to grant orders in respect of access to and production of records, a telecommunications contract, or a walkway remediation project. The tribunal did order the strata corporation to comply with the act in its financial reporting:

I order the strata to comply with sections 45(4) and 103(2) and (3) [of the Strata Property Act]. I also order the strata to ensure financial statements containing information for the time period set out in regulation 6.7 are properly distributed with the AGM notice in future.

Governance—general meetings and strata-council meetings—standard of care—training

In Craig v The Owners, Strata Plan 1526, 2018 BCCRT 310, the tribunal was asked to resolve a wide-ranging dispute:

This dispute involves the strata’s governance, including allegations of contraventions of the Strata Property Act (SPA), alleged inconsistent application of strata bylaws, and allegations that certain council members failed to meet their standard of care, primarily related to the calling of meetings.

The owner seeks orders relating to compliance with the SPA and bylaws, the strata council’s understanding of its roles and responsibilities, and a neutral venue for future council meetings. The owner also seeks reimbursement of special levy and contingency reserve fund (CRF) monies as well as fees related to this dispute.

The strata denies the owner’s allegations and seeks dismissal of the owner’s claims.

The tribunal noted that the strata property at issue “was created in 1986 and comprises 8 strata lots. It is located in Sydney, B.C. and is self-managed.”

The tribunal found that the strata corporation had failed to meet a number of statutory requirements for general meetings. For example:

the strata contravened section 45(1) of the SPA by not providing sufficient notice and section 45(3) of the SPA by not including the agenda and proposed wording of any 3/4 vote resolutions to raise funds for building repairs in a notice package.

The tribunal provided a summary of a lengthy list of violations concerning meeting notice and procedure.

As a remedy, the tribunal ordered that the strata council attend training sessions:

I find the significant violations of the SPA noted above to be particularly troubling. I find these violations are an indication the strata does not have a good understanding of its duties and obligations and that it would be beneficial for its strata council members to improve their knowledge about strata governance.

For these reasons, I find the strata must take steps to ensure its acting strata council members attend training about strata governance and their roles and responsibilities. Appropriate training is available through strata associations and organizations. I order the strata to ensure such steps are taken within 180 days of this order, or as soon as possible thereafter, depending on available training dates.

Finally, the tribunal refused to consider aspects of this claim related to strata-council members’ standard of care, as being outside the tribunal’s jurisdiction:

The obligations under sections 31 and 32 of the SPA are not obligations of the strata, but rather obligations of individual strata council members. However, as earlier noted, the individual strata council members are not named parties in this dispute and have not had the opportunity to provide submissions. For that reason, I decline to make any finding about the owner’s allegation that certain strata council members failed to comply with sections 31 and 32 of the SPA. I decline to dismiss this aspect of the owner’s claims as to do so, would not allow the owner make application to the Supreme Court. . . .

***

Although I find that sections 31 and 32 of the SPA are within the tribunal’s jurisdiction, section 33 of the SPA is expressly outside its jurisdiction, under section 3.6(2)(a) of the [Civil Resolution Tribunal] Act.

Bylaws—enforcement—procedure—rental restrictions

In Hamaguchi v The Owners, Strata Plan LMS 3146, 2018 BCCRT 307, the applicant strata-lot owner claimed:

the strata improperly assessed fines against him for contravention of the strata’s rental bylaw and seeks reversal of the bylaw fines and dispute-related expenses. The strata says the fines were properly assessed and the dispute should be dismissed.

The tribunal found that, in enforcing its rental-restriction bylaws against the applicant, the strata corporation had failed to meet the procedure required by the Strata Property Act:

I find the notice from the strata of the alleged bylaw complaint dated September 28, 2016 to the owner did not adequately set out the details of the alleged bylaw contravention as determined by the strata. I find the owner has met the balance of probabilities in proving that the details of the alleged contravention did not meet the required standard so the owner could properly respond. I find the notice to the owner sets out an alleged contravention of bylaw 44(5) in September 2016 without adequate particulars. Subsequent correspondence from the strata further complicates the matter by referring to various letters with different time frames and new strata bylaw sections that were not part of the complaint in September. I find it would be difficult for an owner to understand and respond to the alleged bylaw contravention, especially as it continued without resolution.

I find on the facts the procedure followed for the bylaw complaint against the owner did not meet the requirements set out in section 135 of the SPA and the law and the initial $500 fine assessed for breach of the rental bylaw is not valid and must be set aside. Having found the initial $500 fine for breach of the rental bylaw was not valid I find that the continuing fines assessed at the same time are also not valid and must be set aside.

The tribunal also found that the strata corporation had failed to give a timely decision under this procedure:

In my opinion, what will meet the requirement to provide a decision as soon as feasible within section 135(2) will depend on the facts and circumstances in each case. The use of the word “feasible” in the SPA suggests there must be some flexibility and appreciation for the circumstances.

On the facts in this dispute as a whole, I find that failure to deliver a decision to the owner from September 28, 2016 to May 3, 2017—more than 7 months—is not in compliance. I also find the time line between March 3, 2017 when the strata made a decision about the bylaw complaint and May 3, 2017 when the strata provided a written decision—a time of almost 2 months—does not meet the requirement of section 135(2) that the strata “must, as soon as feasible, give notice in writing of a decision” to the owner.

In the result, the tribunal “order[ed] the strata, within 30 days of the date of this decision, to reverse all rental bylaw fines charged to the owner’s strata lot account.”

Bylaws—status—rental-restriction bylaw

Wurzbach v The Owners, Strata Plan LMS 1816, 2018 BCCRT 325, was a dispute that “involves the status of the strata’s rental restriction bylaw.” It took place in a strata property that “was created in February 1995 comprising 82 strata lots in 3 buildings located in Vancouver, B.C.”

The strata corporation had amended its bylaws in December 2001. Its strata manager “incorrectly filed” in the land title office a rental-restriction bylaw that had been defeated at the special general meeting. The strata corporation attempted over the years to correct this error. Finally, a corrected set of bylaws were approved and filed in the land title office in 2018. By this point, the applicant strata-lot owner had launched this dispute:

The owner seeks an order that a rental restriction bylaw referenced by the strata until May 2018 is invalid. She also seeks reimbursement of $225.00 for tribunal fees and $2,810.74 for dispute-related expenses.

The strata says it did not operate as if a rental bylaw was passed and considers the registered bylaws that form the subject of this dispute to be invalidly passed. Additionally, the strata says the rental bylaw issue is moot. The strata asks that the owner’s claims be dismissed.

The tribunal found that the dispute was moot:

I find that I am bound by the decision reached in Borowski relating to mootness. Based on my review of the bylaws passed at the February 2018 SGM, which were registered at the LTO on May 24, 2018, and despite the poorly worded 3/4 vote resolution, I find the rental bylaw issue to be moot given there is no further a live controversy, as no rental restriction bylaw exists. I decline to exercise my discretion to consider the moot issue, for the following reasons:

• The parties fully argued their positions and I find there are no collateral consequences of the outcome that might allow the adversarial context of the judicial system to continue.
• To address the rental bylaw dispute would not be an appropriate use of the tribunal’s resources as the issue would not reoccur.
• This dispute is not one of public interest as it involves a unique situation of filing duplicate bylaws at the LTO in an attempt to correct an error.
• There is no compelling reason for the tribunal to resolve a dispute that no longer exists.

In the result, the tribunal dismissed the claim related to the rental-restriction bylaw and the claim for dispute-related expenses. The tribunal did order reimbursement of the applicant’s tribunal fees, noting that the dispute was still live when the owner paid the application fee and when she paid the adjudication fee.

Common property—repairs and maintenance—water leak—negligence—damage to strata lot

Ford v The Owners, Strata Plan LMS 215, 2018 BCCRT 290, involved:

a claim made by an owner of a strata lot (applicant) alleging that the respondent strata corporation (respondent strata) was negligent by failing to repair and maintain its common property, and that the applicant’s strata lot was damaged by a water leak from the common property as a result. The applicant and respondent also disagree over the amount of money the applicant is entitled to receive as reimbursement for damage to his strata lot caused by the water leak.

The dispute took place in a strata property that “was constructed in 1991 and consists of 63 strata lots in two 3-storey buildings located in the resort community of Whistler.”

The tribunal found that, given the strata property’s circumstances, the strata corporation couldn’t be said to have failed in its duty to repair and maintain common property:

Where faced with a limited budget and owners who are not willing to fund proactive maintenance or improvement of the common property, the strata council must consider the urgency of repairs and balance priorities. Accordingly, the strata adopted an approach within its budget focusing on the options recommended by its engineers and consultants to address the strata’s building envelope issues while working within its financial constraints.  The evidence submitted by the parties demonstrates that the strata council and its property manager acted thoughtfully and in a timely way throughout the material time, and reasonably maintained and repaired the common property as a result.

I find that the strata has not failed to properly repair and maintain the common property.

In addition, the tribunal found that the strata corporation’s approach to repairing and maintaining the common property couldn’t be characterized as negligent:

Here, although ice damming was ongoing, the strata had adopted a maintenance program to reduce the risk of leaks by physically removing ice buildup as necessary. While more proactive or preventative options may have been available, the strata had already taken significant previous steps to avoid ice damming by undertaking roof repairs. Leaks due to ice damming were infrequent.

I find that the strata acted reasonably by taking the time to get legal advice and to strategize how to best resolve the attic encroachments without causing further owner disputes. As evidenced by the fire department’s willingness to give the owners a few months to resolve the encroachments, the attic encroachments did not present an immediate risk of harm and restoring the attic space via owner cooperation required the strata council to use its discretion to avoid simply creating disputes and hostility within the strata.

I find that the strata did not fail to act in a timely or reasonable way to prevent or lessen the ice damming issues, and so was not negligent.

Finally, the tribunal found that the strata-lot owner had failed to mitigate the damage to his strata lot:

I accept that the quote of $6,736 is a reasonable assessment of the cost to repair the strata lot had the owner acted reasonably, and accommodated the strata’s repair over an additional 2 to 3 week timeframe.

I find that the owner has failed to mitigate his damages, and that he is not entitled to reimbursement for the cost of repairing his strata lot on an urgent basis. The owner is entitled to $6,736 as reimbursement for the cost of repairs to his strata lot as offered by the strata.

In the result, the tribunal ordered:

within 30 days of the date of this order, the respondent strata:

(a) pay the applicant $6,736.00 for the cost of repairing the damage to the applicant’s strata lot; and

(b) pre-judgment interest in the amount of $65.06 under the Court Order Interest Act.

The applicant’s remaining claims are dismissed.

Common property—repairs and maintenance—rain gutter—negligence—damage to strata lot—water ingress

In Jeannotte v The Owners, Strata VIS 2899, 2018 BCCRT 288, “[t]he owner’s strata lot was damaged by a water leak allegedly from a poorly maintained exterior rooftop gutter,” for which the owner sought “reimbursement for the cost of repairing the strata lot” and “damages for lost revenue, as they were unable to rent their strata lot during the repairs.” The case occurred in a  strata property that the tribunal characterized as follows:

The strata has 9 strata lots that are owned by 4 people. The strata council president owns 6 strata lots. The owner owns 1 strata lot. The owner does not live in their strata lot and hired a management company to rent it out.

The tribunal found that the gutter was common property “as it is located outside the midpoint of the wall or ceiling of the strata lot.” Further the strata corporation was negligent in maintaining the gutter:

The strata must act reasonably in caring for common property. The owner provided photographs that show a thickly clogged exterior drainage gutter. The owner also provided an opinion by the contractor that the gutter was overflowing into the attic and installed incorrectly. The owner has provided detailed emails and letters regarding the gutter and the water damage.

The photographs do not support the strata’s explanation of the cause of the damage. The water damage is more extensive than what can be explained by what the strata says is condensation on the window from the tenant not heating the strata lot. The photographs show extensive water damage around the window but also in other parts of the ceiling and wall that I find cannot reasonably have been caused by condensation on a window.

***

I find the strata was negligent in maintaining the exterior gutter adjacent to the owner’s strata lot.

The tribunal found that the strata corporation must reimburse the owner for the cost of repairing the gutter and the damage to the strata lot, but that the owner had failed to prove that it had lost revenue as a result.

Common property—repairs and maintenance—damage to strata lot—piping—water leaks

Chan v The Owners, Strata Plan LMS 1781, 2018 BCCRT 306 was a dispute “about whether an owner or the strata is responsible for repairs to the applicant’s strata lot after a series of water leaks in a strata building.” The applicant strata-lot owner claimed that:

there were water leaks from near units 905 and 1102 (the leaks) due to the strata’s negligence in failing to repair or replace original 21 year old copper piping for the hot water heating system or to take other preventive measures. The applicant asks that the strata be held responsible for the water damage repair generally and to his unit in particular.

It is common ground, and I find, that the leaks occurred on January 10, 2017 from a water pipe located in unit 905, and on February 14, 2017 from a pipe located between units 1102 and 1101.

Although the respondent strata corporation “concede[d] that the leaks caused damage to the applicant’s strata lot,” it argued that “it is not responsible for the repair costs, under its bylaws, because the repairs were made to the owner’s strata lot.”

The tribunal found that the strata corporation was responsible for repairs and maintenance to the pipe:

Given the respondent’s admission that the pipe that leaked on February 14, 2017 was located in the wall between units 1101 and 1102, I find that the pipe was part of the common property as defined in section 1(1)(a) of SPA because it carried water between strata lots. I find the strata responsible for its repair and maintenance.

It also found the strata corporation to be negligent in carrying out this duty:

I have found that the strata had a duty to repair and maintain the pipes, as they were common property. It is uncontested, and I find, that there was damage to unit 801 as a result of the leaks.

The courts have established reasonableness as the standard of care in these circumstances. ([S]ee Weir v. Owners, Strata Plan NW17, 2010 BCSC 784 (CanLII).)

The remaining question is whether the strata has been reasonable in maintaining its common property. Below, I find it has not, because it knew that the water pipes required either a tube size increase or a water flow decrease and failed to take reasonable steps concerning maintenance once it learned of the probability of continued corrosion/erosion. Specifically, I find that, prior to the leaks, the strata failed to:

1. take steps to replace the pipes,
2. monitor the condition of the pipes more frequently than every 5 years given the concerning engineering report, and/or
3. implement a reliable system to control water pressure and temperature, pending further repair or evaluation of the pipes, to reduce the likelihood of leaks.

In the result, the tribunal ordered the strata corporation to:

• reverse the $3,571.01 charge to the applicant’s strata lot, unless it has already been paid by the applicant’s own insurer, in which case the strata must repay the $500 deductible paid by the applicant;
• pay the applicant $502.19 for the repair costs incurred due to the water leak from between units 1101 and 1102;
• pay the applicant $40.00 for the increased electrical bill associated with operating restoration equipment during the emergency repairs conducted on the strata lot;
• pay the applicant pre-judgment interest of $11.76;
• pay the applicant tribunal fees of $225; and
• reverse charges to any owner’s strata lot for repair of the damage caused by the leaks on January 10 and February 14, 2017

Common property—alteration—approval—liability for cost—gas line

Thompson v Pasini, 2018 BCCRT 292, was a dispute over:

the cost to reinstall a gas line. The gas line was installed in 2010, but relocated to the building’s interior after being removed to facilitate an extensive building envelope remediation years later.

The question is whether the cost of re-installing the gas line after remediation is the strata’s responsibility or that of the owner who had it installed originally to service her gas appliances.

While the records of the strata corporation’s decision were spotty, the tribunal found that it had approved the original installation of the gas line:

It would have been preferable for the strata council to prepare minutes of the meeting regarding the approval, but the email approval is sufficient evidence for my purposes. Under section 26 of SPA, the strata council “must exercise and perform the duties of the strata corporation,” which I find includes considering and approving this owner’s request for authorization to proceed with her renovation and gas line installation. I find that this approval by the strata council was the authorization [the respondent] was obliged to obtain under the Bylaws.

Further, the installation couldn’t be considered a significant change to common property, necessitating approval by a resolution passed by a 3/4 vote.

Moving on to the relocation of the gas line, the tribunal found was barred by the running of the limitation period. But, “[g]iven the contentious nature of the issues between the parties,” the tribunal “considered the merits of this dispute, in case my analysis of the limitation defence is incorrect.”

The tribunal found that the strata corporation should be liable for the cost of relocating the gas line:

In light of my findings that the gas line’s initial installation was properly authorized by the strata under the bylaws, was common property of the strata, and that the remediation of the common property building exterior made it necessary to move and relocate the gas line, I find that it was the strata’s responsibility to pay for the gas line relocation cost.  Since the strata did pay that cost, I dismiss the applicant’s dispute.

Common property—alteration—significant change in use or appearance—underground storage space

Mitchell v The Owners, Strata Plan BCS 2704, 2018 BCCRT 313, was a dispute that involved:

the owner’s proposed excavation of property below his limited common property (LCP) garage to create storage space connected to the owner’s strata lot for the sole use of unit 70. . . .

The owner seeks orders that the strata council approve the owner’s renovation project, plus reimbursement of fees and dispute-related expenses.

The strata says the strata council does not have the authority to approve the owner’s request as a 3/4 vote is required by the strata owners. It seeks dismissal of the owner’s claims.

As the tribunal noted:

[t]he strata was created in January 2008 and comprises 101 strata lots in 49 separate buildings. Each building contains 2 or 3 strata lots. The strata was built in 10 phases over a period of approximately 4 years (phase 10 being filed at the Land Title Office in December 2011) and is located in Surrey, B.C.

The tribunal found that the proposed renovations would amount to a significant change in the use or appearance of common property, which would require approval, under section 71 of the Strata Property Act, by a resolution passed by a 3/4 vote:

I agree with the strata’s argument that the renovation project is essentially an expansion of unit 70 that would result in the common property being used solely by the owner of unit 70. I find the circumstances here regarding the resulting use and enjoyment of the altered common property, if the renovation project was approved, match those described in Foley.

In the result, the tribunal “order[ed] the owner’s dispute is dismissed.”

Common property—alteration—significant change in use or appearance—exterior trim paint

In Solvberg v The Owners, Strata LMS 753, 2018 BCCRT 309, the applicant strata-lot owner asked the tribunal for:

an order that the strata repaint the exterior trim on the Strata buildings to its original colour, beige, an order that the strata enforce its by-laws and an order that the strata reimburse the owner for tribunal fees and additional dispute-related expenses. There is dispute as to the cost of repainting the trim.

The tribunal found that the strata council had authorized changing the exterior trim color without obtaining a resolution passed by a 3/4 vote and that this amounted to a significant change in the use or appearance of common property:

I have reviewed the photographs provided by the parties and I find that the change in the exterior trim paint from beige to black constitutes a significant change in the appearance of the common property. The colour change is highly visible and visible to the general public. The paint is permanent and the exterior trim is a significant feature of the buildings which could affect things such as marketability and enjoyment.

Further, there was a recognition on the part of the Strata that changes to the stucco colour scheme of the buildings must be made by vote. In my view, the choice of paint colour for the exterior trim will necessarily influence the colour scheme options for the stucco. It is an artificial separation of stucco from exterior trim when determining colour scheme and a vote on the exterior trim ought to have been held.

I find that when the Strata unilaterally changed the colour of the exterior trim from beige to black, the Strata significantly changed the appearance of the building common property without the 3/4 vote required under section 71 of the SPA.

As a remedy, the tribunal ordered the strata corporation to hold a meeting to consider repainting the exterior trim:

Given the that the cost to repaint the newly repainted exterior trim is significant, I find it would it not be in the best interests of the Strata for me to order the exterior trim repainted back to the original beige. I follow Foley where the Court found that it is important for owners in a strata corporation to attempt to resolve their differences by following the procedures contemplated by the SPA and bylaws. That is, all owners should be afforded an opportunity to determine whether they are satisfied with the new paint colour of the exterior trim or whether they wish to change the colour. For that reason, I order that within 3 months of this decision, the Strata must propose a 3/4 vote resolution at an Annual General Meeting (“AGM”) or Special General Meeting (“SGM”) on whether to repaint the exterior trim back to the original colour or to some other colour. The resolution should include a direction on how the repainting will be funded. Nothing in this decision restricts the Strata from including the change in stucco colour in the same resolution or a separate one.

Strata lot—repairs and maintenance—floor—tile

In Haack v The Owners, Strata Plan NW 2198, 2018 BCCRT 284, the applicant strata-lot owner claimed that “renovation work in the strata lot below (known as unit 207) damaged his strata lot, caused him personal hardship, and potentially caused structural damage to the building.” He asked the tribunal for “$5,683 to replace a sinking floor in his strata lot, confirmation that the building has no structural deficiencies, and reimbursement of $6,050 in expenses.”

The tribunal found that the evidence didn’t support the owner’s theory that renovations in the strata lot below his caused the damage to his strata lot:

While the owner asserts that renovations in unit 207 caused his kitchen floor to settle, and the tiles to crack, I find that the evidence before me does not support this assertion. I place significant weight on the reports of Mr. Curran. He is a certified engineer, and his expertise in the area of building structures is not contested. Mr. Curran inspected the areas the owner says were damaged, and the renovated areas in unit 207. He also reviewed the building’s plans. Mr. Curran provided extremely detailed reports setting out his opinion that the tiles in the owner’s kitchen did not crack due to renovations below, and that any settling in the floor was due to tile cracking. Mr. Curran provided extensive reasoning to support his opinion, and there is no contrary expert opinion before me. For these reasons, I am persuaded by Mr. Curran’s opinion, and rely on it.

Based on Mr. Curran’s expert report, I conclude that the renovations in unit 207 did not damage the owner’s floor. I therefore decline to order reimbursement for floor repairs.

The tribunal also declined to order further investigation and confirmation that the building is suffering from structural damage:

The owner disagrees with Mr. Curran, and says the unit 207 renovations caused potential structural damage to the building that Mr. Curran did not fully investigate. However, as stated above, the burden of proof in this dispute is on the owner, and he must provide evidence to support each of this claims. He has not proven structural damage in this dispute.

Also, the owner’s request for structural confirmation for the entire building goes well beyond the scope of this dispute.

For these reasons, and based on the reports of Mr. Curran, I decline to order the strata to provide further confirmation that there is no structural damage to the building.

Strata lot—alteration—approval—tribunal jurisdiction and procedure—decision to hear dispute without participation of party

The Owners, Strata Plan BCS 2662 v Rohani, 2018 BCCRT 326, was a decision that contained two components: (1) a threshold question of whether the tribunal should even resolve the dispute in the face of non-participation by the respondent strata-lot owner; (2) a substantive question of whether the respondent had made unauthorized alterations to her strata lot.

On the threshold question, the tribunal noted:

the owner filed a Dispute Response. The owner has provided no explanation about why she failed to communicate with the tribunal as required. I find the case manager made a reasonable number of attempts to contact the owner. She was told at the beginning of the tribunal proceeding, and afterwards, that she must actively participate in the dispute resolution process. Given that the owner provided updated contact information in her dispute response form, I find it is more likely than not that the owner knew about the case manager’s contact attempts and failed to respond.

The tribunal decided to exercise its discretion in favor of resolving the dispute, putting “significant weight on the following factors”:

• the extent of the non-compliance is significant;
• the strata is not prejudiced; and
• the need to conserve the tribunal’s resources.

On the substantive question, the tribunal found that the owner had made unauthorized alterations to the strata lot:

In her dispute response, the owner said she did not remove a wall, but said she removed and replaced the kitchen island, changed electrical and plumbing, changed the cabinets, and applied drywall.

Because the owner admits that she changed electrical and plumbing, I find that she made unauthorized alterations to her strata lot as contemplated under bylaw 6(1)(g). The owner says the strata was aware of ongoing construction in her strata lot. The correspondence between the parties from August 2016 confirms this fact. However, the correspondence provided in evidence establishes that while she had approval for some alterations, including flooring, she did not have prior written approval for any electrical or plumbing alterations. For that reason, I find that the owner violated bylaw 6(1).

In the result, the tribunal ordered “the owner to pay the strata $500 for bylaw violation fines” and ordered the owner to enter into an indemnity agreement with the strata corporation or restore the strata-lot to its pre-alteration condition.

Tribunal jurisdiction and procedure—jurisdiction to resolve dispute—former owner

The underlying dispute in Wiebe v The Owners, Strata Plan BCS 2606, 2018 BCCRT 311, concerned an exemption from a strata corporation’s rental-restriction bylaw. This decision concerned whether “the tribunal has jurisdiction over this dispute since [the applicant] no owner owns the property.”

The tribunal referred to the factors set out in Kervin v The Owners, Strata Plan LMS 3011, 2017 BCCRT 146, as guiding the exercise of its discretion in this case. Applying these factors, the tribunal found:

I do not have any evidence before me about the importance of this matter to other persons. The evidence I have suggests that [the applicant] was the last owner continuing to rent in the complex, and if so no other persons will be affected by the outcome of this dispute.

[The applicant] ceased to be an owner midway through the tribunal process, but well before this matter was referred to adjudication.

Given the facts, the issue of the rental bylaw is moot because while [the applicant] was the last original purchaser he has now sold his property. The rental restriction bylaw no longer applies to [the applicant] so I decline to make any decision on a general interpretation of the bylaw or its validity.

In the result, the tribunal ordered the applicant’s dispute to be dismissed.

The post CRT Roundup—unit entitlement, expense allocation, bylaw enforcement, and more first appeared on British Columbia Law Institute.

Governance—bylaws—amendment—cost sharing

C.2K Holdings Ltd v The Owners, Strata Plan K 577, 2018 BCCRT 236, was “a dispute about bylaw amendments and the division of certain common expenses.” The tribunal described the strata property as being

made up of 20 units. Two units are commercial, and 18 units are residential. The owner’s unit is the largest commercial unit.

The respondent strata corporation amended its bylaws at a special general meeting held in April 2016. The parties agreed that “the vote [at this meeting] was not held in compliance with section 128(1)(c) of the SPA, which requires a separate 3/4 vote by both the residential and non-residential strata lots to pass.” Nevertheless, the tribunal found that the bylaw amendments ushered in by this vote shouldn’t be cancelled:

If a separate 3/4 vote had been held for residential and commercial strata lots present at the SGM, I find that the bylaw amendments would have been approved by both the commercial and the residential owners.

I find, as the Court did in Yang v Re/Max Commercial Realty Associates (482258 BC Ltd.), 2016 BCSC 2147 (CanLII), that even though the vote was not divided into separate votes, the residential and non-residential strata lots had the opportunity to vote.

I find that not holding 2 separate 3/4 votes did not invalidate the result of the vote. In the result, I decline to order the bylaw amendments canceled.

But the tribunal ordered the strata corporation to “conduct all future votes in a way that complies with the provisions of the SPA based on the strata’s Schedule of Voting Rights.”

The tribunal dismissed the applicant’s claims that the allocation of expenses in the strata corporation was significantly unfair to the applicant, but ordered the strata corporation to reconsider it approach to cost sharing:

I find that, where the owner is paying his unit entitlement for common expenses that he derives some but not much benefit from, the division is unfair but not significantly unfair. My conclusion is supported by the British Columbia Court of Appeal’s decision in Ernest & Twins Ventures (PP) Ltd. v Strata Plan LMS 3259, 2004 BCCA 597 (CanLII). Expenses which benefit all strata lots, albeit to different degrees, must be paid by all strata lots.

I find that it is inequitable that the owner is required to pay for certain of his own expenses, while also paying his unit entitlement for common expenses that the owner derives no benefit from. I find that the division of those expenses is significantly unfair.

I order the strata, with input from the commercial owners, to review the division of common expenses to determine those that do not in any way benefit the commercial strata lots, particularly those that the commercial owners pay a separate service provider for, and those that the commercial strata lots cannot access.

Finally, the tribunal found that the strata corporation’s allocation of parking stalls wasn’t unfair to the applicant.

Governance—strata council—conflict of interest—misconduct

In Napoleone v The Owners, Strata Plan BCS 2460, 2018 BCCRT 246, the applicant owner accused the council of the respondent strata corporation of multiple conflicts of interest and incidents of misconduct. He asked for a series of orders, including the following:

• The strata must adhere to the Strata Property Act (SPA);
• An independent auditor must review the strata’s business practices;
• The property management firm must be replaced;
• An ombudsperson must be hired to mediate between owners, council, and the property manager;
• A refund of $8,500 in strata fees;
• Reimbursement of $225 in tribunal fees.

The respondent strata corporation “denies each of the owner’s claims, and says the owner’s claims are frivolous, malicious, and unsupported by evidence.”

The tribunal dismissed the owner’s dispute. The tribunal declined to make a general order of adherence to the Strata Property Act, noting that:

All strata corporations in British Columbia, including the respondent strata, are legally required to comply with the SPA. Given that, a forward-looking and generic order to adhere to the SPA would not be meaningful.

The tribunal also found that the applicant wasn’t able to demonstrate the fraud or misconduct that would support the requested orders for an independent audit or change of strata management. It also found that the owner had failed to show any misconduct to support an order appointing an ombudsperson.

The tribunal held “there is no provision in the SPA allowing for an owner to withhold strata fees for any reason.” Finally, the tribunal declined to order reimbursement of tribunal fees, given that the applicant was unsuccessful in the dispute.

Governance—finances—bylaws—charge backs—fines

In Ho v The Owners, Strata Plan LMS 1178, 2018 BCCRT 245, the applicant strata-lot owner asked the tribunal

to remove all charges on her strata account. The strata imposed these charges for two separate reasons. One charge is for reimbursement of money the strata paid to the owner and a Colin Chau to have a common property fence rebuilt. The strata now says the rebuild of the fence was not authorized. The second group of charges are fines issued by the strata to the owner because it says she failed to allow a gas company access to SL 7 to cap the gas line to her fireplace. The owner also claims for her legal fees, reimbursement for an overpayment of the strata gas account she says she made, and her tribunal fees.

The strata brought a counterclaim in this dispute. It asks the tribunal to order the owner to reimburse it for the money the strata says it paid to the owner and Colin Chau to have the fence rebuilt. The strata also asks for an award of its tribunal fees.

The tribunal found that the strata corporation’s charge back wasn’t enforceable:

The strata’s charge back against the owner’s strata lot is not a lienable charge under the SPA. In order to collect an amount that cannot form the basis of a lien against a strata lot, the strata must have the authority to do so under a bylaw that creates an obligation on the owner to pay or the authority for the strata to collect (Ward v. The Owners, Strata Plan VIS 6115, 2011 BCCA 512 (CanLII) at paras. 40-41) (Ward).

While not binding on me, I choose to follow the approach taken in Robertson v. The Owners, Strata Plan NW 87, 2017 BCCRT 37 (CanLII) (Robertson), which relies on Ward. In Robertson, the tribunal found that the strata’s chargeback of a plumbing invoice to a strata owner was invalid because there was no bylaw creating the strata’s ability to do so.

The tribunal also found that the strata corporation’s fines were invalid because the strata corporation failed to comply with the procedure imposed by the Strata Property Act:

I find that the strata has not complied with its obligations under section 135 of the SPA in assessing fines against the owner for gas bylaw breaches. Therefore, all of the fines imposed on the owner for the gas bylaw breaches are invalid.

Finally, the tribunal held that it lacked the jurisdiction to resolve the strata corporation’s counterclaim:

section 3.6(2)(a) of the [Civil Resolution Tribunal] Act says that the tribunal does not have jurisdiction over a claim under section 33 of the SPA. Therefore, I find that the tribunal does not have the jurisdiction over the strata’s counterclaim. I refuse to resolve the strata’s counterclaim under section 10 of the [Civil Resolution Tribunal] Act.

Because I have refused to resolve the strata’s counterclaim as outside the tribunal’s jurisdiction, I cannot consider whether the strata is entitled to be reimbursed for the fence repair costs under section 33 of the SPA.

Governance—finances—special levy—authorization—insurance deductible

In Wong v The Owners, Strata Plan LMS 2461, 2018 BCCRT 255, the applicant strata-lot owners claimed that:

the strata council inappropriately approved a special levy of $40,000 to pay for an insurance deductible. The owners say the strata council failed to raise the special levy issue at an annual general meeting (AGM), and that the $40,000 deductible ought to have been paid out of the contingency reserve fund (CRF) or the operating fund. The owners seek various orders, including reimbursement of the special levy contributions.

The strata says the special levy was approved and collected in compliance with the Strata Property Act (SPA) and the Strata Property Regulation (Regulation).

The special levy at issue involved an insurance deductible:

A sink back-up occurred in the strata complex on October 25, 2016, causing damage to common property. The insurance deductible for the repairs was $40,000.

The tribunal found that, while section 158 (3) of the Strata Property Act allows for a special levy without strata-corporation approval if the levy funds are used to pay an insurance deductible, in this case the deductible was paid from the strata corporation’s contingency reserve and operating funds, and the special levy was used to reimburse the money spent to the contingency reserve fund:

The minutes of the June 7, 2017 strata council meeting show that the $40,000 deductible had already been paid when the strata council voted to collect the special levy . . . .

Because the insurance deductible had already been paid out of the CRF by June 7, 2017, the $40,000 special levy funds could not have be used to pay the deductible. Rather, the purpose of special levy was to top [up] the CRF. The strata council meeting minutes go on to state that in order to eliminate a steep increase in strata fee contribution, it was moved and seconded to raise a levy of $40,000 against all owners.

In the result, the tribunal “order[ed] that within 90 days of this decision, the strata pay the applicant owners their individual proportionate share of $834.59 as a refund of their contributions to the June 2017 special levy.”

Governance—finances—strata fees—jurisdiction to order conduct of sale—order for payment

In The Owners, Strata Plan KAS 1459 v Lawlor, 2018 BCCRT 263, the applicant strata corporation asked the tribunal for “various orders regarding strata fees it says the owner has failed to pay.” The strata corporation had “registered a lien on title to the owner’s strata lot for $4,148, representing unpaid strata fees up to October 1, 2015.”

The tribunal found that it lacked jurisdiction to grant the first requested order from the strata corporation, which would have given it conduct of sale of the strata lot:

As discussed in The Owners, Strata Plan KAS 1459 v. Leonard, 2018 BCCRT 159 (CanLII), section 3.6(2)(f) of the Civil Resolution Tribunal Act states that the tribunal does not have jurisdiction to make orders under section 117 of the SPA.

The tribunal did grant the second requested order, though narrower in scope than what the strata corporation had wanted. The tribunal found there was no evidence provided of strata fees owing from November and December 2016. But the strata corporation was able to prove that strata fees were owing from a later period.

The tribunal dismissed the owner’s argument that perceived failures in the strata corporation’s governance excused her from the obligation to pay strata fees:

The owner submits that she should not have to pay some or all strata fees because the strata has been poorly managed and “plagued with interpersonal issues.” She submits that the strata has failed to hold meetings, publish minutes, keep financial records, and comply with the SPA. She says it has denied her a hearing and access to records, and has made unauthorized expenditures.

In Leonard, cited above, the tribunal member considered a similar submission from another owner in the same strata complex as in this dispute. The tribunal member found that an owner has a duty under section 99 of the SPA to pay monthly strata fees regardless of whether they agree with how the strata operates or spends its money. At paragraph 25, the tribunal member said that the evidence about the respondent’s concerns over the management, governance and finances of the strata was irrelevant to the issues in the dispute, given that the respondent did not file a claim against the strata.

While Leonard is not a binding precedent, I find its reasoning persuasive and the facts essentially the same as those before me in this case. The owner’s dissatisfaction with the strata’s management does not reduce her statutory obligation to pay strata fees. While the owner suggested the need for an audit, I decline to make that order as she did not file a counterclaim.

For all of these reasons, I order the owner to pay $976 for unpaid strata fees accrued from January to October 2017.

Governance—access to records—Form B—AGM notice—common property—repairs and maintenance—alteration—approval

Ducharme v The Owners, Strata Plan BCS 753, 2018 BCCRT 262, was a wide-ranging dispute concerning “numerous claims relating to the provision of records, a Form B—Information Certificate (Form B), repairs and alterations to common property, unapproved expenses, meeting conduct and minutes content, and bylaw enforcement.” The dispute took place in a

strata [that] was built in 4 phases between 2004 and 2005 and is located in Langley, BC. It comprises 17 separate buildings, each building comprising 5–6 strata lots for a total of 100 residential strata lots. Each strata lot is 3 levels with a garage on the ground level. I would characterize the strata a residential townhouse development.

The tribunal dismissed the bulk of the applicant strata-lot owners’ claims.

The tribunal found that the strata corporation had met the Strata Property Act’s requirements for access to records. The applicants failed to prove inaccuracies in a Form B issued by the strata corporation:

the applicants bear the burden of proof and here. I find the applicants have failed to prove their claim that the May 23, 2017 Form B contained inaccurate information. That the strata approved the expense for an updated depreciation report some 8 months earlier does not mean the updated report was complete on May 23, 2017 when the strata issued the Form B. Further, that the strata was over budget in snow removal expenses in May 2016, does not mean that the amount of expenses was expected to exceed the budgeted expenses for the fiscal year, which is what the Form B discloses.

The tribunal also dismissed the applicants’ claims regarding failure to repair and maintain common property and approval to alter common property.

The tribunal did find that the strata corporation had failed to give proper notice of its 2016 annual general meeting by issuing a financial statement that “did not comply with Strata Property Regulation (regulation) 6.9.” The tribunal ordered “the strata to comply with sections 45(4) and 97 of the SPA and any related regulations.”

Despite the applicants’ relative lack of success, the tribunal declined to order reimbursement of the strata corporation’s legal expenses on the basis that the applicants’ dispute could be characterized as frivolous:

It is my view that the applicants’ real issue is that the strata has not met the applicants’ repair and maintenance standards, which appear to be of a higher standard than the strata is required to provide. It is also my view that the applicants may have misunderstood the strata’s obligations. I do not find that the claims were frivolous.

Therefore, I do not find the applicant’s actions rose to the level of extraordinary such that I should order the strata’s legal fees be reimbursed, given the tribunal’s general mandate that parties be self-represented.

Governance—small strata corporation—deadlock—repairs and maintenance—common property—strata lot

Watson v The Owners, Strata Plan BCS2817, 2018 BCCRT 283, involved a “2 lot residential strata located in Squamish, BC.” As the tribunal noted, “[e]ach strata lot has 1 vote and so, when the two owners cannot agree, no decisions can be made on behalf of the strata corporation.”

In this case, the deadlock affected a series of repairs. The applicant strata-lot owner asked the tribunal for orders “to have the strata pay for 3 things”:

• Repairs and upgrades to the crawlspace of her property, including structural issues, cleanup of mould and replacement of a firewall in the crawlspace area between the 2 strata lots.
• Upgrades to back yard perimeter drainage.
• New eaves troughs for the outside of her strata lot.

The respondent strata-lot owner opposed this application.

The tribunal found that the crawlspace (with the exception of the firewall) was part of the applicant’s strata lot. As a result, the tribunal concluded, “the strata is not responsible for any work on the crawlspace of SL2.”

With regard to the firewall, the tribunal found that it was common property. It was the strata corporation’s responsibility to repair and maintain it:

Both parties agree the firewall must be replaced. I find that the strata corporation must pay for professional replacement of the firewall. As it has no assets, I order the strata to assess a special levy to which the parties will share the cost proportionately based on the unit entitlement of their respective strata lots. If the parties cannot agree on a contractor and cost, then I set the amount of $2,500 as the cost, based on an estimate the applicant states she received from BSV. Under sections 46 and 48.1 of the Act, I order that the applicant may arrange to have the work done without the need for strata approval. The applicant may arrange, on reasonable written notice, for the contractor to enter on onto SL1 as necessary to effect the work without obtaining approval of the respondent owner.

The applicant’s disputes regarding drainage and eaves troughs were both dismissed in the face of a lack of evidence. But the tribunal did order the strata corporation to “engage a professional engineer” to determine whether this work is necessary and to act on the report’s recommendations. (“Based on the engineering report recommendations, the parties will each obtain a quotation for the cost of the work recommended. I order that a special general meeting be called at which a 3/4 vote resolution will be presented for a special levy for the cost of the work as agreed by the parties, or otherwise based on the average of the two quotations.”).

Common property—alteration—doors and windows

Seymour v The Owners, Strata Plan VR2697, 2018 BCCRT 227, concerned a dispute “about who should pay for the sliding doors and windows that the owners installed in June 2017.” The dispute took place in a strata property consisting of “a multi-phase complex of 48 units spanning over nine acres in Gibsons.”

The tribunal found that this wasn’t a case of owners stepping in to replace deteriorating common property when the strata corporation failed to act; rather, the owners had effectively pre-empted the strata corporation’s decision-making:

From my review of the evidence, I do not find the conditions leading to the Hall decision are present here. Specifically, the owners have not established that their windows and doors had deteriorated to the point discussed in the Hall case. Unlike the owner in Hall, the owners here have not provided evidence from contractors to suggest their windows and doors could not be fixed and required replacement in June 2017. Instead, the owners rely on the energy efficiency report, and the strata’s glass contractor’s view that replacement was the “best” solution.

I find that I cannot rely on the efficiency report for the proposition that the windows and doors no longer served their purposes. In fact, the report suggested that the unit was more efficient than the average home of the same age and that the unit’s overall efficiency would only moderately improve with door, window and skylight replacements.

With respect to the sliding doors, the strata’s glass contractor suggested that he could attempt to fix the problem. I find that the strata was entitled to rely on its contractor’s opinion that other repairs could be attempted before replacing the sliding doors. Given the large costs involved in replacing the unit’s doors, I find it reasonable for the strata to take a cautious approach to such an expenditure, especially in light of the depreciation report’s suggestion that the doors and windows did not need to be replaced for many years. Of course, the depreciation report is not conclusive of the fitness of the particular windows and doors in question, but I find it provided a reasonable basis for the strata’s approach to the matter.

In proceeding with the changes, the owners unilaterally imposed the “best” solution to the problem. In doing so, they prevented the strata from exploring “good” or “better” solutions. In the event further repairs did not work, the strata may very well have decided to replace the doors at its expense, as it is required to do. However, given the owners chose to proceed as they did, I find they must bear the costs for doing so.

Further, the tribunal found that the strata corporation was justified in requiring the owners to sign an alteration agreement as a condition of approving the work.

Common property—alteration—liability—authorization—gas fireplace

In Wood v The Owners, Strata Plan VR 2646, 2018 BCCRT 261, the applicant strata lot owner carried out the following work:

The owner made changes to a gas fireplace in her strata lot. She also made related changes to the gas-vent piping connecting the fireplace to a chimney behind the wall of her strata lot. She wants the strata to pay for part of this work. The strata says it is not responsible to pay for any of the work.

The strata also applies by counter-claim. The strata says the owner made renovations without the strata’s approval. The strata says this violates the bylaws, so the owner must pay fines.

The tribunal found the strata corporation liable to reimburse the owner for the cost of work that fell within its responsibility to repair and maintain common property:

I have found that the indemnity provided by the previous owner is not effective against the current owner. The strata, therefore, cannot rely on that indemnity to deny its statutory duty under SPA section 72, which is echoed in its bylaw 12, to repair and maintain common property.

The owner has provided two invoices. One from Vaglio Fireplace is for $4,562.80 and the other, from Value Fine Finishing, is for $5,057.00.

The bulk of the work is installing a new fireplace in the owner’s strata lot. I find that the Vaglio invoice is rightly the owner’s responsibility. The finishing invoice, however, is for significant work done to both the common property and the owner’s strata lot. I find that invoice should be shared equally between the parties. I order that the strata must pay the owner 1/2 of $5,057.00, which is $2,528.50.

Regarding authorization of the work, the tribunal found both the owner and the strata corporation to have contravened the strata’s bylaws:

While I have found that the owner is in breach of the bylaws, I have also found that the strata is in breach. I find that both their breaches contributed to a climate of distrust. The owner took the work into her own hands because of that climate of distrust and because the strata, in error, refused to take any responsibility.

The tribunal concluded that both sides were responsible for making good aspects of these breaches:

I find that the owner’s contravention of the bylaws is rooted in the strata’s error over the application of the indemnity and its breach of its fireplace inspection bylaw. I order that the strata remove all charges for bylaw violations relating to the work on the owner’s fireplace.

It is reasonable, however, for the strata to know details of any alterations to strata lots and to common property. Also, the strata is entitled, under its bylaws, to be indemnified by owners who alter their strata lots, and who alter common property.

It would be unfair for the owner to be put in a better place by violating the bylaws than if she had complied with them. So I order that within 30 days of this order she must complete and deliver a signed indemnity agreement to the strata, indemnifying them for costs related to the work she did to her fireplace and to the common property.

Common property—alteration—sign—removal

Quarry v The Owners, Strata Plan LMS 2723, 2018 BCCRT 269, concerned a dispute in a strata property “comprised of 8 commercial and 11 residential strata lots.” The applicant commercial-strata-lot owners and their tenant claimed:

the strata improperly denied the tenant permission to post a 8’ x 4’ commercial sign (sign) on common property and removed the sign. The owners ask that the strata council (council) reinstall the sign and cancel the fine imposed for breach of the sign bylaw as well as the costs of removal which have been assessed against strata lot 12. The owners also ask that the strata be required to participate in voluntary dispute resolution under the strata bylaws (bylaws) to consider various issues. Further, they ask for reimbursement of expenses incurred for registered mail in the amount of $11.34, for a legal opinion in the amount of $732.62, and management fees which the strata paid to the management company for dealing with the applicants’ claim in the amount of $1,050.00, as well as reimbursement for tribunal fees.

In response, the strata corporation argued that “that the tenant breached the bylaws by not obtaining the approval of the council before affixing the sign to the common property” and that “it is not required to participate in voluntary dispute resolution.”

The tribunal found that the strata corporation’s actions were reasonable in view of the owners’ conduct:

The owners chose not to comply with the council decision made on August 14, 2017 that the 4’ x 8’ sign be removed by August 31, 2017 by permitting the tenant to proceed with the installation of the unauthorized sign. In doing so, the owners became responsible for the installation. The council was justified therefore in removal of the sign on September 12, 2017 at the owners’ expense, in accordance with bylaw 8.5 and SPA section 133. Council did so in a reasonable and responsible manner and at a reasonable cost.

The tribunal further found that the strata corporation had properly imposed fines for a breach of its bylaws and had properly charged the owners for the cost of removing the sign.

Finally, the tribunal found that participation in voluntary dispute resolution under the strata corporation’s bylaws required that “all parties must agree to this process.” The strata corporation couldn’t be compelled to participate.

In the result, the tribunal “order[ed] that the applicants’ claims are dismissed.”

Common property—repairs and maintenance—parking stalls

The dispute in Ricioppo v The Owners, Strata Plan KAS 2731, 2018 BCCRT 258, took place in a strata property “compris[ing] 26 strata lots in two buildings in the Big White Ski Resort near Kelowna.” “Although the strata is a phased strata,” the tribunal noted, “only Phase 1 has been built and deposited in the land title office.” The applicant strata-lot owner “has requested several orders that relate to maintaining common property, enforcing parking bylaws and providing documentation.” The wellspring of the dispute is the complicated parking arrangements at this resort strata corporation.

The tribunal ordered the strata corporation to post no-parking signs at an area near the boundary between the strata corporation and remainder parcel (where further phases of the strata were at one time contemplated):

Residents and visitors need to know that such parking is not permitted on the common roadway or the where the roadway meets the remainder lands. I find that the strata has not enforced the parking bylaw and has permitted a dangerous situation to develop and continue. I find that the strata must post two “no parking” signs on the northeast side of the roadway where the common property roadway abuts the remainder lands. One “no parking” sign must be installed opposite strata lot 7. One “no parking” sign must be installed opposite strata lot 20.

That said, the tribunal wasn’t prepared to order compensation for the owner’s accident in the parking area:

I agree with a number of the strata’s contentions. The owner was the operator of the vehicle. The owner is responsible for the care and control of her vehicle. The strata argues that the owner was negligent by improperly maneuvering her vehicle into the carport. I am not prepared to find the owner negligent. I am prepared to find that since the owner entered the carport without causing damage and when exiting caused damage results in the owner being responsible for her own damage.

***

In the present case, snow removal activity being impeded by parked vehicles is foreseeable. A pile of snow not being removed due to the parked vehicles is foreseeable. The possibility that the owner would recognize that danger, drive into the carport in any event, and then be unable to exit, is not foreseeable.

But the tribunal did make a number of forward-looking orders regarding parking at the strata property:

I conclude it is imperative that owners, tenants, occupants and visitors are aware the common roadway, including where it abuts the remainder lands, must be kept clear for snow removal and emergency access. I order that the strata immediately notify the owners, tenants and occupants that:

(a) the strata will enforce parking bylaw 3(5)(a) immediately;

(b) parking a vehicle on the roadway opposite the carports is prohibited; and

(c) any vehicle parked on the roadway opposite the carports will be towed at the expense of the vehicle owner/driver.

The tribunal made other orders concerning the strata corporation’s obligation to repair and maintain common property and regarding basic record keeping and governance.

Common property—limited common property—repairs and maintenance—deck

Swan v The Owners, Strata Plan LMS 410, 2018 BCCRT 241, was a dispute about “the limited common property (LCP) deck for strata lot 50 which requires repair.” As the tribunal noted, “[t]he owner wants the deck replaced in accordance with her specific requirements, and also wants compensation for her loss of use of the deck.” The tribunal also described the strata property as follows:

The strata was created in 1992. Phase 4 of the development was created in November 1993. The strata plan shows that SL 50 [the owner’s strata lot] is part of Phase 4, and identifies the LCP for SL 50 as “deck & stairs.” The dimensions of the LCP for SL 50 on the strata plan are 1.06 x 3.57 meters, or approximately 3 feet, 6 inches x 11 feet, 8.5 inches.

In the tribunal’s view, this dispute didn’t turn on the existence of the duty to repair and maintain common property but rather on the duty’s reach:

There is no dispute that, under the strata’s bylaws, the strata is responsible for the repair and maintenance of LCP. Neither is it disputed that the deck and stairs for SL 50 are LCP. What is disputed is how far the strata is required to go to repair and maintain the LCP deck and stairs.

The tribunal found that the duty didn’t extend as far as the owner had argued it did:

I find that the owner is not entitled to review and approve the contractor’s scope of work before the repair work begins. As noted above, a strata has a duty to reasonably repair and maintain common property, but there is no duty to do so in accordance with the requirements of any specific owner. The owner is not entitled to direct the strata on how to repair the LCP deck and stairs.

The tribunal also dismissed the owner’s claim for compensation, pointing to the owner’s own delays over the course of the dispute.

Common property—limited common property—repairs and maintenance—alteration—deck—skylights

Susko v The Owners, Strata Plan LMS 2226, 2018 BCCRT 249, involved a dispute in “a 47-unit 7-level residential complex located in Port Moody,” which concerned “whether the strata must a) reimburse the owner $1,580 for his replacement of deck boards on his limited common property (LCP) balcony, and b) approve the owner’s request to install 3 skylights in unit 704.”

The tribunal characterized the first issue as follows:

The issue here is that the owner replaced the balcony deck boards on his own, and now seeks reimbursement of the $1,580 cost. The owner acknowledges that he chose to replace his balcony boards with higher quality composite decking rather than “standard” decking. He says the strata has refused to tell him what it spent on replacement of other standard decks, and argues that the strata at least should reimburse him the cost of a standard deck replacement.

In the tribunal’s view, the owner’s misunderstanding of the strata corporation’s bylaws couldn’t be used as a basis for reimbursement:

The crux of this claim is that it is undisputed that the owner did not ask that the strata replace the balcony deck boards. I find the owner’s September 26, 2016 request, as quoted above, was that he be permitted to do the work at his expense, rather than a request that the strata arrange and pay for that work. It is unfortunate the owner did not realize the bylaws required the strata to repair and maintain the LCP deck boards. However, his failure to read the bylaws cannot mean the strata is responsible for paying for a balcony repair the owner asked to do at his own expense. There is no evidence before me that the strata had planned any deck repairs around the strata and the owner’s photos and submission do not prove his deck required imminent replacement.

Regarding the second issue, the tribunal found that the strata corporation had acted reasonably in refusing the owner’s request to install skylights:

on balance I accept the strata reasonably refused the owner’s request for skylight installation, because of the location and age of the building and the strata’s desire to protect the roof membrane. Given my conclusions above, I dismiss the owner’s request that I order the strata to approve his request for the installation of skylights.

In the result, the owner’s dispute was dismissed.

Strata lot—responsibility to repair—liability for cost of repairs—negligence—roof

Vasilica v The Owners, Strata Plan NW 17, 2018 BCCRT 216 was a dispute “about the strata’s alleged negligence in a roof repair performed by a third party contractor, Penfolds Roofing (Penfolds)”:

It is undisputed that the roofer did break through the drywall ceiling of the owner’s strata lot, causing debris to fall onto the owner’s daughter’s bed.

The owner wants his ceiling repaired. He also claims $2,000 in compensation for “loss of use and enjoyment and punitive damages,” plus $157.50 in reimbursement for temporary repairs he arranged.

The tribunal found that the strata corporation wasn’t negligent in engaging its roofing company:

Based on the evidence before me, I find the strata reasonably relied upon Penfolds to replace the roof in question. There is nothing in the evidence before me to support a conclusion that the strata ought to have done anything differently up to the point Penfolds’ worker fell through the ceiling. Nothing the strata did afterwards caused any further damage to the owner’s drywall ceiling, which the owner had temporarily repaired.

In the result, the tribunal dismissed all of the applicant owner’s claims.

Strata lot—responsibility to repair—liability for cost of repairs—water leak

The Owners, Strata Plan LMS 2706 v Duncan, 2018 BCCRT 248, involved a dispute over paying for repairs to damage to a strata lot caused by a water leak:

In July 2015, the owner identified a water leak inside her strata lot. As she initially believed the leak was related to the strata’s fire sprinkler system, the owner contacted the strata to investigate. The strata eventually arranged for a restoration company [to] identify the location of the leak and perform repairs within the owner’s strata lot. . . .

The strata seeks an order that the owner pay the cost ($601.08) of the repairs completed. . . .

The owner says that she should not have to pay for the repair. The owner’s position is that the strata failed to give her the opportunity to review a quote for the repair, and did not provide her with any notice that a repair was being completed, despite the fact that the leak was located wholly within her unit and did not involve common property.

The tribunal found that the owner hadn’t violated any of the strata corporation’s bylaws:

Bylaw 4.1 sets out that an owner must repair and maintain its strata lot, except for repair and maintenance that is the responsibility of the strata. The evidence before me is that the actions of the owner in late July 2015 were precisely intended to engage in the repair and maintenance of her strata lot. Rather than failing in her duty to repair and maintain her strata lot, the owner was proactively taking steps to address the leak in her unit. I do not consider the owner can be found to have been in violation of bylaw 4.1.

Strata bylaw 15 addresses the strata’s insurance. Bylaw 15.7 sets out that owners are responsible to repair, maintain and replace items such as hot water tanks, as well as hoses and water supply tubes to such an appliance/fixture. Bylaw 15.7 further explains that a failure to repair and provide maintenance on an item such as a hot water heater will be deemed negligence, and the owner of the strata lot will be responsible to pay for the cost of any insurance deductible paid as a result of any damage to a strata lot, common property, or interior strata lot property.

The strata has not provided any evidence suggesting that the owner had failed to maintain and repair her hot water tank and pipes generally, such that she could be deemed to have been negligent as contemplated by bylaw 15.7.

The tribunal concluded that the strata corporation’s claim for reimbursement should be dismissed:

the evidence before me is that the leak was associated with pipes from a hot water tank in the owner’s strata lot. Those pipes do not meet the definition of common property set out in section 1 of the SPA. The area affected by the leak was around a door frame located completely within the owner’s strata lot. There is no indication on the evidence before me that the leak involved pipes which were capable of being used in connection with the enjoyment of another strata lot or the common property of the strata. In the circumstances, the strata’s general responsibility to repair and maintain common property did not exist.

The responsibility for undertaking the repair required in this case lay with the owner. The owner specifically informed the strata that she wished to receive a quote informing her of the cost of any proposed repairs proceeding. For reasons that remain unexplained, the strata did not provide the same to the owner.

The strata at no point obtained any agreement from the owner as to the scope and cost of the repairs that were undertaken. Rather, the strata elected to proceed with and approve repairs to the owner’s property on its own initiative, without consulting with the owner further. While the strata may have felt that to be the most prudent course of action, that fact does not give the strata the power to charge the cost of the repair to the owner. The strata simply does not have such a power in the circumstances of this case.

Strata lot—responsibility to repair—water leak—negligence—governance—conflicts of interest—agreements—record keeping—access to records

In Nass v The Owners, Strata Plan BCS 2025, 2018 BCCRT 243, the applicant owner asked the tribunal for a number of orders related to repairs to common property and to a strata lot, as well as orders concerning the respondent strata corporation’s governance:

this dispute is about damage to the owner’s strata lot, a strata council member’s role in relation to film producers’ use of common property (including their standard of care and disclosure of conflicts of interest), and the records kept by the strata.

The owner seeks several orders relating to repairs of common property and her strata lot, strata records and documents, disclosure of conflicts of interest and governance assistance for the strata council.

The strata says it has repaired the common property and is not responsible for damage to the owner’s strata lot. It also says copies of most common property agreements and other documentation retained by the strata is available to the owner upon request and that one of its council members contracts directly with film production companies under a separate contract to which the strata is not privy.

The tribunal found that the owner’s strata lot had been affected by two water leaks. The first leak had been repaired: “the interior repairs relating to the first leak are moot, as they have been completed.” Further, the tribunal found “the strata was not negligent in its attendance to the second leak.”

The tribunal declined to grant the requested order on conflicts of interest:

The owner’s requested remedy is that the strata ensure each council member complies with section 32 of the SPA and if a conflict exists ensure the member leaves the meeting while the matter in conflict is voted on. I decline to make that order, given I have found the strata is not obligated to ensure its council members disclose conflicts of interest and the strata’s practice is that the council member who has a conflict leaves the meeting and does not vote on the contract, as required by the SPA.

But the tribunal did make a series of orders regarding access to the strata corporation’s records:

I order the strata to review its financial records for the 2015 calendar year and make a list of all film companies that paid a fee under a common property agreement (list). The strata must provide the owner with a copy of the list.

I further order the strata to correspond with all companies on the list for which the strata does not have a copy of the applicable agreement, requesting that the companies provide a copy of the agreement to the strata. The strata must, upon receipt of missing common property agreements, provide a copy to the owner. Upon issuing correspondence to all companies on the list, I conclude the strata will have made a reasonable attempt to obtain the missing agreements.

I further order the strata, upon receipt of a written request from the owner for records and documents set out in section 35 of the SPA, to provide access to or copies of the requested information pursuant to section 36 of the SPA.

Bylaws—enforcement—fines—aggressive dog

The Owners, Strata Plan BCS 1644 v Lukovic, 2018 BCCRT 219, involved a dispute “about whether the respondents [strata-lot owners] are in breach of the strata’s bylaws prohibiting aggressive dogs from residing on the property.” The applicant strata corporation asked the tribunal for orders that the respondents “a) pay outstanding fines assessed by the strata in the amount of $22,600; b) remove their dog from the property.” The respondents denied “that their dog is aggressive and that any fines are payable, and they refuse to remove their dog from the building.”

The tribunal found that, on the evidence, the strata corporation had made a reasonable determination that the respondents’ dog was aggressive:

I find that the strata’s March 31, 2015 determination that the dog was aggressive within the meaning of the bylaw was reasonable, and I agree with the strata’s conclusion. The dog satisfies the definition of “aggressive” in that it demonstrated a tendency to attack other pets without provocation, and bit another person without provocation.

The tribunal also found that the strata corporation had complied with the statutory procedure in levying fines. But it concluded that the total amount levied was unreasonable:

I accept that the $200 fine was prescribed by the bylaws. I also accept that the respondents’ refusal to remove the dog amounted to a continuing contravention for which the strata had discretion to assess further fines periodically. I am not, however, prepared to order payment of $26,000 in fines. The respondents are already facing the removal of their dog, which will likely have serious personal consequences to them. I also note that it took the strata more than 2 years to commence this dispute to deal with the problem. Overall, I find that the strata is only entitled to payment of fines assessed once a month, which I find was $5,000. All other fines that the strata assessed against the respondents that are part of this dispute must be reversed.

In the result, the tribunal ordered:

• within 60 days of this decision the respondents must remove the dog from strata property;
• within 30 days of this decision, the strata must reduce the pet bylaw fines assessed against the respondents to $5,000; and
• within 30 days of this decision, the respondents must pay the strata (1) $5,000 in fines for breach of the strata’s pet bylaws, (2) $80.91 in pre-judgment interest, and (3) $225 as reimbursement for its tribunal fees.

Bylaws—enforcement—towing—motorcycle

In Anderson v The Owners, Strata Plan BCS 3659, 2018 BCCRT 223, the applicant tenant said “the strata wrongly caused his motorcycle to be towed”:

He seeks an order reimbursing him for the cost of towing his motorcycle, plus $100 for his inconvenience and other costs.

The strata says the applicant has a history of parking in incorrect spaces, about which he had been warned. They say his motorcycle was towed consistent with strata bylaws.

The tribunal found that the applicant had permission to park his motorcycle in the parking stall:

A January 11, 2018 email from the strata’s caretaker states that the owner of stall 31 told her on August 19, 2017 that the applicant did not have permission to park there, but on August 23, 2017 the stall 31 owner texted to say she should have double-checked and the motorcycle was allowed to be parked there. The caretaker wrote in her email that the stall 31 owner was renting out the stall to someone else, and it was probably that person who told the applicant he could park there.

The August 19, 2018 text message provided in evidence confirms that the applicant had permission from ND, the person designated use of parking stall 31, to park in stall 31.

Based on this evidence from the caretaker and ND, I find that the applicant had permission to park his motorcycle in stall 31.

Since the applicant wasn’t in breach of “any parking bylaw,” and since the strata corporation had failed to give the applicant proper notice of a bylaw contravention, the tribunal ordered the strata corporation to “reimburse the applicant for the $96.82 towing bill.”

Tribunal jurisdiction and procedure—jurisdiction to hear dispute—strata-lot owner

The underlying dispute in Moore v The Owners, Strata Plan KAS 869, 2018 BCCRT 234, was about “interpretation of the strata’s bylaws with respect to commercial activity and whether the bylaws permit the owner to operate a licensed daycare.” As the tribunal noted, the respondent strata corporation “has so far declined to respond Ms. Moore’s request for approval in any substantive way and has declined to hold a council hearing under s. 34.1 of the Strata Property Act (SPA) on the basis that the strata bylaws do not permit any commercial activity,” so the applicant asked “for the tribunal to order the strata’s approval of her application.”

This decision only concerned “whether the tribunal has jurisdiction in this dispute, and if not, whether I should refuse to resolve this dispute.”

The tribunal found that the applicant wasn’t a registered owner or tenant, so it didn’t have jurisdiction to hear her dispute:

the tribunal reviewed Land Title Office documents relating to the strata lot. The documents show strata lot 4 was purchased by [the applicant’s] spouse on May 26, 2017. [The applicant’s] name does not appear on the title. Further, there is no agreement for sale or life estate registered against the title of strata lot 4. Therefore, I find [the applicant] is not an owner for the purposes of the SPA, which is defined in section 1 of the SPA as a person shown on title.

***

Since [the applicant] is neither an owner nor a tenant as those terms are specifically defined by the SPA I conclude that under section 3.6 of the [Civil Resolution] Act, the tribunal does not have jurisdiction over her dispute. Under section 10 of the [Civil Resolution Tribunal] Act I must refuse to resolve this dispute and [the applicant’s] claim is dismissed.

Tribunal jurisdiction and procedure—non-compliance—discretion to decide dispute

In The Owners, Strata Plan NW 178 v Moses, 2018 BCCRT 240, the applicant strata corporation “says that the owner is in violation of the strata’s occupancy and noise bylaws” and “asks for the owner to be brought into compliance with the bylaws.” But the respondent strata-lot owner stopped complying with the tribunal during the procedure, giving rise to a threshold issue, “whether I should proceed to hear the strata’s dispute, without the owner’s further participation, given her non-compliance and.”

The tribunal noted that “[t]he tribunal’s rules are silent on how it should address non-compliance issues.” The tribunal decided, in exercising its discretion, to “consider the following factors”:

• whether an issue raised by the claim or dispute is of importance to persons other than the parties to the dispute;
• the stage in the facilitation process at which the non-compliance occurs;
• the nature and extent of the non-compliance;
• the relative prejudice to the parties of the tribunal’s order addressing the non-compliance; and
• the effect of the non-compliance on the tribunal’s resources and mandate.

The tribunal decided to exercise its discretion in favor of hearing the strata corporation’s dispute, putting “significant weight on the following factors”:

• the extent of the non-compliance is significant;
• the applicant is not prejudiced if such an order is made; and
• the need to conserve the tribunal’s resources.

On the underlying bylaw dispute, the tribunal noted that the respondent agreed with the strata corporation’s claims that she was in violation of the strata corporation’s occupancy and noise bylaws.

In the result, the tribunal found “that the tribunal does not have the authority to require that the owner sell her strata lot as a remedy for the bylaw violations.” The tribunal ordered the respondent to comply with the occupancy and noise bylaws.

Tribunal jurisdiction and procedure—withdrawal of dispute—reimbursement for expenses

Pack v The Owners, Strata Plan LMS 2998, 2018 BCCRT 237, was a summary decision “about whether the applicants’ dispute should be withdrawn and payment of the respondent’s expenses.” Since both the applicant strata-lot owners and the respondent strata corporation agreed that the dispute should be withdrawn, the only live issue for the summary decision was “whether the tribunal should order the applicants to reimburse the strata’s expenses.”

The tribunal decided that reimbursement wasn’t appropriate, for the following reasons:

First, as earlier noted, the strata characterizes its expenses as time spent to “have evidence prepared to defend against this claim.” Given the status of this dispute was in the tribunal’s facilitation stage, there was no need to prepare evidence as evidence is generally not submitted until the tribunal decision process has started, which was not the case here.

Second, the strata did not agree to pay its strata council representative for time spent until after the applicants had requested to withdraw their dispute. It is unclear from the submissions if the strata’s representative requested reimbursement for time spent or if the strata offered reimbursement.

Third, given that parties are encouraged to represent themselves under section 20 of the [Civil Resolution Tribunal] Act, the tribunal does not generally order one party to pay to another party any fees charged by a lawyer or another representative except in extraordinary cases. I do not find this to be such a case.

Fourth, under section 189.4 of the Strata Property Act (SPA), an owner who brings a tribunal claim against a strata corporation is not required to contribute to the strata corporation’s expenses of defending the claim or in any monetary order issued against it. I find the request of the strata is contrary to the SPA.

In the result, the tribunal “order[ed] the applicants are permitted to withdraw their dispute and that the tribunal reimburse the applicants their tribunal fees paid of $125.”

The post CRT Roundup—governance, bylaws, finances, repairs, and more first appeared on British Columbia Law Institute.

Sections and types—types—availability—geothermal heating

Schultz v The Owners, Strata Plan KAS 3313, 2018 BCCRT 148, involved a dispute over “certain utility expenses [the applicant strata-lot owners] say they should not have to pay because the related system, a central geo-exchange system for heating, cooling, and domestic hot water heating (central geothermal system) does not service their units.”

The disputed involved a strata property that the tribunal described as:

[a] 111-unit strata is a phased residential complex in Kelowna, with 92 apartments and 19 townhouses. A 4th phase is near completion, if it is not already completed, which is made up of an additional 65 apartments.

In 2013 the strata corporation approved a bylaw establishing “four strata lot types”:

• Townhouse type that are connected to and use the central geothermal system
• Townhouse type that are not connected to and use the central geothermal system
• Apartment type that are connected to and use the central geothermal system
• Apartment type that are not connected to and use the central geothermal system.

In 2017 the strata corporation replaced this bylaw with a bylaw that said “[t]he strata is comprised of 2 ‘types of strata lots,’ namely the ‘Apartment’ and the ‘Townhouse’ types, for the purpose of allocating ‘expenses which relate to and benefit only one of these types of strata lots.’ ”

The applicant owners asked the tribunal to order “the strata to re-adopt a bylaw that enables assignment of utility fees for the apartment-style and townhouse units, based on whether they are each serviced by the central geothermal system by creating 4 types of strata lots (4-type bylaw).”

After noting that the “central geothermal system also services an amenity building, which benefits all strata lot owners, including the applicants,” the tribunal concluded that the a types bylaws on the model proposed by the applicants isn’t available in this case:

My conclusion is supported by the BC Court of Appeal’s decision in Ernest & Twins Ventures (PP) Ltd. v. Strata Plan LMS 3259, 2004 BCCA 597 (CanLII). Expenses which benefit more than one type, albeit to different degrees, must be paid by all strata lots. In Ernest, the BC Court of Appeal dismissed an argument that where an expense benefits one type of strata lot disproportionately the strata must allocate the expense according to the benefit derived by each type. This is exactly the sort of argument the applicants advance: because they only benefit from the 10.5% used by the amenity building, it is disproportionate for them to equally share in the entire central geothermal system expense. I am bound to follow Ernest. The court held that section 6.4(2) of the Regulation does not provide for any greater apportioning of expenses among types of strata lots. As worded, section 6.4(2) burdens the owners of one strata lot type with an item of expense from which they derive “the only benefit.” For clarity, expenses that benefit different types of strata lots disproportionately must be paid by all strata lots.

Therefore, I agree with the strata that the SPA prohibits the 4-type bylaw desired by the applicants.

I also note the case law that indicates a “types” bylaw can only be based on character or form of structure (see Smith v. G.C. (Goldie) Read, 1993 CanLii 2149 (BCSC). Defining the bylaw based on connection to the central geothermal system is not based on character or form or structure. Nothing turns on the fact that the Smith decision considered the SPA’s predecessor legislation, the Condominium Act. In particular, I do not agree that the requirement for a type bylaw, which arose with the SPA, changes anything. I also agree that the more recent decision in Lim v. Strata Plan VR 2654, 2001 BCSC 1386 (CanLII), found a “type” includes “a class of things having common characteristics.” However, I do not find that the Lim decision materially changes the framework set by the Smith case, which was noted and relied upon by the court in Lim.

In any event, the determinative point here is that the central geothermal system is at least partly used by everyone, given the amenity building. Thus, it is not an expense that is exclusive to only one strata lot type. Further, because the apartments and at least some of the townhouses use the central geothermal system, it is not an expense associated with only one type of strata lot, as defined in the proposed 4-type bylaw.

Finances—common expenses—water taxes and tolls

Huck v The Owners, Strata Plan KAS1565, 2018 BCCRT 172, involved a dispute over “the calculation and collection of water taxes and tolls by the respondent on behalf of the Okanagan Falls Irrigation District (OFID).” The OFID “is an ‘improvement district’ created by letters patent under the Local Government Act,” which is “empowered to regulate the distribution of water and establish bylaws that impose tolls and other charges on water users.”

The dispute took place in “a bare land strata corporation created under the (former) Condominium Act in January, 1995.” The applicant strata-lot owners “say water taxes and tolls are common expenses while the respondent [strata corporation] says they are not.”

The tribunal began by noting that “[s]ection 1 of the SPA states that common expenses are either expenses ‘relating to common property and common assets’ or they are expenses required to meet a ‘purpose or obligation’ of the strata corporation.”

The tribunal found that the water taxes and tolls didn’t relate to common property. But they were an obligation of the strata corporation:

Since OFID bylaw 281 was passed in 1992 the respondent strata corporation, not individual strata lot owners, has an “obligation” to pay water taxes and tolls to the OFID.

The OFID’s characterization of strata corporations’ responsibility to collect water charges and remit them as a “procedure,” does change the respondent’s SPA obligations under the bylaw. Nor does it change their obligation to pay common expenses under s. 91 of the SPA and, further, to comply with establishing strata fees and apportioning them by unit entitlement (ss. 92 and 99 of the SPA).

Finally, the respondent’s argument that because the collection of taxes has not changed in 19 years and therefore “overrides” an interpretation that water is a common expense is without legal foundation. The SPA and municipal or district bylaws, along with the strata corporation’s bylaws are the source of authority for the actions of strata councils, not past practice.

I conclude the payment of water taxes and tolls is a common expense of the respondent strata corporation.

In the result, the tribunal ordered that “water taxes and tolls invoiced by the OFID to the respondent shall be treated as a common expense in accordance with Part 6 of the SPA.”

Finances—cost allocation—common asset—dock

The Owners, Strata Plan KAS 2827 v Couchman, 2018 BCCRT 186, involved a “dispute . . . about repairs required to a shared dock.” The dock was a “a common asset of the strata.” The strata property was made up of only 2 strata lots,” each located in a separate building. The size of the strata property required both owners agree to a plan to repair the dock. They were unable to reach agreement.

On the issue of allocating costs for repairs, the tribunal found:

I find the dock is a common asset of the strata and the respondent must contribute to the costs of constructing the new dock and demolishing and disposing of the old dock equally according to the unit entitlement of each strata lot.

In the result, the tribunal ordered that a detailed set of steps be taken to carry out replacement of the dock.

Finances—legal fees—authorization to pay expenses—audit—access to records

In Corner v The Owners, Strata Plan K 833, 2018 BCCRT 189, the applicant strata-lot owner asked the tribunal for a number of orders related to her concerns about the finances and governance of the respondent strata corporation:

The owner seeks orders that the strata council members repay the improper expenses made by the strata council, reimbursement of legal fees charged to her, a financial audit of the strata’s books and accounts, and that the strata council members be held personally liable for their actions.

The tribunal found had improperly charged the owner for the strata corporation’s legal fees in respect of a hearing that the owner had requested:

I find the strata has mistakenly confused the legal fees for the hearing with the legal fees for the small claims dispute. I do not accept the strata’s statement that the $99.38 credit related to the small claims hearing and that the amount was incorrectly calculated and replaced by the $135.02 credit. The strata has not explained why it would describe a credit as being about a court action if it, in fact, related to a council hearing.

The bulk of the owner’s remaining claims were dismissed. The tribunal found that the strata corporation hadn’t acted improperly with respect to the employment of a caretaker and that it was authorized to pay legal fees in connection with the forced sale of another strata lot. The tribunal also declined to order an audit of the strata corporation or to find that strata-council members had failed to act honestly and in good faith with a view to the best interests of the strata corporation.

Bylaws—enforcement—section—authority—noise

In Bhrany v Section 2 of The Owners, Strata Plan BCS 3495, 2018 BCCRT 150, the applicant strata-lot owner asked the tribunal to cancel fines “because he says there is no evidence the noise in question came from his tenant, and because the section has acted unfairly in assessing fines against him.”

The tribunal found that “the noise complaints at issue in this dispute were a response to actual noise coming from SL 90 that was caused, or allowed to be caused, by the tenant.” But the tribunal also found that the section lacked the authority under the Strata Property Act and the bylaws at issue to levy the fines:

The section relied on bylaws 2.3(1) and 7.1 in the notices of complaint. The language of each of those bylaws is different. Bylaw 2.3(1) directly prohibits actions by the owner or tenant. Bylaw 7.1 refers to the owner’s obligations only, and makes an owner responsible for noise created by “occupants.” Owners, tenants and occupants are not defined in the bylaws.

Subparagraph 194(2)(f) of the SPA grants a section of a strata corporation the same rights as the strata corporation to enforce bylaws and rules with respect to a matter that relates solely to the section (see Yang v. Re/Max Commercial Realty Associates (482258 BC Ltd.), 2016 BCSC 2147 (CanLII) at para. 91). The only bylaws that relate solely to the section are the bylaws in Part 7. Therefore, I find the section does not have the authority to enforce bylaw 2.3(1). That leaves bylaw 7.1.

In the circumstances, I find that the reference to “occupant” in bylaw 7.1 does not mean “tenant.” The terms have different meanings in the SPA. Therefore, given that the bylaws do not define “occupant” or “tenant,” I conclude that “occupant” and “tenant” have the same meanings in the bylaws as in the SPA and refer to different categories of people. Since I have earlier found the noise in this dispute was caused or permitted by the tenant, I find the section is not entitled to rely on bylaw 7.1.

In the result, the tribunal “order[ed] that the section immediately cancel all fines imposed on the applicant for noise complaints at SL 90 before December 30, 2017.”

Bylaws—enforcement—fines—spreading herbicide—feeding wildlife—nuisance

In The Owners, Strata Plan KAS 2660 v Brooks, 2018 BCCRT 162, the applicant strata corporation asked the tribunal for an order that the respondent strata-lot owner “pay 3 fines for alleged bylaw breaches.” The strata corporation claimed breaches of its bylaws in relation to the owner and the owner’s tenant “spraying chemicals on the trees located on the strata property, causing them to die” and two instances of “feeding ducks on the strata property, causing them to be a nuisance.” The owner argued that “is actions were not breaches of the bylaws.”

The tribunal rejected the owner’s argument regarding spraying herbicides:

The owner argues that the plants sprayed were weeds and that his actions were justified. I reject this argument. Bylaw 4(1)(q) expressly prohibits an owner or tenant from causing damage to trees or plants. Whether the owner thought the plants were weeds is irrelevant if damage was caused. I conclude the bylaw prohibits the activities of the June 26, 2015 fine.

The tribunal also found that feeding wildlife created a nuisance in this case:

Bylaw 4(1)(a)(i) states that an owner or tenant must not do anything on the strata property that causes a nuisance. A nuisance is defined as something that causes inconvenience or annoyance. I find that attracting numerous ducks or other birds to the strata property constitutes a nuisance for the purpose of the bylaw. I conclude that the bylaw prohibits the activities of the June 29, 2015 and February 4, 2016 fines.

Finally, the tribunal found that the strata corporation had complied with section 135 of the Strata Property Act in levying the fines.

In the result, the tribunal held, “[w]ithin 30 days of this decision, I order the owner to pay to the strata a total of $531.19, broken down as follows: (a) $300.00 in fines for breaches of the strata bylaws; (b) $6.19 in pre-judgment interest under the [Court Order Interest Act]; and (c) $225.00 in tribunal fees.”

Bylaws—enforcement—charge backs—fines—dryer-vent cleaning—short-term accommodation

In The Owners, Strata Plan BCS 3625 v Wiltsey, 2018 BCCRT 155, the applicant strata corporation asked the tribunal for the following orders:

to recover costs it incurred because the owner did not make the unit available for dryer vent cleaning on several occasions (chargebacks). The strata also wishes to recover fines it imposed for the owner’s contravention of its rental bylaws. Finally, the strata asks the tribunal for an order requiring the owner to stop renting her unit on a short-term basis.

Since the respondent strata-lot owner did not respond to the charge-back claim, the tribunal found that “liability may be assumed, much like a default decision.” It granted the strata corporation its requested order.

Regarding the bylaw fines, the tribunal found that:

the short-term accommodations in this matter were licences to occupy rather than rentals for the purposes of Part 8. The owner maintained legal possession of the unit when providing short-term accommodations to her guests. I find that the strata could not use the rental limitation bylaws (which specifically reference sections 141 to 148) to prohibit the owner from offering short-term accommodations to guests.

The strata may rely on other bylaws to stop owners from licencing their units to short-term guests. The strata has attempted to do so with the illegal use bylaw and the short-term accommodation bylaw.

In assessing fines under these bylaws, the strata failed to comply with the procedure set out in section 135 of the act in the case of some of the fines but did comply for other fines.

In the result, the tribunal ordered that “within 30 days of this decision, the owner must pay the strata $1,364.47, which includes the following amounts: (a) $124.88 for the chargebacks; (b) $1,000 for the fines; (c) $14.59 for prejudgment interest on the above two amounts pursuant to the Court Order Interest Act (COIA); and (d) $225.00 for the tribunal fees.”

Bylaws—enforcement—charge back—water leak

In The Owners, Strata Plan VR 2266 v 228 Chateau Boulevard Ltd, 2018 BCCRT 198, the applicant strata corporation asked the tribunal for orders against the respondent strata-lot owner in a dispute over

a leak from a water tank (water leak). Damage occurred in 3 locations: in the owner’s strata lot, on common property, and in a strata lot in the commercial section. The strata made repairs then charged the repair costs back to the owner. The owner disputes those charges.

The tribunal found that the owner was responsible for the damage:

The “cause” of the damage is not disputed: it is the owner’s ruptured water tank. The water tank is the owner’s property and the owner’s responsibility. Being “responsible” need not mean being negligent . . . . As found in Strata Corporation LMS 2723 v. Morrison, 2012 BCPC 300 (CanLII), an owner is responsible for what happens in that owner’s strata lot. It does not matter if the owner was absent at the time.

I find that the water leak was caused by the owner’s property, for which the owner is responsible. The owner caused damage to the common asset and the common property, in breach of bylaw 3(2). The owner also created a nuisance or hazard to other people from the water leak in the owner’s strata lot, in breach of bylaw 3(1).

But the tribunal had also found that the strata corporation had failed to comply with the statutory procedure for enforcing its bylaws:

I find that the strata violated SPA section 135 by charging the owner’s account before the owner had an opportunity to respond. I also find that the strata took steps to cure the violation of SPA section 135 by giving the owner a hearing then providing its decision in writing. I further find that the strata did not fully cure the violation of SPA s. 135, which would involve reversing the charges relating to the water leak that were registered in June and July 2016, and then re-registering them on or after the date of the council’s written decision, May 26, 2017.

In the result, the strata corporation’s claims were dismissed.

Bylaws—enforcement—off-leash dog—noise

In Fraser v The Owners, Strata Plan K 6, 2018 BCCRT 160, the applicant strata-lot owner “raised complaints about construction noise in the adjacent unit, off-leash dogs in his car port and front yard, and improper bylaws,” and argued “the strata has not responded adequately to his concerns.” The applicant asked the tribunal for various orders related to the enforcement of strata-corporation bylaws.

The tribunal declined to order the strata corporation to levy fines against a former strata-lot owner:

While there is evidence that the off-leash Bylaw was violated by the dog owner, suggesting the strata council might have taken more definitive action than it did, I decline to make an order requiring the strata to fine dog owner. I make this decision because the strata had discretion to impose a fine. Further, such an order will have no practical impact, given that the dog owner no longer lives in the strata.

The tribunal also declined to make an order in relation to a noise complaint, which was well-documented but ultimately withdrawn:

Contrary to the strata’s submission, I find the applicant documented the noise on several occasions. Further, renovation noise continuing until 8pm may well be unreasonable, and worthy of sanction by strata council. Strata council could have imposed a fine if the noise continued under its bylaws and had an obligation to do so as set out in section 26 of the SPA. The strata was not correct in its interpretation that it could do nothing because of a “legal right” to renovate. Strata council may have confused the bylaw infraction issue here by providing inaccurate information about the obligations of owners. The bylaws empower the strata to impose a fine where unreasonable noise is established, regardless of its source.

Having said that, the applicant withdrew his complaint about the noise from unit 97, and the renovations there are now complete. I therefore decline to make an order requiring the strata to impose a fine against unit 97.

Bylaws—validity—vagueness—pet bylaw

In Esfahani v The Owners, Strata Plan BCS 2797, 2018 BCCRT 176, the applicant strata-lot owner “claim[ed] that the strata bylaw limiting the size of pets, and in particular of his dog, is unenforceable because it is too vague.” The case took place in a “strata corporation consisting of 82 strata lots in North Vancouver.” The bylaw at issue read “one small dog or cat is permitted; small being defined as an animal that can comfortably be picked up and carried.”

In considering the issue of vagueness, the tribunal drew on case law applying the concept to municipal bylaws. Using the standards set out in that case law, the tribunal found that the bylaw at issue was vague and unenforceable:

The difficulties in interpreting the pet bylaw are highlighted by the steps taken by the strata council. Its letter of October 17, 2016 admitted that the dog was compliant with the pet bylaw at that time, but set out its view that this would change as the animal matured. On December 22, 2016, a determination was made that the dog, which had been compliant 2 months earlier, no longer met the pet bylaw requirement. However, this letter does not state why the strata made this determination. Did it apply one of the definitions of golden retriever provided in this dispute? The letter does not say so. Did it apply some other criteria which is not specified in the decision letter? It is not possible to tell.

Applying the literal meaning of the words, there is evidence that the applicant can pick up and carry the dog. Comfort is a very subjective factor, but there were no signs of distress shown by the applicant when he was holding the dog in his arms. It is true that the dog squirmed when being held up in the air and this might mean that it was not under control. But control is not a component of the pet bylaw definition. The application of the literal meaning is an illustration of the difficulties with the language of the pet bylaw.

I next consider whether a reasonably intelligent person would be unable to determine the meaning of the bylaw that governs his conduct. In the present dispute, I find that there are sufficient uncertainties in the language of the pet bylaw that a reasonably intelligent person would not be able to determine the meaning. There is no objective criteria to determine if a dog is or is not in compliance with the bylaw. There may be cases where a golden retriever weighs less than 35 pounds, in which case it would be a small dog by the American Kennel Club definition. This may be because of age, condition or perhaps breeding. The December 22, 2016 letter from the strata does not say which criteria was applied, although it appears to be related to their views about the breed.

Common property—duty to repair and maintain—pond

In Dickson v The Owners, Strata Plan K 671, 2018 BCCRT 147, the applicant strata-lot owners’ asked the tribunal for “remedies in relation to a decorative pond located on common property in the centre of the strata complex.”

As the tribunal noted,

leaking of the pond liner was noted in strata documents in 2011, and the liner failed in April 2014. A portion of the liner was repaired, but it was later found to be irreparable. The pond has been empty since 2015.

Attempts to repair the liner and to fill in the pond and cover the area with grass both failed to attract the votes necessary for a resolution passed by a 3/4 vote.

The tribunal concluded that the strata corporation was under a duty to repair the pond:

The strata submits that it is prudent to allow the ownership the opportunity to consider if a pond is the right fit for the community. However, the strata already did this in January 2017. Moreover, it is always open to the strata to put another resolution to the owners to change the use of the pond by filling it in. Until such a resolution passes with the 3/4 vote required under section 71(a) of the SPA, the strata must meet its duty under section 72(1) to repair and maintain the existing pond. As stated by the British Columbia Supreme Court in Kayne v. The Owners, Strata Plan LMS 2374, 2013 BCSC 51 (CanLII) and Browne v. Strata Plan 582, 2007 BCSC 206 (CanLII), dissension among owners regarding the appropriate approach to repairs does not absolve the strata corporation from its duty to repair and maintain common property.

In the circumstances of this case, I am satisfied that there must be an order that the strata perform its statutory obligation to repair the pond.

The tribunal “order[ed] the strata to restore the pond to its original state by February 2019.” “To finance the pond restoration,” the tribunal ordered the strata “to issue a special levy to the owners in the amount of $80,000.”

Common property—parking stalls—lease—assignment

The Owners, Strata Plan VIS 3437 v Townsite Marina Ltd, 2018 BCCRT 166, was a dispute “about allocation of parking stalls”:

The applicant strata corporation . . . wants an order that the respondent . . . return 11 common property underground parking stalls (Stalls) to the strata, for allocation to residential owners.

[The respondent] owns strata lot 43, a commercial strata lot. Strata lot 43 operates as a marina. When [the respondent] bought strata lot 43, it paid the vendor for the assignment of the Stalls’ parking leases. [The respondent] says that even if the Stalls are common property, the strata is obliged to honour the parking lease assignment. The strata says the parking lease assignment is invalid and not enforceable.

The dispute took place in a strata property that was “comprised of 43 residential strata lots and 4 commercial strata lots.”

The tribunal found that it was bound by an earlier court decision in a case with a similar set of facts:

the court in Hill found the Condominium Act did not permit a developer to make arrangements with a particular owner for the exclusive use of common property. I find Hill is binding upon me and its conclusion applies to the facts of the present case. I find the developer had no right to sign a parking lease giving exclusive use of common property to one strata lot owner. The Stalls were not the strata lot 43 vendor’s to lease to [the respondent]. Further, [the respondent] knew or ought to have known that the Stalls were common property and not LCP for [the respondent’s] exclusive use. Again, this is because the Stalls were never designated as LCP, either on the strata plan or by a 3/4 vote.

The tribunal also found that the strata corporation’s proposed reassignment of the parking stalls would not be significantly unfair to the respondent:

I find [the respondent’s] reliance upon the parking lease assignment for the 11 Stalls was not a reasonable expectation. I say this because it knew, or ought to have known, that the strata was not a party to that lease. It ought to have known that the Stalls were designated as common property, and there had been no LCP designation in favour of strata lot 43.

At the same time, I find that it cannot be significantly unfair for the strata to allocate the 11 Stalls for residential use. Such use is consistent with the strata plan, the development permit and disclosure statements, and the City’s permit, which was all information available to [the respondent] at the time it purchased its strata lot 43.

Even if [the respondent’s] reliance upon the parking lease was a reasonable expectation, I find it would not be significantly unfair for the strata to say [the respondent] could not have exclusive use of the 11 common property Stalls, for the same reasons as set out above. I cannot conclude the strata’s allocation of the 11 Stalls to residential owners, in accordance with all of the plan and permit documentation, is wrongful or unfair. As noted above, without the 11 Stalls Townsite has at minimum the exclusive use of 5.5 stalls. Further, that the commercial strata lots have mutually agreed to equally share the 14 LCP stalls does not mean [the respondent] only has access to 5.5 stalls. Setting aside the commercial strata lots’ private agreement, [the respondent] has access to all 14 LCP stalls. Thus, on balance, I cannot find that [the respondent] has access to less than the 8 stalls required by the City.

In the result, the tribunal ordered that “the strata has control of the 11 common property Stalls to assign as it sees fit, including for residential use” and that “the commercial strata lot 43, owned by the respondent . . ., is not entitled to use the 11 Stalls.”

Common property—significant change in use or appearance—carpet—repainting

In Porcheron v The Owners, Strata Plan KAS 2716, 2018 BCCRT 161, the applicant strata-lot owners “seek remedies in relation to repainting and carpet replacement on common property in one of the buildings within the strata.” As the tribunal noted:

This dispute involves carpet replacement and repainting in one of three buildings in the strata (building 1). This 7 storey building contains 38 strata lots, as well as amenity rooms, connected by common property hallways. Its construction was completed in 2005.

The tribunal found that in replacing the hallway carpet and repainting the strata corporation had made a significant change in the use and appearance of common property:

Unlike the potted shrubs in Reid, the carpeting and paint are permanent and cannot be easily changed. Photographs provided by the parties show that new carpet tiles look different than the replaced carpet. The tiles are much darker than the old carpeting, and have a different colour and appearance. They also have a more pronounced pattern than the previous carpeting. The new carpet tiles are dark brown with a grey and blue pattern throughout. The previous carpeting was a single colour (oatmeal beige) with a darker “fleck” throughout. Based on the plain meaning of the word “appearance,” I find that that the carpet tiles look significantly different. Also, they are a different product from the previous carpeting, as they are carpet tiles rather than broadloom carpeting with underlay.

The tribunal also found that the strata corporation lacked authorization to make this significant change:

While the strata consulted with the owners by showing them a sample of the chosen carpet tiles, and by holding a vote on taking money from the [contingency reserve fund], the strata did not give owners any input on whether to reinstall wall-to-wall carpeting rather than switch to carpet tiles. The May 6, 2014 email to owners in building 1 simply stated that due to problems with staining, “the only proper fix is to replace the carpet with carpet tile.” The email said the carpet tiles were more expensive than the current carpet, but was more resilient and could be repaired if damaged.

This email confirms that the carpet tiles were different from the previous carpeting, and not simply a routine replacement as submitted by the strata. The strata did not pass the required 3/4 vote on whether to significantly change the appearance or use of common property by installing carpet tiles.

The tribunal granted the following remedy to the applicant owners:

Given the outcome of the May 2016 vote, and the cost of replacing the carpet tiles, I find it would it not be in the best interests of the strata to order the carpet tiles to be replaced. I adopt the view of the court in Foley that it is important for owners in a strata corporation to attempt to resolve their differences by following the procedures contemplated by the SPA and bylaws. That is, all owners should be afforded an opportunity to determine whether the building 1 alterations should be allowed to stand. For that reason, I order that within 6 months of this decision, the strata must propose a 3/4 vote resolution at an AGM or special general meeting (SGM) on whether to replace the carpet tiles with broadloom carpeting similar to that originally in the building, and a separate 3/4 vote resolution on whether to change the new paint in building 1.

Common property—alteration—approval—conditions—canopy

In The Owners, Strata Plan BCS 983 v Muir, 2018 BCCRT 157, the applicant strata corporation asked the tribunal for “an order that the owner remove 8 inches from the west side of the canopy installed over his patio.” As the tribunal noted, the dispute was less about the facts of the case and more about the strata corporation’s powers under its bylaws:

The parties agree that the canopy is not set back from the privacy fence. The disagreement between the parties is about whether the strata had the power to require a setback.

The tribunal found that the strata corporation did have the power to impose conditions on granting approval to alter common property:

bylaw 7.1 says an owner must obtain written approval from the strata corporation before altering common property or limited common property. Under bylaw 7.1, the strata has a broad discretion to approve an alteration to limited common property as was proposed by owner. The bylaws do not set out any limiting conditions for canopy installations, as they do for other alterations such as gazebos and air conditioners. Therefore, I find the strata’s approval of the proposed canopy installation, including the setback requirement, was valid.

The finished canopy does not observe the setback which was a condition of the alteration being approved. For that reason, I find that the owner did not have the approval required under bylaw 7.1, and must remove 8 inches from the west side of the canopy as requested by the strata.

Common property—alteration—approval—doors—garden—fence

In Friedrich v The Owners, Strata Plan K515, 2018 BCCRT 184, the applicant strata-lot owner claimed “that the strata and their management company have singled her out and harassed her.” This claim turned on disputes over approval for painting the applicant’s exterior French door and for fencing off an area of common property for use as a garden. The dispute took place in a strata property described as “32 strata lots in three different buildings located in Penticton.”

With respect to the door, the tribunal found that the applicant couldn’t show approval for painting the door in a non-standard color:

I find on the evidence that the owner did not comply with the bylaws in painting the French doors a colour different than they were originally painted. The owner would be required under the requirements of the bylaws to obtain written approval from the strata prior to painting. I order the owner to comply with the bylaws and seek written approval from the strata for painting the French doors a different colour than the original. If the strata does not approve, then I order the owner to abide by the strata’s decision, which may include the owner having to return the doors to their original colour at her expense.

In a similar vein, the tribunal found that the applicant was unable to prove that she had approval to erect a fence on common property:

I conclude that the owner has taken over exclusive use of the common property and undertaken alterations to the common property, including installing a shed, installing a fence or perimeter plants, and planting a garden. The owner has done so without first obtaining the express written approval of the strata under its bylaw 5 and has done so without being granted exclusive use of the common property by the strata under section 76 of the SPA. I order the owner to apply to the strata for exclusive use of the common property at issue in this dispute. The owner is required to provide a detailed plan to the strata about of the use that she intends to make of the common property and must abide by the strata’s decision with respect to her request.

Common property—approval—patio cover

The Owners, Strata Plan BCS 983 v Law, 2018 BCCRT 214, was a dispute over a cover installed over a common-property patio:

The strata seeks orders that the owners tie their patio roof drainage into the perimeter foundation drain system, and pay related bylaw infraction fines. By counterclaim, the owners seek an order that harassment against them stop, and that the strata pay their legal fees.

The tribunal found that the strata corporation’s request was reasonable in view of installation of a cover larger than the one that had been approved and granted the strata corporation several orders to allow it to be implemented:

I find that strata’s request that the owners tie their patio roof drain into the perimeter roof drain is reasonable in the circumstances, and is not contrary to any previous agreement because they never approved a roof larger than 10 by 13 feet. Accordingly, I order that within 4 months of this decision, the owners must have their patio roof drainage tied into the perimeter foundation drain system. This work must be done by a licensed and insured contractor, with WorkSafe BC coverage. I also order that up to two members of the strata council must be permitted to inspect the drainage tie-in before the area is buried.

The other aspects of the dispute were dismissed.

Strata lot—alteration—approval—ceiling-mounted lift

Boyer v Downey, 2018 BCCRT 156, concerned a dispute in a strata property that consisted “of a 3-storey wood-framed residential building, containing 86 strata lots.” The dispute was between two neighboring strata-lot owners and involved a ceiling-mounted lift:

[The respondent] installed ceiling-mounted tracks in her strata lot. The tracks support a lift used to transfer her physically disabled adult son out of bed, into his wheelchair, and in the bathroom. The [applicant] owner says the tracks were screwed into the floor joists of her strata lot, which broke the sound barrier between the lots and diminished the integrity of the floor joists by 16%. The owner seeks remedies from [the respondent] and the strata in relation to the ceiling tracks.

The tribunal found that strata-corporation approval was required for the lift:

Strata bylaw 7.1(a) says an owner must obtain the written approval of the strata corporation before making or authorizing an alteration to a strata lot that involves the structure of a building. I find that drilling lag bolts into the joists was an alteration of the building’s structure, particularly given that the engineering report indicated that the lag bolts reduced the bending capacity of the joists by approximately 16%.

Since the responded admitted she didn’t have approval and since the device was causing a disturbance, the tribunal ordered its removal:

Because of the noise transmission and structural problems with the ceiling tracks identified in the January 2016 engineering report, and because the engineering firm identified an alternative mounting system for the lifting apparatus (wall-mounting), I find that it is reasonable in the circumstances of this case to order [the respondent] to remove the ceiling tracks and repair the damage to the ceiling joists.

The tribunal also ordered the respondent “to provide, at her cost, a report confirming that the joists and any sound-proofing have been restored to their original levels of function.”

Strata lot—alteration—approval—unreasonable delay—parking stalls—move-in fees

In Zeng v The Owners, Strata Plan VR 55, 2018 BCCRT 190, the applicant strata-lot owner alleged that the respondent strata corporation “treated her unfairly” in connection with a renovation project, parking, and move-in fees:

• unreasonably delaying the approval of her renovations;
• continuing to demand that she obtain an electrical permit or sign a new assumption of liability agreement;
• failing to accurately record its decisions in the council meeting minutes;
• improperly revoking her parking stall for unit 201;
• failing to assign another parking space to her for unit 211 in accordance with the parking rules; and
• improperly charging her move-in fees.

The tribunal dismissed all but two of her claims.

The tribunal found no unreasonable delay on the part of the strata corporation:

I accept that the strata reversed its decision to approve the renovations based on its concern that there was new electrical wiring that had not been detailed in the renovation plan. The strata then took time to consult with a lawyer. Within a month of reversing its earlier decision, the strata once again conditionally approved the renovations. Accordingly, I find that the strata did not unreasonably delay in providing approval for the renovations and dismiss the owner’s claim in this regard.

The tribunal also found that it was reasonable to ask the applicant for an updated agreement assuming liability for the renovations.

The owner failed to provide the tribunal with evidence that moves involving family members should be exempted from the fee or that the fee was unreasonably out of line with prevailing market conditions or the costs incurred by the strata corporation.

The owner was successful in her claims related to parking stalls:

I accept the owner’s submission that she rented the parking stall assigned to unit 201 primarily for her own use, from February 2017 when she was first assigned the stall, to at least May 2017, when her tenants in unit 211 moved in and she started sharing the stall with them. As such, I find that parking rule 7 does not apply in this case, as the owner was not renting the parking stall on behalf of her tenants.

Given that the owner was not in contravention of parking rule 7, I find that the strata did not have a reasonable basis to revoke the parking stall assigned to unit 201. I order the strata to continue to allow her to use the same parking stall that is currently on “hold” for unit 201 pending the outcome of this decision.

The tribunal also found that the strata corporation had “failed to assign the next available parking stall to the owner when she was first on the waiting list, contrary to the parking rules.”

Strata lot—repairs and maintenance—patio

In The Owners, Strata Plan VAS 63 v Montagut, 2018 BCCRT 165, the tribunal described the dispute as follows:

The sliding glass patio door, door frame and parts of the patio of SL4 need repairs and replacement. This dispute is about who is responsible for paying for the needed repairs and replacement, and in what amount.

The strata property at issue “was created in 1972 under the Strata Titles Act, a predecessor to the current Strata Property Act (SPA).” Determining responsibility for the repairs turned on an interpretation of the strata corporation’s bylaws.

The tribunal found that the applicant strata corporation was unable to prove that the respondent strata-lot was responsible under the bylaws:

The permanent repairs proposed in February 2016 included repairs to the patio door, the door frame and sill, and the wooden deck on the patio. Patios and decks are addressed by bylaw 7.2, but the bylaw refers to LCP. I do not find that bylaw 7.2 applies to the patio and wooden deck of SL4, as it is not LCP. The strata plan clearly indicates that the patio of SL4 forms part of the strata lot, not common property.

Bylaw 8 makes an owner responsible for the repair and maintenance of his strata lot, including windows and doors. Although the bylaw does not specifically refer to patios and decks, I find that it implies that an owner is responsible for any patio or deck that is part of his strata lot. This is particularly so, given that bylaw 8 refers to areas allocated to the exclusive use of a strata owner, which a patio is.

That being said, the strata has not established that either bylaw 7.2 or bylaw 8 was filed in the registry. The same is true of the other bylaws relevant to this appeal. Although under bylaws 7.2 and 8 the owner would be responsible for carrying out the needed repairs, the strata has not shown that the bylaws were in effect at the relevant time.

I have considered whether I ought to exercise my discretion under section 42(1)(c) of the [Civil Resolution Tribunal] Act and seek further information relating to the strata’s bylaws. Given that the strata has filed no evidence with the tribunal and is in the process of resolving this issue outside of the tribunal I have decided that it is not necessary to seek further information to make a decision on this dispute.

I find that the strata has failed to prove, in this dispute, that the owner is responsible for the needed repairs.

Strata lot—repairs and maintenance—negligence—washing machine

Hashamiyan v The Owners, Strata Plan LMS 919, 2018 BCCRT 167, was a claim by a strata-lot owner against a strata corporation for damages due to negligence. The applicant’s claims were:

The owner says that a restoration company hired by the strata to investigate a leak moved her washer and broke it. She seeks reimbursement for a repair service call and a new washer.

The tribunal found that the applicant wasn’t able to prove that the strata corporation had been negligent:

In this case, even accepting that the Canstar was acting as the strata’s agent and owed the owner a duty of care, I find that the evidence is this case does not establish that the washing machine damage was caused when Canstar moved it.

I accept the owner’s evidence that the Canstar plumber did not use an air sled to move the washer, as there is no direct evidence on this point from the plumber, or from anyone else who was present at the time the washer was moved. However, there is no evidence to establish that the problems with the washer were caused by moving it. There is no report or other evidence from a plumber or appliance technician explaining what caused the washer’s tub to become dropped and loose, or connecting that problem with moving the washer. The fact that the washer stopped working after it was moved is not sufficient to establish that Canstar, or by extension the strata, damaged the washer through negligence while moving it.

In the result, the tribunal dismissed the applicant owner’s dispute.

Insurance—deductible—water leak—bathroom sink u-joint

In The Owners, Strata Plan BCS 354 v Liang, 2018 BCCRT 171, the applicant strata corporation asked the tribunal for “an order reimbursing it for the cost of repairing water damage allegedly caused by a faulty u-joint under the respondent’s bathroom sink.” The dispute took place in a strata property “consisting of a multi-story residential strata building located in Vancouver.”

The tribunal found that the source of the leak wasn’t on common property but rather from within the respondents’ strata lot:

While I am satisfied the pipes between unit 209 and 210 are common property, there is no evidence to suggest the leaking water originated there. Further, the u-joint is located on the respondent’s strata lot and is clearly not property that is intended for the use or enjoyment of another strata lot. The u-joint serves a function related exclusively to the operation of the respondents’ sink. I find the water leak did not originate from common property.

But liability for the damage caused by the leak, which was an amount less than the strata corporation’s insurance deductible, was to be determined by interpreting the applicant’s bylaws in light of the case law:

Bylaw 2.10(1) prohibits strata owners from doing anything deliberately or accidentally, that might result in an insurance claim by the strata corporation. Subsection (2) allows the strata corporation to charge strata owners for the costs of necessary repair resulting from an “act, omission, negligence or carelessness” that is not covered by insurance.

In considering whether an owner was responsible for reimbursing a strata corporation for an insurance deductible, the court in Strata Plan LMS 2446 v. Morrison, 2011 BCPC 519, found the expression “. . . act, omission, negligence or carelessness,” read as a whole, requires the strata corporation to prove the damage to property was caused by the negligence by the owner.

The tribunal concluded that the respondent owners weren’t negligent in this case:

I have no evidence before me suggesting the respondents knew about the leaking u-joint. Their comment about washrooms being “moist and wet” was in reference to the contractor’s findings, not their own. It is true that the photo in evidence shows a stained, sink cabinet floor and damage at the rear of the cabinet that might be readily attributed to water leakage. However the photo does not reveal significant or obvious staining in the foreground, i.e. at the front or center of the cabinet, where it might be easily seen. Further, I find it unlikely the cabinet was empty when the leaking occurred. I find it likely contained items that hid or obscured the water leakage. The items could easily prevent the respondents from seeing any damage at the rear of the cabinet. I also find it doubtful the applicants would have had reason to examine the u-joint, if it was visible at all. In short: I am unable to find the respondents had reason to suspect the u-joint was leaking water. Absent any reason to inspect the sink cabinet and/or u-joint and having no knowledge of the leak, no duty to repair arose.

I find the respondents are not responsible for the payment of the cost of repairing the damage caused by a leaking u-joint below their bathroom sink.

Strata fees—non-payment—enforcement—order for sale

In The Owners, Strata Plan KAS 1459 v Leonard, 2018 BCCRT 159, the applicant strata corporation claimed that “the respondent owes the strata for unpaid strata fees.” The applicant asked the tribunal for “the following orders”:

• an order that the respondent pay unpaid strata fees, penalties and other fees, plus interest;
• an order giving the strata conduct of sale of the respondent’s strata lot; and
• an order for reimbursement for the strata’s tribunal fees of $225.

The respondent strata-lot owner “refuses to pay the strata fees because of their concerns over the strata’s management, finances and governance.”

The tribunal dismissed the respondent’s concerns and found that she was liable to pay the fees:

Therefore, while I reviewed all of the evidence provided by the respondent, I find that the evidence related to the respondent’s concerns over the management, governance and finances of the strata is irrelevant to the issues in this dispute, given that the respondent did not file a claim against the strata.

I have reviewed the strata’s bank statements and am satisfied that the respondent paid their strata fees for January 2017, but not for February 2017. I find that the respondent did not pay strata fees between February 2017 and February 2018.

But the tribunal refused to grant an order for sale, noting that such an order isn’t within its jurisdiction:

Section 117  of the SPA gives a strata corporation the right to apply to the Supreme Court of British Columbia to force the sale of a strata lot where the strata corporation has a lien or judgment over the strata lot.

Section 3.6(2)(f)  of the [Civil Resolution Tribunal] Act states that the tribunal does not have jurisdiction to make orders under section 117  of the SPA.

Therefore, I dismiss the strata’s claim for conduct of sale of the respondent’s unit.

Governance—strata council—duties—access to records—communication with strata council

Schuler v The Owners, Strata Plan BCS 4064, 2018 BCCRT 175, involved a strata property described as “a 105-unit, 10 storey, residential strata corporation located in Vancouver, British Columbia, created March 22, 2011.” The dispute “primarily” involved claims and counter-claims between an owner (and strata-council member) and a strata corporation concerning:

[the owner’s] allegations that the strata and council members are not complying with the Strata Property Act (SPA) and bylaws and that council members are engaging in improper conduct. They also involve the strata’s allegations that the [owner] is disrespectful, intimidating, and aggressive towards trades, staff, and strata council members.

[The owner] asks the Civil Resolution Tribunal (tribunal) for several orders, including that the strata comply with the SPA and bylaws, that strata council members act in good faith, and that certain strata council members and the property manager be replaced. The [owner] also seeks reimbursement of tribunal fees paid and dispute-related expenses.

The strata requests the tribunal order [the owner] to communicate by email through its property manager, act respectfully, and only attend council meetings by electronic means.

The committee rejected the bulk of the applicant’s claims concerning the strata corporation’s governance. But the tribunal did grant orders concerning access to documents and correction of the strata corporation’s records:

1. Provide strata owners an option to receive strata documents other than by email, as set out in section 61 of the SPA.
2. Provide [the owner] with a copy of the complaint letter about the strata’s concierge discussed at the April 12, 2017 strata council meeting upon his written request and receipt of the appropriate fee, which must not exceed $0.25 per page.
3. Provide access for [the owner] to view all bank statements that are the subject of his written request within 2 weeks of receiving such request. [The owner] is entitled to obtain copies of any of the bank statements upon paying the appropriate fee, which must not exceed $0.25 per page.
4. At its next strata council meeting, if it has not done so already, identify that the April 12, 2017 strata council meeting minutes were inaccurate in that:
5. the reference to a bid being received from the then current plumbing contractor in was an error and that no bid was actually received, and
6. the strata council discussed a complaint received involving the then concierge, and
7.  record the corrections in the minutes of the strata council meeting held where these corrections are made.

In respect of the strata corporation’s claims, the tribunal ordered the owner to:

• Refrain from intimidating and using derogatory language toward strata council members, and trades and staff while on the common property of the strata, and
• Communicate with the strata council only through its property manager, except in cases of emergency. At any time, the strata may advise [the owner] in writing that direct communication with strata council members can resume.

Governance—strata council—standard of care

In Townsend v The Owners, Strata Plan NW 2545, 2018 BCCRT 209, the applicants (a strata-lot owner and her son) asked the tribunal for a range of orders relating to the governance of the respondent strata corporation:

This dispute is about the strata’s standard of governance involving contract administration, warranties, strata expenses, and alleged violations of the Strata Property Act (SPA) and the strata’s bylaws.

The applicants say the quality of governance has been poor and that the strata council has failed to meet the standard of care expected of its members.

The applicants seek orders that the strata notify all owners of its SPA and bylaw violations, implement a system for recording quotations, contracts and warranties, and obtain a determination from the Canada Revenue Agency (CRA) on the classification of its resident caretaker.

The strata says the applicants’ claims are of a minor and trivial nature and more about discrediting the strata council, which is not expected to held to a standard of perfection and may occasionally make mistakes, given its members are volunteers. The strata asks that the tribunal dismiss the applicants’ claims.

The bulk of the applicants’ claims were dismissed. But the tribunal did make the following orders—in connection with finances, budgets, and meeting procedure—directing the strata corporation to

• follow the requirements of section 103(4) the SPA as it relates to approving budgets at AGMs,
• ensure it has proper authority to spend money from its operating fund consistent with section 96 of the SPA,
• act in accordance with its bylaws 22.4 and 22.5 with respect to allowing observers to attend strata council meetings, and
• propose a 3/4 vote resolution to approve the $53,550 expense for fountain repairs from the CRF to the owners at its next general meeting.

Governance—general meetings—right to be heard (1)

Woods v The Owners, Strata Plan KAS 2323, 2018 BCCRT 177, involved a dispute “about the strata’s handling of the annual general meeting (AGM) held in December 2016, at which revisions to the strata’s pet bylaw were approved,” in which the applicant owner argued that “the strata denied her the right to speak against those bylaw resolutions at that AGM.” The applicant asked for the bylaw to be “rescinded,” among other remedies.

The case concerned “a 40-unit residential ‘adult community’ complex located in Kelowna.” At the strata corporation’s 2016 annual general meeting, the strata corporation repealed its existing pet bylaw and replaced it with a bylaw that took a more restrictive approach to pets on common property.

The tribunal found that the applicant wasn’t able to prove that she had been treated unfairly at the annual general meeting by being denied the right to speak:

I find the applicant has not proven the AGM chair improperly found the applicant to be out of order or that he unreasonably refused to let her speak. I find the applicant’s notes from the December 2016 AGM are not sufficient to establish that the chair acted unreasonably in finding the owner out of order, to the extent he did so. Based on the totality of the evidence before me, including the owner’s evidence and the statements from other strata lot owners, I am not satisfied the owner did not have a reasonable opportunity to make her views known. In any event, given the history to date, I am not persuaded that the outcome would have been any different, so as to warrant disturbing the December 2016 AGM results.

In the result, the tribunal dismissed the applicant’s claim.

Governance—general meetings—right to be heard (2)

In Homewood v The Owners, Strata LMS206, 2018 BCCRT 199, the applicant strata-lot owner asked the tribunal for orders in connection with the conduct of a general meeting:

The applicant says the strata did not follow a fair or lawful process in denying his request to install the windbreak on his balcony. The applicant wants an order directing the strata to approve his windbreak request. He also wants a declaration that section 71 of the Strata Property Act (SPA) does not apply to his windbreak request and an order prohibiting the strata from referring his request to a 3/4 vote. Alternatively, if section 71 does apply to his request and a vote is held, the applicant wants an order restraining the strata’s behavior before and during a general meeting.

The tribunal found that the applicant wasn’t able to demonstrate unfairness:

Based on my review of the evidence, I find the applicant misunderstood what the property manager told him. The property manager said that before making its decision about his request, council needed to fully consult with the owners and the AGM would provide that opportunity for consultation. The property manager referenced section 71 in the context of telling the applicant that evidence of a full discussion at the AGM would insulate council (after it made its decision) from any later argument by an owner that the applicant’s request should have been submitted to the owners for a 3/4 vote.

The applicant’s proxy said the applicant thought the balcony glass replacement resolution on the AGM agenda was a voting resolution for the contractor balcony windbreak. She says it was a reasonable assumption because the property manager had led the applicant to believe there would be a vote. I find it was not a reasonable assumption as the contractor presentation is clearly listed on the AGM agenda under Item 15 – New Business. Further, there should have been no confusion for the applicant between these two items as he had been present at the town hall meeting when the balcony glass replacement capital project was discussed.  I find these two separate items were distinctly identified on the AGM agenda.

I have concluded the evidence presented by the applicant to support his claim is not sufficient or reliable for me to conclude on a balance of probabilities that he was promised a voting resolution at the AGM.

The strata is required by law to act honestly and make its decisions in good faith and with a view to representing the interests of the strata and all owners. The property manager’s letter denying the applicant’s request stated that council received a strong message from the owners at the town hall and at the AGM that they did not agree with the applicant’s request.

I find the applicant has not proven his claim the respondent acted unlawfully or unfairly in its treatment of his request for a windbreak on his balcony. He was provided a full opportunity to present information about the contractor installation system to the owners and to seek their agreement and support for his request. The windbreak issue was canvassed at two meetings with the owners and the contractor was provided a full showcase opportunity to provide information about the system to all owners.

I find the respondent did not breach its duties owed to the strata and all owners when it denied the applicant’s request. The applicant was not promised or owed a resolution vote. The evidence established the respondent met with the applicant, learned about the contractor system and communicated that information to the owners for their views and opinions. The respondent facilitated the applicant and the contractor’s contact with the owners. I conclude the respondent made its decision after full and fair consideration of the applicant’s request.

In the result, the applicant owner’s claim dispute was dismissed.

Tribunal jurisdiction and procedure—summary decision—refusal to resolve dispute

The underlying dispute in Fisher v The Owners, Strata Plan VR 1420, 2018 BCCRT 151 was “about who must pay for unit 212’s exterior window replacement and a previous owner’s enclosure of unit 212’s balcony for use as a second bedroom.” The respondent strata corporation asked “the tribunal to refuse to resolve this dispute on the basis that it is too complex or impractical for the tribunal to case manage or resolve, and that it may be outside the tribunal’s jurisdiction.”

The tribunal noted that it viewed the dispute in this context:

In considering whether to refuse to resolve this dispute, it is important to bear the following points in mind. First, the claims in this dispute are the claims put forward by the owner and do not include the additional claims suggested by the strata. The Dispute Notice was issued on July 17, 2017, and the strata has not filed a counterclaim. Second, the owner’s claims are a direct result of the strata’s actions. Third, the strata’s proposed additional claims are not currently before the British Columbia Supreme Court. Fourth, the tribunal’s mandate is to provide dispute resolution services in a speedy and economical manner recognizing the relationship between parties that is likely to continue. Finally, prior to the tribunal’s creation, many strata property disputes were not resolved given the associated cost of seeking resolution in the BC Supreme Court.

The tribunal “accept[ed] the owner’s argument that the substance of her claims relate to matters that involve the interpretation of the SPA and strata bylaws, the determination of significant unfairness, and related remedies.” It rejected the strata corporation’s argument that “its claim for past and prospective enclosure repair costs is necessary in order to resolve the owner’s dispute.” It also rejected arguments based on the tribunal’s capacity to assess credibility and that “allowing the tribunal to hear this dispute would lead to inconsistent findings between the tribunal and court.”

In the result, the tribunal ordered “the strata’s request that the tribunal refuse to resolve this dispute dismissed.”

Tribunal jurisdiction and procedure—summary decision—refusal to hear dispute due to complexity

In Residential Section of The Owners, Strata Plan VR 1858 v High Plains Sales Agency Ltd, 2018 BCCRT 168, the respondent strata-lot owner asked “that the tribunal exercise its discretion to refuse to resolve this dispute on the basis that the British Columbia Supreme Court is a more appropriate venue.”

The underlying dispute in this case was “mainly about the respondent owner’s responsibility to participate in the section’s rental pool.” As the tribunal put it, “the substantive issue in the dispute is whether under the section’s bylaws the owner is required to place its strata lot in a rental pool operated by the section.”

The tribunal found that the applicant’s argument came down to characterizing the dispute as complex for the tribunal’s procedures, an argument that the tribunal declined to endorse:

I agree with the section. As it noted, the tribunal has interpreted various legal documents when resolving other strata property and small claims disputes. I find the court has provided some guidance on the complexity factor in the Yas decision. The main issue in Yas is whether the strata corporation’s bylaw is enforceable, which the court found was straightforward and not overly complex. The main issue here is the same, except with respect to the section’s bylaw. That the section’s bylaw references compliance with “municipal bylaws, regulations or other applicable restrictions,” does not make the issue in this dispute overly complex.

In the result, “[t]he respondent’s request that I refuse to resolve this dispute is dismissed.”

Tribunal jurisdiction and procedure—summary decision—application to withdraw dispute

In Knibbs v Kuan, 2018 BCCRT 152, the underlying dispute between strata-lot owners concerned allegations of harassment. The applicant asked for a summary decision granting “the tribunal’s permission to withdraw his dispute.” The respondents opposed this request, asking that “this matter proceed through the tribunal decision process.”

As the tribunal noted:

Disputes which are withdrawn can be refiled with the tribunal at a later date, subject to any applicable limitation periods. Disputes which are dismissed, as this one may be if it proceeds through the tribunal decision process, cannot be refiled with the tribunal, or another tribunal or court.

In requests of this nature, the tribunal observed that “[i]n exercising its discretion to permit an applicant to withdraw a dispute, the tribunal must balance the applicant’s interest in deciding whether and how to pursue a dispute with any prejudice to the respondent.” Further:

given the adversarial nature of the adjudicative process, it will usually be inappropriate for the tribunal to take jurisdiction over a dispute against the wishes of an applicant. A fair hearing depends on motivated parties providing the tribunal with a full factual record and submissions. Where the applicant does not want to pursue their dispute, this can unbalance the tribunal’s fact finding and decision-making functions, rendering the process unfair.

But, in this case, the tribunal found that “any prejudice to the respondents in this case does not outweigh the applicant’s interest in deciding whether to pursue his dispute,” noting especially the following considerations:

• The respondents have not paid any CRT fees;
• At the time of the applicant’s withdrawal request, the dispute was in the facilitation phase, and the parties had not yet submitted evidence or arguments as part of the tribunal decision process,
• There is no financial aspect to the applicant’s claim;
• The respondents raised jurisdiction limitations to the applicant’s claim; and
• Although not necessary for me to decide here, there is a suggestion that this dispute, or part of it, was finally resolved through a previous BC Supreme Court action or other tribunal proceeding.

In the result, the tribunal “order[ed] that the applicant’s dispute is withdrawn.”

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