Date Issued: February 14, 2017

Order(s): ST-2016-00021

Civil Resolution Tribunal

Indexed as: Chapel v. The Owners, SP VIS 1517, 2017 BCCRT 5

Between:

Brian Chapel

Applicant

And:

The Owners, Strata Plan VIS 1517

Respondent

DECISION
Tribunal Member:	Julie K. Gibson

INTRODUCTION

1)         This dispute is about repairs to a strata lot. The strata lot owners and the strata council disagree about who is responsible, on what timeline, and the extent of repairs needed to a converted farmhouse that is physically unique within the strata.

JURISDICTION

2)         These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over strata property claims brought under section 3.6 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

3)         The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

ISSUE

4)         The issue is whether the strata has met its obligation to repair and maintain unit 7’s exterior paint, soffits, perimeter drainage system and porch, or whether it must take further steps.

 

BACKGROUND

5)         The respondent strata corporation, The Owners, Strata Plan VIS 1517 (the strata) is made up of twenty-one residential strata lots. Twenty of the strata lots are townhouse units constructed in about 1986. The remaining unit is a conversion of an original farmhouse. It is a detached house strata lot made up of four buildings.

6)         The strata’s repair and maintenance obligations are shared between all strata units based on unit entitlement. There are no sections that separate out certain strata lots from the others.

7)         The applicant, Brian Chapel and his wife own the converted farmhouse, strata lot 7 (unit 7). The strata is represented by strata council member Alan Reid.

 

8)         Strata Plan VIS 1517 was registered in 1986 under the Condominium Act, which was replaced by the Strata Property Act SBC c. 43 (SPA) on July 1, 2000. It is a conventional strata plan, not a bare land strata plan. There is no limited common property designated on the strata plan. Each strata lot has its own private yard area that forms part of the strata lot as shown on the plan.  Garages, entryways, storage areas and balconies are also part of the respective strata lot.

9)         The strata registered consolidated bylaws on February 24, 2012 (the 2012 Bylaws).  These are the applicable bylaws in this matter.

10)      The 2012 Bylaws do not contain any reference to sections or types of strata lots.

 

POSITION OF THE PARTIES

11)      Mr. Chapel is not satisfied with how the strata has addressed repair issues that relate to unit 7.

12)      Specifically, Mr. Chapel is concerned about;

(a)   the porch;

(b)   exterior paint;

(c)    soffits on the outside of the building; and

(d)   the perimeter drains.

13)      The strata says that the porch has been modified since the strata was created, and that therefore the owner is responsible to repair it. The strata says the exterior paint and soffits may need doing, but that Mr. Chapel should have done more to bring that issue forward. With regard to the perimeter drains, the strata says they can wait until water again enters unit 7, or until 2026, based on its interpretation of the 2012 depreciation report.

 

Analysis

 

Reasonableness Test for Repair and Maintenance

14)      There is case law that has considered repair and maintenance obligations of a strata.

“The strata corporation’s obligation to repair and maintain is measured against a test of what is reasonable in all of the circumstances.”

The Owners of Strata Plan NWS 254 v. Hall, 2016 BCSC 2363 at para. 24

15)      The obligation to “repair” includes making an article good, whether or not it was sound or good before (Taychuk v. Owners, Strata Plan LMS 744, 2002 BCSC 1638 at para. 29).

16)      This duty can include replacement rather than repair, if that is reasonable. In considering the reasonableness test, a starting point should be the strata council’s decision, as approved by the owners. There can be “good, better or best” solutions to each repair issue. A strata may consider the cost for each approach and its impact on owners, and implement needed repairs within a budget that the owners as a whole can afford.  The reasonableness test requires balancing competing interests, such as those of the individual unit owner in having the repair completed, against those of the remaining owners in controlling the budget.

Weir v. Owners, Strata Plan NW 17, 2010 BCSC 784, paras. 28 and 29

Repair and Maintenance Obligations

17)      This dispute deals with the obligation to repair common property and parts of a strata lot. Section 72 of the SPA requires a strata to repair and maintain common property. Bylaw 9 sets out further responsibilities of the strata for repair and maintenance. Bylaw 3 sets out responsibilities of an owner to repair her or his own strata lot.

 

Common Property Repair

 

18)      Section 68(1) of the SPA states that common property includes the exterior of the building.

19)      Bylaw 9 states that the strata is responsible for repair and maintenance of all common property, including the exterior of a building, and any “…stairs, balconies, patios and other things attached to the exterior of a building.”

             i.       Soffits and exterior paint

20)      I find the soffits and exterior of the building to be common property.

21)      I therefore find the strata is responsible for repair and maintenance of the soffits and exterior paint of unit 7.

            ii.       Perimeter drain system

22)      The SPA defines common property as including “…pipes, wires, cables, chutes, ducts and other facilities for the passage or provision of water…”, even if they are wholly or partially within a strata lot, but are capable of being and intended to be used in connection with the enjoyment of another strata lot or the common property.

23)      Unit 7 is a detached building.  Its private yard area extends around the strata lot with the exception of a short distance on the east side. The perimeter drainage system will be mainly located outside the foundation and below the private yard that is part of the strata lot. In my view, an efficient perimeter drainage system for unit 7 intends to benefit the surrounding strata lots and common property by keeping them from unnecessary flooding, soggy yards or standing water, particularly considering the narrow margin between unit 7 and the adjacent units to the east.  It is also worth noting that the strata paid for drainage system repairs to several other units, in part to prevent soggy grass on the common property and private yard areas.

24)      I find the perimeter drain system for unit 7 is common property.

 

Repairs to a Strata Lot

 

25)      Under section 72(3) of the SPA, a strata corporation may, by bylaw, take responsibility for the repair and maintenance of parts of a strata lot.

26)      Under bylaw 3(1), an owner is responsible for repairing their strata lot except for repair and maintenance that is the responsibility of the strata. Under bylaw 9(d), the strata is responsible for the repair and maintenance of portions of each strata lot including chimneys, stairs, balconies, patios, doors, windows and fences or structures that enclose the private yard areas, “and other things attached to the exterior of a building”, as well as “fences, railings and similar structures that enclose patios, balconies and yards”.

27)      The porch of unit 7 is identified as a balcony on the strata plan and is attached to the exterior of the building.

28)      I therefore find the strata is responsible for repair and maintenance of the porch of unit 7.

29)      Each of the repair and maintenance issues raised by Mr. Chapel will now be discussed in turn.

             i.          Exterior Paint

30)      The strata must repair and maintain the exterior of the building as part of the common property. This includes a duty to maintain the exterior paint on unit 7.  In addition to improving the appearance of a home, exterior paint protects the wood that is unit 7’s structure.

31)      Unit 7 has not been painted in at least ten years. I accept Mr. Chapel’s evidence about the need for exterior paint on unit 7 in 1998. Some other units in the strata received new exterior paint in 2015.

32)      On May 31, 2013, Mr. Chapel wrote an email to the then strata council president in which he pointed out that unit 7 was overdue for exterior painting. Mr. Chapel was given permission to complete some minor painting work at his own cost, but the evidence shows the strata did not take steps to have the exterior paint re-done.

33)      At the annual general meeting on February 26, 2015, exterior painting of “fascia, garage doors and wood trim for all units”, which should have included unit 7, was authorized by a ¾ vote of the strata. Despite the vote passing, the evidence shows no painting has been completed on unit 7 since.

 

34)      Photographs provided by Mr. Chapel show significant disrepair in unit’s 7’s exterior paint.

 

35)      On January 24, 2016, Mr. Chapel emailed Wendy Albers, an employee of the property management company, with a request to include unit 7’s peeling paint as an item to be addressed at the budget meeting preceding the 2016 AGM. The email was copied to Mr. Reid, a member of strata council. However, the paint issue was not addressed at the budget meeting or the 2016 AGM.

 

36)      The strata agrees that unit 7 needs to be painted: Mr. Reid wrote, in submissions, in part “No reasonable person would agree that the applicant’s home does not need painting.”

 

37)      On July 9, 2016, the strata obtained a quote from a contractor for repairs to unit 7. In the quote, which the strata withheld from Mr. Chapel but produced upon request during these proceedings in January 2017, the contractor wrote:

“Exterior wood siding, trim and soffit paint is faded, pealing and cracked and requires repainting. Some areas require replacement as identified above.”

 

38)      The contractor provided a quote for $13,000 plus $650 GST, for painting of exterior plus identified deck and soffit/roof repair areas.

 

39)      A quote was also obtained from another contractor for $12,785 plus tax.  Council meeting minutes from October 27, 2016 indicate some discussion of an exterior paint job for unit 7, noting that the second contractor may have said that painting could not be completed in 2016 due to the winter season.

 

40)      Mr. Reid suggested that Mr. Chapel wait for the strata to address the exterior painting issue at the 2017 AGM. In the circumstances, I find that is unreasonable. The strata council has not acted on the previous resolution regarding painting parts of unit 7, suggesting that if Mr. Chapel were to wait, he could not rely on an effective decision being made.

 

41)      In reaching this conclusion, I have considered that:

(i)     exterior painting is a strata responsibility;

(ii)    unit 7’s exterior paint is in disrepair; and

(iii)   exterior paint was requested in 2013, a resolution was passed in 2015, the 2016 AGM does not appear to address the request, and no painting has occurred at unit 7.

 

42)      Given that several exterior painting quotes have already been obtained, I order that a special levy be assessed in an amount of $15,000 for the unit 7 exterior paint work, and that the work be completed by October 1, 2017 to allow for the painting to occur in the dry season.

            ii.          Soffit Repair

 

43)      The soffits on the exterior of unit 7 fall under the strata’s responsibility to repair and maintain, as they are common property.

 

44)      Mr. Chapel’s January 24, 2016 email to Ms. Albers requested that the question of soffit repair be considered at the budget meeting before the 2016 AGM, as part of the painting request. According to the minutes, the 2016 AGM did not address any of these repair issues for unit 7. Since then, soffit repair has not been completed on unit 7.

 

45)      The photographs in evidence show the wooden soffits on unit 7 are rotting. The soffits require repair prior to exterior painting. A contractor’s July 2016 quote says “wooden soffits on four sides of building are rotting. This could be due to poor drainage from gutters, or may indicate needed roof replacement and roof truss repair.” The contractor’s observations are consistent with the May 2012 Depreciation Report which notes that the wood soffits on unit 7 are now at the end of their service life. I find it is reasonable that the soffits be addressed soon.

 

46)      In 2009, with the strata council’s knowledge, a quote for soffit repair was obtained for $3291 or $3650, depending on the materials chosen. In July 2016, another contractor provided quote that included replacing rotten soffits and fascia, as well as de-mossing the roof, and cleaning the gutters, for $14,500 plus taxes. A reasonable amount for the soffit work alone would be something less than the second quote, given that the roof and gutter work is beyond the scope of this claim.

 

47)      Given the condition of the soffits, the fact that the strata council knew they needed attention since 2009, and that they have not been fixed, I order that a special levy be assessed in an amount of $10,000 for the unit 7 soffit replacement, with work to be completed by October 1, 2017.

              iii.       Porch Repair

 

48)      Mr. Chapel asks for porch repair or replacement.

 

49)      The strata argued that the porch repair should be the responsibility of the owner, asserting that the porch was modified after 1986 without the strata’s permission.  The evidence does not support this. The strata relies on a Disclosure Statement attaching a drawing showing a different porch configuration than that which exists now. Mr. Chapel provided unchallenged evidence that the same Disclosure Statement referenced other structures that were never built. The drawing was a plan but not all parts of it were built as drawn. As such, it is not a reliable source of evidence about the porch. I find the strata did not establish that there was a porch modification after 1986.

 

50)      In 1997, the strata passed a ¾ vote resolution to treat non-cosmetic stair repair as a strata responsibility, not an individual owner one.

 

51)      Mr. Chapel and his wife took possession of unit 7 in 1998. Some smaller repairs to the unit 7 front stairs leading to the porch were completed and paid for by the strata between 1998 and 2008. In 2009 some more extensive repairs were completed to the stairs and porch, but they were not replaced.

 

52)      Deck repair work has been paid for by the strata for several other units, for example through an SGM in 2010, which authorized a $16,000 special levy.

 

53)      By 2013, some “more extensive rot” was discovered at the porch of unit 7, and strata council was advised that replacement would be needed eventually and that it should consider the timing of the porch rebuild to coincide with replacement of the railings.

 

54)      Strata council minutes for August 28, 2014 state the strata would look at repairing the porch next year and that the property management company would assess its condition.

 

55)      In August 2014 a contractor provided an estimate of $4,500 to rebuild the porch and stairs.

 

56)      In January 2016 Mr. Chapel emailed Ms. Albers and copied members of strata council including Mr. Reid, and requested that the porch repair be placed on the agenda for the budget meeting to precede the 2016 AGM. This did not occur. Mr. Chapel referred to the quote for $4,500 and attached a further quote from his contractor for $10,900.

57)      A July 2016 quote notes that the porch and steps to unit 7 have “…protruding deck planks…rotten joists supporting deck…siding under deck is rotten in areas and needs replacing…” The quote notes some parts of the porch do not need wholesale replacement, such as the supporting posts, and provided a quote to install new decking materials for $4,200 plus tax.

 

58)      The porch has not been repaired since Mr. Chapel raised these concerns in 2014. The porch needs repair, according to everyone who has looked at it and the photographic evidence.  I find the repair is now necessary.

 

59)      I find the strata has not made a decision to address the needed porch repair for over two years. I order the strata to assess a special levy in the amount of $5,000 to replace the porch, except for those parts that are still sound, on or before November 1, 2017.

 

              iv.       Perimeter Drains

 

60)      The repair and maintenance of the perimeter drains is the strata’s responsibility. Mr. Chapel claims that the perimeter drains for unit 7 require replacement now.

 

61)      In January 2007, water entered the basement of unit 7. On January 7, 2007, Mr. Chapel notified the strata council and requested that the perimeter drains be unclogged. Repairs were completed to parts of the inside of unit 7 damaged by the water.

 

62)      On March 29, 2007, Mr. Chapel told the strata council that he had an opinion from a contractor that the perimeter drains for unit 7 needed replacement, and provided a rough estimate of $15,000-$20,000.

 

63)      The strata council has been aware of the need for perimeter drain replacement since at least 2009. At that time, it was listed on the maintenance spreadsheet and coded as an item that would be “cheaper to repair now than later.” In November 2009, and again in January 2011, there was water entry to unit 7.

 

64)      Mr. Chapel says that since 2007, a smaller amount of water has entered the basement “every few years”. The parties agree that there have been no leaks this past winter, so the strata states that perimeter drain replacement is not a top priority and that any problems may have been addressed by work done in previous years.

 

65)      The evidence shows that a November 2011 water incident and related work was to address an entirely different water issue. Unit 7 did not flood during that period.

 

66)      Mr. Chapel paid to repair an iron pipe joint in unit 7 in 2014, and a contractor who later inspected that issue indicated it was not related to the water entry that that occurred in 2009 and 2011.

 

67)      In June 2014, Mr. Chapel updated the property managers about his efforts to obtain a quote for perimeter drain replacement from another contactor.

 

68)      Minutes of the October 2014 Strata Council Meeting include the following summary of drainage repair or replacement discussions for unit 7:

“Unit 7, Council has received 2 quotes…. -- -Council will invite [the first plumbing contractor] to come to the next council meeting and discuss the issues around Unit 7’s drainage. This way we will have a clearer understanding of what needs to happen. We will decide at the AGM which quote we will go with.” (emphasis added)

 

69)      At the AGM on February 27, 2014, a ¾ vote resolution was passed for perimeter drain repairs (though not for any specific units) in the amount of $6,500. Mr. Chapel says, and I accept, that due to urgent problems with other units that year, the money was not used to address any perimeter drain issues at unit 7. The Minutes suggest that the strata did not consider the question of a requirement for repair and maintenance of unit 7’s drainage, despite saying that it would.

 

70)      In 2014, a plumbing contractor performed a camera inspection of the perimeter drains revealing many blocked or broken drains. The contractor identified replacement as the appropriate solution.

 

71)      Also in late 2014, there was an email sent between strata council members speculating that the water entry at unit 7 was not caused by insufficient drainage after all, but by a plumbing issue. Mr. Chapel did repair a plumbing issue at the time as his own cost. He says that the water issue at that time was in a different location to the earlier water incidents. In any event, I prefer the evidence of the drainage contractors, who conducted camera-based inspections, that when groundwater levels rise again, water entry will occur. This conclusion is consistent with the submission made that unit 7 has a 100 year old broken clay tile perimeter drainage system with an estimated 40 year service life.

 

72)      The strata said it would look at the issue again at the 2015 AGM. It did not do so, instead asking Mr. Chapel to obtain clarification of various quotes for replacement, which he did.

 

73)      The strata suggests that Mr. Chapel should have done more to keep the perimeter drain issue on the strata’s radar. I disagree. Communications from Mr. Chapel and records of minutes of council meetings show his ongoing efforts to have the strata address the issue, going back several years. I find it is unreasonable to require an owner to do more to have the strata make a decision on a repair or maintenance issue that was raised with them in 2007, and where multiple companies with experience in perimeter drain assessment have agreed that repair is the appropriate solution to recurrent leaks caused by accumulated ground water.

 

74)      In his January 24, 2016 email, Mr. Chapel reminded the property manager and strata council that he would like the unit 7 perimeter drain repair issue on the agenda for the pre-AGM budget meeting. He received no reply, the item was not included on the agenda for the budget meeting, nor was it discussion at the February 25, 2016 AGM.

 

75)      On October 20, 2016, Mr. Chapel received an email from a plumbing contractor, which explains the concern about ground water and inadequate perimeter drainage:

“The fluctuating wetness/dampness in your basement is likely caused by fluctuating levels of ground water combined with an inefficient perimeter drain system. As the wet season progresses, ground water levels usually rise, this combined with type of soil can lead to wet or damp basements. Clay soils have a tendency to plasticize when they are saturated, considering the age of your house it is likely you have clay backfill around your foundation. The antiquated perimeter drain system along with the plasticized soil around it, do not allow water to enter the pipe or to exit the perimeter easily, causing a backup of water around the foundation which inevitably seeps into the basement. During some seasons the ground becomes saturated and other seasons it does not, this being why you do not have a problem some years. Most perimeter drain systems are built to last for 50 years, this one being 100 years old it has more than served its duty.”

 

76)      The majority of companies who have reviewed the drainage system agree that it requires replacement. The consensus is that ground water levels, if they rise enough, will cause problems at unit 7. No one can say precisely when. There is a suggestion from one contractor that if there is no current water entry perhaps things will be okay, but only until they are not. Water damage can be expensive, hence the reference in the strata’s earlier repair table to this being a problem that would be cheaper to fix now than later.

 

77)      The 2012 depreciation report gives the service life of a perimeter drain system of 40 years. Unit 7’s system is closer to 100 years old. The depreciation report does not accurately record the construction date of unit 7. I reject the strata’s submission that the depreciation report means that drain replacement can wait until 2026.

 

78)      The five quotes obtained for perimeter drain replacement at unit 7 range from $12,950-$33,390 plus tax.

 

79)      In Weir, the Court held that the strata was justified in starting with a repair, rather than a wholesale replacement, of perimeter drains, even though the court noted that the repair might or might not be effective. The court noted that the strata was prepared to have further work performed to address the drainage issue, should it be necessary.

 

80)      This case is different from Weir. Here, the strata has suggested it would choose between quotes, and have replacement work done, since 2014. Three years later, nothing has been done to address the 100 year old perimeter drains. Water has come into the basement of unit 7 several times since Mr. Chapel first raised the concern. Replacement work has been deferred repeatedly. If the strata chose to repair the system rather than replace it, and water entered unit 7, there would be no confidence that the strata would undertake the further work needed, given the specific history here.

 

81)      I find the strata has not taken a reasonable approach to its responsibility as it has not made any decision to address the concern except for requesting serial quotes and clarifications over several years. Therefore, I find the perimeter drain of unit 7 must be replaced by the strata on or before January 1, 2018. I order that a special levy in the amount of $30,000 be assessed for this work.

 

DECISION AND ORDER

 

82)      The strata failed to meet its obligation to repair and maintain unit 7 in a timely way. Mr. Chapel has established that the repairs he is seeking are necessary. A strata need not choose the best approach to repair and maintenance, but it must take some action to complete necessary repairs. While the special levy associated with funding these repairs may be difficult for the owners, if the strata had met its obligations sooner, the repair levy would likely have been lower. The SPA provides that any part of the special levies that is not needed to fund the repair work is refunded to the owners. Mr. Chapel and his wife have paid their strata fees in support of significant repairs to other strata lots. I find these repairs must not be further deferred.

 

83)      I order the strata to complete the:

1.      exterior painting of unit 7, on or before October 1, 2017, including assessing a special levy in the amount of $15,000 to fund the work;

2.      replacement of the soffits on unit 7, on or before October 1, 2017, including assessing a special levy in the amount of $10,000;

3.      porch replacement, with the exception of any components that are in good condition, for unit 7, on or before November 1, 2017, including assessing a special levy in the amount of $5,000; and

4.      replacement of the perimeter drain system to unit 7, on or before January 1, 2018, including assessing a special levy in the amount of $30,000.

5.      The special levies required to complete the repairs are to be calculated according to unit entitlement and shall be payable to the strata in one lump sum on May 1, 2017.

6.      The applicant is required to contribute to the special levies.

 

84)      I also order the applicant’s fees, in the amount of $225, representing the dispute resolution fee and the decision fee, be paid by the strata to Mr. Chapel.

 

85)      Under section 57 of the Act, a party can enforce this final tribunal decision by filing, in the Supreme Court of British Columbia, a validated copy of the order which is attached to this decision. The order can only be filed if, among other things, the time for an appeal under section 56.5(3) of the Act has expired and leave to appeal has not been sought or consented to.

 

86)      Once filed, a tribunal order has the same force and effect as an order of the Supreme Court of British Columbia