Date Issued: February 21, 2017

File: ST-2016-00121

Civil Resolution Tribunal

Indexed as: Silva and Amadeo v. The Owners, Strata Plan NW58, 2017 BCCRT 7

BETWEEN:

Greg Silva and John Amadeo

APPLICANT

AND:

The Owners, Strata Plan NW58

RESPONDENT

REASONS FOR DECISION
Tribunal Member:	Wendy Baker

INTRODUCTION

 

1)        Greg Silva and John Amadeo have each brought claims against The Owners, Strata Plan NW58 (the strata) seeking to have the strata pay for the replacement of sliding patio doors on their strata lots.  In addition, Mr. Amadeo seeks to have the strata pay for the replacement of the windows in his strata lot and the replacement of a concrete patio slab to the rear of his strata lot.

 

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.

 

ISSUES

 

4)        The issues in this dispute are:

 

a.      Is the strata responsible for the replacement of sliding patio doors on the applicants’ individual strata lots?

b.      Is the strata responsible for the replacement of windows on Mr. Amadeo’s individual strata lot?

c.      Is the strata responsible for the replacement of concrete patio slabs to the rear of the Mr. Amadeo’s individual strata lot?

 

BACKGROUND AND EVIDENCE

 

5)        The applicants are owners of strata lots in a strata known as Simon Fraser Village. Simon Fraser Village was built approximately 45 years ago. The individual strata lots at issue have the original single pane glass sliding patio doors.

 

6)        In 2016 the strata, through its property management company, had a window company assess windows and patio doors at Simon Fraser Village. The assessment determined that there were numerous problems with the windows and the sliding patio doors, which were 10 years older than their useful life, and recommended that all be replaced.

 

7)        Mr. Silva and Mr. Amadeo provided photographs illustrating the deterioration of the patio doors and windows.

 

8)        Mr. Silva and Mr. Amadeo asked the strata to pay for the replacement of their sliding patio doors, and Mr.  Amadeo asked the strata to pay for the replacement of the windows in his strata lot. The strata refused to pay for the replacement of sliding patio doors because the strata’s bylaws require the individual lot owners to replace windows and doors.

 

9)        The strata presented evidence of numerous strata lots in Simon Fraser Village where owners had replaced their windows and/or patio doors over the years, including a map demonstrating that many of the units have had windows replaced, a number of forms completed by owners assuming responsibility for replacement of their windows, and a letter from an owner that has lived in Simon Fraser Village since it was built 45 years ago stating her understanding of the responsibility of owners to pay for window and patio door replacement of their individual strata lots.

 

10)     Mr. Amadeo stated that the original patio step and slab have sunk 12 inches, and have settled on a slope which creates instability for people using the back patio. Mr. Amadeo presented photographs which demonstrate the drop of 12 inches and the slope.

 

11)     The strata submitted the bylaws of the strata which were approved and filed in 2001. Tribunal staff provided the parties with all strata bylaw amendments since the date of filing.

 

POSITION OF THE PARTIES

 

12)     Mr. Silva and Mr. Amadeo assert that the strata is obliged to pay for the replacement of their windows and patio doors by virtue of sections 3, 72, and 121 of the Strata Property Act SBC 1998 c. 43 SPA and bylaw 8 of the Schedule of Standard Bylaws. In essence they argue that the windows and patio doors form part of the common property or limited common property of the building, which the strata is obligated to repair and maintain under the SPA, or part of a strata lot which the strata is obligated to repair and maintain under bylaw 8.

 

13)     Mr. Amadeo asserts that his patio slab and step are part of the exterior of the building and the strata is obligated to maintain and repair the exterior of the building.

 

14)     Mr. Silva requests that the tribunal order the strata to replace the patio doors of his strata lot.

 

15)     Mr. Amadeo requests that the tribunal order the strata to replace the patio doors, windows, and concrete patio slab to the rear of his strata lot.

 

16)     Both Mr. Silva and Mr. Amadeo request that the tribunal order the strata to pay them the

$225 paid to initiate and resolve the CRT claim.

 

17)     The strata argues that it is bound by its bylaws, which are different from the Schedule of Standard Bylaws under the SPA. The bylaws of the strata place the obligation for the repair and replacement of windows and patio doors on the individual owners.

 

18)     The strata argues that the rear step and patio slab were not poured with the foundation of the building, and are independent of the foundation. The strata also claims the owners have made adjustments to the patios over the years, including adding decks, removing the  slab, repouring or using bricks, pavers, etc. The strata argues that changes to the rear patios are the responsibility of the owners, as set out in its bylaws.

 

19)     The strata requests that the tribunal dismiss the applicants’ claims to repair and replace windows, patio doors and patio slab and step.

 

20)     The strata agrees to pay the CRT filing fee of $125 for the applicants. The strata wishes to have definitive decision made in this dispute.

 

ANALYSIS

 

21)     The relevant sections of the SPA are:

 

Section 1,      which defines “common property” and “limited common property”;

 

Section 3, which says the strata corporation is responsible for managing and maintaining the common property and common assets of the strata corporation for the benefit of the owners;

 

Section 68,    which defines the boundaries of a strata lot;

 

Section 72,    which  says  the  strata  corporation  must  repair  and  maintain  common property; and

 

Section 121, which says a bylaw which contravenes the SPA is not enforceable.

 

22)     On November 26, 2001 a 3/4 vote resolution of members of the strata was passed to adopt its own form of bylaws. The bylaws were then filed and remain in effect today. Several amendments to the bylaws have been made over the years, but none are relevant to the resolution of this dispute. I find that all owners are bound by the bylaws passed on November 26, 2001, as amended, subject to section 121 of the SPA.

 

23)     The relevant bylaws for this dispute are:

 

3.    Repair and maintenance of property by owner

 

3.1 An owner must repair and maintain the owner’s  strata  lot,  including doors, windows and patio fences, except for repair and maintenance that is the responsibility of the strata corporation under these bylaws.

 

11.   Repair and maintenance of property by strata corporation

 

11.1  The strata corporation must repair and maintain all of the following:

 

…

 

(b)     common property that has not been designated as limited common property;

…

 

(d)       a strata lot, but the duty to repair and maintain it is restricted to

 

(i)        the structure of a building,

 

(ii)        the exterior of a building,

 

(iii)      chimneys, stairs, balconies and other things attached to the exterior of a building,

 

(v)     railings.

 

11.2  Notwithstanding anything contained in bylaw 11.1 an owner is responsible for repair, maintenance and replacement of patios, fences, all windows, doors, patio doors, and patio concrete slabs, no matter how often the repair, maintenance or replacement ordinarily occurs.

 

24)     The Strata Plan, as permitted under s. 68 of the SPA, describes the boundaries of each strata lot to be the exterior finish of the building, and the exterior of the concrete foundation.

 

25)     As such, the windows and patio doors are not common property or limited common property, as those terms are defined in the SPA. The windows and patio doors are within the boundaries of the individual owners’ strata lots.

 

26)     The patios for the strata lots are not designated as limited common property on the strata Plan and are outside the boundaries of the strata lots. Therefore, the patio slabs and patio steps form part of the common property.

 

27)     Any obligation of the strata to maintain or repair a strata lot must be found in the strata bylaws, pursuant to s. 72(3) of the SPA, which permits a strata corporation to create bylaws obligating the corporation to repair and maintain certain parts of a strata lot.

 

28)     The Schedule of Standard Bylaws under the SPA provides an example of bylaws which obligate a corporation to repair and maintain aspects of a strata lot, including doors, windows, balconies, etc.

 

29)     However, the strata in this dispute expressly adopted its own bylaws, which it is permitted to do. It is the bylaws of the strata which are binding in this dispute, and not the Schedule of Standard Bylaws under the SPA.

 

30)     In its bylaws the strata expressly placed the obligation for repair and maintenance of windows, patio doors, and patio concrete slabs on the individual owners.

 

31)     The bylaws obligating the individual owners to repair and maintain windows and patio doors are compliant with the SPA, as those building components fall within the boundaries of the strata lots.

 

32)     Bylaw 11.2, to the extent it obligates individual owners to repair and maintain patio slabs or other common property, contravenes section 72 of SPA. Therefore, pursuant to section 121 of the SPA, the requirement under bylaw 11.2 for an owner to repair and maintain patio concrete slabs is not enforceable. The step is outside the strata lot, therefore it is also common property and the strata is responsible for its repair.

 

33)     I find that the bylaws of the strata are binding in this dispute, subject to my comments above on the enforceability of aspects of bylaw 11.2. Pursuant to the bylaws of the strata, the obligation to repair and maintain patio doors and windows lies with the individual strata lot owners, and not the strata. However, the obligation to repair patio slabs and steps lies with the strata as the strata has responsibility for the repair and maintenance of common property under the SPA, and this responsibility cannot be varied through the bylaws of the strata.

 

DECISION AND ORDERS

 

34)     I order that the claims of the applicant Mr. Silva are dismissed.

 

35)     I order that the claims of the applicant Mr. Amadeo for repair and replacement of windows and patio doors are dismissed, and his claim that the Strata must pay for the replacement and repair of the concrete patio slab and step to the rear of his strata lot is allowed.

 

36)     As the Strata has agreed to paying the CRT filing fees of Mr. Silva and Mr. Amadeo, I order the Strata to pay to Mr. Silva and Mr. Amadeo the $125 filing fees they paid to commence this proceeding, within 30 days. A further $100 was paid by the applicants in order to obtain a tribunal decision and order. As the result has been mixed, I do not order the strata to pay the applicants this further $100.

 

37)     Under section 167 of the Strata Property Act SBC 1998 c.43, an owner who brings a tribunal claim against the strata corporation is not required to contribute to the expenses of bringing that claim. I order the strata to ensure that no part of the strata’s expenses with respect to this claim are allocated to the owner.

 

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

 

39)     Orders for financial compensation or the return of personal property can also be enforced through the Provincial Court of British Columbia. However, the principal amount or the value of the personal property must be within the Provincial Court of British  Columbia’s  monetary limit  for  claims  under  the  Small Claims  Act  (currently $25,000). Under section 58 of the Act, the Applicant can enforce this final decision by filing in the Provincial 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. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.