Date Issued: August 4, 2017
File: ST-2016-00567
Type: Strata
Civil Resolution Tribunal
Indexed as: Moore v. The Owners, Strata Plan KAS 1878, 2017 BCCRT 51
Between:
Shirley Moore
Applicant
And:
The Owners, Strata Plan KAS 1878
Respondent
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REASONS FOR DECISION |
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Tribunal Member: |
Shelley Lopez, Vice Chair |
INTRODUCTION
1. The applicant owner Shirley Moore (the owner) owns strata lot 76, also known as unit 407, in the respondent strata corporation, The Owners, Strata Plan KAS1878 (the strata). The owner wants a different common property parking stall for her use and gives three different proposed methods for the strata to handle parking assignments. The owner says the strata has improperly and unfairly assigned the common property parking stalls, which the strata denies. The owner is represented by Doug Rundell, a family member. The strata is self-represented, through its strata council president.
JURISDICTION AND PROCEDURE
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. It must also 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.
4. The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I heard this dispute through written submissions because I find there are no significant credibility issues or other reasons that might require an oral hearing.
5. There are no issues raised about disability or accommodation under the Human Rights Code.
6. Under section 48.1 of the Act, in resolving this dispute the tribunal may make one or more of the following orders:
a. order a party to do something;
b. order a party to refrain from doing something;
c. order a party to pay money.
7. Section 48.1(2) of the Act is substantially similar to section 164 of the Strata Property Act (SPA) and addresses remedies for significant unfairness in strata property disputes. Section 48.1(2) provides that the tribunal has discretion to make an order directed at the strata, the council or a person who holds 50% or more of the votes, if the order is necessary to prevent or remedy a significantly unfair action, decision or exercise of voting rights.
ISSUES
8. The issues in this dispute are:
a) Has the strata improperly handled the assignment of common property parking stalls?
b) Should the strata change how common property parking stalls are assigned?
c) If the answer to b) above is yes, should the strata provide for the assignment of a different parking stall to the owner’s strata lot according to one of the following methods (listed in order of the owner’s preference):
i. When strata lots are sold the parking stall assigned to that strata lot must return to a pool of stalls available for re-assignment by the strata to accommodate necessary changes in the parkade, such as for handicapped parking. In addition, the strata must offer the owner the use of parking stalls as they come available with the owner having the right of first refusal over each available space until she chooses a re-assignment,
ii. The strata must assign a different parking stall to the strata lot owner currently assigned stall 5, so that the owner has the use of both her assigned stall 6 and stall 5 as an adjacent unassigned stall, or
iii. The strata must abandon parking stall assignment to individual strata lots, and owners wishing to use the parkade should be issued a permit for random parking.
d) Is the owner entitled to reimbursement of $225 in tribunal fees and $11.34 in dispute-related expenses, totaling $236.34?
POSITION OF THE PARTIES
9. The owner says she has one of the most unusable common property parking stalls in the building and the few other unusable ones are unassigned. She says the strata’s refusal to provide for reassignment options is significantly unfair to her, given some strata lots are assigned 2 stalls, other strata lot owners have the benefit of also using an adjacent unassigned and empty space, and because some strata lot owners leave their assigned space empty. The owner submits her proposed alternative remedies are not onerous, as the strata has the resources of a property management company.
10. The strata says it has acted fairly in its assignment of parking stalls and in particular has offered other stalls to the owner, but she has refused them. The strata says it assigns parking stalls to owners for exclusive use, up to 12 months, and then re-assigns them yearly. The strata says the owner’s stall 6 is usable by smaller and larger vehicles than her own and that the majority of the parking stalls require negotiating some form of post, pillar or wall or combination of all three. The strata submits that none of the proposed remedies improve the strata’s present method of assignment, bearing in mind the strata is comprised of elderly owners and the strata council is not equipped to handle what would likely be fairly regular requests for re-assignments after sales of strata lots. The strata also says the owners have in the past rejected the “random” parking approach. The strata submits that any proposed change to the way parking stall assignments are managed would require the support and approval by the owners through a vote.
EVIDENCE, SUBMISSIONS & ANALYSIS
11. The strata is comprised of 5, 8-storey apartment style buildings with a total of about 250 strata lots. The owner’s unit 407 is on the 4th floor of building B in the strata complex. It is undisputed that the residents are primarily elderly, many in their 80’s and 90’s. While I have reviewed all of the evidence and submissions provided, I have only set out below what is necessary to give context to my decision.
12. Each building has underground parking assigned to the owners in that building. There are 66 parking stalls in building B, all of which are common property and are not designated as limited common property. The owner’s assigned parking stall is stall 6.
13. First, I will address the question of whether the strata has improperly assigned parking stalls. The owner says the strata is improperly treating the common property parking stalls as limited common property.
14. By way of a ¾ vote resolution passed at the annual general meeting (AGM) held September 26, 2012, the strata created new consolidated bylaws that became effective on November 5, 2012, which repealed and replaced all prior bylaws. The relevant bylaws include the following provisions (my bold emphasis added):
a. Bylaw 10: “Parking spaces are assigned.” Residents must “use only the parking space(s) assigned to their strata lot except for private arrangements with other owners for use of parking spaces assigned to such owners” (bylaw 10(a)). Additional parking spaces, if available, “will be assigned on a first come first serve basis at a monthly fee determined by Council”. The rental of parking stalls ends either when the parties agree or on the sale or other disposition of the strata lot, whichever is first (bylaw 10(c)).
b. Bylaw 28: The strata must repair and maintain common property that has not been designated as limited common property.
15. Section 76 of the SPA says the strata may give an owner or tenant permission to exclusively use common property that is not designated as limited common property, for a period of not more than one year and such permission may be made subject to conditions. Section 76(3) specifically states the strata may renew the permission and on renewal may change the period or conditions. Correspondence from the strata’s property manager to the owner stated that the parking stalls were assigned yearly, in accordance with section 76 of the SPA. I accept that this is the basis for the strata’s assignment of the common property parking stalls for the exclusive use of the owners.
16. The owner in part relies upon a strata parking rule that was created in February 2004 (the Rule), which was among the documents provided to her when she bought her strata lot in 2005. The Rule is essentially the owner’s preferred remedy in this dispute, along with her request for right of first refusal. The owner disputes the strata’s position that the Rule no longer exists, because she cannot find any records to prove when the Rule was rescinded or amended. The Rule read (italics in original as provided to the tribunal):
1.3 When strata lots are sold the parking space(s) do not belong to the new owner, but revert back to the Strata Corporation and go into the parking pool to accommodate necessary changes in the parking garage.(i.e. Handicapped Parking).
17. The owner questions the strata’s position that the Rule no longer exists, because of its reliance upon P, another strata lot owner who acts as the “parking liaison” on the strata council, for the past 7 years. The strata submitted that it looks to P for direction and advice and that it “backs her 100% on her parking decisions”, which the strata says are “done with care, within any by-laws, rules or guidelines … “ (my bold emphasis added).
18. Section 125(1) of the SPA provides that the strata may make rules about the use of common property. However, section 125(6) of the SPA provides:
A rule ceases to have effect at the first annual general meeting held after it is made, unless the rule is ratified by a resolution passed by a majority vote
a) At that annual general meeting, or
b) At a special general meeting held before that annual general meeting.
19. Based on the evidence before me, there is no evidence that the Rule was ever ratified at the AGM or special general meeting (SGM) held in 2005, nor is there any evidence that the Rule otherwise exists. As such, given section 125(6) of the SPA I find it ceased to have effect at the first AGM held after 2004. The evidence before me does not indicate exactly when that AGM was, but certainly the Rule was not ratified at the 2012 AGM. Section 125(5) also states that if a rule conflicts with a bylaw, the bylaw prevails. Here, bylaw 10 governs. In short, I find the Rule has no effect in this dispute as it no longer exists.
20. As for the strata’s comments about P, quoted above, I find the strata was simply saying that the strata, and P in particular, takes care to comply with any bylaws, rules or guidelines as they exist from time to time. These comments are not a statement that the Rule was in effect in 2016 or since.
21. Given the above, I cannot conclude the strata has acted improperly in its general approach to assignment of the common property parking stalls. In other words, because the parking stalls are common property, the strata is entitled to assign them at its discretion, subject to the SPA and its bylaws. The exception would be if the owner can establish the strata has acted significantly unfairly.
22. So, has the strata acted significantly unfairly towards the owner in its handling of her parking stall concerns? This discussion will include the owner’s concerns about her own stall 6 as well as the use and assignment of other parking stalls in the building.
23. The owner says the strata has unfairly assigned common property parking stalls among the owners and will not consider reasonable options for change. Essentially, the owner submits that as an existing owner, she should have priority over incoming or prospective owners. The owner also says it is unfair that as an existing owner she is indefinitely assigned one of the worst stalls in the building, which she says is unusable.
24. First, as noted above, section 48.1(2) of the Act mirrors the “significantly unfair” language set out in section 164 of the SPA. The phrase “significantly unfair” has been interpreted to be simply a plain language version of earlier terms “oppressive or unfairly prejudicial”. In particular, in Chow v. Strata Plan LMS 1277, 2006 BCSC 335, the test was summarized as follows (my bold emphasis added):
It must be accepted that some actions of a strata corporation will be unfair to one or more strata lot owners in that the will of the majority may often serve the interest of the majority of owners to the detriment of a minority. Thus, to obtain relief, an owner must establish significant unfairness.
25. As noted in Chow, the case law is clear that “significantly unfair” would at the very least encompass oppressive conduct and unfairly prejudicial conduct. Oppressive conduct is “burdensome, harsh, wrongful, lacking in probity or fair dealing, or has been done in bad faith”. Conduct that is “unfairly prejudicial” is unjust and inequitable conduct. For reasons discussed further below, I cannot conclude that the strata’s conduct falls within any of those descriptions.
26. With reference to the Dollan v. Strata Plan BCS 1589, 2012 BCCA 44 (CanLii) case cited by the owner[1], Garson J.A. developed a new test for analysis under section 164, which I find would apply to an analysis under section 48.1(2) of the Act as follows:
1. Examined objectively, does the evidence support the asserted reasonable expectations of the owner?
2. Does the evidence establish that the reasonable expectation of the owner was violated by action that was significantly unfair?
27. I also note the court’s further comments in Dollan (my bold emphasis added):
There is no doubt that in making a decision the Strata Corporation must give consideration of the consequences of that decision. However, in my view, if the decision is made in good faith and on reasonable grounds, there is little room for a finding of significant unfairness merely because the decision adversely affects some owners to the benefit of others. …
28. The owner says she enjoyed the use of both stalls 5 and 6 for 11 years until late June 2016 when she was asked to move to stall 6 because there were new owners of the strata lot that was assigned stall 5. The owner says this was the first time she was aware that stall 5 has been assigned to another owner. In particular, the owner says that when she bought her strata lot in 2005, the selling realtor told her she was assigned parking stalls 5 and 6, since stall 6 was narrow, against a concrete wall, and “the most difficult spot in the entire parking garage” in which to park. The owner says she trusted this realtor’s advice and did not confirm the arrangement with the strata at the time.
29. On the latter point, that the owner enjoyed for 11 years the use of both stalls 5 and 6, due to the strata lot owner then assigned stall 5 not using a car, does not necessarily mean the strata must accommodate the owner. Again, setting aside the issue of whether the owner had or has a reasonable expectation to more than stall 6, the question here is whether the owner is being treated “significantly unfairly”. The strata never assigned stall 5 to the owner and in any event any “rental” of stall 5, if the owner’s use could be so construed, fairly ended when the associated strata lot was sold in 2016. However, I pause to note that it is undisputed that for the last year or so, the owner has again used her stall 6 and also part of the stall adjacent to her. The strata explained this is because her “two neighbouring owners” worked to make parking in stall 6 as easy as possible for the owner. In pursuing this dispute, I infer that the owner wants a more formal arrangement.
30. In the evidence before me, a photo of stall 6 shows the owner’s vehicle parked, backed in, adjacent to a concrete wall, with a car having parked “front-in” beside it in stall 5. Only part of the car in stall 5 is visible in the photo, and so it is unclear to what extent that car has moved over into stall 4 as the owner’s representative indicated was done to accommodate the owner.
31. The owner says the “unobstructed width” of her assigned stall 6 is 94”, which is 7.833 feet. The total width of stall 6 is 106”, according to the owner, which is 8.833 feet. The owner has not given any measurements for the width of her car, but the photo of the car in stall 6 appears to be an average sized sedan. I note the owner’s explanation of obstructed width, which is that a pillar extends into the parking stall. While the pillar may impact the driver’s path into the stall, once parked I find the pillar would not appear to impact the owner’s ability to enter or exit the vehicle. On this point, the owner’s car does not extend up to the point of the pillar, and so she would not appear to have to walk between her car and that pillar in order to access her car door. In any event, there is no evidence before me that stall 6 is less than a standard size. While the strata is not located in the City of Vancouver, as a point of reference I also note that the City of Vancouver has published on its website parking stall guidelines[2] for minimum stall widths. Stall widths in the range of 7.55’ to 8.33’ are considered minimum.
32. The parties agree the strata offered the owner the use of stalls 9, 21, and 31, which she rejected as all being inadequate. The owner says stall 31 also has a concrete pillar, is even smaller than stall 6, and also has never been assigned to an owner. According to the owner’s measurements, the total width of stall 31 is 2” less than stall 6. However, stall 31 is rented to an owner who parks a large pick-up truck in it, which is undisputed and is shown in a photo provided in evidence. Based on the photo, the truck does not appear to take up more than one stall, although I acknowledge there was no vehicle parked next to it in the photo. That a large truck can park in a smaller stall is evidence that stall 6 is a useable parking stall, albeit smaller than some of the other stalls in the parkade.
33. A photo included in the owner’s evidence showed stalls 7, 8, and 9 with two cars parked in them. The owner’s representative described the photo as showing how the 2 cars are parked straddling the 3 spaces “so that they are usable”. In my view, the photo shows what appears to be adequate but admittedly tight space for 3 cars. However, with 2 cars as parked in the photo there is about 2 feet of room on either side of each car. Based on the photo, I cannot agree with the owner’s representative’s description that it is “nearly impossible to park within the assigned lines” of stall 9.
34. It is undisputed that most parking stalls are adjacent to a concrete pillar or wall on one side. The owner says other such stalls have a vacant space adjacent to it, are unassigned, or have a greater unobstructed width. According to the owner’s evidence, stall 9 has a wall on one side and a width of 100”, similar to other parking stalls that are each assigned for use to one strata lot. This is key because it demonstrates that while the parking stall assignments are not identical in width or ease of access, the owner’s strata lot is not the only one with a similar parking stall configuration.
35. Moreover, if I were to accept the owner’s submissions, at least ¼ of the parking stalls would be unusable if all were occupied. I am unable to accept such a broad submission in the absence of expert evidence, such as with respect to compliance with the BC Building Code.
36. The owner also says the strata’s submission that both smaller and larger cars have parked in stall 6 without difficulty should be rejected as lacking particulars and as hearsay. In a tribunal proceeding, hearsay is not necessarily inadmissible. While this particular strata submission was general in nature, I do not discount it entirely having seen the photo of stall 6.
37. One of the owner’s complaints is that 6 owners, each of whom are on the 7th and 8th floors, are assigned 2 parking stalls even though the owners have only one vehicle. The strata plan shows the larger strata lots on the 7th and 8th floors have larger unit entitlements. Higher unit entitlements mean higher strata fees. The strata’s argument is simply that those upper floor strata lots were assigned two spaces by the developer and it would be unfair now to change that arrangement.
38. I acknowledge the owner’s submissions about the impropriety in the strata promising exclusive use of common property, as discussed in Hill v. The Owners, Strata Plan NW 2477, 1991 CanLii 529 (BCCA). I agree that the strata must not treat the common property parking stalls as limited common property where owners of strata lots can automatically expect the assigned stall to transfer to new owners when sold. However, as noted above, the strata yearly grants exclusive use of the common property parking stalls, which is permitted under section 76 of the SPA. In addition, the bylaws permit exchanges of assigned stalls between owners.
39. I find here the relevant point in Hill is that the strata must act in the best interests of all owners. In Hill, the court indicated support for my conclusion that unit entitlement is a fair basis upon which to allocate or assign parking stalls (my bold emphasis added):
Once the first unit was sold that unit owner became entitled to use a portion of the common property (parking stalls) based on a unit entitlement formula.
40. Overall, I find there is nothing significantly unfair to the owner that the strata has historically assigned 2 parking spaces to units that have a higher unit entitlement. It is also not significantly unfair for the strata to maintain the status quo for the benefit of all owners, as I accept the strata’s undisputed submission that with rare exception the owners as a whole are content with the parking system as it currently exists. There are undoubtedly some spots in the parkade that are tight and less desirable, but there is nothing inequitable or unjust in the strata’s assignment of parking stalls. To the extent the owner’s complaint is that her strata lot’s resale value is reduced due to the undesirable parking stall 6, that is not the strata’s responsibility particularly given that before buying her strata lot the owner would have known of the stall 6 assignment had she asked rather than relying upon the selling realtor. I further see nothing unfair in the strata assigning a parking space to a strata lot currently owned by someone without a vehicle. That owner’s vehicle ownership status may change or that owner may choose to rent their space, as permitted under the bylaws. Nothing prevents the owner from asking other owners to switch spaces, such as another owner who does not use their space, as suggested by the strata.
41. The strata says an owner on the 7th floor (unidentified in the strata’s submissions) advised they had offered the owner the use of one of their 2 assigned parking stalls but the owner never responded to the offer. The owner does not deny this occurred, but instead argues that the strata did not provide particulars and “without verification and validation this should be considered hearsay and not considered as evidence”. Again, I can consider and I do place some weight on the strata’s evidence on this point, which I acknowledge lacked identification of the 7th floor owner. I find it somewhat troubling that the owner did not simply address whether or not such an offer was made, and if it was made why it was apparently unacceptable to her.
42. I acknowledge the owner would prefer a larger parking stall that is easier to negotiate, and that she finds using stall 6 difficult. This situation however does not mean that the strata has acted “significantly unfairly” towards her, bearing in mind the meaning of that quoted phrase as discussed in the case law above. It may be that a number of stalls in the strata’s parkade are smaller than may be ideal, but at the end of the day someone needs to be assigned those parking stalls even though that may seem unfair to those owners. The strata has decided that the most fair and efficient method is to retain the historical assignments to particular strata lots, noting that there are a number of unassigned stalls that the owner was offered and which she rejected as similarly unsuitable. Again, while unfair to some owners in that others receive a “better” parking stall, the strata’s assignments are not “significantly unfair” within the meaning of the case law.
43. Further, I acknowledge the owner’s concerns about the timeliness of the strata’s communications with her about the parking stall assignment issue, both before and during the tribunal process. I have reviewed the evidence and the strata’s submissions, which included evidence about a personal crisis involving P that prevented a more prompt response to the owner. Overall, in the circumstances and bearing in mind the latitude a lay and volunteer group of council members is entitled to, I cannot find the strata acted significantly unfairly towards the owner in this respect.
44. In summary, the difficulty for the owner is that the parking stall assignments in place do not indicate that the strata has failed to act in the best interests of all owners. The strata’s submissions are undisputed that the owner’s parking complaints are rare for the strata and that the strata has historically worked to accommodate owners where possible. The strata’s effort to accommodate the owner, by offering her other unassigned stalls, is evidence of that point. I also accept that it would be too burdensome for the strata to maintain a regular exchange of parking stall assignments. In any event, I accept the strata’s submission that each of the proposed remedies by the owner would not be acceptable to the owners as a whole, and certainly not without a vote.
45. To that end, section 76 of the SPA is subject to section 71, which provides that a strata must not make a significant change in the use of common property without that change being approved by a resolution approved by a ¾ vote at a SGM or AGM (¾ vote), or if immediate change is necessary to ensure safety or prevent significant loss or damage. I find the owner’s proposed remedies each constitute a significant change that affects all owners in how the common property parking stalls are used. There has been no ¾ vote and there is no suggestion immediate change is necessary. Nothing in this decision prevents the owner from pursuing a vote of the owners on the issue of changing how parking stalls are assigned, as provided for in the SPA.
46. The strata has not improperly managed the assignment of common property parking stalls and it has not acted significantly unfairly towards the owner in respect of her parking stall assignment. The owner’s claims are dismissed.
47. As the owner was not successful in this dispute, I find she is not entitled to reimbursement of tribunal fees or the claimed dispute-related expenses, which conclusion is in accordance with the tribunal’s rules.
ORDER
48. I order that the applicant’s claims are dismissed.
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Shelley Lopez, Vice Chair |