Date Issued: April 10, 2018

File: ST-2017-002019

Type: Strata

Civil Resolution Tribunal

Indexed as: Carlsen v. The Owners, Strata Plan LMS 533, 2018 BCCRT 124

Between:

Judy Carlsen                         

Applicant

And:

The Owners, Strata Plan KMS 533

Respondent

REASONS FOR DECISION
Tribunal Member:	Kate Campbell

INTRODUCTION

1.         The applicant, Judy Carlsen (owner), lives in a strata lot in the respondent strata corporation, The Owners, Strata Plan KMS 533 (strata).

2.        The owner seeks an order that a fence installed by the strata in 2015 be removed, and the original fence line restored.

3.        The owner is self-represented. The strata is represented by the strata council president.

4.        For the reasons set out below, I find that the strata must restore the original fence line and fence height, as it was prior to July 2015.

JURISDICTION AND PROCEDURE

5.        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.

6.        The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.

7.        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.

8.        The applicable tribunal rules are those that were in place at the time this dispute was commenced.

9.        Under section 48.1 of the Act and the tribunal rules, in resolving this dispute the tribunal may make order a party to do or stop doing something, order a party to pay money, order any other terms or conditions the tribunal considers appropriate.

ISSUES

10.     The issues in this dispute are:

a.     Must the strata remove the fence and restore the original fence line?

b.     Is the owner entitled to reimbursement of dispute-related fees and expenses?

REASONS AND ANALYSIS

11.     In 2014, the strata engaged a roofing consultant to investigate water leaks from the concrete in front of the strata building into the underground parkade. The roofing consultant reported a failure in the waterproof membrane over the parkade. In order to repair this membrane, it was necessary to remove the landscaping and patio coverings in front of the building to expose the concrete roof of the parkade.

12.      The strata council obtained repair estimates. The strata council called a special general meeting regarding the water membrane repair (WMR) project on April 29, 2015. The owners voted in favour of a funding model for the WMR project, and work began. There was no vote with regard to changing the existing fence line or height. Sometime around June 2015 the new fencing was installed.

13.     The owner and another strata lot owner requested a hearing before the strata council, which was held on July 20, 2015. The minutes show that owners raised concerns about aspects of the WMR project, including apparent first floor patio extensions due to fencing changes. Details of those concerns are set out in the minutes. Similar concerns are set out in emails from strata lot owners to strata council members. In particular, owners asserted that the new fence was taller, and that it was moved out from the previous fence line thereby enclosing larger patios for the first floor strata lots and eliminating access to common property.

14.     Under section 71 of the Strata Property Act (SPA), a strata must not make a significant change in the use or appearance of common property unless the change is approved by a resolution passed by a ¾ vote at general meeting, or there are reasonable grounds to believe that immediate change is necessary to ensure safety or prevent significant loss or damage.

15.     In Foley v. The Owners, Strata Plan VR387, 2014 BCSC 1333 (CanLII), the court considered the meaning of “significant change” for the purposes of section 71, and provided the following non-exhaustive list of factors to consider:

a.      A change would be more significant based on its visibility to residents and towards the general public,

b.      Whether the change to common property affects the use or enjoyment of a unit or a number of units or an existing benefit of a unit or units,

c.      Is there a direct interference or disruption as a result of the changed use?

d.      Does the change impact on the marketability or value of the unit?

e.      The number of units in the building may be significant along with the general use, such as whether it is commercial, residential, or mixed.

16.     Based on the July 20, 2015 meeting minutes, the emails from owners to the strata council, and the photographs provided by the parties, I find that the new fencing was a significant change in common property. These documents show that the new fencing looks markedly different from the fencing that was in place prior to April 2015. The new fencing is taller, and follows different height contours than the previous fencing. In some places it does not follow the original fence line. The higher fence, along with larger enclosed patio spaces, changes the use and appearance of both the front patios and of the common property entrance to the building.

17.     The strata has not disputed the owner’s assertions that the new fencing is taller and does not follow the original fence line. The minutes from an August 22, 2015 strata council work group session show that the council met to discuss “fencing remediation”, and the options included altering the fence to its original dimensions, including the height and depth of divider fences between strata lots. The strata therefore acknowledges that the new fence is different from the old fence.

18.     Similarly, in a July 12, 2015 email to another strata lot owner, the strata council president wrote that new gates were added, and that a rail was replaced by solid fencing. He wrote that when the trees in front of the building were taken down as part of the WMR project, this eliminated the privacy of the front strata lots, and potentially caused “an undue hardship on the living space for those owners”. He also wrote that the fence provided an enhanced level of security. I find that the changes explained in this email, along with the other documents and photographs in evidence, establish that the new fencing constitutes a significant change in appearance from the previous fencing.

19.     The strata says that ¾ of the owners voted in favour of the WMR project at the April 29, 2015 special general meeting, and all owners were provided information on the particulars of the project before that vote.

20.      I do not agree that the votes taken at the April 29, 2015 special general meeting constituted an approval to changes in the height or placement of the fencing. The written summary provided to the owners by the strata council before or at the April 29, 2015 meeting says the council recommended an estimate from a particular contractor in the amount of $211,520 plus financing costs. The summary document says the existing fencing and landscaping ties were in need of replacement and are not salvageable, and that new privacy fencing would be required for the ground floor patios. The estimated cost of this fencing was $8,000. There is no reference in that document to changing the fence height or location. Rather, the word “replacement” suggests that the fence would be restored to its original condition using new materials.

21.     The minutes of the April 29, 2015 special general meeting show that the owners did not vote on any specific aspects of the WMR project, and were not presented with plans, drawings, or other information showing fencing changes. There is nothing in the meeting minutes about fencing. Rather, the owners voted in favour in favour of a series of four special assessments to replenish the contingency reserve fund. There was no vote about or related to fencing.

22.     For these reasons, I find that the strata breached section 71 of the Strata Property Act by making a significant change in the use or appearance of common property without a resolution passed by a ¾ vote at an annual or special general meeting.

Remedy

23.     The remedy in this dispute will affect all strata owners, since restoring the fencing to its pre-2015 specifications will cost money and cause disruption.

DECISION AND ORDERS

24.     For that reason, I order the strata to obtain at least 3 quotations for restoring the fencing to its pre-2015 height, style, and placement. These 3 quotations must be put to a ¾ vote resolution for a special levy before the strata owners. This voting meeting must be held before September 30, 2018.

25.     It is also open to the strata owners to retroactively accept the new fencing, or to accept an alternate fence remediation plan. These options may be voted on by the owners as a ¾ vote resolution at the same meeting as the vote on the quotations to restore the fence to its pre-2015 specifications.

26.     The owner requested that certain present and former strata council members, including one who no longer owns a strata lot, be held personally responsible for their decisions with regard to fencing. I find that the evidence before me does not establish that individual strata council members were responsible for the fencing decisions, so I decline to make such orders.

27.     The tribunal’s rules provide that the successful party is generally entitled to recovery of their tribunal fees. As the applicant was substantially successful in this dispute, I see no reason to depart from this general rule. I therefore order the strata to reimburse the owner $225 for tribunal fees.

28.     Under section 189.4(b) of the SPA, 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 defending this claim are allocated to the applicant.

29.     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.

30.     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 $35,000). 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.