Date Issued: April 18, 2018

File: ST-2017-00377

Type: Strata

Civil Resolution Tribunal

Indexed as: Zanatta v. Kedgley et al, 2018 BCCRT 140

Between:

Antonet Zanatta

Applicant

And:

Graham Kedgley and The Owners, Strata Plan VR 1642

 

RespondentS

REASONS FOR DECISION
Tribunal Member:	J. Garth Cambrey, Vice Chair

INTRODUCTION

1.         The applicant, Antonet Zanatta (owner), owns a strata lot in the respondent strata corporation, The Owners, Strata Plan VR 1642 (strata). The owner is also a member of the strata council.

2.         The respondent, Graham Kedgley is an owner of a strata lot in the strata as well as the treasurer of the strata council.  Mr. Kedgley was also involved with the development of the strata.

3.         This dispute primarily involves the allocation of common property (CP) parking stalls, limited common property (LCP) used as parking stall, and the installation of bike racks.

4.         The owner alleges Mr. Kedgley took over use of one of her parking stalls and that a bike rack has not been installed at the head of both of her parking stalls as approved by the strata’s owners.

5.         The owner asks that the Civil Resolution Tribunal (tribunal) order the permanent assignment of the 2 parking stalls she was using and the installation of a bike rack for her second parking stall. She also requests the strata deal with her through its property manager and seeks reimbursement of tribunal fees paid and dispute-related expenses.

6.         Although a named respondent, Mr. Kedgley did not provide any submissions or evidence on his own behalf.

7.         The strata alleges the parking stalls the owner is currently using are those that have been assigned and designated for her use. The strata also says the owners approved the installation of 1 bike rack per owner, which has been done.

8.         The strata requests the tribunal dismiss the owner’s claims.

9.         Both the applicant and Mr. Kedgley are self-represented.  The strata is represented by Mr. Kedgley.

10.      For the reasons that follow, I find the owner may request the strata, at its expense, to relocate a bike rack from her other parking area. I dismiss the owner’s remaining claims.

JURISDICTION AND PROCEDURE

11.      These are the formal written reasons of the 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.

12.      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.

13.      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.

14.      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

15.      The issues in this dispute are:

a.     Is the owner entitled to permanent and exclusive use of the 2 parking stalls she was using until October 2015?

b.     Should I order the strata to install a bike rack for the owner’s second parking stall?

c.      Should I order the strata to ensure Mr. Kedgley does not deal directly with the owner about the strata’s business?

d.     Should I order the respondents to reimburse the owner $225.00 for tribunal fees paid and $797.32 for dispute-related expenses?

BACKGROUND AND EVIDENCE

16.      Though I have read all of the evidence provided, I refer only to evidence I find relevant to provide context for my decision.

17.      The strata is a 16-unit, 4 storey, residential strata corporation located in Vancouver, British Columbia. It was created March 10, 1986 under the Condominium Act (CA), the preceding legislation to the Strata Property Act (SPA).

18.      The strata plan shows the underground parking area, including its 16 parking stalls, is CP.

19.      Land Tile Office documents filed on May 26, 1986 show an area of the CP parking garage was designated as LCP for strata lot 14 (SL 14) under section 53 of the CA.  The designated area is next to the elevator, stairs and elevator machine room on one side and a parking stall marked ”UG-12” on the other.

20.      The parties agree that Mr. Kedgley was a director of the original development company of the strata. 

21.      It is undisputed that the owner met Mr. Kedgley in 1986 when she was invited to view the strata’s property when the building’s construction was nearing completion.  It is also undisputed that the owner was offered to select a strata lot of her choice and 2 parking stalls, which she ultimately did.  She bought SL14 on June 26, 1986 and chose stalls 11 and 12, which were marked UG-11 and UG-12 on the strata plan respectively. A February 1, 1989 owners list confirms this parking assignment.

22.      It is undisputed that the owner rented out SL 14 from the date she purchased it in 1986 until sometime in 1989. She did not occupy SL 14 before 1989.

23.      At the strata’s March 30, 2015 annual general meeting (March 2015 AGM), the strata passed a ¾ vote resolution to “proceed with the installation of bike racks for the individual parking stalls in the underground parking garage.” The preamble to the resolution stated that the proposal was “to install individual bike racks for each resident that would accommodate two bikes per bike rack. The bike racks would be located on the basement wall behind sixteen parking spaces.”

24.      Prior to the installation of the bike racks, a “bike storage locker” was located on the LCP area designated for the use of SL 14 (LCP stall).

25.      In October 2015, Mr. Kedgley moved into the building and began using stall 11.

26.      In an August 18, 2016 letter provided to the owner’s lawyer, the strata’s lawyer stated, among other things, that Mr. Kedgley was not the builder of the strata. I infer by “builder” that the lawyer means the owner developer as defined under the SPA. The letter also states that Mr. Kedgley did not own 9 of the 16 strata lots at that time, as alleged by the owner’s lawyer.  Rather, the letter states Ms. P. Kedgley owned 1 strata lot, a company owned equally by Mr. and Ms. Kedgley owned 7 strata lots, and a Dr. A. Kedgley owned 1 strata lot.  The content of the August 18, 2016 letter is undisputed and I accept the statements made in the letter to be true.

27.      The March 8, 2016 strata council meeting minutes show that of the 7 strata council members, 3 have the last name of Kedgley.

POSITION OF THE PARTIES

28.      The owner says that, for about 30 years since she first occupied her strata lot, stalls 11 and 12 were assigned for her exclusive use.  She says Mr. Kedgley began occupying stall 11 in October 2015 and that the strata has not taken steps to reassign stall 11 to her, which she argues is hers to use.

29.      The owner also says the strata has not installed a bike rack on the underground parking garage wall at the head of both of her parking stalls as she alleges it should have done following the March 105 AGM.

30.      The owner requests the following orders:

a.      that the strata permanently assign her the 2 parking stalls she had been using up until October 2015 for her exclusive use to be considered “attached” to her strata lot for the purposes of resale,

b.      that the strata install a bike rack on the underground parking garage wall at the head of her second parking stall,

c.      that the strata’s property manager deal with her directly rather than Mr. Kedgley, and

d.      that the strata reimburse her $225.00 for tribunal fees paid and $797.32 for dispute-related legal expenses. She says that because Mr. Kedgley acted outside the scope of the strata council, and that his actions were based in malice and harassment, he should be responsible to pay her expenses.

31.      The strata says there is 1 CP parking stall assigned to each strata lot. The CP parking stall currently assigned to the owner’s strata lot is stall 12, which the strata say it is unwilling to change.  The strata also says the owners, at the March 30, 2015 AGM, approved the installation of 1 bike rack per owner at the head of owners’ parking stalls which has been done.

32.      The strata requests the tribunal dismiss the owner’s claims.

ANALYSIS AND DECISION

Is the owner entitled to permanent and exclusive use of the 2 parking stalls she was using until October 2015?

33.      As earlier noted, the owner claims she is entitled to use parking stalls 11 and 12 as she or her tenant had used those 2 parking stalls between June 1986 and October 2015.

34.      I will first address the assignment of the 16 CP parking stalls, which includes both stalls 11 and 12.

35.      There are no records of parking stall assignments other than the owners’ list dated February 1, 1989.  The list shows parking stalls 11 and 12 assigned to, or used by, the owner.  The list also shows parking stall 17, which is not identified on the strata plan, assigned to, or used by, the residents of unit 203. I am unable to confirm the location of parking stall 17 and find it is not necessary for me to do so.

36.      At the time the strata was created, methods for assigning parking stalls under the CA were limited to assignments under section 117(f) of the CA or designations of LCP under section 53 of the CA.  As shown on the strata plan, stalls 11 and 12 are clearly CP stalls and I accept that they were assigned according to the owners’ list dated February 1, 1989. This means the applicant was assigned stalls 11 and 12. Given there is no designation of LCP for any of the CP stalls, I find the assignment of stalls 11 and 12 were grants of short term exclusive use under section 117(f) of the CA until July 2000, when the SPA came into force.

37.      A transition provision created under Strata Property Regulation 17.7 says grants of short term exclusive use under the CA may continue under the SPA but may be renewed only as permitted under section 76 of the SPA.

38.      Under section 76 of the SPA, a strata corporation may give an owner or tenant exclusive use, or a special privilege, to CP that is not designated as LCP for a period of not more than 1 year.  The strata corporation can renew the exclusive use or special privilege for periods not exceeding 1 year and may cancel the permission on reasonable notice.

39.      Given the owner continued to use stalls 11 and 12 until October 2015, I find the use of the stalls from July 2000 to October 2015 amounted to short term exclusive use under section 76 of the SPA.  This conclusion is supported by the fact that the bike storage locker was constructed on the owner’s LCP stall, which made it impossible for the owner, her tenants or guests to park in the LCP stall until sometime in 2015.

40.      Given that section 76(4) permits the strata to cancel the grant of exclusive use on reasonable notice, this means that the strata may reassign the use of stalls 11 or 12 to another owner or tenant.  The strata claims it reassigned stall 11 to Mr. Kedgley when the bike storage locker was removed.

41.      The strata submits that there are 16 strata lots and 16 CP parking stalls with 1 CP parking stall assigned to each strata lot. I accept this to be true if all owners or tenants in the building require at least one parking stall. There is insufficient evidence before me to determine if the strata’s claim is reasonable given the circumstances.  In the event one or more owners or tenants do not require a parking stall, the strata would be fully within its rights to assign more than 1 CP parking stall to an owner or tenant as it did for nearly 30 years by assigning stalls 11 and 12 to the owner. It would be unreasonable for the strata to assign parking stalls in such a fashion if all owners and tenants required use of a parking stall.

42.      At some point, possibly in October 2015, when Mr. Kedgley became a resident owner, I find the strata essentially cancelled the short term designation of stall 11, which it was entitled to do.  The strata says stall 11 was assigned to a strata lot owned by Mr. Kedgley’s company. However, no evidence was provided as to when the strata may have decided to reassign the stall.

43.      I find I do not need to determine when the strata decided to reassign stall 11.  That the strata has discretion to reassign the CP stall 11 is sufficient reason for me to find the owner is not entitled to permanent and exclusive use of stall 11.

44.      I agree with the owner that the manner in which the strata cancelled the designation, apparently without notice, on its face appears unreasonable. However, to the extent the owner claims that Mr. Kedgley acted without the authority of the strata council, or with malice, or the strata council acted in a significantly unfair manner, I find there is insufficient evidence before me to consider such a claim.

45.      As noted earlier, I have accepted the ownership structure of strata lots involving Mr. Kedgley to be as set out in the strata lawyer’s August 18, 2016 letter. The ownership structure does not indicate Mr. Kedgley controls more than 50% of the strata’s votes.

46.      Further, I have noted earlier that 3 of the 7 members of the strata council have the same last name as Mr. Kedgley.  That does not necessarily mean he controls the voting of the strata council.

47.      I am aware that this tribunal, in Hales v. The Owners, Strata Plan NW 2924, 2018 BCCRT 91, determined that short term exclusive use designations of CP must be in writing (at paragraph 82).  Though not binding on me, I agree with that decision.  However, the issues before the tribunal in Hales are not the same issues before me. In Hales, one of the claims before the tribunal was the unlawful grant of short term exclusive use of CP. Here, it is not disputed that the owner and her tenant used stalls 11 and 12.  That the grants were not in writing does not mean they did not exist, even if they were unlawful. 

48.      I note this to encourage the strata to make future short term designations and renewals of CP parking stalls in writing to avoid any misunderstanding that a short term grant of exclusive use of CP is permanent and ongoing, as is what I suspected happened here.

49.      With respect to the LCP stall located next to parking stall 12, this area was clearly designated as LCP for SL 14 in May 1986.  Aside from the owner’s assertion that she did not choose this area, there is no evidence to support her claim that the owner developer did not register the correct area or the parking stall she chose in 1986 as LCP for SL 14.

50.      Based on the definition of LCP under the SPA, the owner does have permanent exclusive use of the LCP stall unless the LCP designation is removed as permitted under the SPA. I decline to order the owner has permanent and exclusive use of her LCP stall as requested by the owner, given the LCP designation can change.

51.      For the above reasons, I find the owner is not entitled to permanent exclusive use of the 2 parking stalls she was using until October 2015 and I dismiss the owner’s claim in this regard. Based on the evidence, the owner is currently entitled to use her LCP stall and CP stall 12.

52.      Nothing in this decision restricts the owner from asking the strata to change her CP parking stall or remove and re-designate her LCP stall according to the SPA requirements.

Should I order the strata to install a bike rack for the owner’s second parking stall?

53.      As noted earlier, at the March 2015 AGM the strata passed a ¾ vote resolution to install 16 bike racks in the underground parking garage.  The language used in the resolution was that the bike racks would be located on the wall of “sixteen parking spaces” for ”the individual parking stalls in the underground parking stalls”

54.      While it is clear the resolution approved the installation of 16 bike racks, the locations the bike racks were to be installed on the garage walls was not clear.

55.      The strata installed a bike rack at the head of the owner’s LCP stall. The owner wants a bike rack installed at the head of her assigned CP stall 12, which currently does not have a bike rack.  Given the resolution approved only 16 bike racks, it is not reasonable for the strata to install an additional bike rack at the head of her second parking stall 12 and I decline to make that order.

56.      However, the evidence does not show the owner, or any owner, was consulted regarding the location of bike racks.  It appears the strata made an arbitrary decision to install the owner’s bike rack at the head of her LCP stall.  Given the owner’s LCP stall is not identified as a parking stall on the strata plan, and that the vast majority of the bike racks were installed at the head of CP parking stalls, I find it reasonable for the owner to have expected a bike rack would be installed at the head of her CP stall.

57.      Therefore, I find the owner is entitled to request the strata relocate the bike rack currently installed at the head of her LCP stall to the head of stall 12, at the strata’s expense.

Should I order the strata to ensure Mr. Kedgley does not deal directly with the owner about the strata’s business?

58.      In their submissions, the parties agreed that this issue had been resolved because, since this commencement of this dispute, Mr. Kedgley was no longer communicating directly with the owner.

59.      As a result, I decline to make an order in this regard.

Should I order the respondents to reimburse the owner $225.00 for tribunal fees paid and $797.32 for dispute-related legal expenses?

60.      Under section 49 of the Act, and the tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. Here, there has been divided success. The owner was unsuccessful in her claim for permanent and exclusive use of stalls 11 and 12 but partially successful in her claim for the bike rack installation. I was unable to conclude that Mr. Kedgley acted outside the scope of the strata council, and that his actions were based in malice and harassment. Therefore, I find Mr. Kedgley is not responsible to pay the owner’s tribunal fees or dispute-related expenses.

61.      Regarding tribunal fees, I find the strata must reimburse the owner $100 based on her partial success and I so order. 

62.      The owner did not provide evidence of her dispute-related legal expenses such as copies of her lawyer’s invoices.  Further, given the self-representation provision in section 20 of the Act, the tribunal does not generally order reimbursement of legal fees. For these reasons, I make no order regarding reimbursement of dispute-related expenses.

ORDERS

63.      I order the strata, within 30 days of the date of this decision, to pay the owner $100 as partial reimbursement of tribunal fees.

64.      The owner is entitled to post judgement interest on the $100 under the Court Order Interest Act.

65.      I order that if the owner wants the bike rack currently installed at the head of her LCP stall relocated to her the head of stall 12, she must provide a written request to the strata within 30 days of the date of this decision.  In that event, I order the strata, at its expense, to have the bike rack relocated as described above within 30 days of receiving the owner’s written request.

66.      I order all other claims of the owner are dismissed.

67.      Under section 189.4(b) of the 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. I order the strata ensure that no part of the strata’s expenses with respect to defending the owner’s claims be allocated to the owner.

68.      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.

69.     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.