Date Issued: April 25, 2018

File: ST-2017-002190

Type: Strata

Civil Resolution Tribunal

Indexed as: O’Connor v. The Owners, Strata Plan VR 2105, 2018 BCCRT 153

Between:

Diane O’Connor

Applicant

And:

The Owners, Strata Plan VR 2105

Respondent

REASONS FOR DECISION
Tribunal Member:	Sherelle Goodwin

INTRODUCTION

1.        The respondent, The Owners, Strata Plan VR 2105, (strata) is a strata corporation consisting of 60 residential strata lots in 3 buildings, in Vancouver, British Columbia. The strata is represented by a strata council member.

2.        The applicant, Diane O’Connor (owner) is the registered owner of strata lot 6, or unit 110. The applicant is self-represented.

3.        Unit 110 is a ground floor strata lot, with two separate yard areas designated as limited common property (LCP) for strata lot 6 on the strata plan. The southern LCP area constitutes the owner’s backyard area that includes a patio.   

4.        The owner claims that her backyard is 5 feet shorter than what it should be, according to the strata plan. She requests an order requiring the strata to remove the pathway and hedges currently located on that five feet of LCP in her backyard and to extend the fencing on the east and west edges of her yard by five feet. She also requests an order requiring the owner of unit 109 to remove his privacy fence from his east side fence post, and that the strata be required to pay for it.  

5.        The strata agrees that the owner does not have exclusive use of  the southern 5 feet of the LCP backyard area designated for strata lot 6 on the strata plan. However, the strata says that it has taken steps to remedy the situation for strata lot 6, along with the other affected strata lots which also do not have exclusive use of some of their allotted LCP. It argues that it was unable to remedy the situation earlier due to other, more urgent, strata obligations.

JURISDICTION AND PROCEDURE

6.        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.

7.        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.

8.        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.

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

10.     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

11.     The issues in this dispute are:

a.    Is the applicant out of time under the Limitation Act to bring this dispute?

b.    Should the strata be required to make changes to the LCP for strata lot 6 in the way of extended the fencing and removing the common path and hedges and the neighbour’s privacy fencing?

c.    Should the strata reimburse the owner $225 for her tribunal fees and/or $50.40 for her dispute-related expenses?

12.     In this dispute the owner initially raised further claims relating to bylaw fines and the production of information by the strata. The parties have reached an agreement on these issues prior to this adjudication. Those issues are thus not before me in this decision.

BACKGROUND AND EVIDENCE

13.     I have reviewed and considered all of the evidence and information that the parties have put before me. I will not recite all information and will only set out the relevant information and evidence needed to give context to my decision.

14.     The applicant purchased strata lot 6 around July 26, 2012. 

15.     According to the strata plan filed on March 1, 1988, the south LCP for strata lot 6 extends 5.69 meters, or 18 feet and 6 inches, from the rear of the building. The strata plan designates the area as LCP for the exclusive use of strata lot 6. The owner states that the fencing on the east and west sides of her backyard extends only 13 feet and 6 inches from the rear of the building. She further states that a common pathway and some hedges are located on the south side of her back garden within the LCP dimensions shown on the strata plan. Thus, she does not have exclusive use of the southern 5 feet of the LCP designated for the exclusive use of strata lot 6.

16.     The strata registered amended bylaws on November 29, 2001. The bylaws relevant to this dispute are summarized below:

•          Bylaw 6(1): An owner must obtain the written approval of the strata before making any alteration to common property, including LCP.

•          Bylaw 8: The strata must repair and maintain common property.  It must also repair and maintain fences, railings and similar structures that enclose patios, balconies, and yards. Repair and maintenance costs for these items are the responsibility of the strata.

17.     The strata agrees that the backyard fencing for strata lot 6 does not extend the full length of the area designated as LCP on the strata plan.

18.     The owner states that there are 5 other ground floor strata lots in her building with backyard LCPs which are also "short” by 5 feet, according to the strata plan. From my review of the strata plan I understand these to be strata lots 3, 4, 5, 7 and 8.

19.     Strata lot 5 is unit 109, located to the west of unit 110.  There is a shared fence between their backyards. The owner of unit 109 has installed a privacy fence along the south boundary of his backyard LCP. That south border fence is attached to the shared fence between units 109 and 110.

20.     I understand that the owner met with the strata council regarding the issue in September 2012 but there are no minutes of that meeting or other documentation before me. The owner emailed the now former president of the strata council regarding the issue. On February 13, 2013 the president responded that the council had the original strata plan. He noted that the fences running from north to south between the back yard areas of the ground level strata lots were common property and that some of the ground level strata owners had installed their own privacy fencing along the south border of the backyards. Council had to determine to what extent the fences around the back gardens complied with the strata plan.

21.     The strata arranged for a survey of the back patios of strata lots 4, 5, and 6 on May 17, 2013. The results of the survey have not been produced in this dispute.

22.     On April 29, 2014 the owner asked the strata to comply with the strata plan by providing new fencing and new ground covering for all units affected, relocate the common use pathway currently running through the 5 feet of LCP at issue, and replace the pathway’s hedges. She said that she had raised the issue at a recent strata meeting.

23.     The strata says that there was a building envelope and grounds remediation project ongoing from 2014 to mid-2016, which prevented it from completing any landscaping projects. An email from the former strata council president in February 2015 indicates that the south patios on the ground floor would be rebuilt following the removal of the scaffolding from the remediation project. At the February 2015 annual general meeting the strata indicated that the project was almost complete, but for the fences and landscaping.

24.     On May 21, 2015 the owner again requested that the strata comply with the strata plan and extend the fence along her backyard patio. Her request for repairs was acknowledged at the July 2015 strata council meeting, but no plans to address the issue were documented.

25.     On April 11, 2016 the owner advised the strata that she intended to modify her back garden area to comply with the strata plan. On April 22, 2016 the strata’s property management company advised the owner that unauthorized modifications to LCP were prohibited under the Strata Property Act (SPA) and that a consultation process was under way to reach a resolution that respected the rights of all strata owners. The manager anticipated that the process would result in a ¾ vote of unit owners to modify the LCP at issue, as required by the SPA.

26.     In approximately April 2016 a strata council endorsed sub-committee was created to develop recommendations for a design that would extend the back garden, or south patios of the affected strata lots to comply with the LCP boundaries designated in the strata plan. It is not clear what, if any, recommendations or design plans were put forth by the committee to the strata.

27.     The strata says that the back gardens are visible from the other strata lots, as the buildings use external walkways. The fencing, pathways, and landscaping at the southern boundary of those affected strata lots is also visible to the other units and is used by other strata owners.

28.     At the August 2016 strata council meeting the council reviewed the LCP issue relating to the back yard areas, noting that the issue would be addressed at the next annual general meeting (AGM). The AGM was held on March 22, 2017. The LCP issue was discussed as new business, no resolutions were proposed.

29.     At the November 28, 2017 strata council meeting it was noted that a special general meeting planned for September 2017 had not occurred, but that the LCP issue with the back patios would be addressed at the February 21, 2018 AGM. The minutes show the proposed agenda would include a resolution for the strata owners to vote on.

30.     The strata advised that there was no resolution of the backyard LCP issue put forth at the February 21, 2018 AGM. The meeting minutes indicate that the issue was discussed as outstanding business from 2017. The matter was to have been addressed at a special general meeting which could not be organized due to frequent turnover of property managers. The minutes indicated that the LCP changes had been initiated as the council was searching for, and meeting with, a landscape designer to develop a plan to address the LCP issues.

31.     At the February AGM an operating budget was passed that included an amount of $5,000 to remedy the LCP issue, as well as further funds for other necessary landscaping changes.

32.     The strata provided copies of emails and notes of a council member between February and March 2018, setting out their efforts to locate and meet with a landscape designer.   

33.     In a letter dated December 5, 2017 the owner of unit 109 agreed that his privacy fencing could be removed, at the expense of the strata, to extend the east fence of unit 110 (strata lot 6) in compliance with the strata plan. He would pay to have his privacy fence reinstalled at his expense, once the strata’s work was done.

POSITION OF THE PARTIES

34.      The owner argues that correcting the south boundary of her LCP is not an alteration, but a correction required to comply with the strata plan. As such, no ¾ vote of the owners is required. She submits that extending the LCP of her back patio will not change the aesthetics of the property, noting that the strata only has to move the path and the hedges back.

35.     The owner submits that the strata was aware that her back patio boundaries did not comply with the strata plan prior to the rehabilitation of the project, as the survey was conducted in 2013. She argues that the strata could have rectified the situation before, or after, the rehabilitation of the building.

36.     The owner submits that she paid $225 for tribunal fees, and $50.40 in costs for PDF evidence. No invoices or other documents were provided to support the owner’s expenses.

37.     The owner requests an order requiring the strata to extend the fencing on both sides of her backyard patio by 5 feet south, and remove the common path and hedges currently located in that area, as well as the privacy fencing on the fence post between her unit and unit 109. She also requests reimbursement of $225 in tribunal expenses and $50.40 in dispute-related expenses.

38.     The strata argues that it only discovered that the owner did not have exclusive use of her entire backyard area in 2014, during the building rehabilitation project and that it could not complete any landscaping due to that project until July 2016.  It further submits that more urgent matters required the attention of the strata, such as failing water pipes, replacement of the water system and fire alarm system. It also submits that poor property management resulted in its inability to get a resolution onto either the March 2017 or the February 2018 AGM agenda to deal with the LCP issue. 

39.     In later submissions the strata argued that it had taken steps to find a landscape designer and to create a plan to remedy the backyard LCP issue for all strata lots affected, as well as the common property to the south of the LCP areas. 

40.     The strata submits that the owner was seeking an alteration to the LCP which would directly affect the owners of the other ground floor strata lots with the same LCP issue. Furthermore, the alteration would be visible to all strata owners, due to the open stairway access to the units located above the ground floor strata lots in the building. The strata argued that this is a significant change to the common property which requires a ¾ vote at a general meeting under section 71 of the SPA.

41.     The strata further argues that the owner should not be reimbursed any expenses. It submits that it has taken steps to address the LCP south boundary issue and that it was not necessary for the owner to file a dispute with the tribunal.

ANALYSIS

Are the owner’s claims out of time under the Limitation Act?

42.     The owner argues that the strata became aware of the issue with her lack of exclusive use of the southern 5 feet of her backyard LCP in 2012. Before considering the merits of the claim, I must first determine whether any of the owner’s claim is out of time under the Limitation Act. 

43.     Section 13 of the Act confirms that the Limitation Act applies to disputes filed with the tribunal. Section 6 allows two years for a person to file a claim with the tribunal for all strata claims. The current version of the Limitation Act came into force on June 1, 2013. Section 30 sets out that the former version of the Limitation Act applies to claims that pre-existed June 1, 2013. Under the former legislation, a person generally has six years to file a claim regarding strata property issues.

44.     Both versions of the Act set out that a claim is discoverable when the person knew, or ought to have known, that damage or injury was caused by the act or omission of a person or entity and that, having regard to the nature of the damage, a court (tribunal) proceeding would be an appropriate manner to seek a remedy. 

45.     As the owner met with the strata council regarding the south LCP boundary of her backyard in September 2012 it seems she was aware of the claim at that time. Although the strata argues that it was not aware of the issue until the building rehabilitation project in 2014, this is not consistent with the fact that a survey was conducted of strata lot 6 in May 2013. I find that both the owner and the strata were aware of the LCP issue prior to June 1, 2013. As such the owner’s claim falls under the former Limitation Act and a 6-year time limitation applies to her claim.

46.     I find that the owner has filed her claim within that 6-year period. Even if I accept that the owner knew of the LCP issue in her backyard when she purchased her property in July of 2012, she has filed her dispute with the tribunal before July 2018, or within the 6-year limitation period.

47.     For these reasons, I find the owner’s claims are not out of time under the Limitation Act.

Should the strata be required to make changes to the LCP for strata lot 6 in the way of extended fencing and removal of the common walkway and hedges?

48.     As in any civil claim, the applicant bears the burden of proving their case, on a balance of probabilities.

49.     I accept that the owner currently does not have exclusive use of the southern 5 feet of LCP yard area designated to her strata lot on the strata plan. As the owner says that the common pathway and hedges encroach on that 5 feet, and the strata has not provided any evidence to the contrary, I accept that this is so. In order to provide exclusive use of that area to the owner, the common pathway and hedges must be removed from the LCP designated area. I find this to be the responsibility of the strata, under it’s duty to maintain and repair common property established under section 72 of the SPA and Bylaw 8.

50.     Bylaw 8 also requires the strata to maintain and repair LCP fencing that encloses patios and yards. Such an obligation applies to fencing already in place. It does not, however, require the strata to install new fencing which was not previously there, either between strata lots or to fully enclose designated LCP. There is no requirement, under either the strata’s bylaws or the SPA, for the strata to physically barricade or enclose designated LCP areas.

51.     I do not find that the strata has an obligation to extend the fencing on both sides of the owner’s backyard patio a further 5 feet. However, given that the strata has installed fences between the strata lots, it may wish to extend those fences a further 5 feet, even if there is no obligation to do so. I leave that to the strata to determine.

52.     As I do not order the strata to extend the fencing along the sides of the owner’s backyard, it is not necessary for me to address the owner’s request to have the privacy fencing removed from the joint fence post between her strata lot and strata lot 5.

53.     The strata argues that the passing of a ¾ vote of owners is required before making the required changes of moving the path and hedges and extending the fence. Section 71 of the SPA governs the actions of a strata corporation in making significant changes to the use or appearance of common property (emphasis added). Section 1 of the SPA defines LCP as common property designated for the exclusive use of the owners of one or more strata lots. As LCP is, by definition, common property, I find that section 71 applies to LCP. Section 71 requires a ¾ vote to pass at an annual or special general meeting before the strata can make any significant changes to common property. 

54.     The owner argues that she is not requesting any alteration or change to the strata plan and thus a ¾ vote is not required. It is clear that there is no request to change the strata plan by removing or deleting LCP, which requires a ¾ vote to pass at a general meeting, under section 73 of the SPA. The requested ‘alterations’ to the LCP are more accurately defined as changes (or alterations) in the use or appearance of the LCP, not changes (or alterations) in the designation of the LCP.

55.     Section 71 of the SPA also requires a ¾ vote for a strata to make changes to the use or appearance of common property. It is clear that removing a pathway and removing hedges is a change to the use or appearance of the LCP for strata lot 6. The question is whether it is a significant change.

56.     In Foley v. The Owners, Strata Plan VR387, 2014 BCSC 1333, the court considered the meaning of “significant change” in section 71 and set out a non-exhaustive list of factors to consider:

•          The visibility of the change to residents and/or the general public,

•           Whether the change affects the use or enjoyment for one, or a number of units,

•          Whether the change creates a direct interference or disruption,

•          The impact of the change on the marketability or value of the unit, and

•          The number and type of units in the building.

57.     Strata lot 6 is one of 8 ground floor units with back gardens in this building. Extending the fencing of strata lot 6 would affect the owner’s neighbours, particularly as the owner’s backyard intersects with her the backyard of strata lot 5 at an angle, meaning that any changes to the south 5 feet of strata lot 6 will likely change the shape of the backyard of strata lot 5. I accept that the owners of other units on the floors above the ground floor will be able to see the change to the pathway and hedges currently located in the owner’s LCP. Furthermore, all residents of that building will be affected by the relocation of a common pathway and hedges bordering that path. For these reasons, I find that removing the path, and removing the hedge is a significant change in use and appearance of common property, which requires the approval of a ¾ vote before the strata can move forward.

58.     The strata has not yet held that vote. As noted earlier, it says that there were other, more urgent matters that required the attention of the strata, that they have been the victim of poor property management, and that the council has made best efforts to develop a design plan for the required changes to the LCP of strata lot 6 and the other affected strata lots.

59.     While I acknowledge the various issues and concerns that have plagued this particular strata council, it does not justify the lengthy delay I find occurred here. I find that the former president of the strata council was aware of the LCP issue in February 2013. By May 2013, at the latest, the strata would have been aware of the issue with the southern 5 feet of the LCP, as a result of the survey undertaken.

60.     The strata initially argued that the cost of the proposed changes would be above $2,000 and would thus require the passing of a ¾ vote resolution, as set out in section 98 of the SPA. In its most recent submissions, the strata says that an amount of funds for the proposed changes has been approved as part of the 2018 operating budget. As the expenditure is approved in the current operating budget, it is not necessary for the strata to pass a ¾ vote for the expense, provided the cost of the work does not exceed the amount approved in the budget. Only a resolution to make the changes in appearance needs approval by a ¾ vote.

61.     I understand the strata’s concern with performing a “patch” job on the backyard of strata lot 6 when there are 5 other strata lots requiring similar changes to their designated LCP. I acknowledge that, for reasons of both efficiency and aesthetics, it is logical to make all the changes to the strata lots at the same time. However, those owners are not parties in the dispute before me. 

62.     I order the strata to obtain at least two quotations to remove the common path and any hedges currently located in the designated south LCP for strata lot 6. These quotations must be obtained within 60 days of the date of this order.

63.     These 2 quotations, along with any others obtained by the strata, are to be presented at a general meeting with a ¾ vote resolution to approve the work required to remove the common path and hedges currently located in the south LCP of strata lot 6. The work may be funded by an expense from the operating fund, the contingency reserve fund, by a special levy or by any combination of those methods. The general meeting must be called within 30 days of receiving both quotes. If the resolution for the required changes to the appearance and use of strata lot 6 does not pass the parties are free to bring the matter before the tribunal in a fresh dispute.

64.     Nothing in this decision restricts the strata from obtaining quotes to extend the east and west fences of strata lot 6 or quotes to perform the same work for the other 5 strata lots that do not currently have exclusive use of their designated backyard LCP areas. Such work may include extending those fences and removing any common pathways or hedges in those backyards. The strata may include approval of alterations and funding  for those quotations at the general meeting called by the strata for a ¾ vote but it must be in a resolution separate from any work specifically relating to the LCP of strata lot 6.

 Tribunal and dispute-related expenses

65.     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 expenses related to the dispute resolution process. I see no reason in this case to deviate from the general rule.  While the strata has argued that filing a dispute was not necessary, I find that it was, given the delay of the strata in addressing this issue. The strata has not moved forward with addressing the owner’s concerns in any significant way for nearly five years and the owner was unable to remedy the situation herself. I therefore order the strata to reimburse the owner $225 for tribunal fees.

66.     The owner has also claimed $50.40 in expenses for PDF evidence. It is not clear to me what this amount is for and there is no supporting evidence. I do not find that this is a reasonable dispute-related expense and decline to order reimbursement of this amount.

DECISION AND ORDERS

67.     I order the strata to, within 60 days of the date of this decision, obtain at least two quotes to remove the common path and hedges that are located in the south LCP of strata lot 6. I order the strata to call a general meeting of the strata to consider a ¾ vote resolution to alter the south LCP of strata lot 6 consistent with the quotations by, within 30 days of receiving the quotes.

68.     I order the strata to reimburse the owner $225 in tribunal fees.

69.     The owner is entitled to post judgment interest on this amount under the Court Order Interest Act.

70.     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 owner.

71.     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.

72.     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.