Date Issued: July 31, 2018

File: ST-2017-005661

Type: Strata

Civil Resolution Tribunal

Indexed as: Erdmann v. The Owners, Strata Plan KAS 2452, 2018 BCCRT 398

Between:

Theodore Erdmann

Applicant

And:

The Owners, Strata Plan KAS 2452

Respondent

REASONS FOR DECISION
Tribunal Member:	Shaun Ramdin

INTRODUCTION

1.         The applicant, Theodore Erdmann (owner), owns strata lot 20 in the respondent strata corporation, The Owners, Strata Plan KAS 2452 (strata).

2.         The owner seeks a declaration that all assets built by the developer that support the strata lots, whether on common property or individual lots, are common property to be maintained by the strata.  In particular, he says the retaining wall on the perimeter of his lot is common property to be maintained by the strata.

3.         The strata disputes the relief sought by the owner.  In particular, the strata says that all lots owners are responsible for the maintenance of their lots, including retaining walls on their property.

4.         The applicant is self-represented.  The respondent is represented by a strata council member.

5.         For the reasons that follow, I dismiss the owner’s claims.

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 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 tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, e-mail, 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.  An oral hearing was not requested.

9.         Under section 48.1 of the Act and the tribunal rules, in resolving this dispute the tribunal may make one or more of the following orders: 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.      Who is responsible for repairing and maintaining the retaining wall on the perimeter of the owner’s strata lot?

b.      Is the owner entitled to be reimbursed $225.00 for tribunal fees?

BACKGROUND AND EVIDENCE

11.      I have reviewed all of the evidence provided.  I refer only to evidence I find relevant to provide context for my decision.  That evidence is largely undisputed.

12.      The strata is a bare land strata and was created in November 2002.  It consists of 37 lots and is located in Osoyoos, British Columbia.

13.      The lots are essentially arranged in an oval, with six lots in the middle.  There is only one way into and out of the strata, and that is a driveway which connects with the street on the strata’s northeast perimeter (driveway).  The driveway loops around the six lots in the middle. 

14.      The strata plan shows that the back of 12 lots, including the owner’s, form the southeast perimeter of the strata.  Another strata corporation, Casita Del Sol, borders the other side of the strata’s southeast perimeter.

15.      There is a retaining wall at the back of the lots comprising the southeast perimeter, including the owner’s lot.  The retaining wall is made of interlocked concrete blocks, stacked three deep.  The height and width of each block on the owner’s lot is 77 cm and the length is 152 cm.

16.      In June 2017, Casita Del Sol’s council wrote to the strata council requesting it remedy water damage and erosion to one of Casita Del Sol’s lots.  Casita Del Sol’s council explained that it had obtained a geotechnical report that indicated the water damage may have been caused by the strata’s southeast perimeter retaining wall.  Specifically, the geotechnical report related the water damage to issues with the retaining wall at the owner’s lot and the neighbouring lot 21.

17.      Subsequently, the strata council obtained a survey to determine whether the retaining wall on the southeast perimeter of the strata was within the strata’s property line or within Casita Del Sol’s property line.  The survey confirmed that the perimeter retaining wall was within the strata’s property line and on the owner’s strata lot.

18.      On August 30, 2017, the strata council held a Special General Meeting (SGM).  The minutes from the SGM reflect that the strata council called a vote on the question: “will the strata take on the responsibility of building and maintaining all retaining walls on the perimeter of the strata, with funds coming out of the contingency fund?” (question).

19.      The question was defeated. The voting was done by secret ballot and the results were 22 ‘no’ and 7 ‘for’.  There was one abstention.  That was the owner who was out of town.  The SGM minutes state that as a result of the question having been defeated, “the strata will not be responsible for building or maintaining perimeter retaining walls”.

20.      On September 20, 2017, legal counsel for the strata wrote to Casita Del Sol’s council to advise that the strata had complied with the all of the remedial recommendations in Casita Del Sol’s geotechnical report in respect of strata common property.  This included redirecting drain eavestroughs to drain onto the road and shutting off the watering of cedars on lots 20 and 21.  Counsel for the strata advised that Casita Del Sol should direct any further concerns to the owner and the owner of lot 21 as they own their lots.

21.      In October 2017, the owner notified the council he had initiated this dispute.

POSITIONS OF THE PARTIES

22.      The owner does not dispute that the perimeter retaining wall is on his lot.  He submits, however, that as the retaining walls were built to support more than one lot within the strata, it follows that they are common property. 

23.      In support of his position, the owner notes that the strata maintains certain common property beneficial to all owners, such as irrigation and hedges. He also notes that there are bylaws that require the strata to maintain common property that are on individual strata lots, such as utility boxes and storm pits, and that section 69 of the Strata Property Act allows for access to common property on strata lots.  He also states that he was not aware the retaining walls were not common property at the time he purchased his lot in 2014.

24.      The strata acknowledges that it maintains certain strata common property.  However, the strata says the perimeter retaining wall is not common property.

25.      In support of its position, the strata says that there is nothing registered with the town or Land Registry Office to suggest the perimeter retaining wall is common property.  Further, the common property utility boxes are owned by the electricity provider and were placed on individual lots with the respective owners’ agreements.

26.      The strata also notes that the question was put to a vote, which was defeated.  The strata states that at the time of purchase, the owner would have been provided with three years of previous council minutes, a copy of the by-laws, and a blueprint of the lot.

ANALYSIS

Who is responsible for repairing and maintaining the retaining wall on the perimeter of the owner’s strata lot?

27.      I acknowledge the owner’s argument that the retaining wall runs along more than one lot in the strata.  However, for the following reasons I do not find that the retaining wall is common property.

28.      In particular, the documentary evidence does not support a finding that the retaining wall is common property. 

29.      Section 72 of the Strata Property Act says the strata must repair and maintain common property and that the strata may, by bylaw, take responsibility for repair and maintenance of specified portions of a strata lot.

30.      It is undisputed that the retaining wall is on the owner’s strata lot.

31.      The only designated common property on the strata plan is the driveway. 

32.      The strata acknowledges that it does maintain certain common property other than the driveway.  However, this is specifically designated in the strata’s bylaws.   The relevant bylaws are those registered in October 2008, which repealed the initial bylaws registered in November 2002. 

33.      Bylaw 10 provides that the strata must repair and maintain the strata’s common property not designated limited common property.  It also requires the strata to maintain:

a.    the clubhouse;

b.    the swimming pool;

c.    the gate and its components,

d.    the roadways and the storm drainage system;

e.    the street and all other lighting and electrical components; and

f.      the perimeter cedar shrubs and buried irrigation system.

34.      Significantly, bylaw 10 does not require the strata to maintain the perimeter retaining wall, despite clearly considering the cedar shrubs and buried irrigation system which run along the perimeter.  This supports a finding that the retaining wall is not common property.

35.      In relation to this, as noted above, at the August 30, 2017 SGM, the strata voted against assuming responsibility for the perimeter retaining walls.  In his submission, the owner notes that he objected to the July 2017 motion to set the SGM for August 30, 2017 on the basis that he would be out of town until mid-September 2017.  Nonetheless, the owner does not dispute the voting procedure deployed for the question, nor does he dispute the results.  On my review of the minutes, I find that the voting procedure in respect of the question was consistent with bylaw 29, which outlines the voting procedure.

36.      Further, as shown in photographs provided by the parties, the retaining wall is comprised of interlocking blocks and is not a continuous wall.  As a result, the section of the wall on the owner’s lot provides support only to his property, just as the sections of it on the other lots provide support only to those respective lots. 

37.      I disagree with the owner’s submission that section 69 of the Strata Property Act somehow makes the wall common property.  While section 69 does allow for an easement for each strata lot for vertical and sideways support by common property and for common property, it does not create common property. 

38.      In summary, given the evidence, I find that the owner is responsible to repair and maintain the retaining wall on the owner’s property.  Accordingly, I dismiss the owner’s claim.

39.      Based on my conclusion above, I need not address the owner’s requested remedies.

Issue Two: Is the owner entitled to be reimbursed $225.00 for tribunal fees?

40.      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.  The strata has been the successful party in this dispute but has not claimed tribunal fees or dispute-related expenses.  I decline to order reimbursement of the owner’s tribunal fees and expenses.

DECISION AND ORDERS

41.     I order that the owner’s claims are dismissed.

42.     Under section 189.4 of the Strata Property Act, an owner who brings a tribunal claim against a strata corporation is not required to contribute to any monetary order issued against the strata corporation or to any expenses the strata corporation incurs in defending the claim. I order the respondent to ensure that no part of the expenses incurred by the respondent in defending this claim, are allocated to the applicant owner.