Date Issued: August 2, 2018

File: ST-2018-000421

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan BCS 945 v. Miller, 2018 BCCRT 414

Between:

The Owners, Strata Plan BCS 945

Applicant

And:

Michael Miller

Respondent

REASONS FOR DECISION
Tribunal Member:	Karen Mok

INTRODUCTION

1.        The applicant, The Owners, Strata Plan BCS 945 (strata), is a strata corporation located in Surrey, BC.

2.        The respondent, Michael Miller (owner), owns strata lot 60, or unit 35, in the strata.

3.        This dispute involves the manner in which the owner parks his truck halfway inside his garage and halfway on the parking pad outside of the garage, with the garage door open, and his construction of a false door in his garage. 

4.        The strata claims that by parking with the garage door open and failing to remove the false door in the garage, the owner is in contravention of its bylaws and has levied fines against him, which remain outstanding.

5.        The owner argues that he is not in contravention of the bylaws and should be permitted to park in the manner he has.

6.        The strata is represented by a council member and the owner is self-represented.

JURISDICTION AND PROCEDURE

7.        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.

8.        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.

9.        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.

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.     Should I order the owner to stop parking his truck with the garage door open?

b.     Should I order the owner to remove the false door in the garage?

c.      Is the owner required to pay the fines imposed on him and if so, how much must he pay?

d.     Is the strata entitled to reimbursement of tribunal fees?

e.     Is the owner entitled to reimbursement of his legal expenses?

BACKGROUND AND EVIDENCE

12.     The applicant strata bears the burden of proving its claims on a balance of probabilities.

13.      I have reviewed all of the submissions and evidence but have addressed them only to the extent needed to explain my decision.

14.     The strata was built in 7 phases between July 2004 and June 2005 and is located in Surrey, BC. It comprises 23 separate buildings, with a total of 175 strata lots.  Each strata lot is 3 levels with a garage on the ground level.

15.     The strata plan shows that each strata lot’s garage forms part of the strata lot and the corresponding parking pad, or driveway, is common property.        

16.     The relevant strata bylaws are those registered at the Land Title Office on January 6, 2006 with the last bylaw, bylaw 45(4), being included as an amendment filed on May 28, 2010.  They can be summarized as follows:

Bylaw 7.1 – an owner must obtain the strata’s written approval before altering a strata lot.

Bylaw 8.1 – an owner must obtain the strata’s written approval before altering common property, including limited common property or common assets.

Bylaw 27.1 – the strata may fine an owner for contravening a bylaw.

Bylaw 39.4 – a resident must not park a vehicle in a manner that interferes with parking stalls, access lands or no parking zones.

Bylaw 39.8 – vehicles must park within the perimeter of the assigned parking spaces. 

Bylaw 45(4) – garage doors are to be kept closed when the garage area is not in use.           

17.     The owner purchased strata lot 60 on December 7, 2015. 

18.     The owner drives a large pick-up truck that does not fit completely in his garage.  As is shown in the photographic evidence, the owner backs the truck into his garage and parks it halfway inside his garage and halfway on the parking pad, with the garage door open.

19.     Also evidenced in the photographs is a wood framed false door that lines up against the garage door frame and goes around the truck when parked, sealing the space between them both.   

20.     In December 2015, shortly after taking possession of his unit, the owner advised the strata of how he parked his truck and that he was in the process of building a false door to seal the garage door entry from pests. 

21.     Between December 2015 and March 2017, the strata wrote 10 letters to the owner advising him that his manner of parking was in contravention of bylaw 45(4), which required the garage door to be closed when the garage area is not in use, as well as bylaws 39.4 and 39.8.  In April 2016, the strata began to levy fines against him for this alleged infraction.

22.     Also, from April to November 2016, the strata wrote 5 letters to the owner advising him that he had made an alteration to his garage without the strata’s approval, in contravention of bylaw 8.1.  In September 2016, the strata started levying fines against him for this alleged infraction. 

23.     From the evidence, it appears that the owner emailed the strata on three occasions, between January to March 2016, in response to some of the above letters but did not receive a direct reply.   

24.     In December 2016, the owner requested a hearing to ask for permission to park his truck in the manner noted above. A hearing was to be held on January 19, 2017.  The owner attended but there was no one else at the meeting due to a lack of quorum.  The hearing was then rescheduled to January 25, 2017.  The owner says that the hearing proceeded but to date, the strata had not provided him with its decision. 

25.     According to the statement of account the strata addressed to the owner, as of April 2018, he had been fined $7,500 for the alleged bylaw infractions.

POSITION OF THE PARTIES

26.     The strata says that the owner is in contravention of its bylaws by parking his truck with the garage door open and building an additional door in the garage without the strata’s approval.  The strata says that the fines levied against the owner remain outstanding.

27.     The strata requests that I order the owner to stop parking his truck with the garage door open, remove the false door and pay the outstanding fines in the amount of $6,247.29.  The strata also seeks reimbursement of its tribunal fees totalling $225.00. 

28.     The owner argues that he is not in contravention of the bylaws and should be permitted to park in the manner he has.

29.     The owner requests that I dismiss the strata’s claim.  He also seeks reimbursement of legal fees he incurred in defending against the claim, in the amount of $2,000.

ANALYSIS

Should I order the owner to stop parking his truck with the garage door open?

30.     The strata says that by parking his truck halfway in the garage and halfway on the parking pad, the owner is in contravention of bylaw 45(4), which requires the garage doors to be kept closed when the garage area is not in use.

31.     Although not included as part of its submissions, the strata provided evidence to suggest that the owner may also be in contravention of bylaws 39.4 and 39.8.  There is no evidence before me to indicate that either or both of those bylaws are applicable to the parking situation found here.

32.     The owner argues that the term “not in use” is not defined in the bylaws and under a plain language definition of “use”, parking his vehicle constitutes use of the garage area such that the garage door may remain open.

33.     I agree with the owner.  The language used in the bylaws is to be given its plain and ordinary meaning (Great Western Railway Co. v. Carpalla United China Clay Co. (1990), 1 Ch. 218 (C.A.), referred to in Harvey v. Strata Plan NW 2489, 2003 BCSC 1316 (B.C.S.C.)).  On a plain reading of the definition of “use”, I find that the parking of the owner’s truck halfway in and out of the garage is use of the garage area and as such, his garage door need not be kept closed.

34.     I find, therefore, that the owner is not in contravention of bylaw 45(4).  Accordingly, I decline to order him to stop parking his truck in the manner he has with the garage door open.  This claim is dismissed.  

Should I order the owner to remove the false door from the garage?

35.     The strata claims that the owner’s construction of the false door is an alteration that required the strata’s written approval. It is undisputed that the owner did not obtain the strata’s approval.  The strata says that he is in contravention of Bylaw 8.1.

36.     The owner says that the false door is on hinges and can be opened and closed manually.  He says the purpose of the false door is to prevent pests from entering into his unit so that he is not in contravention of bylaw 45(4).

37.     The photographs submitted in evidence show that the false door is inside the garage, which forms part of the strata lot and is therefore not common property.  As such, bylaw 7.1 rather than bylaw 8.1 applies.  Accordingly, I find that the owner was not in contravention of bylaw 8.1.

38.     While this would normally end the matter, I find it is necessary for me to address whether the owner’s construction of the false door contravenes bylaw 7.1, given that the strata is seeking an order that the owner remove the door.

39.     The photographs also indicate that the false door can be easily moved away from the garage door frame. 

40.     In determining what constitutes an alteration in the context of strata bylaws, where a change to the structure of the property is not required, it cannot be an immaterial change (see Allwest International Equipment Sales Co. Ltd. v. Strata Plan LMS 4591, 2018 BCCA 187).  Although the Allwest decision refers to alterations made to common property, this analysis applies equally to alterations made to a strata lot, as is the case here.

41.     In my view, the construction of the false door is an immaterial change to the garage.  It is impermanent and movable, and once taken off its hinges, the garage remains in its original condition.   

42.     For these reasons, I find that the construction of the false door is not an alteration that requires the strata’s approval such that the owner is in contravention of bylaw 7.1.  

43.     Given that there is no bylaw infraction arising from the construction of the false door, I decline to make an order for the owner to remove it.  This claim is dismissed.    

Is the owner required to pay the fines imposed on him and if so, how much must he pay?

44.     Bylaw 27.1 allows the strata to fine an owner for a contravention of a bylaw.

45.     Having found that the owner is not in contravention of any relevant bylaws for parking his truck with the garage door open or for constructing the false door without the strata’s approval, the strata is then not authorized to levy fines against him.

46.     I find, therefore, that the owner is not required to pay the $6,247.29 in fines.  I dismiss this claim.

Is the strata entitled to reimbursement of tribunal fees?

47.     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.  I see no need to deviate from this general rule.  The strata has not been successful with respect to its claims.  Accordingly, I decline to order the strata be reimbursed for tribunal fees paid.

Is the owner entitled to reimbursement of his legal expenses?

48.     Tribunal rule 132 says that, except in extraordinary cases, the tribunal will not order one party to pay another party’s legal fees. This follows from the general rule in section 20(1) of the Act that parties are to represent themselves in tribunal proceedings.

49.     The owner says that he has not contravened any of the bylaws yet was forced to defend himself against the strata’s claims and incurred substantial legal fees. 

50.     The strata says that the owner chose to engage a lawyer to assist him and as such, should not be entitled to recover legal fees regardless of the outcome of this dispute.

51.     Given the tribunal’s general mandate that parties be self-represented, I am not persuaded that this is an extraordinary case such that I should order the owner’s legal fees be reimbursed.

ORDER

52.     I order the strata’s claims are dismissed.