Date Issued: August 21, 2018

File: ST-2017-004292

Type: Strata

Civil Resolution Tribunal

Indexed as: Keating v. The Owners, Strata Plan LMS 2486, 2018 BCCRT 454

Between:

Lawrence Keating                            

Applicant

And:

The Owners, Strata Plan LMS 2486

Respondent

AMENDED REASONS FOR DECISION
Tribunal Member:	Kate Campbell

INTRODUCTION

1.        The applicant, Lawrence Keating (owner) owns a strata lot in the respondent strata corporation, The Owners, Strata Plan LMS 2486 (strata).

2.        The owner says the strata should reimburse him for replacing the garage door attached to his strata lot, as it an exterior part of the strata building.

3.        The strata says the garage door replacement is the owner’s responsibility.

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

5.        For the reasons set out below, I find that the strata must reimburse the owner $1,038.45 for garage door replacement.

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.        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 issue in this dispute is whether the owner is entitled to reimbursement of $1,038.45 for garage door replacement.

EVIDENCE, FINDINGS & ANALYSIS

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

12.     The parties agree that the owner paid to replace the garage door attached to his strata lot in May 2017. The owner says the top 2 sections of the door were split, and that in April 2017 a member of the strata council told him the strata would not pay for the repairs.

13.     The strata initially said the garage door was limited common property (LCP). This is incorrect, as later acknowledged by the strata. The strata plan shows that the garage is part of the owner’s strata lot. Section 68(1) of the SPA states as follows:

Unless otherwise shown on the strata plan, if a strata lot is separated from another strata lot, the common property or another parcel of land by a wall, floor or ceiling, the boundary of the strata lot is midway between the surface of the structural portion of the wall, floor or ceiling that faces the strata lot and the surface of the structural portion of the wall, floor or ceiling that faces the other strata lot, the common property or the other parcel of land.

14.     In this case, the owner’s strata lot is separated from common property by the front wall of the garage, which includes the garage door. The strata plan does not show otherwise, so the strata lot boundary is midway between the structural portion of the wall.

15.     The strata says the garage door is on the inside of the wall’s centre, so it is part of the strata lot. There is no evidence before me (such as a photo) to establish that point. However, it is not necessary to make a finding about whether the garage door is common property or part of the owner’s strata lot, as the bylaws require the strata to pay for its maintenance and repair in either circumstance.

16.     Bylaw 2(1) says an owner must repair and maintain the owner’s strata lot, except for repair and maintenance that is the responsibility of the Strata Corporation under the bylaws.

17.     Bylaw (10)(1)(b) says the strata corporation must maintain common property that has not been designated as limited common property.

18.     Bylaw 10(1)(c)(ii)(F)(iv) says the strata corporation must repair and maintain doors or windows on the exterior of a building that front on the common property, even if they are part of a strata lot.

19.     The garage door in question is a door on the exterior of the building that fronts on common property. Therefore, under bylaw 10, the strata is responsible for maintaining and repairing the garage door either because it is common property, or because it is an exterior door fronting on common property.

20.     I note that the numbering in Bylaw 10(1)(c) does not entirely make sense. The wording is taken from the Schedule of Standard Bylaws in the SPA, but the numbering is different. The numbering is likely a typographical error, as it lists strata lot repairs as a subset of LCP repairs. However, I find this error is not determinative, as the plain language meaning of the bylaws indicates that the strata corporation is responsible for all exterior door repairs where the door fronts common property, regardless of whether they are common property, LCP, or part of a strata lot.

Owner Responsibility for Damage

21.     The strata says it is not obligated to pay for the new garage door because preventive maintenance could have prevented the need for repairs. However, under the bylaws, garage door maintenance is the responsibility of the strata rather than the owner.

22.     Bylaw 10 says the strata corporation is not responsible for repairs where the resident is found personally responsible for the damage. I find the evidence before me does not support the conclusion that the owner or any occupant of his strata lot was responsible for the damage to the garage door. The strata submits that a “former volunteer strata member” said the garage door motor was pushing down too hard, which damaged a door panel. However, this evidence is double hearsay from an unnamed source. It is not supported by photographs or diagrams of the damage, and there is no indication that the volunteer has any expertise in garage door installation or repair. For these reasons, I place little weight on this evidence.

23.     I prefer the June 20, 2017 email from the company that repaired the owner’s door, since they examined the door and have expertise in repairing those doors. That email says that in their opinion, the door was very old and failed due to regular use, and had to be entirely replaced because replacement sections were no longer available.

24.     Based on this email, I find the owner is not responsible for the garage door damage. The strata’s obligation to pay for the new door is therefore not limited on this basis.

Lack of Permission

25.     The strata says it is not obligated to pay for the garage door because the owner failed to get written approval to change the it, contrary to the bylaws. I disagree.

26.     There is no evidence that the owner significantly altered the use or appearance of the door. Also, the owner provided a copy of an April 27, 2017 email exchange with Gary, the strata property manager. This correspondence shows that the owner asked if they were required to get permission from the strata to repair their garage door, and Gary replied, “Permission not required. Please proceed”.

27.     I find that this email exchange establishes that the owner asked for and received permission to repair the garage door. It was open to the strata to inquire about the nature of the repair, or the price, but it waived its right to do so.

 

 

Spending Strata Corporation Money

28.     The strata says the owner should have come back to the strata council and asked that their garage door be looked at again before replacing the door and asking for reimbursement. The strata says that by replacing the door, the owner violated bylaw 28(1), which says a person or company may not spend the Strata Corporation’s money unless the person has been delegated to power to do so.

29.     I disagree. The owner emailed the property manager about the repair, and as stated above, he gave them written permission to proceed without asking for particulars. The owner did not spend the strata corporation’s money, so did not violate bylaw 28(1).

Summary

30.     For all of these reasons, I find the strata is obligated to pay for the garage door replacement. The owner provided an invoice in the amount of $1,038.45, and I find that amount is reasonable in the circumstances.

31.      The applicant is also entitled to interest under the Court Order Interest Act (COIA) from the date of the invoice to the date of this decision, as set out below in my order.

32.     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. As the owner was 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.

DECISION AND ORDERS

33.      I order that within 30 days of this decision, the strata pay the owner a total of $1,275.43,[1] broken down as follows:

a.    $1,038.45 as reimbursement for the garage door replacement,

b.    $11.98 as prejudgment interest under the COIA, and

c.    $225 for tribunal fees and dispute-related expenses.

34.      The applicant is also entitled to post-judgment interest under the COIA.

35.     Under section 189.4 of the SPA, 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 amount ordered to be paid by the respondent, or any other expenses incurred by the respondent in defending this claim, are allocated to the applicant owner.

36.     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.

37.     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.