Date Issued: September 19, 2018
File: ST-2017-006805
Type: Strata
Civil Resolution Tribunal
Indexed as: Berke et al v. The Owners, Strata Plan NW 962, 2018 BCCRT 539
Between:
Anna Berke and Sandor Berke
ApplicantS
And:
The Owners, Strata Plan NW 962
Respondent
| REASONS FOR DECISION |
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| Tribunal Member: |
Maureen Abraham |
INTRODUCTION
1. This is a dispute over whether the respondent, The Owners, Strata Plan NW 962 (strata), is obligated to immediately replace the windows and patio door of the applicants, Anna Berke and Sandor Berke’s (applicants) strata lot.
2. The applicants are represented by legal counsel. The strata is represented by a strata council member.
JURISDICTION AND PROCEDURE
3. 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.
4. 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.
5. 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.
6. The applicable tribunal rules are those that were in place at the time this dispute was commenced.
7. 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.
PRELIMINARY ISSUE
8. The respondent strata initially failed to provide one witness statement referred to in its submissions.
9. The tribunal’s mandate is to be accessible, speedy, economical, informal and flexible. Under sections 34(1)(d) and 61 of the Act, the tribunal may require a party produce a record which is relevant to an issue in the dispute.
10. As the witness statement is evidence that may be helpful in determining the factual context, I directed production of the witness statement. The owners had the opportunity, and did, provide additional reply submissions on that evidence. I find that there is no prejudice to the parties in considering the witness statement as part of the strata’s evidence.
ISSUES
11. The issues in this dispute are:
a. Is strata bylaw 5.5 invalid and unenforceable?
b. Has the strata failed to properly repair and maintain common property?
c. Are the applicants entitled to $1,768.46 from the strata for the cost of heating the applicants’ strata lot?
d. Are the applicants entitled to additional notice prior to the strata entering or inspecting the interior or exterior of the applicants’ strata lot?
e. Are the applicants entitled to reimbursement of their fees and expenses?
BACKGROUND AND EVIDENCE
12. The strata development is a 9-building residential complex constructed in 1977. It is made up of 282 3-level strata lots. The applicants own strata lot 255 (lot 255).
13. The strata historically treated windows and doors as part of the strata lots and as the owners’ responsibilities to repair, maintain and replace.
14. Around 2011, a strata owner’s offer to organize bulk window replacements received a lot of interest from the owners. Some owners, including the applicants, then received permission from the strata to replace their windows at their own expense.
15. As a result of the strata’s historical approach, some of the strata lots have had new windows or doors installed by owners at their own cost, while others still have the original windows and doors from the time the strata buildings were constructed. The applicants’ windows and a patio door were not replaced and date back to around 1977.
16. In 2015, the strata obtained a Depreciation Report (depreciation report), which indicated the windows had approximately 5 remaining years of use, and estimated they would need to be replaced in 2020. The cost of window repair and replacement was not included in the depreciation report funding models. The cost was assumed to be that of individual owners.
17. By 2016, it became apparent that the strata was underfunded and in need of urgent maintenance and repair. The depreciation report and a concrete condition report indicated that large-scale concrete and building exterior repair projects were necessary.
18. In or about 2016, the strata increased the owners’ monthly strata fees by 87% and $560,000 was raised by special levy in order to fund the urgent repairs and maintenance. Concrete restoration, building waterproofing, deck repair and roof replacement projects have been underway from 2016 to date.
19. The applicants had not replaced their windows and patio door after getting permission in 2011. In October 2016, the applicants first requested that the strata replace the windows and patio door of lot 255 at the strata’s expense. The strata refused.
20. Initially the strata refused on the basis that the windows and door were not common property. When referred to its strata plan by the applicants, the strata then attempted to designate exterior windows and doors as limited common property by way of a bylaw (the LCP bylaw). The LCP bylaw is strata bylaw 5.5. It states that exterior windows and doors are limited common property which individual owners must repair and maintain. The LCP bylaw was registered at the Land Title Office on February 24, 2017, along with various other bylaws amended by the strata.
21. The LCP bylaw was passed by the owners at the strata’s February 2017 annual general meeting, but the strata plan was not amended.
22. The applicants continued to take the position that the strata was responsible for replacing their windows and doors. After the strata continued to deny responsibility and relied on the LCP bylaw, the applicants filed this claim.
23. The strata’s position has changed. The strata now acknowledges that the applicants’ windows and doors are not designated as part of lot 255, that the LCP bylaw is not valid or enforceable, and that the strata is responsible for repairing and maintaining the applicants’ doors and windows as common property.
24. The applicants say that their windows and patio door must be replaced immediately. They say that the windows and door have failed and no longer serve their intended function.
25. In support of their position, the applicants have provided photographs of their windows and patio door, and details of what they characterize as gaps, worn caulking, loose frames and glass, worn rollers and other deficiencies, including a photograph of a screwdriver pushed through a window seal and some condensation on the inside of the window. They say the patio door will not open and close, and would not lock until being repaired by the strata in June 2018.
26. The applicants also rely on reports done by their building inspector (building inspector) in November 2017 and May 2018, which state that the windows should be replaced and are in very poor condition. He notes in November 2017 that the building exterior is also in poor condition and remediation work is apparently ongoing.
27. The building inspector says that the windows are not energy efficient, and that unless they are replaced water ingress and mould “may” occur and that mould can cause health problems. He points to potential security issues and that seals and caulking are broken or worn. He does not state that there is actual water ingress, or confirm the extent of the gaps and damage claimed by the applicants. Of note, the building inspector states that the patio door lock is broken and incapable of repair. In May 2018, he again references the general exterior of the strata building, describing it as in very poor condition and showing signs of severe deterioration, active leaks, and states that it would be ideal to replace windows as the same time building envelope repairs are done. He does not provide an opinion on the cause of any interior condensation.
28. Finally, the applicants point to high heating costs they say are caused by the existing single pane windows and door. They have submitted literature setting out the energy efficiency of double-glazed windows and general recommendations of Natural Resources Canada with respect to buying Energy Star certified doors and windows.
29. The photographs submitted by both parties show that the windows are single-glazed and appear worn and tired. The pictures are taken at various times of year. In some of the pictures, some condensation appears present. In others, the windows are clear. Mildew on the exterior of some windows is also visible in some pictures.
30. In response to the applicants’ demand for replacement, the strata investigated the state of the windows and patio door. The strata’s window contractor (window contractor) attended lot 255 for an exterior inspection in late 2017. The evidence of the window contractor at that time was that condensation build-up was due to lack of air flow within the strata lot, and that the windows and door frames appeared undamaged and there was no missing exterior sealant.
31. The strata’s property manager and the spouse of a council member inspected the interior of the applicants’ windows and patio door in April 2018. They did not observe any rot or gaps to the windows and door. The window contractor then attended again in April 2018 to inspect the interior and exterior of lot 255’s windows and patio door and advise on their state and any necessary repairs.
32. The strata instructed the window contractor to inspect and make any necessary repairs to the applicants’ windows and patio door around April 2018. As a result, the window contractor repaired window sliders/frames and the patio door rollers on April 26, 2018. He also tightened a loose screw and repaired the patio door so that it now opens, closes and locks. The window contractor’s evidence is that the windows seal tightly and work properly.
33. During a cladding replacement project on the applicants’ strata building done in June 2018, the cladding around the applicants’ windows was replaced and their window caulking was redone. The documents provided by the strata indicate the contractor responsible for the cladding replacement project (cladding contractor) would detail any evidence found of fogged or failing windows during the project. No fogging, failure, leaks or evidence of moisture ingress around the applicants’ windows were noted by the cladding contractors in their report specific to the applicants’ strata lot. The photographs taken during cladding removal show that there had not been water ingress into the building envelope around the windows, although the old cladding was in poor condition.
34. In response to the applicants’ complaints in this dispute, the strata had its window contractor replace elements of the patio door and do some repair work to their windows. The caulking around the windows was redone by the cladding contractor.
POSITION OF THE PARTIES
35. The applicants argue that strata lot 255’s windows and patio door are decrepit and there is no reasonable option but to replace them immediately.
36. They say that the repairs done by the strata are insufficient. They are critical of the qualifications of the window contractor, and the conduct of the strata in adopting the LCP bylaw. They say that the strata has caused the applicants great expense in failing to replace the windows.
37. The applicants request that I make orders:
a. declaring that the applicants’ windows and patio doors are not limited common property and the strata’s obligation to repair and maintain;
b. declaring a portion of strata bylaw 5.5 invalid and unenforceable;
c. directing the strata to replace the applicants’ patio door and 4 exterior windows with energy efficient, double glazed windows and door within 90 days, or, in the alternative, replace them with double-glazed windows and door;
d. directing the strata to provide the applicants 48 hours written notice prior any representative or agent of the strata entering the strata lot or inspecting their strata lot from the outside, to entering the common property adjacent to the applicants’ strata lot;
e. that the strata reimburse the applicants’ their hydro costs; and,
f. that the strata reimburse the applicants’ their tribunal fees and expenses related to this claim, including legal fees.
38. The strata accepts that exterior windows and doors are common property and that it is responsible for their maintenance and repair. The strata argues that its obligation to repair and maintain is based on reasonableness, and that it has discharged its obligation in this case by inspecting and repairing the windows and door. It says that the applicants have not proven what portion of their hydro costs are related to any failure to maintain the common property.
39. The strata says that the applicants’ windows and patio door do not need to be immediately replaced. The strata points to its depreciation report, cladding replacement reports, and evidence of its window contractor in support of its position that window and door replacement can continue to be deferred while other, more urgent, remediation of common property is done.
40. The strata says there is no need for a declaration that strata bylaw 5.5 is invalid and unenforceable as the strata will not try to enforce it and intends to amend it at the next annual general meeting. It says the applicants have not provided particulars of why they should be given special notice for access, or how their privacy interests were not respected.
41. The strata says it has not failed in its duty to repair and maintain, so should not be responsible for the applicants’ expenses related to this claim. It takes issue with the amount (approximately $18,000) of expense claimed by the applicants. The strata says that the applicants could have avoided some expenses and the expenses were not reasonably incurred.
42. The respondent requests that I dismiss the applicant’s claim and order the applicants to reimburse the strata’s expenses.
ANALYSIS
Is strata bylaw 5.5 invalid and unenforceable?
43. Common property is defined under section 1 of the Strata Property Act (SPA) to include the part of a building that is not part of a strata lot. The strata plan does not designate the windows and doors as limited common property (LCP), or as part of the strata lot. Further, under section 68(1) of the SPA, the boundary of a strata lot is the midpoint of its exterior wall. The windows and patio doors are on both sides of the midpoint. I find the exterior windows and doors are common property.
44. In order to designate common property as limited common property, the strata must follow the process set out in section 74 of the SPA which includes filing a sketch plan at the Land Title Office defining the LCP areas and designations, which was not done. Adopting bylaw 5.5 was not sufficient to designate LCP, which the strata has now acknowledged. The strata says it considers the LCP bylaw unenforceable and intends to strike it down at its next annual general meeting.
45. I find the portion of the LCP bylaw which states “Exterior windows and doors of a Strata Lot are limited common property for which the owner of a Strata Lot is responsible for maintenance and repair” is invalid and unenforceable.
Has the strata failed to properly repair and maintain common property?
47. The strata’s obligation to repair and maintain is measured by the test of what is reasonable in all of the circumstances, and can include replacement when necessary (The Owners of Strata Plan NWS 254 v. Hall, 2016 BCSC 2363).
48. The strata has to balance the competing interests of individual owners against the interests of the strata owners as a whole. Sometimes this will mean using its discretion to consider whether some maintenance is urgent and prioritizing it, or choosing ongoing repair in order to delay replacement. Some individual owners may be unhappy and disagree with the strata’s choices. That does not mean the strata has necessarily breached its obligations to that owner.
49. The strata, through its council, can consider various approaches to repair and maintenance, and the financial and practical impact each approach may have on the owners and the strata’s budget. The strata is not an insurer obligated to fulfil an owner’s demand for maintenance, and is entitled to consider whether and how maintenance will be done. It is generally entitled to rely on the advice received from professionals with respect to the strata building and necessity for repairs or maintenance (Oldaker v. The Owners, Strata Plan VR 1008, 2007 BCSC 669).
50. The window contractor’s summary of his practical background evidences that he is well capable to inspect and provide evidence on the state of the windows and patio doors, just as the building inspector’s summary of qualifications evidences that he is well capable to provide his observations of the windows and patio door. The evidence of whether either witness is a member of the Better Business Bureau or whether they had license to work in any particular municipality is irrelevant.
51. The building inspector says the patio door and windows are at the end of their service life. The building inspector’s reports are largely speculative, and set out what may happen if the windows are not replaced. While condensation is present at times, his evidence is that mould and water leaks are not present. He doesn’t indicate whether condensation is related to air flow. A focus of his comments is with respect to the energy efficiency and thermal value of the windows. His evidence is that the doors and windows are in poor condition, which can lead to their failure and potentially serious issues impacting the applicants’ health and safety. Some of the items cited by the building inspector, such as worn caulking and ability to lock, pre-date the cladding replacement and window contractor repairs.
52. The window contractor’s evidence with respect to the applicant’s strata lot is that the windows and patio door have not failed. He indicates that they are not cracked, and limited repair work was necessary. He points out that some deficiencies initially cited by the applicants, such as air vents characterized as holes, are not deficiencies in need of repair but are functional and part of the window design. Other deficiencies have been repaired, though the applicants’ position is that repairs were insufficient and only replacement will suffice. To that end, the evidence indicates that the applicants discouraged the strata’s efforts to inspect and repair.
53. The evidence provided by the parties is that the strata’s contingency reserve fund and budgets for maintenance, repair, and replacement have been historically underfunded and maintenance was not done on a proactive basis. Some strata responsibilities and expense with respect to the common property were shifted to individual owners.
54. The strata points out that its buildings and some common property require urgent maintenance and deficiency repair work as a result of its historical approach, which work is taking a lot of its time and resources. This does not mean that the strata can ignore maintenance obligations with respect to less urgent projects, but context is relevant in considering whether the strata is acting reasonably.
55. The applicants rely on the Hall case in support of their claim. In Hall, a strata was ordered to reimburse an owner the cost of replacing the windows of his strata lot. In that case, the owner provided evidence to the effect that the windows had failed, causing condensation, leaks and mould inside the strata lot, and four contractors had advised that the only solution to those issues was to replace the windows.
56. I find that the applicants have not established that their windows and patio door have failed, or deteriorated to the extent set out in Hall such that replacement is the only reasonable option. Other than the building inspector’s comment to the effect that the patio door lock was incapable of repair (which does not seem to have been borne out), he has not stated that the windows and door cannot be repaired or why any option other than replacement is insufficient.
57. The strata must consider the interests of all owners when making decisions. Even if repairs will only defer the need for eventual replacement, it may be reasonable for the strata to attempt repairs to the windows and door in the interim (Weir v. Owners, Strata Plan NW 17, 2010 BCSC 784). With respect to the windows and patio door at issue, the strata’s window contractor consistently advised the strata that this common property had not failed and was capable of repair. I find that the strata is entitled to rely on the window contractor’s opinion that repairs, rather than replacement, are sufficient for the time being.
58. It is understandable why the applicants are frustrated with the strata. Until the strata took the position that it was responsible for repairing and maintaining the applicants’ windows and patio door as common property, it was in breach of its obligations under s. 72 of the SPA to repair and maintain the common property.
59. That being said, upon accepting responsibility, I find that the strata discharged its obligations to repair and maintain the applicants’ windows and patio door by undertaking the investigations and repairs set out in the parties’ evidence.
60. The strata is entitled to consider the applicants’ demand for replacement with a view to the financial circumstances of the strata and its capacity to manage the strata’s overall maintenance needs. Replacement would be ideal, but a strata is entitled to consider options which may be merely sufficient rather than ideal. Although repairing the common property will not resolve the need for eventual replacement of the windows and doors, it is a reasonable step in the circumstances. The strata is not breaching its obligations by choosing this option. I accept that the strata will continue to attend to repairing and maintaining the applicants’ windows and patio door as necessary.
61. I find that the strata has not failed to properly repair and maintain the common property by choosing to repair the applicants’ windows and patio door rather than replace them.
Are the applicants entitled to $1,768.46 from the strata for the cost of heating the applicants’ strata lot?
62. Until the strata accepted responsibility for the common property and undertook repairs on the windows and door, the applicants may have been suffering damage. They say the state of the windows and patio door increased the cost of heating lot 255. The onus is on them to prove their damages on the balance of probabilities.
63. Other than asserting that the windows provide poor thermal value and providing hydro invoices for heating costs incurred between October 26, 2016, and April 27, 2017, which they characterize as very high, the applicants have not provided evidence with respect to this part of their claim.
64. The applicants’ building inspector does not comment on the extent of heat loss that might be associated with aspects of the windows and patio door requiring repair, only that new windows would be more energy efficient. The strata points out that the applicants would have incurred some hydro expenses in any event, even if they had more energy-efficient windows. There is no evidence on the cost of heating a similar strata lot with newer windows.
65. I find the applicants have not proven what portion, if any, of their heating costs can be attributed to the strata’s delay in repairing their windows and patio door.
66. I order that this part of the applicants’ claim is dismissed.
Are the applicants entitled to additional notice prior to the strata entering or inspecting the interior or exterior of the applicants’ strata lot?
67. Section 77 of the SPA obligates owners to allow their strata reasonable access to common property. Strata bylaw 17.1 requires the strata to give an owner at least 14 days written notice before inspecting the interior of a strata lot for the purpose of identifying damage to the building structure. Nothing in the SPA or strata bylaws requires notice to strata owners prior to conducting exterior inspections.
68. The parties’ evidence confirms that the strata has complied with strata bylaw 17.1 with respect to entering the applicants’ strata lot. The applicants’ objection to the strata’s conduct appears related to the fact that one individual attending an interior inspection was the spouse of a strata council member. The evidence is that the spouse attended as a strata representative to gather information necessary to consider the applicants’ request for maintenance and whether there was a need to undertake repair or replacement.
69. The applicants have not set their privacy concerns, how they may have been breached, or why the order is necessary in their submissions.
70. I find that the applicants are obligated to reasonably accommodate the strata’s access to the common property, and that they are not entitled to the order sought. I order that this part of the applicants’ claim is dismissed.
Are the applicants entitled to reimbursement of their fees and expenses?
71. 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. Rule 132 provides that the tribunal will not order one party’s legal fees to be paid by another except in extraordinary cases.
72. The applicants were largely unsuccessful with respect to their claim. The strata says it has incurred expense only for legal fees, and does not take the position that this is an extraordinary case.
73. I find that the applicants are not entitled to reimbursement of their fees and expenses. I order that this part of the applicants’ claim is dismissed.
DECISION AND ORDERS
74. I order that:
a. the portion of strata bylaw 5.5 which states “Exterior windows and doors of a Strata Lot are limited common property for which the owner of a Strata Lot is responsible for maintenance and repair” is invalid and unenforceable; and,
b. the applicants’ claim is otherwise dismissed.
75. 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 expenses incurred by the respondent in defending this claim, are allocated to the applicant owner.
76. 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.
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| Maureen Abraham, Tribunal Member |