Date Issued: October 17, 2018

File: ST-2017-006476

Type: Strata

Civil Resolution Tribunal

Indexed as: Clark v. The Owners, Strata KAS 2053, 2018 BCCRT 629

Between:

Grant Clark

Applicant

And:

The Owners, Strata KAS 2053

Respondent

REASONS FOR DECISION
Tribunal Member:	Salima Samnani

 

INTRODUCTION

1.        The applicant, Grant Clark (owner) owns strata lot 41 in the respondent strata corporation. The respondent, The Owners, Strata KAS 2053 (strata), is a strata corporation existing under the Strata Property Act (SPA).

2.        This dispute is regarding the assignment of boat slips. The strata re-built the marina resulting in some owners receiving boat slips that cannot be used at times of low water. The owner was assigned one of these less desirable boat slips. The owner argues that the strata has behaved unfairly and asks the tribunal to order that the strata require a ¾ vote for marina development or design changes, that every owner receive similar access to slips in the marina, and that any change to common property address fair and reasonable rights to the use of that common property.  The owner also argues that the strata is in breach of the bylaws and the Strata Property Act (SPA).

3.        The respondent alleges that they have acted fairly and reasonably in allotting boat slips and received the required vote for changes made to the marina. The applicant is self-represented.  The respondent is represented by a lawyer, Mathew Fischer.  

JURISDICTION AND PROCEDURE

4.        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.

5.        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.

6.        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.

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.

ISSUES

8.        The issues in this dispute are:

a.      Is the strata in violation of sections 71(a) and 121(2)(c) of the Strata Property Act?

b.      Is the strata in violation of its bylaws?

c.      Did the strata behave unfairly in assigning boat slips?

BACKGROUND AND EVIDENCE

9.        The strata constructed a new marina to meet the British Columbia government’s new environment and licensing requirements. As a result, the number of boat slips was reduced and there was an increase in the number of shallow water boat slips and decrease in the number of deep water slips. Further, encroachment issues from the adjacent property limit the solutions the strata can offer. The strata is working on resolving the encroachment, which will eventually result in more boat slips.

10.     These changes have resulted in limited access to the east-side and southeast corner of the marina due to low water levels closer to the shoreline.

11.     The applicant argues that that current boat slip assignment regime is unfair leaving him with a less desirable boat slip.  

12.     Currently, the Exclusive Use Agreement (Agreement) entered into by the strata and the individual owners, and the bylaws dictate the boat slip use and assignment. The applicant raises the issue that given 58% of the strata owners have deep boat-slips, the shallow-water boat-slip owners are never going to be able to get the 75% vote required by the SPA to change the by-laws and the Agreement to make the boat-slip assignment fair.

13.     The applicant argues that the current boat-slip Agreement does not identify an owners’ right to use the new marina when water is low and boat moorage is limited.

14.     The applicant says that the current Agreement was grandfathered in and was not updated to reflect the issues that arose when the new marina was built. The applicant argues that the strata council should put forth a resolution to update the Agreement to address these issues.

15.     The applicant argues that the strata is violating sections 121(1)(c) and 71(a) of the SPA, and that the strata council seems to have unfettered discretion to assign and manage boat-slips in a discriminatory and unfair manner.

16.     The applicant argues that the current boat slip assignment regime has the following unfair consequences on a minority of owners assigned a shallow-water boat-slip:

•           Decreased ability to sell their strata lot;

•           Decreased ability for shallow-water boat-slip owners to use their boat-slip at their will as use will be at the mercy of the water level; and

•           Creates two-level of ownership with the deep-water boat-slip assignees being at a higher class.

17.     The respondent argues that the marina replacement and boat-slip assignments are fair, reasonable and carried out in good faith. They argue that the applicant has failed to establish the strata has breached its duties thus requiring the tribunal to intervene.

18.     The respondent argues that they have received the necessary ¾ vote to re-build the marina.

19.     The respondent argues that they have done their very best to implement effective policies to limit the hardship on assignees of less desirable boat-slips.

20.     The respondent argues that bylaw 3.6 governs assignments of boat slips in a manner, which is consistent with section 76 of the SPA. The bylaw and the SPA give the respondent the authority to manage assignments of boat slips and determine the terms of the assignments.

21.     The respondent says they have made arrangements for alternate boat-slip use for owners when water levels make it impossible for the owner to use their assigned boat-slip. These temporary re-assignments during low water levels help ensure fairness. The respondent argues that any unfairness to the owner is inadvertent and does not rise to the point of significant unfairness. It further argues that whenever the strata council has to assign storage spaces and parking spaces, it is inevitable there will be less desirable allotments.

22.     The respondent states that there has never been a reported instance of an owner wanting to use a boat slip in the marina during a low water period and not getting a boat slip.

23.     The applicant argues that the solution to this issue should be that the assignment of boat-slips should be shared with all owners by alternating slip assignments from one year to the next. All deep-water boat-slip assignments should be shared with all owners when the water level is low enough to limit boat moorage.

ANALYSIS

24.     The owner has brought many issues forward in their dispute. The crux of the claim is that the new marina and slip assignment system violate the SPA and the bylaws. Specifically the owner claims that he has been assigned a less desirable boat slip and the assignment was undertaken in an unfair manner.

 

 

Section 71(a) – Change in Use of Common Property

25.     Section 71(a) of the SPA requires that any significant change in use or appearance of common property requires a ¾ vote of the owners.

26.     The owner argues that the strata is in violation of this section.

27.     The strata argues that the construction of the new boat moorage system was approved at an annual general meeting in 2014.

28.     The respondent states that to assign boat moorage they had to decide between random allocations, on demand usage, annual assignment, or an allocation, which largely respected previous assignments. These options were discussed at an AGM in 2014 and the strata council was not provided with any specific direction. As such the strata council decided it would be most fair to keep assignments as close in location to the assignments in place prior to the new marina.

29.     They strata council argues that their decision is governed by the bylaws and section 76 of the SPA, which leaves assignments to the discretion of the strata council, absent significant unfairness. They also argue that no owner has a legal right to any particular moorage space.

30.     The June 7th, 2014 AGM minutes show the boat moorage remediation project was approved by a ¾ vote of the owners. Further, the owners also approved by a ¾ vote any associated use or appearance arising from project specifically referencing s.71 of the SPA.

31.     On June 4th, 2016 the owners approved a new set of bylaws by a ¾ vote. The new bylaws allow the strata council to assign boat slips.

32.     Section 3 of the SPA says that the strata is responsible for managing and maintaining common property. Section 76 of the SPA allows the strata to grant an owner or tenant exclusive use of common property for a maximum of 1 year. The marina and the boat-slips are common property.

33.     The strata council made the decision to assign the owners boat slips in a similar location to where their original boat slips were located. This resulted in some owners previously assigned deep-water boat slips now having shallow-water boat-slips.

34.     The bylaws say that the strata council may designate and assign boat slips. Boat slip assignments are made for one-year periods and renew automatically. The bylaws go on to state that an owner may apply to the strata council for a reassignment of a boat slip and will be added to a waiting list, if one is not available immediately.

35.     There is nothing in the SPA or the bylaws that shows that any owner is entitled to a particular boat slip.

36.     For the reasons above, I find that the strata is not in violation of section 71(a) of the SPA and has discretion to assign and mange boat slips.

Section 121(2)(c) – Unenforceable by-laws

37.     The owner argues that the current bylaws relating to the boat slips are unenforceable because they violate section 121(2)(c) of the SPA. This section of the SPA says that any bylaw that prohibits or restricts the right of an owner to freely sell, lease or mortgage their strata lot is unenforceable.

38.     The owner argues that having a less desirable boat slip restricts his rights to freely sell his strata lot. As such the bylaw that assigns his boat slip is unenforceable under section 121(2)(c).

39.     This argument is not persuasive. Strata lots vary in terms of their views, allocated parking spots, boat slips etc. It is inevitable that some strata lots are simply going to receive less desirable allocations. These less desirable allotments do not restrict the right of the owner to freely sell their strata lot.  I find that the bylaws do not contravene section 121(2)(c) of the SPA.

 

Unfairness

40.     The owner has made lengthy and detailed arguments about the perceived unfairness and the strata has responded to all the allegations in great detail. I have reviewed and considered all arguments.

41.     It is unfortunate that the new marina has resulted in some hardship for a number of owners, including the owner. However, in this case, these issues are beyond the control of the strata. Someone is simply going to have to be assigned the less desirable boat slips, and in this case it is the applicant. The strata seems to be taking reasonable steps to ensure that all strata members have use of a boat slip when needed and places owners on a waitlist for new boat slips, if they want to change their boat slip.

42.     When reassigning boat slips the strata made a decision to assign boat slips in a similar location to the original location of the owner’s boat slip. The owner believes there is a better way of assigning boat slips, specifically he would like boat slip assigned by lottery. Both ways of assigning boat slips seem reasonable and both have an element of luck to them. Neither is unfair, the strata simply chose one option over another.

43.     For the reasons above, I find that the strata has not behaved unfairly in assigning boat slips.

44.     In summary, on a balance of probabilities, I find that the owner has failed to prove his case. I find that the strata had authority and was well reasoned in its decisions on assigning boat slips. The strata has accurately and appropriately applied the bylaws and is not in contravention of the alleged sections of the SPA.

45.     Given my conclusions above, I dismiss the owner’s claims.

46.     The owner is free to request a different boat slip by asking the strata to place his name on the waiting list.

47.     In accordance with section 49 of the Act and tribunal rules 129 and 132, the tribunal generally does not award an unsuccessful party their fees or dispute-related expenses. I see no reason in this case to deviate from that rule. The owner was unsuccessful and I dismiss his claim for tribunal fees.  He made no claim for dispute-related expenses.

ORDERS

 

48.     I order that the applicant owner’s dispute is dismissed.

49.     As provided by section 189.4(b) of the SPA, I order the strata to ensure that no part of the strata’s expenses of defending the dispute are allocated to the owner.