Date Issued: November 8, 2018

File: ST-2018-002062

Type: Strata

Civil Resolution Tribunal

Indexed as: Nelson v. The Owners, Strata Plan VR 491, 2018 BCCRT 702

Between:

Harry Nelson                         

Applicant

And:

The Owners, Strata Plan VR 491

Respondent

INTRODUCTION

1.        The applicant, Harry Nelson (owner) owns a strata lot in the respondent strata corporation, The Owners, Strata Plan VR 491 (strata).

2.        The owner says the strata failed to maintain common property drains, and the resulting blockage caused water damage to the ceiling of his strata lot. The owner seeks reimbursement of $2,415 in ceiling repair costs.

3.        The strata says that under its bylaws, the owner is responsible for repairs to the interior of his strata lot, including the ceiling. The strata also says the owner may have caused or contributed to the blocked drain.

4.        The owner is self-represented. The strata is represented by the strata council president.

5.        For the reasons set out below, I dismiss the owner’s dispute.

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 $2,415 for repairs to the ceiling of his strata lot.

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.     On March 30, 2017, the strata property manager sent an email notice to owners asking them to check the roof decks in their strata lots to make sure they were draining properly. The owner replied on April 25, 2017, stating that although he had snaked the roof drain, water was dripping into his kitchen. The owner said he thought the blockage was in the parkade roof, outside his strata lot. He asked the property manager to send someone to look at the problem.

13.     The strata hired a repair company, which sent a plumber to clean the drain on April 27, 2017. The repair invoice says the deck drain was unplugged using a power snake. According to a May 1, 2017 email from the strata council president, the plumber said the blockage was about 20 feet down the drain pipe.

14.     On April 28, 2017, the owner emailed the property manager and the strata council president photos of water damage in his strata lot, showing that the ceiling finish had blistered. He asked them to let him know how the damage could be addressed.

15.     The strata instructed the owner to pursue the matter with his own insurance company. The owner did so, but was informed that the damage was not covered under his policy.

16.     In a June 9, 2017 email, the property manager said the strata council had decided that it was the owner’s responsibility to pay for water damage repairs within his strata lot. The email said that if the repairs cost more than $5,000, the owner could make a claim with the strata’s insurance for the amount over $5,000. The property manager cited bylaw 2, which says that an owner must repair and maintain the owner’s strata lot, except for repair and maintenance that is the responsibility of strata corporation under the bylaws.

17.     The owner later attended 2 strata council meetings to discuss the ceiling repair issue, and both times the strata council confirmed its position that the strata lot repairs were the owner’s responsibility.

18.     The owner says that because the water damage was caused by a blockage to a drain pipe shared by 2 other strata lots, the strata corporation is responsible to pay for the water damage to his strata lot.

19.     Section 1(1) of the Strata Property Act (SPA) states that pipes for the passage or provision of water, sewer, or drainage are included in the definition of common property, even if they are located “wholly or partially within a strata lot, if they are capable of being and intended to be used in connection with the enjoyment of another strata lot or the common property.” In a May 1, 2017 email, the strata council president wrote that the 2 other strata lots used the same storm drain pipe. This is analogous to the facts in Taychuk v. The Owners, Strata Plan LMS 744, 2002 BCSC 1638, where the BC Supreme Court found that pipes inside a strata lot were common property because they were connected to other pipes that serviced other units in the building.

20.      In applying section 1(1) and Taychuk to the facts of this case, I find that the drain pipe at issue in this dispute is common property.

21.     In general, strata lot owners are responsible for maintaining and repairing their own strata lots, and strata corporations are responsible to maintain and repair common property and common assets. However, section 72(3) of the SPA states that the strata corporation may, by bylaw, take responsibility for the repair and maintenance of specified portions of a strata lot.

22.      In this strata’s bylaws, bylaw 2(1) says that 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 these bylaws. Bylaw 8(b) says the strata must repair and maintain common and limited common property and strata lots, but restricted to:

a.    the structure of a building

b.    the exterior of a building, including those sections of the exterior envelope that access private decks

c.    chimneys, stairs, balconies and other things attached to the exterior of a building

d.    doors, windows and skylights on the exterior of a building, except deck access doors and all window and skylight glazing

e.    fences, railings and similar structures that enclose balconies stairways and walkways

f.      the painting of all deck surfaces

g.    plumbing and drains outside any strata lot

23.     Under bylaw 8(b)(G) and the strata’s general duty in section 72(1) to repair common property, the strata was responsible to repair and maintain the drain, particularly since the blockage was located outside the strata lot. However, there is nothing in the bylaws indicating that the strata has a responsibility to repair the interior ceiling of a strata lot. The strata’s responsibility for strata lot repairs are set out in the exhaustive list above, which does not include interior surfaces such as ceilings.

24.      The facts in this dispute are substantially similar to those in Kantypowicz v. The Owners, Strata Plan VIS 6261, 2017 BCCRT 29. In that case, the strata hired workers to power wash the exterior of the building, which caused water to leak into an owner’s strata lot and damaged the drywall ceiling. The tribunal vice chair concluded that the strata was not responsible for damage to the strata lot ceiling, even though its workers caused that damage. The vice chair reasoned as follows in paragraph 29:

The strata is not an insurer. As noted in my earlier decision in Rawle v. The Owners, Strata Plan NWS 3423, 2017 BCCRT 15, courts have held that a strata is not held to a standard of perfection. Rather, it is required to act reasonably in its maintenance and repair obligations, which in this case arise under bylaw 12. If the strata’s contractors fail to carry out work effectively, the strata should not be found negligent if it acted reasonably in the circumstances. The strata has no liability to reimburse an owner for expenses that the owner incurs in carrying out repairs to their strata lot that are the owner’s responsibility under the bylaws, unless the strata has been negligent in repairing and maintaining common property. In other words, I find the strata is correct in their submission that it is not responsible for the damage or repairs to SL169, unless it is established that the strata acted negligently (see Kayne v. LMS 2374, 2013 BCSC 51, and John Campbell Law Corp v. Strata Plan 1350, 2001 BCSC 1342, and Wright v. Strata Plan No. 205, 1996 CanLII 2460, aff’d 1998 CanLII 5823 (BCCA)).

25.     The vice chair found that the strata was not negligent, as there was no reason for the strata to expect that power washing would cause that sort of leak. She therefore concluded that since there was no negligence, the strata was not liable for the ceiling repairs.

26.     While Kantypowicz is not a binding precedent, I find its reasoning persuasive and rely on it. I also find that this reasoning applies equally to the facts of this case. I find the strata acted reasonably with regard to the drain pipe. As stated in the strata council president’s May 1, 2017 email, the only previous incident of such flooding was “years ago”, so it was reasonable in the circumstances to ask owners to make sure roof decks were draining properly, and to hire a plumber promptly after the owner reported the leak into his strata lot. There was no indication that preventive maintenance was required before the leak occurred.

27.     This principle that the strata is not an insurer, and short of negligence, the strata is not responsible for repairs to the interior of a strata lot has been repeated in other tribunal decisions, including Vasilica v. The Owners, Strata Plan NW 17, 2018 BCCRT 216, and in Di Lollo v. The Owners, Strata Plan BCS 1470, 2018 BCCRT 24.

Summary

28.     In summary, I find that the strata acted reasonably and was not negligent in its repair and maintenance obligations, even though the blocked common property drain pipe caused the leak. Under the bylaws, and because the strata was not negligent, the strata is not liable for the repairs to the owner’s ceiling.

29.      The tribunal’s rules provide that the successful party is generally entitled to recovery of fees and dispute-related expenses. The owner was unsuccessful, so I dismiss his claim for reimbursement of tribunal fees. The strata did not pay any fees and there were no dispute-related expenses claimed by either party.

30.     The strata corporation must comply with the provisions in section 189.4 of the SPA, such as not charging dispute-related expenses against the owner, unless the tribunal orders otherwise.

ORDER

31.      I order that the owner’s dispute is dismissed.