Date Issued: November 19, 2018

File: ST-2017-005440

Type: Strata

Civil Resolution Tribunal

Indexed as: Schneider v. The Owners, Strata Plan KAS 1104, 2018 BCCRT 743

Between:

Bonnie Schneider

Applicant

And:           

The Owners, Strata Plan KAS 1104

Respondent

REASONS FOR DECISION
Tribunal Member:	Eric Regehr

INTRODUCTION

1.      The applicant, Bonnie Schneider, is an owner in the respondent strata corporation, The Owners, Strata Plan KAS 1104 (strata). The applicant is self-represented. The strata is represented by the current strata council president. The strata is a townhouse complex in Armstrong, British Columbia. The applicant’s townhouse is strata lot 5 and shares a building with 5 other strata lots.

2.      In this dispute, the applicant claims $4,890 in repair costs caused by water leaking into her basement in April 2017. The applicant alleges that water entered the applicant’s basement when water leaked from a gutter into a window well.  

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.      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.

ISSUE

7.      The issue in this dispute is whether the strata met its obligation to repair and maintain common property in accordance with the Strata Property Act (SPA) and the strata’s bylaws.

BACKGROUND AND EVIDENCE

8.      I have reviewed all of the evidence and submissions of the parties, but I will only refer to what is necessary to explain and give context to my decision.

9.      Prior to May 27, 2017, the strata operated pursuant to the Schedule of Standard Bylaws in the SPA. On May 27, 2014, the strata filed new bylaws in the Land Title Office, which repealed and replaced all previous bylaws.

10.   The applicant states that she has been telling the strata since at least 2010 that there were drainage issues affecting her basement. This dispute focuses primarily on the strata’s gutters and downspouts (gutter system).

11.   On November 10, 2010, the applicant wrote the strata to advise that a downspout was leaking into her window well. The strata hired a contractor to repair the downspout as requested.

12.   On May 11, 2011, the strata arranged for a contractor to clean and repair the gutter system. It is unclear whether the applicant’s gutters required repairs.

13.   On May 11, 2014, the applicant emailed the strata to advise that after she returned from a winter away, she noticed water bubbles in the foundation wall inside her unit below the basement window. She also noticed new cracks in the concrete wall. On May 24, 2014, the applicant sent another email suggesting that the window be sealed.

14.   On May 31, 2014, the applicant sent a letter to some of the other owners to open a discussion about larger problems with drainage on the strata. The applicant believed that the foundations of some of parts of the building were shifting and moving because they had been backfilled with clay and because the downspouts emptied directly onto the ground near the building. The applicant suggested that they invest in a solution that would have the downspouts empty farther away from the building.

15.   The strata president at the time, who is not the same person as the current strata president, responded that their unit also experienced water permeating into the basement floor. They stated that some of the downspouts, including the applicant’s, emptied into a drainage system with a sump. The strata president therefore suggested that the strata pay to have the perimeter drains cleaned prior to any expensive investigations.

16.   However, on June 16, 2014, the strata president emailed that they had discovered that the wetness was caused by a failed hose bib. The strata fixed the applicant’s hose bib and it appeared to fix the problem. The strata cancelled cleaning the perimeter drains. 

17.   In July 2015, the strata got a quote from a contractor to clean, repair and install the gutter system. At the next annual general meeting, on September 23, 2015, the strata voted to spend up to $5,000 from its contingency reserve fund for this work, which took approximately 2 months to complete.

18.   On September 7, 2015, the applicant emailed the strata council asking them to seal the window well to prevent water from dripping into her basement. There is no evidence of a response from the strata.

19.   In April 2016, the strata arranged for the repair of several leaking gutters. It is unclear whether the applicant’s gutter required repair.

20.   On October 17, 2016, the applicant wrote the strata because a downspout was leaking water, which was running into the window well. She requested that the strata repair the broken downspout and install another downspout to divert some of the water elsewhere.

21.   At the strata council meeting on October 19, 2016, the strata agreed to contact a contractor to assess the gutter. The contractor attended and cleaned and repaired the gutters.

22.   On March 17, 2017, the property manager initiated a request for a quote from the strata’s contractor to clean, repair and maintain the gutter system. The contractor did not provide the quote until April 11, 2017.

23.   In the meantime, on April 3, 2017, the person who the applicant asked to check in on her unit while she was away emailed the strata’s property manager to advise that water had leaked into the basement through the window well.

24.   On April 4, 2017, the applicant emailed the property manager to ask if the strata would pay for repairs because the damage was not covered by her insurance.

25.   The strata paid $2,500 for emergency restoration work but refused to pay to repair the interior of the applicant’s unit.

26.   On May 12, 2017, the applicant wrote to the strata to advise that a contractor had repaired the downspout that had failed.

27.   The applicant requested a hearing on August 7, 2017. The strata declined to pay for the repairs to the interior of the applicant’s unit, citing section 72(1) of the SPA and bylaw 2(1).

28.   The receipts that the applicant provided show that the repairs to her strata lot cost $4,723.60. The applicant does not explain why she claims $4,890.

ANALYSIS

29.   Bylaw 2(1) requires an owner to repair and maintain the owner’s strata lot unless the strata has taken responsibility for repair or maintenance obligations under the bylaws. Bylaw 8(1)(d) requires the strata to repair certain aspects of a strata lot, including windows on the exterior of a building.

30.   I find that the strata had an obligation under the bylaws to repair and maintain the gutter system and the window. I also find that the failure of the downspout and the fact that the window was unsealed caused the damage to the applicant’s unit.

31.   However, even though the strata’s common property caused the damage, the strata will only be liable if the strata was negligent in repairing and maintaining the common property at issue. This conclusion is set out in numerous tribunal decisions. See for example Paterson v. The Owners, Strata Plan VIS 6371, 2018 BCCRT 94.

32.   The applicant submits that the strata failed to properly repair and maintain both the gutter system and the window. The applicant says that the strata should have installed another downspout along her unit and should have sealed the window.

33.   The applicant states that the strata’s response to issues with the gutter system has been a series of patchwork solutions that did not actually solve the problem. The strata, for its part, sees the number of repairs as evidence of its ongoing efforts to address problems as they arise. The strata says that it responded to each of the applicant’s concerns in good faith and exercised a reasonable level of diligence in fulfilling its repair and maintenance obligations. The strata states that the leak was likely caused by an unusually high snowfall during the winter of 2016-2017.

34.   For the reasons that follow, I find that the strata was not negligent in either of its repair or maintenance obligations.

35.   I will first address the sealing of the window. The applicant states that she requested several times to have the window sealed, and that the strata ignored her requests.

36.   I do not agree that the strata ignored the applicant’s requests to have the window sealed. Rather, it appears that the strata’s strategy in responding to the applicant’s concerns about water leaking into her basement through the window was to focus on the gutter system.

37.   The applicant’s desire to have the window sealed was to prevent water seeping into her unit if there was standing water in the window well. While the strata considered cleaning the perimeter drains in 2014, there is no evidence that the perimeter drains were not functioning properly. Rather, failures in the gutter system caused water to flow into the window well. It follows that if the gutter system was functioning properly, the window would not need to be sealed to prevent leaks.

38.   Therefore, I find that the strata acted reasonably in focusing on the proper functioning of the gutter system to seek to avoid water entering the applicant’s basement through the window.

39.   With that in mind, did the strata do enough to repair and maintain the gutter system, based on the information it had at the time? I find that it did.

40.   The evidence is clear that keeping the gutter system clean and in a good state of repair has been an ongoing issue in the strata. Given the amount of snowfall in the area during the winter, it is unsurprising that the gutter system required regular attention.

41.   With respect to the 2014 leaks in the applicant’s unit and the strata council president’s unit, it is true that the applicant suggested that the strata consider a holistic review of the strata’s drainage issues. The strata believed that the problem was the hose bibs. Since that repair seemed to work, the strata council cancelled the drain repairs, which I find was a reasonable course of action at the time.

42.   Furthermore, the strata had sought a quote for maintenance and repair of the gutter system less than 3 weeks prior to the leak being discovered. The strata was therefore taking reasonable steps to ensure that the gutter system was properly cleaned, maintained and repaired before the damage to the applicant’s basement.

43.   Most importantly, the strata engaged and relied upon a contractor who specialized in gutter system maintenance and repair. There is no evidence that the applicant or any member of the current strata council had any expertise in this area. It was therefore reasonable for the strata to seek out the services of a specialized contractor and pay that contractor to do what the contractor deemed necessary. There is no suggestion that the contractor ever recommended work that the strata refused to do, including in 2015 when the strata authorized up to $5,000 in repairs from its contingency reserve fund. In particular, there is no evidence that the contractor recommended the installation of another downspout along the applicant’s unit.

44.   The applicant submits that a former strata council member was an experienced contractor who recommended the additional downspout. She does not give sufficient evidence for me to conclude that the strata council at the relevant times should have known that the applicant’s eavestrough needed an additional downspout.

45.   I note that since the incident at issue in this dispute, the strata has paid to upgrade the drainage around the window well and has paid to seal the window. I do not consider this to be evidence that the strata should have done so earlier. It can be understandable in situations like this for an owner to look back in hindsight and feel that a strata should have done more to prevent damage. However, the strata’s actions must be assessed based on what it knew at the time. In addition, the strata is not held to a standard of perfection, just reasonableness.

TRIBUNAL FEES AND EXPENSES

46.   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 dispute-related expenses. I see no reason in this case to deviate from the general rule. Because the applicant has not been successful, I decline to order that the strata reimburse her tribunal fees and dispute-related expenses.

47.   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.

DECISION AND ORDER

48.   I order that the dispute is dismissed.