Date Issued: January 25, 2019

File: ST-2017-002926

Type: Strata

Civil Resolution Tribunal

Indexed as: Cartier v. Huskins et al., 2019 BCCRT 95

Between:

George Cartier

Applicant

And:

Cindi Huskins and The Owners, Strata Plan K 157

 

RespondenTS

REASONS FOR DECISION
Tribunal Member:	Graeme Nunn

INTRODUCTION

1.      This dispute relates to the use of the common property of a 2-unit strata corporation located in the District of Peachland, British Columbia. The applicant, George Cartier, is an owner of strata lot 2 being one side of an attached duplex. The respondent, Cindi Huskins, is an owner strata lot 1 being the other side of the duplex.

2.      The respondent, The Owners, Strata Plan K 157 (strata) is the strata corporation comprising the duplex.

3.      The applicant and the respondent are self-represented. The strata is represented by its strata manager.

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 121 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.      Under section 10 of the Act, the tribunal must refuse to resolve a claim that it considers is not within the tribunal’s jurisdiction. A dispute that involves one or more issues that are within the tribunal’s jurisdiction and one or more that are outside its jurisdiction may be amended to remove those issues that are outside its jurisdiction.

7.      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.

8.      Under section 61 of the Act, the tribunal may make any order or give any direction in relation to a tribunal proceeding it thinks necessary to achieve the objects of the tribunal in accordance with its mandate. In particular, the tribunal may make such an order on its own initiative, on request by a party, or on recommendation by a case manager (also known as a tribunal facilitator).

9.      Tribunal documents incorrectly show the name of the respondent as The Owners, Strata Plan, KAS 157, whereas, based on section 2 of the SPA, the correct legal name of the strata is The Owners, Strata Plan K 157. Given the parties operated on the basis that the correct name of the strata was used in their documents and submissions, I have exercised my discretion under section 61 to direct the use of the strata’s correct legal name in these proceedings. Accordingly, I have amended the style of cause above.

10.   Under section 123 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

11.   The issues in this dispute are:

a.    What is the appropriate usage of the common property of the strata relating to:

a.    Parking of vehicles and other implements on the common property;

b.    The use of the common driveways;

c.    Alteration of the common property; and

d.    Personal use of the common property?

b.    Can I make an order designating part of the common property as limited common property and, if so, is such an order appropriate?

c.    Is the respondent entitled to reimbursement of her boat storage expenses?

d.    Is the applicant entitled to reimbursement of his tribunal expenses?

BACKGROUND AND EVIDENCE

12.   Both the applicant and the respondent have provided a significant volume of evidence and made lengthy submissions regarding the issues in dispute. I have reviewed all of the evidence and submissions. I find that it is unnecessary for me to comment on all of the material before me. I only refer to the evidence that is necessary to explain my decision.

13.   The strata is an attached side-by-side duplex consisting of 2 strata lots. Each strata lot has an above ground sundeck for the exclusive use of each strata lot. The remainder of the property is common property. This includes both front and back yards as well as a pair of gravel driveways that connect to the rear of the duplex.

14.   The strata does not have designated parking or storage areas. The common property beside each unit of the duplex consists of a flat gravel area that appears to be used for parking. There is a gravel driveway in the front of the duplex that provides access from the public roadway to the side of strata lot 1. There is a second gravel driveway that provides access to the side and rear of strata lot 2. The two driveways connect behind the building.

15.   The rear of the duplex also contains a grassy, sparsely treed area and steeply sloped area next to the access driveway. The common property in the front of the duplex consists of a smaller flat area of grass and a retaining wall.  The rear of the common property is the larger area and contains several sheds.

16.   The strata’s bylaws are the Schedule of Standard Bylaws under the Strata Property Act (SPA).

17.   Similarly to many small strata corporations, the strata does not appear to have complied with the governance requirements of the SPA or the requirements of its bylaws. The strata and the owners have recently engaged a strata property manager to assist them with these problems.

18.   The disputes between the parties go back over a decade and appear to be driven in part by conflicting personalities. The issues raised primarily stem from the use of the common property. I will not detail the particulars of the various disputes raised by the parties, but in general they involve:

a.    Storage of a boat and other vehicles;

b.    Access obstruction of the common driveway and backyard areas;

c.    Alterations to the common property including removal of vegetation, erection of structures such as sheds and fences; and

d.    Personal use of the common property.

19.   The parties went to mediation to attempt to resolve disputes concerning the usage of the common property but were not successful. The applicant also provided evidence of a proposal to divide the strata common property

POSITION OF THE PARTIES

20.   The applicant says the respondent is not using the common property fairly and seeks orders relating to the following:

a.    Fair use of the common driveway and parking issues;

b.    Fair use of the backyard area;

c.    Designation of “sides” of the property;

d.    Clarification regarding maintenance of the common property; and

e.    Designation of part of the common property as limited common property.

21.    The applicant requests that I order the respondent pay half of his tribunal fees and expenses.

22.   The respondent owner agrees that the main issues to be resolved relate to the use of the common property. The respondent also requests that I designate parts of the common property as limited common property. 

23.   The respondent agrees to pay half of the applicant’s tribunal fees. The respondent also requests reimbursement for expenses relating to the storage of their boat in 2010.

24.   The respondent owner filed a Dispute Response on behalf of the strata but took no position. The strata did not make any submissions or present any arguments or evidence as it is wholly controlled by the owners including the parties to the dispute. Rather than taking strong positions on the issues, it appears the parties are seeking assistance from the tribunal in resolving their ongoing disputes about the common property.  

ANALYSIS

What is the appropriate usage of the common property of the strata?

25.   Residence in a strata, especially a duplex, can be more difficult than that of a detached home. The nature of a strata requires that owners, living in close proximity, must strive to be respectful of one another and cooperate in accordance with the strata bylaws. It is the role of the strata and its council to ensure those bylaws are adhered to and judiciously enforced.  

26.   All of the owners are on the strata council which has caused a voting stalemate. In the context of a duplex strata with owners that do not cooperate, that stalemate effectively causes the strata to be unable to operate.  A situation colloquially referred to as “duplex deadlock”.

27.    In the event such a deadlock continues, and the owners are unable to work as a functional strata, either owner may seek a court order appointing an administrator to run the strata for them. It would not be the first deadlocked duplex to be run by an administrator: see Anthony v. Schnapp, 2016 BCSC 1839.

28.   Under the SPA it is the strata corporation that is responsible for the repair and maintenance of the common property. Common property is defined in the SPA as “that part of the land and buildings shown on a strata plan that is not part of a strata lot”. All of the exterior land and yard surrounding the duplex including the access driveways, as well as the outside of the building itself would fall under the definition of the strata’s common property.

29.   Each individual owner owns an undivided share of the common property in proportion to unit entitlement as set out in section 66 of the SPA but the strata is responsible party for the common property. The bylaws adopted and enforced by the strata set the parameters for use of the common property.   

30.   The relevant bylaws for the purposes of this dispute may be summarized as follows:

a.    Bylaw 3(1): An owner must not use a strata lot or the common property in a way that i) causes a nuisance or hazard to another person, or ii) unreasonably interfereswith the rights of other persons to use and enjoy the common property or another strata lot.

b.    Bylaw 3(2): An owner must not cause damage, other than reasonable wear and tear, to the common property or to those parts of a strata lot which the strata must repair and maintain.

c.    Bylaw 5: An owner must obtain the strata’s written approval before making an alteration to a strata lot that involves: the building structure or exterior, doors,windows or skylights on the building exterior or that front common property, or common property located within strata lot boundaries.

d.    Bylaw 6: An owner must obtain written approval from the strata before making an alteration to common property, and the strata may require as a condition of approval that the owner agree in writing to take responsibility for any related expenses.

e.    Bylaw 8: The strata must repair and maintain: common property, the structure and exteriorof a buiding, exterior doors, windows and skylights in a strata lot, andfences, railing, and similar structures that enclose yards.

31.   The applicant requests clarity regarding the use of the common property for parking. The strata plan does not have designated parking areas. There are no bylaws that restrict the parking of vehicles on the common property except bylaw 3(1), which requires vehicles must not be a nuisance or hazard and should not restrict the reasonable use of the common property by others. The common property contains a gravel area next to each strata lot generally used for parking by the respective owners. The evidence provided detailed many incidents involving alleged obstruction of parking areas by the owners or their tenants.

32.   Bylaw 3(1) requires that the common property not be used in a way that causes a nuisance or restricts reasonable use of the common property. The parking of vehicles or other implements in a manner that obstructs access to either parking area would constitute a breach of this bylaw. The entire yard area of the strata property is common property.  This means that no single strata lot has claim to use a specific portion of the property, despite proximity to a unit or past convention. This principle in particular applies to the gravel “parking areas” next to each unit. Any owner is able to park anywhere on the common property so long as they are not in contravention of bylaw 3(1). I find whether a specific incident constitutes breach of the bylaw must be decided by the strata on a case by case basis. I therefore order that neither the applicant or respondent owner breach or continue to breach bylaw 3(1), or any other of the strata’s bylaws, when parking or storing vehicles or other implements on the common property. I decline to make any order respecting any past alleged breaches of the bylaws relating to parking on the common property. I find any such determination must be made by the strata. 

33.   The applicant requests clarity regarding use of the driveways. The access driveways are also part of the common property. As with the parking areas, no single strata lot has exclusive use of either access driveway. Use of the driveways is similarly restricted by bylaw 3(1). Neither party may use the driveways in a way that is a nuisance, hazard or obstructs their reasonable use. Examples of activities that could constitute a breach of bylaw 3(1) include:

a.    Obstruction of the driveways by parking vehicles, boats or other implements in such a manner that restricts reasonable access;

b.    Storage of personal property on or near the driveway in such a manner that causes a nuisance or obstructs passage; or

c.    Activities on or near the driveways that cause a nuisance or obstruct passage.

34. Whether a specific incident is a breach of the bylaw again must be decided by the strata on a case by case basis. I likewise order that neither party breach or continue to breach bylaw 3(1), or any other of the strata’s bylaws, when using the access driveways. I decline to make any order respecting any past alleged breaches of the bylaws relating to parking on the common property.  Any such determination must be made by the strata. 

35.    The applicant seeks clarity regarding alterations to the common property by the owners. The strata is responsible for the repair and maintenance of the common property in accordance with the SPA and bylaw 8. Bylaws 3(2), 5 and 6 prohibit an owner from causing damage to common property or altering it without the specific approval of the strata. The evidence provided by both parties indicates that many alterations of the common property have been undertaken over the years without consent of the strata. Examples of these include, modification to the outside of the building, the addition of fencing and sheds to the common property, removal of vegetation and other modifications of the yard area.

36.    Whether a specific incident is a breach of the bylaws again must be decided by the strata on a case by case basis. I likewise order that neither party breach or continue to breach bylaws 3(2), 5 and 6, or any other of the strata’s bylaws and stop any alteration to the common property not approved by the strata. With respect to any particular allegations of specific alterations to the common property that are an alleged breach of the bylaws, such alleged breaches must be brought to the strata and dealt with in accordance with the procedures contained in the SPA. Any owner is then eligible to challenge that process at the tribunal should they so choose.

37.    Finally, with respect to each individual owner’s personal use of the common property, the same conditions of use apply as they do to the parking or driveways. The usage must comply with bylaw 3(1) and no owner has exclusive use of any portion of the common property. I decline to make any specific orders pertaining to the owners’ current or past personal use of the common property.

38.   Some options the owners and the strata may wish to consider to better define the use of the common property include:

a.    Amending the bylaws to establish clearer parking restrictions or permissions.

b.    Amending the bylaws to designate areas of the common property that can be used for parking vehicles and boats while restricting parking in other areas.

c.    Section 76 of the SPA allows the strata to designate short term exclusive use of a certain area of common property. The designation must be renewed by the strata on an annual basis.

d.    Section 74 of the SPA allows the strata to designate parts of the property as limited common property (LCP). The parties have considered this option and it is discussed further below.

e.    Section 80 the SPA allows for disposition of the common property. The common property could be divided and merged with the existing strata lots.

39.    The suggested solutions above require cooperation between the owners. I would encourage all the owners in the strata to attempt to work together to resolve issues that arise going forward. I would also encourage them to be as courteous and respectful of each other as possible and attempt to work together so the strata can function as it should. 

Can I make an order designating part of the common property as limited common property?

40.   As noted above, one of the options considered by the applicant and respondent owner is the designation of LCP. Limited common property is defined in the SPA as “common property designated for the exclusive use of the owners of one or more strata lots.” The applicant requests that I order part of the common property be converted to limited common property in accordance with a map outline of the strata property he provided.

41.   Section 74 of the SPA provides that common property may be designated as limited common property by a resolution passed by a 3/4 vote at a special general meeting. After being so designated, a survey sketch plan must be created and filed with the passed ¾ vote resolution at the Land Title Office. The registration of the ¾ vote resolution and sketch plan serves to create the LCP.  

42.   Based on the evidence provided I am not convinced the parties agree completely on the division of the proposed division of the common property. I therefore decline to make the requested order. However, I have reviewed the proposed map the applicant provided and the other evidence relating to the owners’ discussions surrounding designating certain areas of the common property as LCP. I would encourage them to continue to seek a negotiated solution to convert some or all of the common property to LCP if it would assist them in more easily formalizing the conditions for the use of the common property and the operation of the strata. 

Is the respondent entitled to reimbursement of her boat storage expenses?

43.   The respondent has made submissions regarding reimbursement of boat storage expenses incurred in 2010. The respondent says the applicant owes her those expenses because she was unable to store her boat on the common property of the strata as a result of the applicant’s actions.

44.   I decline to make an award for this claim for the reasons that follow:

a.    The respondent did not file a counterclaim seeking reimbursement of the expenses as she would be required to under the tribunal rules;

b.    Had the respondent had filed a counterclaim, it is probable that her claim would have been barred by the Limitation Act for being filed too late; and

c.    If the respondent had filed a counterclaim that was not barred by the Limitation Act, she would have burden to prove the actions of the applicant were a direct cause of the storage expenses. With the evidence provided, I am unable to make the required finding.  

45.    The respondent is free to bring a separate claim for these expenses with the tribunal should she so choose.  

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. However, in this case the parties have agreed to split the tribunal fees of $225 equally. I therefore order the respondent pay one-half of the applicant’s tribunal fees or $112.50.

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.

DECISION AND ORDERS

48.   I order that:

a.    No party breach or continue to breach bylaw 3(1), or any other of the strata’s bylaws, when parking or storing vehicles or other implements on the common property.

b.    No party breach or continue to breach bylaw 3(1), or any other of the strata’s bylaws, when using the access driveways.

c.    No party breach or continue to breach bylaws 3(2), 5 and 6, or any other of the strata’s bylaws and stop any alteration to the common property not approved by the strata.

d.    Within 30 days of the date of this order, the respondent pay the applicant $112.50 for her half of the applicant’s tribunal fees.

49.   The applicant is entitled to post-judgement interest under the Court Order Interest Act, as applicable.

50.   I dismiss the remaining claims of the applicant.

51.   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. Once filed, a tribunal order has the same force and effect as an order of the Supreme Court of British Columbia.

52.   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. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.