Date Issued: March 6, 2019

File: ST-2018-006677

Type: Strata

Civil Resolution Tribunal

Indexed as: Zeelie et al v. The Owners, Strata Plan LMS 3011, 2019 BCCRT 263

Between:

Riaan Zeelie and Melissa Zeelie

ApplicantS

And:

The Owners, Strata Plan LMS 3011

RespondenT

REASONS FOR DECISION
Tribunal Member:	Lynn Scrivener

INTRODUCTION

1.      This dispute is about the enforcement of a strata corporation’s bylaws. The applicants, Riaan Zeelie and Melissa Zeelie say that the respondent, The Owners, Strata Plan LMS 3011 (strata) is not enforcing its bylaws properly or treating owners fairly. The respondent disagrees with the applicants’ position.

2.      The applicants are represented by Riaan Zeelie. The respondent is represented by Dedrie Olver.

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 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.

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 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

7.      The issues in this dispute are:

a.    whether the applicants are entitled to an order that the strata enforce all the bylaws on strata lot 32;

b.    whether the strata should be ordered to remove pets from strata lot 32;

c.    whether the strata must pay the applicants $189.19 for the wood they purchased to build a fence;

d.    whether the strata should reverse the $294.00 fence removal charge against the applicants; and

e.    whether the respondent should pay the applicants $4,200 as compensation for stress and hardship.

BACKGROUND AND EVIDENCE

8.      In a civil dispute such as this, an applicant bears the burden of proof on a balance of probabilities. Both parties provided evidence and submissions in support of their respective positions. While I have considered all of this information, I will refer to only that which is necessary to provide context to my decision.

9.      The strata consists of 39 strata lots in 3 buildings. The strata lots have yard areas, which are divided by 3-foot high fences and gates. The yard areas are designated as common property (CP). The evidence indicates that owners and maintenance personnel traverse the yards through the gates.

10.   The applicable bylaws were filed at the Land Title Office in January of 2002. Bylaw 3 governs the use of property. Bylaw 3(1) set out that an owner, tenant, occupant or visitor must not use a strata lot, CP, or common assets in a way that: causes a nuisance or hazard to another person; causes unusual or objectionable noise or odour; unreasonably interferes with the rights of other persons to use and enjoy the CP, common assets or another strata lot; is illegal or inconsistent with the intent of the bylaw; or is contrary to a purpose for which the strata lot or CP is intended.

11.   Bylaw 3(7) provides that an owner, tenant, occupant or visitor must not cause damage to CP or common assets. Bylaws 3(10), 3(11), and 3(12) address the requirement to maintain the cleanliness of CP and strata lots, and the disposal of garbage and refuse.

12.   Bylaw 3(13) sets out that residents must park in their garage spaces or on their driveways if the vehicle does not encroach on the travelled portion of the roadways. Visitors must park in designated spaces. No parking is permitted on access streets, although roadway parking is permitted for short periods of time to unload or wash vehicles.

13.   Pets are addressed in bylaw 3(14), which sets out that there may be no more than 2 pets per strata lot. Owners, tenants and occupants must ensure that animals are leashed or otherwise secured when on CP. Further, owners of pets are fully responsible for the behaviour of their pets and the removal of excrement from CP.

14.   Bylaw 3(14)(h) states that no owner shall keep or harbour a vicious dog. The bylaw defines a vicious dog as any dog which has attacked, injured or killed a person or domestic animal, or any dog with a known propensity, tendency or disputation to attack, injure or kill a domestic animal or person. The bylaw defines such a dog as a pit bull terrier, American pit bull terrier, pit bull, Staffordshire bull terrier, American Staffordshire terrier or any dog of mixed breeding which includes any of these breeds.

15.   Bylaws 5 and 6 require that an owner obtain approval from the strata before altering a strata lot or CP. Bylaw 5 specifically mentions fences that enclose CP, and states that no fences shall be erected on CP or the strata lot without the prior written consent of the strata council.

16.   Bylaw 24 addresses the violation of bylaws, and provides that the strata may correct, remedy or cure any violations of rules or bylaws. Bylaw 25 sets out the applicable fines for the violation of bylaws and rules.

17.   The applicants purchased strata lot 31 in 2011. The applicants reported difficulties shortly after new neighbours moved into strata lot 32 in April of 2016. The applicants made complaints to the strata about the number of pets in strata lot 32, as well as parties, noise, sanitation issues in the yard, marijuana smoke, parking violations, and allegedly illegal activities they attributed to the occupants and visitors of strata lot 32. Of most concern to the applicants was the barking and behaviour of a dog, Diesel, who is owned by the occupants of strata lot 32 and resides in the strata lot.

18.   The applicants say that Diesel is not properly controlled by his owners, and that he jumps over the fence into other yards. They say that Diesel has attacked the dogs of other strata lot owners, and that he bit their own dog through the fence. The applicants report that they have been unable to enjoy their yard as they fear for the safety of their child and dog due to Diesel’s behaviour.  

19.   The strata investigated the applicants’ complaints and, in some cases, issued warning letters and fines to the occupants of strata lot 32. On other occasions, the strata determined that the evidence did not substantiate a bylaw breach. After learning that Diesel may be a mixed breed with an element of pit bull, the strata also investigated whether Diesel was prohibited by bylaw 3(14)(h). Based on information received from Diesel’s veterinarian that he is not a pit bull, the strata determined that the bylaw did not apply. Diesel remained living in strata lot 32.

20.   In May of 2018, the applicants constructed a higher fence that they say was necessary to keep Diesel out of their yard. The strata informed the applicants that this fence was on common property (CP) and asked them to remove it. The applicants requested permission to keep the fence and a hearing was held about the matter. Due to concerns about safety, consistency, and the appearance of the fence, the strata declined to allow the fence to remain and asked the applicants to remove it. When the applicants did not comply, the strata removed the fence and charged the costs to the applicants.

POSITION OF THE PARTIES

21.   The applicant says the strata has failed to enforce the bylaws and, as a result, they are not able to enjoy their yard. According to the applicants, the strata refused to accommodate them in a safe, clean and quiet environment. The applicants say that members of the strata council do not live near strata lot 32 and are not affected by the behaviours of the occupants, visitors and pets.

22.   The applicants state that the strata needs to remove Diesel, who they say is a vicious pit bull. They say that Diesel’s breed, behaviour and barking violates strata and municipal bylaws, and he should be removed from the strata. The applicants also say that the occupants of strata lot 32 continue to have more than 2 pets, and the extra cats should be removed. The applicants provided images and video footage that they say proves their position.

23.   The applicants’ view is that they should be allowed to put their fence back up until Diesel is removed from the property. They also say that the $294 charged against them for the removal of the fence should be reversed. According to the applicants, the strata is responsible for this amount, and the $189.19 they spent building the fence, because Diesel is still there.

24.   The applicants’ position is that the strata has not taken sufficient steps to address all of their complaints. They say that warning letters are not enough because the behaviour continues. The applicants are of the view that the strata is not complying with sections 35 and 36 of the Strata Property Act (SPA) about document retention and disclosure, and suggest that some of the members of the strata council are not fit to serve on council. The applicants say they have suffered stress and hardship as a result of the strata’s conduct, and request that I order a payment of $4,200 as compensation.

25.   The strata says it has not contravened its obligations under the SPA or the bylaws. The strata states that it has a duty to treat all owners fairly, and does not owe a duty to the applicants to provide them with a safe environment.  

26.   The strata says that it has responded to all of the applicants’ complaints about alleged bylaw infractions fairly, appropriately, in good faith and in a manner that was both reasonable and timely. The strata’s position is that it does not have the authority to remove pets from a strata lot, but may impose fines for non-compliance with pet-related bylaws. The strata also says that the applicants have not established that they suffered any significant interference with the use or enjoyment of their property.

27.   The strata’s position is that the applicants’ claims should be dismissed.

ANALYSIS

Did the Strata Fail to Investigate Complaints and Enforce Bylaws?

28.   It is apparent that the applicants have made a number of complaints to the strata about various alleged bylaw infractions they attribute to occupants, dog, and visitors of strata lot 32. The applicants appear to be of the view that a fine should be imposed in response to each of their complaints. Further, they disagree with the strata’s position that some complaints were not supported by sufficient evidence or that evidenced provided by the occupants of strata lot 32 did not establish that they had breached a bylaw. I acknowledge the applicants’ statement that the strata looks for excuses to accommodate the occupants of strata lot 32 and helps them to breach the bylaws. However, I find that this position is not supported by the evidence.

29.   The strata says it does not independently investigate to determine whether bylaw infractions are incurring, and that it relies on complaints. A strata must investigate complaints and determine whether a bylaw breach has occurred before it determines if bylaw enforcement actions should be taken. The evidence before me establishes that the strata has investigated complaints and, in some instances, sent warning letters and imposed fines against strata lot 32 regarding noise complaints (including barking), parking infractions, waste issues, Diesel’s behaviour and the number of pets on the premises. It would appear that the strata also investigated and took action when the occupants of strata lot 32 made complaints about the applicants’ conduct.

30.   The fact that the strata has not imposed fines in all instances does not mean that it was failing to enforce the bylaws. The British Columbia Supreme Court has held that the imposition of fines does not serve to correct, remedy or cure violations of bylaws, but rather the purpose is to discourage bylaw violations: see Kok v. Strata Plan LMS 463, (1999), 23 R.P.R. (3d) 296 (BCSC) at para. 55. The strata’s stated aim of behaviour modification is consistent with this purpose.

31.   While the applicants may be disappointed in the outcome of their complaints, I find that the evidence does not support the conclusion that the strata is ignoring complaints, failing to enforce the bylaws, or enforcing bylaws in a manner that is inconsistent or unfair. I also find that the evidence before me does not establish that the strata is failing to meet its obligations to keep records or provide access to records as required by sections 35 and 36 of the SPA. While I acknowledge the applicants’ complaint that the strata’s minutes are inadequate and that the strata picks and chooses what to show owners about complaints, I do not find that this position is substantiated by the evidence.  Further, some of the information discussed by the applicants (such as allegations of criminal activity) would not be appropriate for disclosure in the minutes due to privacy considerations.

32.   The applicants suggest that strata lot 32 is not in compliance with municipal bylaws about barking and aggressive dogs. I do not find that it is up to the strata to investigate possible breaches of municipal bylaws. It would be open to the applicants to contact the municipality in this regard.

33.   I dismiss this aspect of the applicants’ claim.

Pets in Strata Lot 32

34.   The applicants seek orders that the strata remove Diesel and 1 or more cats from strata lot 32 such that there are no more than 2 pets in the strata lot, as required by bylaw 3(14)(c). The applicants provided photos that they say prove that the occupants of strata lot 32 have too many pets, as they show the presence of several cats in addition to Diesel. The strata says that the occupants of strata lot 32 did have more than 2 pets, but confirmed that one cat was removed (although it seems that it later returned on a temporary basis). The strata says that it has not received further complaints about the number of pets in that strata lot.

35.   As noted by the strata, the bylaws do not grant the authority to remove pets from a strata lot. Instead, the strata may issue warnings and fines against a strata lot shown to be in violation of a pet-related bylaw. In this case, it appears that the strata has acted upon complaints about the number of pets in strata lot 32. There is no indication that the strata would not act on a further complaint should one be received.

36.   The applicants also say that Diesel is not permitted to be in the strata as he is a pit bull, one of the breeds identified as a vicious dog in bylaw 3(14)(h)(ii). The strata says that it investigated the matter, and evidence from Diesel’s veterinarian and the municipality stated that he was an American bulldog, which is not a prohibited breed under the bylaw. The applicants say this evidence is not reliable and the strata should not have accepted it. The applicants say the strata should require DNA testing as definitive proof of Diesel’s breed.

37.   In this case, the strata conducted their due diligence and investigated the matter, gathering evidence to support the decision about Diesel’s breed. Although the applicants may have a differing view of the evidence, I find that the strata conducted a reasonable investigation into Diesel’s status under this bylaw.

38.   Bylaw 3(14)(h)(i) addresses dogs who have attacked people or animals. In July of July 2017, there was an altercation between Diesel and 2 dogs from strata lot 33. The strata investigated and determined that while Diesel jumped over the fence into the yard of strata lot 33, the other dogs instigated the fight. The strata decided, in these circumstances, not to deem any of the 3 dogs vicious, but instead issued fines to their owners. The strata conducted a similar investigation when the applicants reported that Diesel attacked their small dog through the fence. Based on the evidence, I find that it was reasonable for the strata to determine that Diesel did not amount to a vicious dog.

39.   The applicants cited municipal bylaws about aggressive dogs. As discussed above, the strata is not responsible to investigate possible breaches of municipal bylaws, but the applicants may take this issue up with the municipality.

Fence Installed by the Applicants

40.   There is no dispute that the yard areas and fences are CP and that, according to the bylaws, the applicants were required to get permission from the strata before making alterations to the fence. Photos provided by the applicants show that a second level of wooden fencing was added to the top of the existing fence on the boundary between strata lots 31 and 32. The evidence before me shows that the applicants had asked for permission from the strata to install a higher fence but had not received a response when they proceeded with construction.

41.   The strata notified the applicants that the fence had been constructed on CP without permission and asked them to remove it. The applicants requested and received a hearing about this bylaw infraction. The strata cited concerns with safety and aesthetics and determined that the fence must be removed. When the applicants did not comply, the strata removed the fence and charged the expense to the applicants.

42.   The applicants do not agree with the outcome of the hearing about the fence. They say that it is impossible to see the fence from outside the strata property and their fence was well-constructed. They say the former owner of strata lot 33 added lattice to her fence that stayed there until she moved out, but the strata did not remove it. I infer from the applicants’ submission that this fence lattice is no longer in place. I note that documents filed at the Land Title Office show that the strata has entered into indemnity agreements with other strata lot owners for other exterior alterations, but they do not mention fences. The evidence does not establish that the strata granted permission for strata lot 33’s fence alteration, or that the manner in which the strata addressed the applicants’ fence was significantly unfair based on past practices.  

43.   Although some time had passed since their request to build a fence, the applicants were not entitled to alter the fence on CP without the strata’s permission. The applicants’ fence installation was not in compliance with the bylaws, and the bylaws permit the strata to remedy such a contravention. I find that the strata’s decision in this regard was reasonable. Therefore, I find that the applicants are not entitled to reimbursement of the $189.19 they spent on wood, or to have the charge for fence removal reversed.

44.   As discussed above, bylaw 3(14)(a) requires that Diesel be leashed or otherwise secured when he is on CP, which would include the yard areas. If the applicants remain concerned about Diesel jumping over the fence, they may make another request for permission from the strata to alter the fence.  

Stress & Hardship

45.   The applicants seek damages of $4,200.00 for stress and hardship, the loss of enjoyment of their yard, and time spent on documenting bylaw infractions.

46.   As discussed in Eggberry v. Horn et al, 2018 BCCRT 224, damages for mental distress may be awarded only where there is independent evidence of harm. Although not binding upon me, I find this decision to be persuasive. As the applicants have not filed any medical evidence establishing that they have suffered any mental consequences as a result of the strata’s conduct, this aspect of their claim must be dismissed.

47.   Similarly, the applicants have not provided any supporting evidence to establish or quantify their claimed damages associated with hardship or loss of enjoyment. While I acknowledge the applicants’ frustration with their neighbours’ conduct, I dismiss this aspect of their claim.

48.   Based on the tribunal’s rule that legal fees usually are not recoverable except in extraordinary cases, the tribunal generally does not award compensation for time spent dealing with a dispute. I find that this was not an extraordinary case that would warrant expenses for time spent.

TRIBUNAL FEES AND EXPENSES

49.   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. As the applicants were not successful, I dismiss their claim for reimbursement of $225.00 in tribunal fees. The strata claimed $190.47 for dispute-related expenses, and I order the applicants to reimburse the strata this amount.

50.   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 otherwise ordered by the tribunal.

DECISION AND ORDERS

51.   I dismiss the applicants’ claims and this dispute. 

52.   Within 30 days of the date of this order, the applicants must pay the strata $190.47 as reimbursement for dispute-related expenses.