Date Issued: April 12, 2019

File: ST-2018-007604

Type: Strata

Civil Resolution Tribunal

Indexed as: L.S. v. The Owners, Strata Plan ABC XXXX, 2019 BCCRT 454

Between:

L.S.

Applicant

And:

The Owners, Strata Plan ABC XXXX

Respondent

REASONS FOR DECISION
Tribunal Member:	Eric Regehr

INTRODUCTION

1.      The applicant, L.S., is the owner of a strata lot in the respondent strata corporation, The Owners, Strata Plan ABC XXXX (strata). The applicant brings this dispute primarily because she believes that the strata failed to properly allocate parking stalls and failed to allow the owners access to common property. She also raises a number of issues about the strata’s governance and processes.

2.      The applicant is self-represented. The strata is represented by the vice president and secretary of the strata council.

3.      The parties have been involved in a previous dispute, L.S. v. The Owners, Strata Plan ABC XXXX, 2018 BCCRT 376 (previous dispute). In the previous dispute, the applicant requested that the publicized decision be anonymized because of the applicant’s health concerns. Because the parties are the same in this dispute, in the publicized version of this decision, I have anonymized the parties’ names.

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.      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.      The applicable tribunal rules are those that were in place at the time this dispute was commenced.

8.      Under section 123 of the Act and the tribunal rules, in resolving this dispute the tribunal may 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

9.      The issues in this dispute are:

a.      Did the strata assign parking stalls in accordance with the Strata Property Act (SPA)?

b.      Has the strata improperly restricted access to the strata’s rooftop deck?

c.      Did the strata assign storage lockers in accordance with the SPA? Has the strata improperly restricted access to some of the storage areas?

d.      Should the strata reimburse the applicant for off-site storage costs?

e.      Should the strata reimburse the applicant for incorrect Form B Information Certificates? Should the strata provide the applicant with a revised Form B at no cost?

f.       Should the strata reimburse the applicant for the cost of a dashboard camera (dashcam)?

g.      Has the strata failed to comply with a previous tribunal order? If so, what remedy is appropriate, if any?

h.      Has the strata failed to properly supervise and instruct the strata’s property manager?

10.   The strata did not provide any submissions or arguments in response to the applicant’s claims, despite having the opportunity to do so. I will address the applicant’s position on each of the above issues below.

11.   At the outset, I note that the applicant made several allegations about the strata’s conduct that were unrelated to any specific orders the applicant seeks in this dispute. I have reviewed these submissions and find that it is unnecessary for me to comment on the issues that the applicant raises.

12.   The applicant also asks for an order that the strata comply with several sections of the SPA. I decline to make an order that the strata comply with the SPA. The strata is already legally obligated to comply with the SPA so an order requiring them to do so is redundant. I also find that the scope of the order that the applicant seeks is too broad to be helpful.

BACKGROUND AND EVIDENCE

13.   In a civil claim such as this, the applicant must prove her case on a balance of probabilities. While I have read all of the parties’ evidence and submissions, I only refer to what is necessary to explain and give context to my decision.

14.   The strata consists of 23 residential strata lots in a 3 story building. The strata has 2 levels of underground parking. The parking areas are designated as common property on the strata plan. The strata has 2 storage areas which are also designated as common property on the strata plan. The storage areas are divided up as separate storage rooms, one of which has individual lockers. The strata also has a rooftop deck that is designated as common property on the strata plan.

15.   The strata filed bylaw amendments in the Land Title Office on April 20, 2004, and March 6, 2017. There are no bylaws about parking stalls, the rooftop deck, the storage areas, or any other matter at issue in this dispute.

16.   The applicant purchased her strata lot in 2013. The Form B she received as part of the purchase did not include any information about parking stalls or storage lockers, because the SPA did not require that information until an amendment that came into force on January 1, 2014. However, the seller of the strata lot assigned the applicant their right to parking stall #6 and storage locker #8.

17.   The applicant provided the minutes of various strata council meetings and annual general meeting minutes dating back to 2003. I do not propose to set out a detailed history of the allocation of parking stalls in the strata. I take from these minutes that there have been several attempts to formalize and clarify the allocation of the parking stalls and access to the various storage rooms.

18.   In 2016, the strata decided to replace the decking of the rooftop deck. The applicant says that this work has not been completed.

19.   On April 13, 2017, the strata decided to restrict access to the rooftop deck due to concerns about liability and the rooftop membrane. There is no evidence that the strata was guided by any professional advice. The applicant provided photographs of the rooftop deck, but it is not possible for me to tell whether the strata completed any work on the deck or to determine whether the deck is safe to use.

20.   On April 13, 2017, the strata also decided to rekey the common area recreation room and the storage areas with a single key to give all owners access to all areas. The applicant says that this has never happened. Because the common areas were never rekeyed, the applicant says that a small number of unknown owners have effective exclusive use of storage rooms #2 and #3.

21.   On September 4, 2017, the applicant reported that someone had written an obscene insult on her parking stall, which she believes is the result of her previous tribunal proceeding. The applicant told the property manager that she would temporarily park in a different parking stall, presumably because she did not want to have to view the obscenity when she parked. She also requested video footage from the strata’s security cameras so that she could figure out who committed the act of vandalism. The strata refused to provide access to the applicant, saying they would release it to the police if the police investigated.

22.   In late September 2017, the property manager initiated a mandatory parking survey, asking each owner or tenant which parking stall they used. The property manager confirmed that the applicant was assigned parking stall #6.

23.   On October 27, 2017, the strata removed the obscenity in parking stall #6 and the applicant began using it again.

24.   Only 10 owners responded to the parking stall survey. The strata council decided to use “historical records” to assign parking stalls and changed the applicant’s parking stall from #6 to #45. The applicant says that her parking stall was the only one in the strata to change as a result of the strata’s decision to use historical records to assign parking stalls. There is evidence that in the early 2000s the previous owner of the applicant’s strata lot was assigned parking stall #45.

25.   The applicant wrote to the strata on April 3, 2018. She requested information about the allocation of parking stalls and storage lockers. She also requested access to storage rooms #2 and #3 and to the rooftop deck for all owners. She also requested a Form B for her strata lot.

26.   The Form B, dated April 12, 2018, said that the applicant’s strata lot was assigned parking stall #45 and storage locker #8.

27.   In May 2018, the strata began remediation work on the applicant’s deck. The applicant says that this work combined with her lack of access to the storage areas forced her to rent off-site storage for some of her belongings. As of the date the applicant provided her submissions, this work was ongoing. The applicant began paying for offsite storage in July 2018. Initially, she rented a 5x5 storage unit for $82.95 but in December 2018 she upgraded to a 5x10, which was $124.95 per month

28.   On September 3, 2018, the applicant ordered a second Form B for her strata lot, which the property manager provided on September 4, 2018. It had the same parking stall and storage locker allocation as the first Form B.

29.   The applicant sent a letter to the strata on September 5, 2018. The applicant requested a hearing about many of the issues that she raises in this dispute. The strata council held a hearing on September 27, 2018. There is no evidence of any concrete action coming from the hearing.

30.   In a strata council meeting held on December 4, 2018, the strata decided to lock off storage rooms #2 and #3 until a “best use” for them could be determined.

31.   In January 2019, the strata reassigned the applicant parking stall #6.

ANALYSIS

Did the strata assign parking stalls in accordance with the SPA?

32.   The applicant asks for an order that the strata complete a review of all parking stall assignments and create “legally binding assignments”, with a presumption that each strata lot gets 1 parking stall.

33.   The applicant’s primary complaint is that the strata reassigned her parking stall #45 when she had been using parking stall #6. Since initiating this dispute, the strata has assigned the applicant parking stall #6 again.

34.   Section 76 of the SPA says that the strata may give an owner or tenant permission to exclusively use common property for a period of not more than 1 year, which can be renewed. Section 76(4) says that the strata can cancel that permission on reasonable notice.

35.   Section 3 of the SPA says that the strata must manage and maintain common property for the benefit of all owners. Section 4 of the SPA says that the strata council exercises the powers and duties of the strata. Taken together, these provisions of the SPA mean that the strata council has the power to give an owner or tenant exclusive use of a parking stall for 1 year at a time. The strata must allocate parking stalls in the best interests of all owners and may change the allocation of parking stalls on reasonable notice as long as doing so is not significantly unfair.

36.   With respect to the previous owner’s assignment of parking stall #6 and storage locker #8, the previous owner only assigned her “right, title and interest” in the parking stall and storage locker. For the reasons discussed above, the previous owner did not have a right to use the parking stall or storage locker, both of which are common property, for more than 1 year after the strata assigned it to her. The previous owner could not assign a right that they did not have, so the assignment does not assist the applicant in this dispute.

37.   Therefore, I disagree that the applicant, or any owner or tenant, has a legally enforceable reasonable expectation that she will continue to have exclusive use over the same parking stall.

38.   The applicant argues that the strata’s failure to come up with a clear and equitable allocation of parking stalls has cost the strata money because it should be renting out any extra parking stalls. Rather, the strata allows other owners to use them for free. However, as discussed above, it is within strata council’s discretion how to allocate parking stalls. I find that the decision of what to do with excess parking stalls is best left to the owners, who may seek to pass a bylaw about how to allocate parking stalls, including extra parking stalls, or elect a different strata council if a majority prefers a new course of action. For example, if enough owners agree, the applicant could petition the strata to designate parking stalls as limited common property.

39.   In the circumstances, I find that an order requiring the strata to designate the parking stalls to particular owners is not appropriate. Such designations are within the strata council’s discretion, subject to its obligation to act in the best interests of all owners and to refrain from any decisions that would be significantly unfair. However, I agree that the strata must formalize the designation of parking stalls in order to fulfill its obligation under sections 3 and 76 of the SPA.

40.   I order the strata to give an owner or tenant of each strata lot, as the case may be, exclusive use of at least 1 parking stall for a period of not more than 1 year in accordance with section 76 of the SPA, within 90 days of the date of this decision. I order that a list of the assignments be in writing and distributed to the owners and tenants. I order the strata to ensure that the allocation of parking stalls is reviewed annually for as long as the parking stalls remain common property.

41.   As for the applicant’s arguments that it was significantly unfair to allocate her parking stall #45 rather than parking stall #6, I find that this issue is moot because the strata reversed its decision after the applicant commenced this dispute.

Has the strata improperly restricted access to the strata’s rooftop deck?

42.   The applicant asks that I order that the strata repair the rooftop deck, following through on its commitment to do so in 2016, and allow the owners access within 6 months. The applicant argues that the strata’s decision to restrict access to the rooftop deck for “liability reasons” is a significant change in the use of appearance of common property.

43.   There is no direct evidence about when the owners last had access to the rooftop deck. I infer that it was in use until the strata decided to restrict access for liability reasons and to protect the rooftop membrane.

44.   Section 71 of the SPA says that the strata must not make a significant change in the use or appearance of common property unless either the change is approved by a resolution passed by a ¾ vote at an annual or special general meeting, or there are reasonable grounds to believe that an immediate change is necessary to ensure safety or prevent significant loss or damage.

45.   I find that restricting access to the rooftop deck is a significant change in its use.

46.   Because the strata chose not to provide any submissions, there is no evidence to suggest that the strata had reasonable grounds to believe that there was an immediate need to restrict access to the rooftop deck to prevent significant loss or damage. In addition, there is no evidence that the owners approved the change by a ¾ vote an annual or special general meeting. Rather, the strata council appears to have made the decision on its own.

47.   I find that the use of the word “immediate” in means that section 71(b) deals with emergency situations. It has now been almost 2 years since the strata restricted access. I find that the strata cannot rely on section 71(b) to permanently or indefinitely restrict access to the rooftop patio. Therefore, I find that the strata did not comply with section 71 of the SPA.

48.   The strata disagreed with the applicant’s proposed orders about the rooftop deck in its Dispute Response. I therefore infer \ that it still believes that the owners should not have access to the rooftop deck. I find that the owners, not strata council, must decide whether the cost to fix the deck, the potential damage to the rooftop membrane and the potential liability risks outweigh the amenity value of having a rooftop deck.

49.   I order the strata to hold a special general meeting within 90 days of the date of this decision. I order that the strata propose a ¾ vote resolution that access to the rooftop deck be restricted in accordance with section 71 of the SPA. The strata is not restricted from proposing other ¾ vote resolutions to deal with the issue of access to the rooftop deck, if it wishes. If none of the strata’s resolutions about access to the rooftop deck receive ¾ of the votes, I order the strata to provide the owners with access to the rooftop deck within 90 days of the special general meeting, since this was the status quo prior to the strata restricting access to the rooftop deck.

50.   I do not make an order that the strata make the repairs it planned to make in 2016. I find that there is insufficient evidence before me to determine whether those repairs were immediately necessary or simply cosmetic. I find that I have given the strata enough time to make any necessary repairs to ensure that the rooftop deck will be safe for use if the owners do not decide to restrict access to the deck.

Did the strata assign storage lockers in accordance with the SPA? Has the strata improperly restricted access to some of the storage areas?

51.   The applicant asks that I make the same order about storage areas as I did with parking stalls.

52.   The evidence about the configuration of the storage areas is not entirely clear. The applicant provided photographs of storage rooms #2 and #3, but not any storage lockers. However, the parking stall assignment list also shows that each strata lot has an assigned storage locker. I understand that storage rooms #2 and #3 are large, unassigned storage areas and that the owners’ and tenants’ storage lockers are located in a different storage area.

53.   I find that the strata must bring itself into compliance with the SPA in the manner in which it allocates storage lockers in the same way as with the parking stalls. I make the same orders for the individual storage lockers as I have made for the parking stalls.

54.   As for storage rooms #2 and #3, it appears that the strata council made a unilateral decision to lock the storage areas. I find that this was a significant change in the use of the storage rooms. The strata’s stated reason was to figure out how to best use them, which does not suggest an immediate need to close them off to the owners and tenants.

55.   I order that, at the special general meeting that I have already ordered the strata to hold, the strata propose a ¾ resolution about how it suggests using storage areas #2 and #3 in accordance with section 71 of the SPA. I find, based on the evidence before me, that the strata has already been considering this issue for some time and will be able to make a recommendation to the owners. I order the strata to put its recommendation in the notice of the special general meeting that it sends to the owners. If the resolution fails to receive ¾ of the votes, I order the strata to provide the owners with access to storage areas #2 and #3 within 30 days of the special general meeting.

Should the strata reimburse the applicant for her off-site storage costs?

56.   The applicant says that strata council has blocked her access to the storage areas, which has forced her to use off-site storage when deck repairs required her to put some of her items into storage. She claims $870 as reimbursement of the costs of off-site storage.

57.   The applicant takes issue with how the strata has managed the deck repair issue but does not seek any orders about it other than reimbursement of her off-site storage costs. I will therefore not address those arguments.

58.   The applicant does not provide evidence about what she had to move to off-site storage or what space she had available in her strata lot or in her assigned storage locker. I am not persuaded that the applicant had no other choice but to pay for off-site storage. I dismiss this aspect of the applicant’s claim.

Should the strata reimburse the applicant for incorrect Form B Information Certificates? Should the strata provide the applicant with a revised Form B at no cost?

59.   The applicant argues that the strata’s mismanagement of the parking stall issue caused her to order 2 Form Bs, both of which were incorrect. She claims a total of $242.25 for the cost of the 2 Form Bs, one of which attracted a rush fee. She also asks for an order that the strata provide her with a corrected Form B at no charge.

60.   I have reviewed the evidence of how the parking stall issue progressed throughout 2017 and 2018. I do not agree that the strata did anything to make it necessary for the applicant to order either of the Form Bs. In addition, because the strata has discretion to allocate and reallocate common property, I cannot conclude that the Form Bs are incorrect simply because they showed that the strata had allocated her parking stall #45.

61.   I also find that the applicant has failed to establish a reason that she needs a new Form B. The strata has confirmed that it has assigned her parking stall #6, but the SPA provides that it is subject to change on reasonable notice and must be renewed annually. The strata has not, and cannot, permanently grant the applicant the right to exclusive use of parking stall #6.

62.   I dismiss the applicant’s claims about the Form Bs.

Should the strata reimburse the applicant for the cost of a dashcam?

63.   The applicant claims $458 to install a dashcam on her vehicle.

64.   The applicant says that the strata’s refusal to allow her to access the information on the video surveillance system that the strata installed in the parking area forced her to purchase the dashcam. In addition, she says that parking stall #45 is not covered by the strata’s video surveillance.

65.   I disagree that the strata’s handling of the applicant’s complaints about harassment or its reallocation of parking stall #45 to the applicant required the applicant to purchase the dashcam. Nothing in the SPA or the bylaws gives the applicant a right to have her vehicle covered by video surveillance. The applicant chose to do so to protect her interests, but I find that the applicant has not proven that the strata should be responsible for the cost.

66.   I dismiss the applicant’s claim for reimbursement of the cost of the dashcam.

Has the strata failed to follow a previous tribunal order? If so, what remedy is appropriate, if any?

67.   The applicant asks for an order that the strata is in contempt of the tribunal’s previous order and for an order that the strata comply with the previous order within 30 days.

68.   The concept of contempt only applies in the context of court proceedings. Tribunal orders are enforced through either the Supreme Court or Provincial Court, depending on the subject matter. I note that the applicant has already filed the order in the Supreme Court. The tribunal does not have authority to enforce its own decisions. If the applicant wishes to enforce the previous order, it must be through the court system.

Has the strata failed to properly supervise and instruct the strata’s property manager?

69.   The applicant asks for an order that the strata properly instruct the property manager and to report to the owners about what it instructs the property manager to do.

70.   In particular, the applicant takes issue with the manner in which the strata conducted the parking survey in September 2017. She says that there is no record of the strata’s approval of initiating the survey, and therefore that the property manager went beyond their authority.

71.   The applicant relies on McGowan v. Strata Plan NW 1018 (Owners), 2002 BCSC 673. In McGowan, the Court says that a property manager is in service of the strata and strata council, not the other way around. This principle is not controversial. That said, I disagree that the mere fact that the strata has allegedly not produced written directions to the property manager about the parking survey means that the property manager acted without direction.

72.   As for the strata council’s obligation to account for its instructions to the property manager, I find that section 35 of the SPA sets out the extent of the strata’s obligations to prepare, retain and provide access to records. The strata council must take and distribute minutes of strata council meetings, which must include the results of any votes. It must also keep correspondence to and from the strata, which includes correspondence with its property manager. The applicant has a right of access to these records under section 36 of the SPA, as do all owners. I find that it is unnecessary for me to order that the strata to prepare or distribute any further records.

73.   I dismiss the applicant’s claims about the property manager.

TRIBUNAL FEES AND EXPENSES

74.   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 find that the applicant has been partially successful. I therefore order the strata to reimburse the applicant for half of her tribunal fees of $225, which is $112.50.

75.   The applicant also seeks $100 to reimburse her for a membership with the Condominium Home Owners Association of BC (CHOA). The applicant says that CHOA helped her prepare her submissions. Tribunal rule 132 says that the tribunal will only order a party to reimburse another party for the assistance of a representative in extraordinary cases. While it was reasonable for the applicant to seek professional assistance, I find that this is not an extraordinary case. I dismiss the applicant’s claim for reimbursement of her CHOA membership fee.

76.   The applicant does not claim any other dispute related expenses.

77.   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

78.   I order that:

a.    The public version of this decision anonymize the parties’ names to protect the privacy and identity of the applicant.

b.    Within 14 days of the date of this decision, the strata pay the applicant $112.50 as reimbursement for half of her tribunal fees.

c.    Within 90 days of the date of this decision, the strata give an owner or tenant of each strata lot, as the case may be, exclusive use of at least 1 parking stall and 1 storage locker for a period of not more than 1 year in accordance with section 76 of the SPA, and that the designations be in writing and distributed to the owners and tenants.

d.    The strata review the allocation of parking stalls and storage lockers annually, including the renewal of previous allocations, under section 76 of the SPA for as long as the parking stalls remain common property.

e.    The strata hold a special general meeting within 90 days of the date of this decision to propose:

                              i.        a ¾ resolution that access to the rooftop deck be restricted and any other ¾ resolution that the strata may wish to make about access to the rooftop deck, the details of which must be in the notice of the special general meeting that the strata sends to the owners. If none of the strata’s resolutions receives ¾ of the votes, I order that the strata provide the owners with access to the rooftop deck within 90 days of the special general meeting.

                            ii.        a ¾ resolution about how it recommends using storage areas #2 and #3, the details of which must be in the notice of the special general meeting that the strata sends to the owners. If the resolution fails to receive ¾ of the votes, I order that the strata provide the owners with access to storage areas #2 and #3 within 30 days of the special general meeting.

79.   I dismiss the applicant’s remaining claims.

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

81.   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. The order can only be filed if, among other things, the time for an appeal under section 56.5(3) of the Act has expired and leave to appeal has not been sought or consented to. Once filed, a tribunal order has the same force and effect as an order of the Supreme Court of British Columbia.

82.   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. The order can only be filed if, among other things, the time for an appeal under section 56.5(3) of the Act has expired and leave to appeal has not been sought or consented to. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.