Date Issued: April 16, 2019

File: ST-2018-004218

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan 86 v. McConnell et al, 2019 BCCRT 464

Between:

The Owners, Strata Plan 86

Applicant

And:

Angela McConnell and Janice Christenson

RespondentS

REASONS FOR DECISION
Tribunal Member:	Lynn Scrivener

INTRODUCTION

1.      This is a dispute about repair costs. The applicant, The Owners, Strata Plan 86 (strata) says that it arranged for emergency repairs to a leak on the balcony of the strata lot owned by the respondents Angela McConnell and Janice Christenson. The strata seeks reimbursement of $12,693.09 in repair costs and declarations about the respondents’ responsibilities. The respondents say that the strata has assumed responsibility for balcony maintenance and reneged on a promise to pay for the repairs.  

2.      The strata is represented by a member of the strata council. The respondents are represented by a family member, Dale Christenson.

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’s mandate includes proportionality and the speedy resolution of disputes, and it has the discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. The respondents requested an oral hearing due to the presence of credibility issues. The strata says an oral hearing is not necessary. I decided to hear this dispute based on the parties’ written submissions.

5.      In Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, the court recognized the tribunal’s process, and found that oral hearings are not necessarily required when credibility is in issue. Some of the evidence in the instant dispute amounts to a “he said, she said” scenario as to what occurred during a meeting between the respondents and a member of the strata council. The credibility of an interested witness, particularly where there is a conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be most truthful. The assessment of which account is the most likely depends on its harmony with the rest of the evidence. In this case, I am satisfied that I am able to weigh and assess the extensive documentary evidence and submissions, and find that an oral hearing is not necessary.

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.      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.

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.      The respondents requested that the tribunal order the production of minutes from 2 meetings with members of the strata council on November 24, 2017 and January 31, 2018. The strata says these meetings were informal and no minutes were taken. There is no indication this report is inaccurate, or that the respondents, as owners, would not have access to minutes taken at strata council meetings. Accordingly, I decline to make an order for production in this case.

10.   Tribunal documents incorrectly show the name of the respondent as The Owners, Strata Plan, VIS 86. Based on section 2 of the Strata Property Act (SPA), the correct legal name of the strata is The Owners, Strata Plan 86. 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.

ISSUES

11.   The issues in this dispute are:

a.    whether the respondents must pay the strata $12,693.09 for emergency repairs;

b.    whether the strata is entitled to a declaration that the respondents breached bylaw 3.1 by failing to maintain the enclosed balcony of their strata lot;

c.    whether the strata is entitled to a declaration that the respondents breached bylaw 4.20 by failing to reimburse the strata for expenses associated with the emergency repairs;

d.    whether the strata is entitled to a declaration that the respondents are equally responsible for the cost of maintenance of their strata lot.

BACKGROUND AND EVIDENCE

12.   The strata is located in Sidney, British Columbia and is comprised of 42 strata lots for occupants of 50 years of age and over. The respondents are the registered owners of strata lot 38, which is also known as suite 301.

13.   According to the strata plan, the balconies are considered to be part of the adjacent strata lot rather than limited common property (LCP). Over the years, many owners have enclosed their balcony areas. There is no dispute that a previous owner created such an enclosure on the balcony of strata lot 38. The strata does not have documentation about these projects, and it is unclear whether they were undertaken with the strata’s permission. It does appear that there have been issues with leaks and structural integrity with some of the balcony enclosures, and that some owners have chosen to remediate these issues by removing or repairing the structures.

14.   The applicable bylaws were filed at the Land Title Office in May of 2007. Bylaw 3 provides that an owner must repair and maintain their strata lot and LCP, except for repair and maintenance that is the responsibility of the strata. The strata’s responsibilities are defined in bylaw 10, which states that the strata must repair and maintain common assets, common property that has not been designated LCP, and particular elements of LCP. Bylaw 10.1.4 also provides that the strata has a duty to repair and maintain portions of a strata lot, including the structure and exterior of the building, balconies, railings and similar structures that enclose balconies. This bylaw specifically states that the strata’s responsibility does not extend to modifications carried out by an owner.

15.   Bylaw 4.20 states that an owner shall indemnify and save harmless the strata corporation from the expense of any maintenance, repair or replacement rendered necessary to CP, LCP, common assets, or to any strata lot by the owner’s act, omission, negligence or carelessness or by that or an owner’s visitors, occupants, guests, employees, agents, tenants or a member of the owner’s family, including repairs, alteration and renovation made to the owner’s unit, but only to the extent that such expense is not reimbursed from the proceeds received by operation of any insurance policy.

16.   In 2017, the owner of suite 201, which is immediately below the respondents’ strata lot, reported water dripping onto the floor of the balcony from the ceiling above. The strata arranged for a contractor to investigate the source of the leak. According to the strata, during the investigation, Ms. McConnell stated that she leaves the balcony windows open during rainy weather, which would allow water to pool on the tiled balcony floor.

17.   As documented in a March 31, 2017 message to the respondents, the strata determined that the problem was related to the “sub frame installed during the renovation of the balcony floor to support the installation of the tiles on the balcony of unit 301”. The screws used to secure the sub frame had penetrated the original balcony floor, allowing water to leak into the ceiling space and cause rot in the sub floor. This water ingress also caused damage to the ceiling and floor of suite 201’s balcony enclosure. The message stated that “council requires you to make the necessary repairs to the problem area in 301”.

18.   Ms. McConnell and her representative, Mr. Christenson, met with CM, who was a member of the strata council, to discuss the repairs. The respondents say that CM told them that the strata would pay for the repairs, but CM denies that this occurred.

19.   The strata arranged for Okell Waterproofing Ltd. (Okell) to stop the leak as it was concerned about damage to CP from water ingress. Based on the scope of work described by Okell, repair work was performed to the CP exterior of the building and the exterior and interior of the balcony enclosure as part of this process.

20.   On July 18, 2017, the strata forwarded to the respondents 2 Okell invoices for repair costs totalling $12,693.09. The strata requested reimbursement for this amount by August 20, 2017. The strata also advised that this did not include any costs for which the respondents may be responsible to address water seepage to the strata lot below.

21.   The respondents did not provide the requested reimbursement. They suggested that the respondent, Ms. Christenson, is listed as an owner of the strata lot for estate planning purposes only and therefore was not responsible for the strata lot. They stated that the respondent, Ms. McConnell, does not have insurance coverage or funds available to pay for the repairs as she is on a fixed income. The respondents insisted that the strata had agreed to fund the repairs to the balcony area. Numerous attempts to resolve the matter were unsuccessful.

POSITION OF THE PARTIES

22.   The strata’s position is that the respondents are responsible for the claimed repair costs, and for any additional costs associated with the repair of suite 201’s balcony enclosure. The strata says it considered the active leak to be an emergency and took immediate action to prevent further damage.

23.   The strata submits that the bylaws are clear and both respondents are responsible for maintenance and repair responsibilities, as well as costs incurred by the strata. The strata requests that I order the respondents to pay the outstanding amount of $12,693.09.

24.   The respondents say that a member of the strata council promised that the strata would perform and pay for the balcony repairs, but he later reneged on that promise. The respondents also say that the Okell bills are exorbitant and that not all repairs were emergent. According to the respondents, had they known that the strata would not pay for the repairs, they would have solicited several quotes from contractors and properly managed their chosen contractor.

25.   The respondents acknowledge the division of responsibility in the bylaws, but say that the strata has improperly caulked the windows on the balcony enclosure on at least 2 occasions in the past 8 years. They say that the strata has therefore assumed responsibility for this addition and suggest that the caulking contributed to the leak issue. The respondents also raise concerns about the strata accessing the strata lot without permission, as well as what they describe as abusive and harassing behaviour from certain members of the strata council. The respondents request that I dismiss the strata’s claim.

ANALYSIS

 

26.   As a preliminary matter, I acknowledge the respondents’ reports of what they perceive as abusive and harassing behaviour on the part of certain members of the strata council, and allegations that some council members entered their strata lot without permission. However, as these individuals are not parties to this dispute, I do not find it necessary to make any determinations in this regard.

Responsibility for the Strata Lot

27.   The respondent, Ms. Christenson, has suggested that she is listed as an owner for estate planning purposes only and therefore Ms. McConnell alone bears responsibility for the strata lot. The strata has requested a declaration that the respondents are equally responsible for the maintenance and repairs of the strata lot.

28.   Section 1 of the SPA defines an owner as “a person shown in the register of a land title office as the owner of a freehold estate in a strata lot, whether entitled to it in the person’s own right or in a representative capacity”. The SPA does not create different classes of ownership or responsibility for individuals who do not live in a strata lot but are listed as owners for other purposes, including estate planning.

29.   The title search for the strata lot shows the registered owners as Ms. McConnell and Ms. Christenson as joint tenants. I find that, on this basis, Ms. Christenson meets the statutory definition of an owner in the SPA. Therefore, she shares all ownership rights and responsibilities with Ms. McConnell. As these rights and responsibilities are established in the SPA, I do not find it to be necessary to make a declaration to that effect.

Responsibility for Repairs

30.   Bylaw 10.1.4 states that the strata’s responsibility for maintenance and repair does not extend to modifications carried out by an owner. Although the respondents did not install the balcony enclosure, they are responsible for all repair and maintenance to this alteration to their strata lot.

31.   Evidence from the contractor hired by the strata suggests that there were issues with the manner in which the flooring of the balcony enclosure was installed. In addition, a contractor hired by the respondents raised a concern that the windows had not been installed properly. The fact that the windows were left open in rainy weather also allowed water to enter the strata lot.

32.   The respondents raised a concern that the water may not have been coming from suite 301 and the source of the leak was never determined. However, evidence before me shows that water testing (with water from a hose being aimed at the balcony enclosure of suite 301) showed an immediate leak to the enclosure of suite 201 below. Whatever the specific source, I am satisfied that there was water ingress into the strata lot’s balcony enclosure that was leaking down to another strata lot.

33.   The respondents also argued that, as the strata performed caulking on the exterior of the balcony enclosure, it had assumed maintenance responsibility for this addition, and possibly contributed to the water ingress issue. The respondents provided a letter from a previous owner of the strata lot who stated that he found caulking on the exterior windows of the balcony enclosure on two occasions. The strata says it has no record of caulking the windows.  

34.   I find that the evidence before me does not establish who applied the caulking to the windows of the strata lot’s balcony enclosure. No matter who applied the caulking (or arranged for it to be applied), I am not satisfied that the strata intended to take responsibility for maintenance of a structure which is specifically excluded in bylaw 10.

35.   In accordance with bylaws 3 and 10, I find that the respondents are responsible for all maintenance and repair, and associated costs, for the balcony enclosure. Further, under bylaw 4.20, the respondents are also responsible for any costs incurred by the strata in repairing CP, LCP or common assets that result from the previous owner’s act of enclosing the balcony.

36.   Having determined that, under the bylaws, the respondents are responsible for the costs associated with their balcony enclosure, I will consider whether the strata made an agreement to cover these costs.

37.   The parties report differing versions of events as to whether CM told the respondents that the strata would take responsibility for the repair costs. Notes made by Mr. Christenson following a meeting with CM indicate his understanding of the conversation as being that the strata would “take care of” the leak issues and that Okell would perform this work.

38.   Mr. Christenson sent an email message to CM on April 1, 2017 which stated, in part, “Thank you for agreeing to coordinate the repair of my mother-in-law’s balcony. I very much appreciate this as I travel extensively and it is difficult for me to get quotes or manage such work.” The message also stated that “…it would be great if someone could replace or fix the membrane and subfloor of her balcony. I can retile and seal it to prevent future issues”. There is no mention of the cost or responsibility for payment in this message, and the scope of intended work is not clearly defined.

39.   The strata has consistently stated that it arranged for Okell (which was already onsite doing other work) to perform some investigation and repairs due to what it perceived as the emergent nature of the water ingress. I find that this is consistent with Mr. Christenson’s comment about coordinating repairs. While it is possible that there may have been a misunderstanding as to what the strata intended to “take care of”, I am unable to determine that there was a specific agreement to pay for the respondents’ repair costs.

40.   It would not be consistent with the division of responsibilities under the bylaws for the strata to agree to cover repair costs attributable to the respondents. Further, it would not be consistent with the approach the strata has taken with other owners who have been required to pay their own costs to repair and remediate balcony enclosures on their strata lots. It would be significantly unfair for the strata to fund the respondents’ balcony repair while expecting the owners of other strata lots to bear their own costs.

41.   Based on the entirety of the evidence before me, I find that it is more likely than not that the strata did not agree to pay the costs of repairing the respondents’ balcony enclosure. Therefore, these costs remain the responsibility of the respondents.

42.   I acknowledge the respondents’ submissions that they had no choice in selecting the contractor or the extent of the repairs, which they say went beyond the scope of an emergency and did not involve competitive pricing. However, Mr. Christenson’s April 1, 2017 email message indicates that the respondents chose to delegate the selection of a contractor and scope of work to the strata despite Ms. McConnell’s financial constraints.

43.   I find that the respondents must pay to the strata the $12,693.09 as reimbursement for Okell’s invoices.

TRIBUNAL FEES, EXPENSES AND INTEREST

44.   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. I therefore order the respondents to reimburse the strata for tribunal fees of $225.00.

45.   I also find that the strata is entitled to pre-judgment interest under the Court Order Interest Act on the Okell invoices paid by the strata. Calculated from August 20, 2017, this amounts to $272.81.

46.   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

47.   I order that, within 30 days, the respondents pay to the strata a total of $13,190.90, broken down as follows:

a.    $12,693.09 in reimbursement of the Okell invoices;

b.    $272.81 in pre-judgment interest; and

c.    $225.00 in tribunal fees.

48.    The strata is also entitled to post judgement interest under the Court Order Interest Act, as applicable.

49.   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.

50.   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.