Date Issued: June 7, 2019

File: ST-2018-006081

Type: Strata

Civil Resolution Tribunal

Indexed as: Oh v. The Owners, Strata Plan KAS 1461, 2019 BCCRT 700

BETWEEN:

SEOI ROK OH

APPLICANT

AND:

The Owners, Strata Plan KAS 1461

 

RESPONDENT

AND:

SEOI ROK OH

 

RESPONDENT BY COUNTERCLAIM

 

 

REASONS FOR DECISION
Tribunal Member:	Andrea Ritchie, Vice Chair

 

INTRODUCTION

1.      The applicant (and respondent by counterclaim), Seoi Rok Oh (owner), owns 3 strata lots (SL36, SL37 and SL42) in the respondent strata corporation, The Owners, Strata Plan KAS 1461 (strata).

2.      The strata says the owner made unauthorized alterations to his 3 strata lots, contrary to its bylaws, in the form of installing a washer and dryer into each unit. In its counterclaim, the strata seeks payment of $9,600 in bylaw infraction fines, as well as several orders regarding the removal of the laundry equipment and for the owner to follow the bylaws in the future.

3.      The owner says the laundry systems were legitimately installed by professional contractors and that he had the requisite permits allowing him to install the appliances. In his claim, he seeks an order stopping the strata from threatening and levying fines against him.

4.      The owner is self-represented. The strata is represented by a strata council member.

JURISDICTION AND PROCEDURE

5.      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. 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.

6.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In the circumstances, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary.

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 123 of the Act, in resolving this dispute the tribunal may make one or more of the following orders:

a.    Order a party to do or stop doing something;

b.    Order a party to pay money;

c.    Order any other terms or conditions the tribunal considers appropriate.

ISSUES

9.      The issues in this dispute are:

a.    Did the owner carry out unauthorized alterations, contrary to the strata’s bylaws?

b.    If so, what is the appropriate remedy?

EVIDENCE, FINDINGS AND ANALYSIS

10.   I have read all of the evidence provided but refer only to evidence I find relevant to provide context for my decision. In a civil proceeding such as this, the owner must prove his claim on a balance of probabilities, and the strata must prove its counterclaim on a balance of probabilities.

11.   The strata was created in July 1994 and is a 3-storey building comprising 46 strata lots. As noted above, the owner owns 3 strata lots.

12.   It is undisputed that the owner installed laundry equipment in each of his 3 strata lots. He installed the first into SL42 in 2005, the second into SL36 in 2015, and the third into SL37 at some point after that. The strata became aware of the installation of the laundry equipment in January 2018, when the washer in SL37 leaked, causing water damage. The owner says the laundry equipment has been removed from SL37, but remains in SL36 and SL42.

13.   The strata says the owner violated the strata’s bylaws because he failed to get strata council approval before making alterations to his strata lots in installing the laundry equipment. The owner does not dispute that he did not seek the strata council’s approval, but says that because he had permits from the city, that was all that was required for him to make the alterations.

14.   The strata says that no units are entitled to have in-suite laundry equipment because common property laundry rooms are provided. The strata says that water is a common expense, thus it is unfair for other owners if certain lots are allowed to run a washing machine. It also submits the laundry equipment is installed in such a way that it poses a safety hazard.

15.   The strata submits it asked the owner to remove the laundry equipment from his units, but that the owner has refused to do so.

16.   The relevant sections of the strata’s bylaws are summarized below, which were filed with the Land Title Office on January 15, 2002.

a.    Bylaw 5(1): An owner must obtain the written approval of the strata before making an alteration to a strata lot that involves, among other things:

(f)       common property located within the boundaries of a strata lot, and

(g)      those parts of the strata lot which the strata must insure under section 149 of the Strata Property Act (SPA).

b.    Bylaw 23(a): The strata may fine an owner or tenant a maximum of $50 for each contravention of a bylaw.

c.    Bylaw 24: If the contravention of a bylaw continues, fines may be imposed every 7 days.

17.   On May 9, 2016, bylaw 23(a) was amended to increase the maximum fine for each contravention of a bylaw to $200.

18.   On June 29, 2018, as a result of this dispute, a new bylaw was added, bylaw 3(5), prohibiting in-suite laundry equipment. The strata does not rely on this bylaw in this dispute, and I note that strata bylaws do not have retroactive effect.

Did the owner carry out unauthorized alterations, contrary to the strata’s bylaws?

19.   I find the owner’s alterations of adding laundry equipment to his strata lots violated bylaw 5(1)(f) and (g).

20.   The owner agreed that he installed laundry equipment into his 3 suites in a building not designed for in-suite laundry. The owner agreed that he attached the washing machines to the common water supply and drains, and attached the dryer exhausts to the kitchen stove fume hoods. He also agreed he was not granted permission from the strata for the installation of the laundry equipment.

21.   The owner, however, says that he was not required to seek permission from the strata, and that he only had to get the proper permits from the city in order to complete the work, which he submits he did.

22.   Two city plumbing permits were submitted in the evidence before me. Plumbing permit PP 50674 for SL42 notes “work done without permit in 2005 to bring washing machine and dryer into condo”. Plumbing permit PP 50676 for SL36 notes “work done without permit in 2015”. Notably, the permits were issued on July 6, 2018, 10 days after the strata asked the owner to produce the permits he claimed he had relied on when originally installing the laundry equipment. No permits relating to the dryers have been produced.

23.   The evidence before me is that the city issues plumbing permits on demand upon payment of the permit fee. After the permit is issued, work can start. Within 6 months, the city must inspect and approve the work, or the permit is rejected. A December 2, 2018 email from a city employee advised the strata that the work for both permits noted above was inspected and ultimately rejected. The city employee stated the owner was requested to apply for a building permit to remediate the areas to meet the British Columbia Building Code and that the strata would need to provide authorization for the work to commence. At that time, the owner had not applied for a building permit.

24.   I am satisfied on the evidence before me that the owner did not seek strata’s permission to alter his strata lots, and that he did not possess the requisite city permits before starting the alterations in 2005 and 2015. Even if the owner had the proper permits at the time of installation, I find that was not sufficient to proceed with the work, without approval from the strata. The owner is required to follow the bylaws, which he admittedly did not do. Because the owner’s alterations involved connecting the washers to shared drain and water lines, and the dryers are connected to shared ducting, both of which are defined as common property in section 1(1) of the SPA, I find that bylaw 5(1) does apply to the work performed.

25.   For these reasons, I find the owner’s alterations to SL36 and SL42 were performed without written approval from the strata, contrary to bylaw 5(1).

What is the appropriate remedy?

26.   Given my finding that the owner’s installation of the laundry equipment in his strata lots was contrary to the bylaws, what is the appropriate remedy?

27.   The strata seeks payment of $9,600 in fines for the ongoing contravention of bylaw 5, and various orders related to the removal of the laundry equipment.

28.   The owner says because laundry equipment was installed pursuant to a city permit, the strata does not have authorization to charge him any fines. The owner did not specifically address the issue of removal of the laundry equipment in his submissions.

29.   Section 135 of the SPA says that in order to impose a fine against an owner for a bylaw contravention, the strata must have received a complaint about the contravention, given the owner particulars of the complaint and a reasonable opportunity to answer the complaint, including a hearing if requested. The evidence before me is that the strata became aware of the installation of the laundry equipment in SL36 and SL42 after the washing machine in SL37 leaked and caused water damage.

30.   The strata’s property manager emailed the owner on April 16, 2018 and demanded inspection of the owner’s strata lots to ensure the unapproved laundry equipment had been removed and that the plumbing and electrical within the strata lots had been returned to its original condition. The owner was advised if the laundry equipment was not removed within 7 days of the date of inspection, a fine of $200 would be imposed on each strata lot every 7 days until removal.

31.   I infer from the April 16, 2018 email that previous communication between the strata and the owner had occurred relating to the laundry equipment, but that correspondence is not before me.

32.   As a result of the April 16, 2018, the owner requested a hearing and advised that the washing machine had been removed from SL37.

33.   The strata council met with the owner on June 12, 2018. The minutes show the hearing was for the owner to respond to the bylaw violation notice given to him April 16, 2018. The minutes also indicate that after the hearing, council voted unanimously that the bylaw had been violated and confirmed its decision to issue fines against the owner’s strata lots.

34.   On June 14, 2018, the property manager informed the owner of the council’s decision and stated if the laundry equipment was not removed from the 3 strata lots by noon on June 29, 2018, fines of $200 would start on July 1, 2018 and be imposed every 7 days until it was shown that the laundry equipment was removed.

35.   The strata claims $9,600 in fines ($4,800 for SL36 and $4,800 for SL42) starting with $200 per lot on July 1, 2018 and an additional $200 every 7 days after that up until the Dispute Notice was filed on December 14, 2018. I allow the strata’s claim and order that the owner must pay $9,600 in fines. The strata is also entitled to pre-judgment interest on this amount under the Court Order Interest Act, from December 9, 2018, when the fines stopped accruing for the purpose of this dispute. As I have found the strata was correct in levying fines against the owner, it follows that the owner’s claim against the strata to stop threatening fines must fail. I dismiss the owner’s claim against the strata.

36.   Given my findings above, I also find that the owner must remove the unapproved laundry equipment and restore the plumbing, ducting and walls to their original state, at his own cost. The strata will be entitled to inspect the owner’s suites to ensure the laundry equipment has been removed and the areas have been sufficiently remediated.

37.   The strata requested an order that SL37 be immediately inspected by the city to determine if there has been any damage to the common property, and an order that all of the owner’s suites be inspected by the strata yearly to ensure further laundry equipment is not installed. The city is not a party to this dispute, and it would be inappropriate in these circumstances to make an order affecting a non-party. I decline to make such orders, but note that bylaw 7(1)(b) allows a person authorized by the strata to enter the owner’s strata lots on 48 hours’ notice to inspect, repair or maintain common property. I also take this opportunity to remind the owner that he is obligated to follow the bylaws in effect, which includes allowing entry to his strata lots for the above-noted purpose.

TRIBUNAL FEES, EXPENSES AND INTEREST

38.   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 strata has been successful in its claim, I order the owner to reimburse its tribunal fees of $225. As the owner was not successful, I dismiss his claim for tribunal fees.

39.   The strata is entitled to interest on the fines under the Court Order Interest Act, which I have calculated as $88.91, from December 9, 2018 to the date of this decision.

40.   The strata claims legal fees of $1,282.46 as a dispute-related expense. As set out in the tribunal’s rules, the tribunal generally does not order reimbursement of legal fees, except in extraordinary cases. This follows from the general rule in section 20(1) of the Act that parties are to represent themselves in tribunal proceedings. I see no reason to depart from this general rule in this case. There is no evidence before me to support that this dispute is extraordinary in nature. Therefore, I find the circumstances of the dispute are not extraordinary so as to justify an order of legal fees. I decline to order reimbursement of the strata’s legal fees.

41.   The strata corporation must comply with the provisions in section 189.4 of the SPA, such as not charging dispute-related expenses against the respondent.

DECISION AND ORDERS

42.   I order that the applicant (and respondent by counterclaim), Seoi Rok Oh (owner):

a.    Within 14 days of the date of this decision, to pay the respondent, The Owners, Strata Plan KAS 1461 (strata), a total of $9,913.91, broken down as follows:

                                  i.    $4,800.00 in unpaid fines for strata lot 36,

                                ii.    $4,800.00 in unpaid fines for strata lot 42,

                               iii.    $88.91 in pre-judgment interest under the Court Order Interest Act, and

                               iv.     $225.00 in tribunal fees.

b.    Within 30 days of the date of this decision, disconnect and remove the laundry equipment installed in each of strata lot 36 and strata lot 42.

c.    Within 30 days of the date of this decision, remediate the plumbing, ducting and common walls (including the firewall) in each of strata lot 36, strata lot 37, and strata lot 42 to its original condition before the laundry equipment was installed.

d.    On July 8, 2019 at 12:00 pm, allow the strata and its agents entry into each of strata lot 36, strata lot 37, and strata lot 42 to inspect the removal and remediation of the laundry equipment.

e.    All work done by the owner will be in accordance with the current bylaws and with all required city permitting.

43.   The strata is also entitled to post-judgment interest, as applicable.

44.   The owner’s claims are dismissed.

45.   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 123.1 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.

46.   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 strata 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 123.1 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.