Date Issued: July 19, 2019

File: ST-2018-009392

Type: Strata

Civil Resolution Tribunal

Indexed as: Soong et al v. The Owners, Strata Plan NW 2583, 2019 BCCRT 879

BETWEEN:

Julia Soong and Graham Soong

APPLICANTS

AND:

The Owners, Strata Plan NW 2583

 

RESPONDENT

 

REASONS FOR DECISION
Tribunal Member:	Andrea Ritchie, Vice Chair

 

INTRODUCTION

1.      The applicants, Julia Soong and Graham Soong, own strata lot 2 in the respondent strata corporation, The Owners, Strata Plan NW 2583 (strata). The applicants say the strata has failed to enforce its bylaws regarding alterations to strata lots and common property.

2.      The applicants list various alterations done by several strata lot owners, which the applicants say were done without approval and contrary to the bylaws and the Strata Property Act (SPA).

3.      The applicants are represented by Julia Soong. The strata is represented by the council president.

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. 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. Here, 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. I also note that in Yas v. Pope, 2018 BCSC 282, at paragraphs 32 to 38, the British Columbia Supreme Court recognized the tribunal’s process and found that oral hearings are not necessarily required where credibility is an issue.

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, 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

8.      The issues in this dispute are:

a.    Are any of the applicants’ claims out of time under the Limitation Act?

b.    What discretion, if any, does the strata have to enforce its bylaws?

c.    Do the alterations constitute “significant changes”?

d.    Should the strata be ordered to require the offending strata lot owners to remove the alterations?

BACKGROUND AND EVIDENCE

9.      In a civil dispute such as this, the applicant owners bear the burden of proof. This means the applicants have to provide evidence to prove each of their claims on a balance of probabilities. While I have read all of the parties’ evidence and submissions, I have only addressed the evidence and arguments to the extent necessary to explain my decision.

10.   The strata is a 15-unit townhouse complex that was created in 1987 under the SPA’s predecessor, the Condominium Act (CA).

11.   A December 20, 2018 general index search of the strata obtained from the Land Title Office (LTO) shows bylaws were filed on November 9, 1987 under the CA.

12.   The SPA replaced the CA on July 1, 2000. Strata Property Regulation 17.11(1) (regulation) provides, with some exceptions, that the strata’s bylaws under the CA continued to have effect until January 1, 2002, when they were deemed replaced with the Schedule of Standard Bylaws under the SPA. There are no restrictions on a strata corporation to amend the Standard Bylaws or to repeal or replace them

13.   The general index search also shows that on November 1, 2018, the strata filed 3 amended bylaws that either added to or revised the Standard Bylaws. I find that the bylaws are the SPA Standard Bylaws, subject to the 3 amendments, which I find are not relevant to this dispute.

14.   The relevant bylaws are:

a.    Bylaw 3(2): An owner must not cause damage, other than reasonable wear and tear, to the common property, common assets or those parts of a strata lot which the strata corporation must repair and maintain under section 149 of the SPA.

b.    Bylaw 5(1): An owner must obtain the written approval of the strata corporation before making an alteration to a strata lot that involves, amongst other things, the structure or exterior of the building, fences, railings or similar structures that enclose a patio, balcony or yard, common property within the boundaries of a strata lot, and those parts of the strata lot which the strata corporation must insure under section 149 of the SPA.

c.    Bylaw 6(1): An owner must obtain the written approval of the strata corporation before making an alteration to common property, including limited common property, or common assets.

15.   It is my understanding that each townhouse unit has a paved area in their backyard, which is limited common property. Then, there is a section of grass between the paved limited common property and a backyard fence. This grass is common property, but only accessible to that particular strata lot.

16.   The strata submits that prior to 2016, it was a self-managed strata corporation that had “liberally interpreted” its bylaws and “exercised discretion in a realistic and reasonable manner” to allow individual owners to add their personal touches to common property and limited common property.

17.   The applicants wrote to the strata on August 17, 2018 with a long list of alleged unauthorized alterations by strata lots 3, 4, 9 and 10. The complaints, broken down by strata lot, are as follows:

a.    Strata Lot 3:

                              i.        Construction of a storage shed and gazebo in the backyard, on both common property and limited common property,

                            ii.        Lights affixed to fence posts,

                           iii.        Backyard light fixture changed,

                           iv.        Common property sod removed from the backyard and replaced with paving stones and composite tile,

                            v.        A wooden shoe rack at the front door,

                           vi.        LED lights affixed to the side of the home,

                          vii.        House number sign visible in window of second storey,

                        viii.        Front door bell changed,

                           ix.        Original front door lock / handle replaced,

                            x.        Irrigation and sprinkler system installed, and

                           xi.        Interior renovations occurring during quiet hours that the applicants questioned whether were completed by licensed trades with proper permits.

b.    Strata Lot 4:

                              i.        Common property sod removed from the backyard and replaced with small white rocks,

                            ii.        Composite tile installed on limited common property,

                           iii.        LED lights attached to back fence,

                           iv.        Lights and decorations (butterflies) attached to trellis between carports of strata lots 4 and 5, and

                            v.        Installation of an outdoor bench.

c.    Strata Lot 9:

                              i.        Installation of a deck and gazebo in the backyard, on both common property and limited common property,

                            ii.        LED lights affixed to side of home,

                           iii.        Front door light replaced,

                           iv.        Installation of garden lights along front path, and

                            v.        LED lights in carport.

d.    Strata Lot 10:

                              i.        LED lights in carport, and

                            ii.        Decorative “bull” hung on carport wall.

18.   The owners of strata lots 3, 4, 9 and 10 are not parties to this dispute. There is no evidence before me to indicate that the owners of strata lots 3, 4, 9 and 10 sought approval of the strata pursuant to bylaw 5(1) before making the above-noted alterations.

19.   In response to the applicants’ August 17, 2018 letter, the strata wrote to each of the owners of strata lots 3, 4, 9 and 10, and requested the unauthorized alterations be removed within 30 days.

20.   The evidence shows that each owner removed the decorative items (lights, butterflies, bull). Strata lot 3 went over their interior renovations with strata, and provided building and plumbing inspection reports for the work. The strata retroactively approved the interior renovations and had strata lot 3’s owners complete a waiver and indemnity form for those interior alterations.

21.   Similarly, the strata council decided to approve the backyard alterations of strata lots 3 and 9, namely the change of the common property grass area, and the installation of gazebos and a shed. In relation to the change or removal of the common property grass, the owners of strata lots 3 and 9 completed waiver and indemnity forms for the changes. No waiver or indemnity form was signed by the owners of strata lot 4. Further, the strata decided that as the gazebo and shed structures were not permanent in nature, but could be removed, upon approval, the strata had the owners of strata lots 3 and 9 sign waiver and indemnity forms that also included stipulations that the gazebos and shed could not be replaced without prior strata approval, and had to be removed if the strata lot was listed for sale.

22.   The strata says the applicants’ claims about strata lot 3’s irrigation system and strata lot 4’s removal of sod for white rocks are out of time as the irrigation system was installed approximately 5 years before the complaint, and the sod was removed and rocks installed prior to 2013, when strata lot 4’s current owners took possession.

23.   The applicants say that the strata council unilaterally approving all of the above-noted alterations after the fact is insufficient, and that the alterations are significant and to common property and limited common property. Therefore, they say the changes should have been put to the owners at a meeting for a ¾ vote pursuant to section 71 of the SPA.

POSITION OF THE PARTIES

24.   The applicants say that the strata has failed to enforce its bylaws and seek an order that the strata make strata lots 3, 4 and 9 return the limited common property and common property to its original condition.

25.   The strata admits that strata lots 3, 4, 9 and 10 performed alterations without the strata’s consent, contrary to the bylaws, but that the contraventions have now been remedied. The strata seeks to have this dispute dismissed.

ANALYSIS

Are any of the applicants’ claims for bylaw enforcement out of time under the Limitation Act?

26.   Section 13 of the Act states that the Limitation Act applies to the tribunal as if it were a court. The Limitation Act defines a “claim” as “a claim to remedy an injury, loss or damage that occurred as a result of an act or omission”. Section 6 of the Limitation Act says that the basic limitation period is 2 years, and that a claim may not be commenced more than 2 years after it is discovered.

27.   The strata says the applicants’ “claims” about strata lot 3’s irrigation system and strata lot 4’s backyard alterations are out of time under the Limitation Act, as the alterations were completed approximately 5 years ago or more. The applicants say this defence is not available to the strata, and their requested remedy is for an order requiring the strata to cause the offending strata lots to return the limited common property and common property to its original condition.

28.   Consistent with section 20 of the Act, the parties are not represented by lawyers in this dispute. As discussed below, that the parties are not represented in this dispute is a factor in my decision to look at the true character of the applicants’ claims, rather than just the words used to describe them.

29.   It is appropriate in some cases, such as this one, to analyze a claim’s true character (see: Young v. Borzoni et al, 2007 BCCA 16 at paras 28 and after, citing Rogers v. Bank of Montreal (1986), 1986 CanLII 847 (BCCA)). I find the gravamen or true character of the applicants’ claim is for a declaration as to whether the above-noted alterations were properly completed in compliance with the bylaws and the SPA.

30.   Given my conclusion that the applicants’ claim is in fact for a declaration, I find it is not a claim to remedy an injury, loss or damage within the meaning of the Limitation Act. The issue here is whether the alterations are allowed pursuant to the bylaws and the SPA. Therefore, I find the Limitation Act does not apply to the applicants’ claims.

What discretion, if any, does the strata have to enforce its bylaws?

31.   Section 3 of the SPA sets out the strata’s responsibilities. It does not set out an express duty for the strata to enforce its bylaws.

32.   Under section 26 of the SPA, the strata council must exercise the powers and perform the duties of the strata including the enforcement of bylaws. That duty is subject to the SPA, regulations, bylaws and rules.

33.   Under section 133 of the SPA, the strata may do what is reasonably necessary to remedy a contravention of its bylaws or rules.

34.   The courts have addressed the strata’s discretionary powers to enforce its bylaws in various circumstances. As set out below, the strata must act reasonably.

35.   In Strata Plan LMS 3259 v. Sze Holding Inc., 2016 BCSC 32, the British Columbia Supreme Court held that a strata council has discretion whether to enforce its bylaws in certain circumstances but that such discretion is limited, particularly in circumstances where the strata owners have a reasonable expectation that the bylaw will be consistently enforced.

36.   The British Columbia Court of Appeal confirmed that a strata corporation need not enforce a bylaw, even though there is a clear breach, where the effect of the breach on other owners is trifling (see: Abdoh v. The Owners of Strata Plan KAS 2003, 2014 BCCA 270).

37.   I find the strata has discretion to not enforce its bylaws in limited circumstances. I find that in exercising its discretion, the strata must be reasonable, and consider the expectations of the owners with respect to prior enforcement of the bylaw. That is, if the strata has consistently enforced the bylaw, it might be unreasonable for the strata not to continue to enforce it.

38.   Further, even if there is a clear breach of a bylaw, if the effect of the breach is unimportant or trivial to the strata owners in general, it is reasonable for the strata not to enforce it, provided the strata acts reasonably in doing so.

Do the alterations constitute “significant changes”?

39.   The applicants argue that the alterations they complain of are “significant” under the SPA, and therefore should be removed and the property returned to its original state.

40.   Under section 71 of the SPA, a strata must not make a significant change in the use or appearance of common property unless 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 immediate change is necessary to ensure safety or prevent significant loss or damage.

41.   The case of Foley v. The Owners, Strata Plan VR387, 2014 BCSC 1333, dealt with the meaning of “significant change” in paragraphs 21 to 25. The relevant factors include visibility or non-visibility to residents or the public, use or enjoyment of a strata, or a number of units as an existing benefit, and an impact on marketability or value of the units due to the change.

42.   I find neither the gazebo / shed installations nor the backyard alterations were a significant change in the appearance and use of common property. While the grass was removed, it was replaced with pavers, stones or removable snap-together composite tiles, all of which still allow the use of the owners’ backyards. The original nature of the strata was that the common property yards were fenced in, to be used only by the adjacent strata lot owner, which remains the same with the alterations. I also find the change from grass to pavers, stones or tiles is not reasonably visible to residents or the public, unless peering over the fence and on to the ground. I find the backyard alterations do not affect the use and enjoyment of the applicants’ unit.

43.   Additionally, I am satisfied the gazebos and shed that have been installed on common property and limited common property of units 3 and 9 are not a significant change. The strata determined the items did not affix to the building in any way and were, in fact, removable, temporary structures. The owners of strata lots 3 and 9 have also signed agreements with the strata with regard to the removal of the gazebos / shed upon sale of their units, and that the structures were not to be replaced without prior written approval from strata.

44.   Although the applicants say the gazebos are visible as they are taller than the fence, I find there is nothing in the bylaws or SPA that prevents an approved temporary structure from being taller than a fence height. At the same time, from my review of the photos in evidence, I do not find the temporary structures are of such a height to cause a nuisance or to impact the use and enjoyment of the applicants’ strata lot.

45.   Based on the above, I find the alterations were not significant changes in the appearance or use of common property or limited common property contrary to section 71 of the SPA, and therefore no ¾ vote was required.

Should the strata be ordered to require the offending strata lots to remove the alterations?

46.   The parties agree that the above-noted alterations by strata lots 3, 4 and 9 included some alterations to limited common property and common property, and that these were done without prior approval from the strata. This is contrary to strata bylaws 5(1) and 6(1), which say an owner must obtain written approval from the strata before altering common property, or specified parts of their strata lot.

47.   The strata admits this breach, but says it was remedied when the various alterations were either removed, or, in the case of the interior, gazebos, shed and backyard alterations, were retroactively approved by the council in October 2018. I agree, and find the strata did not act unreasonably in retroactively approving the backyard alterations, or the installation of the gazebos / shed, especially considering the waiver and indemnity agreements that were signed.

48.   Regarding the rest of the remaining alterations (including the changes in front door light fixtures, addition of house numbers, changing of a doorbell and front door lock / handle), I find although the changes may be a breach of the bylaws by “changing” the exterior of the building, I find the effect of the breach is trifling, further to Abdoh, and that the strata acted reasonably in deciding not to pursue removal of the items. Additionally, the strata submitted photos from various front door areas throughout the strata, and noted many owners have upgraded their front porch lighting over the years without strata council approval, including before the strata was professionally managed. I find the strata had not previously enforced its bylaws strictly, and to suddenly enforce them with such rigidness as requested by the applicants would be inconsistent with its prior exercise of discretion.

49.   I also note the applicants’ argument that uniformity in a strata increases the marketability of each strata lot. However, the applicants have not provided any evidence that the above-noted alterations have had any negative impact on the value of their home.

50.   Given my findings above, I dismiss the applicants’ claims.

TRIBUNAL FEES, EXPENSES AND INTEREST

51.   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 have been unsuccessful in its claim, I find they are not entitled to reimbursement of their tribunal fees. No dispute-related expenses were claimed.

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

 

DECISION AND ORDERS

53.   I order the applicants’ claims, and this dispute, dismissed.