Date Issued: September 30, 2019

File:ST-2019-003269

Type: Strata

Civil Resolution Tribunal

Indexed as: Zhang v. The Owners, Strata Plan 375, 2019 BCCRT 1146

Between:

LI ZHANG

 

Applicant

And:

The Owners, Strata Plan 375

 

 RESPONDENT

REASONS FOR DECISION
Tribunal Member:	Kathleen Mell

INTRODUCTION

1.      The applicant, Li Zhang (owner), owns a strata lot in the respondent strata corporation The Owners, Strata Plan 375 (strata).

2.      This dispute is about water leaking into the crawlspace under the owner’s strata lot. The owner says that the strata is responsible for the water getting into the crawlspace. The owner also says the strata gave him permission to repair the crawlspace. He requests reimbursement of the $4800.75 he paid to make the repairs.

3.      The owner also says that after he made the repairs to the crawlspace and the strata made repairs to the outside of the building, water continued to enter the crawlspace. The owner requests that the strata repair the damages to the structure of the crawlspace. The owner also requests an order that the strata maintain the property. The owner is self-represented.

4.      I note that after the Dispute Notice was issued the parties agreed to a consent order saying that the strata would repair the foundation.

5.      The strata says that the owner is responsible for repairing and maintaining his own strata lot including the sill plate and floor joists. It says it was not responsible for damages to these structures.

6.      The strata also states that it did not authorize the crawlspace repairs. It says that the owner did not make structural repairs to the crawlspace which is the approach the strata would have taken. The owner instead replaced insulation, put up plastic sheets, and placed vents in the crawlspace. The strata says it did not authorize this and should not have to pay for it. The strata is represented by GD, a strata council member.

JURISDICTION AND PROCEDURE

7.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over strata property claims under section 121 of the Civil Resolution Tribunal Act (CRTA). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. The tribunal must act fairly and follow the law. It must also recognize any relationships between dispute parties that will likely continue after the tribunal’s process has ended.

8.      The tribunal has discretion to decide the format of the hearing, including in writing, by telephone, videoconferencing, or a combination of these. In some respects, this dispute amounts to a “she said, it said” scenario with both sides calling into question the credibility of the other. In the circumstances of this dispute, I find that I am properly able to assess and weigh the 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 the decision Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. I therefore decided to hear this dispute through written submissions.

9.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in court. The tribunal may also ask the parties and witnesses questions and inform itself in any way it considers appropriate.

10.   Under section 123 of the CRTA 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, or order any other terms or conditions the tribunal considers appropriate.

ISSUES

11.   The issues in this dispute are:

a.    What are the strata’s repair obligations under the Strata Property Act (SPA) and bylaws?

b.    Did the strata authorize the crawlspace repairs and if so should it reimburse the owner the $4800.75 cost of those repairs?

c.    Is the strata responsible for the damage to the crawlspace and should I order the strata to repair and maintain the property?

EVIDENCE, FINDINGS AND ANALYSIS

12.   In a civil dispute such as this, the applicant must prove his claim. He bears the burden of proof on a balance of probabilities.

13.   While I have reviewed all of the material provided, I have only commented below on the evidence and submissions necessary for this decision.

14.   It is undisputed that the owner’s crawlspace had water damage. The parties dispute whether the crawlspace is common property and whether the strata is responsible to repair and maintain it.

What are the strata’s repair obligations under the SPA and bylaws?

15.   Section 72 of the SPA says that the strata must repair and maintain common property and assets. Section 1 of the SPA defines common as that part of the land and buildings shown on a strata plan that is not part of a strata lot.

16.   In 2006 the strata filed an amendment to the bylaws with the Land Title Office. The bylaws stated that an owner must repair and maintain the owner’s strata lot, including all unit doors, windows, and structure, except for repairs and maintenance that is the responsibility of the strata as stated under section 8 of the bylaws.

17.   Section 8 says that the strata corporation must repair and maintain common property that has not been designated as limited common property. The strata must also repair and maintain limited common property that in the ordinary course of events occurs less often than once a year and the structure of the building no matter how often the repair or maintenance occurs. Further bylaw amendments were filed with the Land Title Office, but they did not alter the bylaws set out above.

18.   The strata argues it is responsible for repairing the foundation but the water damaged sill plate and joists within the crawlspace are the owner’s responsibility.

19.   The owner argues that the sill plate and joists are part of the foundation and therefore common property which the strata must repair and maintain.

20.   I note that a similar issue was addressed by this tribunal in Taylor et al v. The Owners, Strata Plan 1801 et al, 2018 BCCRT 925. In that dispute there was also water ingress into a strata lot’s crawlspace and damage was done to the joists and sill plate. The applicants’ strata lot was a single level and the strata plan did not identify the crawlspace as part of the strata lot. Therefore, the vice chair found that the crawlspace was common property consistent with the definition under the SPA.

21.   In this dispute the strata lot is a duplex but again the crawlspace is not identified in the strata plan as part of the strata lot. The strata ordered an inspection of the crawlspace and that report indicates that the crawlspace is under the main floor of the strata lot, just as in Taylor. Accordingly, I find the facts in this dispute similar to the ones in Taylor and although that decision is not binding on me, I am persuaded by its reasoning that the crawlspace is common property.

22.   I also note that in Taylor the vice chair found further support that the crawlspace was common property by applying section 68 of the SPA, which states the boundary of the strata lot is the midpoint between the structural surface of the floor that faces the strata lot and the structural surface that faces the common property. The vice chair found the structure of the floor to be the floor joists and therefore the strata lot boundary must be the center of the floor. Therefore, he stated that the crawlspace below the floor must be common property, including the foundation walls. I agree with this reasoning and apply it to this dispute.

23.   I acknowledge that the bylaws say that the owner is responsible for repairing and maintaining the “structure” but this is the structure of his own strata lot, this does not include the crawlspace or the sills and floor joists under his strata lot which are common property. The strata must repair and maintain common property Accordingly, I find that the sills and floor joists in the crawlspace are common property and it is the strata’s duty to repair and maintain them.

Did the strata authorize the crawlspace repairs and if so should it reimburse the owner the $4800.75 cost of those repairs?

24.   Although I have found that it is the strata’s duty to repair and maintain the crawlspace this does not necessarily mean it is responsible for reimbursing the owner the amount he paid to repair the crawlspace.

25.   The owner wrote to the strata on August 17, 2017 informing it that his tenants complained that the crawlspace had a water problem. He noted that he hired a handyman to have a look and he would get back to the strata about the handyman’s suggestions and advice. The owner specifically stated that he had not started any project yet and that “I will have your permission and send the application by email to you before I take any steps to prevent water from flowing into the crawlspace.”

26.   The strata wrote back that afternoon stating that it talked to the handyman and the owner had permission to “go through repairs.” The owner points to this email as proof that the strata authorized the repairs.

27.   I agree that this email suggests that the strata authorized the repairs. However, in subsequent emails before the owner actually carried out the repairs on November 8 and 9, 2017 the strata told the owner that he needed to provide quotes and that there was no point in repairing the crawlspace until the strata fixed the perimeter and foundation issues.

28.   Specifically, the owner emailed the strata on October 5, 2017 and said that it needed to fix the outside of the strata lot but that he was going to replace all of the inside insulations. The strata replied that same morning that it was “of no use” to start repairs in the crawlspace until all the repairs had been competed outside. The strata also told the owner on November 2, 2017 that the strata needed to have different quotes before giving its approval for the repairs. On November 3, 2017, the strata told the owner that it had not agreed to anything yet and it needed several estimates before it could decide.

29.   The owner submits that the emails about quotes related to the repairs to the outside and not to his crawlspace which were approved in August 2017. I find that the emails were clear that the repairs to the crawlspace were not approved. Based on this, I find that the strata did not authorize the repairs to the crawlspace.

30.   I am also persuaded by the strata’s argument that it would not have approved of the repairs that were done as they were not long-term solutions to the problem. The strata obtained a September 9, 2018 inspection report as to why water was still leaking into the crawlspace after the owner and the strata had made repairs to both the inside and outside of the strata lot. That report noted that the poly film installed in the crawlspace in an attempt to seal out ground moisture was not sealed to the foundation and was releasing from the joists. The inspector also noted that fans were running continuously but there was no air being drawn in. He suggested that a baseboard heater would be more effective. Further, the inspector found that the old insulation was not completely removed. He also noted that what really needed to be done was to move the surface water away from the building.

31.   Based on all of the evidence, I find that the strata did not authorize the repairs. Accordingly, the strata is not responsible for reimbursing the owner the cost of these repairs.

Is the strata responsible for damage to the crawlspace and should I order the strata to repair and maintain the property?

32.   The strata replaced the perimeter drain and sealed holes in the foundation in December 2017, but, as mentioned, water continued to accumulate in the crawlspace. Therefore, the strata ordered the above referenced inspection report.

33.   The September 9, 2018 inspection report stated that that water from the parking lot entered the building from the planter. Water sat on top of the foundation wall for extended periods and saturated the wood. The inspector noted that the perimeter joist from the crawlspace access to the entrance around the fireplace looked like it had been wet for a long period of time. He said that the sill plate and joist ends had the same characteristics. Pictures were provided which showed the damage.

34.   The inspector also indicated that excess water pooled in the crawlspace creating humidity that condensed on the insulation and the bottom of the joists. He recommended replacement of the majority of the perimeter joist and sill plate and two joists be replaced, as well as repairing the joist ends.

35.   Aside from the damage caused by the water ingress from the parking lot, the report stated that a dryer outlet was exhausting into the crawlspace causing moisture and that there was faulty plumbing in the kitchen which also added to the problem.

36.   The inspector provided a clarification report which stated that the damages sustained under the kitchen and clothes dryer had been occurring for a long period of time. He said that the dryer exhaust was hooked up improperly and had been exhausting vapours in the crawlspace adding excessive amount of moisture. The inspection report contained numerous pictures showing the water damage.

37.   I note that the inspection report does not set out the inspector’s qualifications and therefore the report does not satisfy the requirements under rule 8.3 for expert evidence. However, although I find that the inspection report is not an expert report, I do find the pictures particularly helping in my determinations in this dispute.

38.   The owner denies that there was water damage under the kitchen and clothes dryer areas and provided a picture of damage done to the north side where the water came in from outside. He did not provide any pictures of the kitchen and clothes dryer area to refute the photographic evidence of the inspector. I find that the owner did not provide sufficient evidence to support his assertion that there was no damage caused by the clothes dryer and faulty plumbing in the kitchen.

39.   Given my finding that the joists and sill plate are common property, and that the evidence does not suggest that the damage to the specific joists and sill plate, aside from under the dryer and the sink, were due to an action or negligence of the owner, I find the strata is responsible for repairing these.

40.   However, I agree with the strata that the inspection report’s photographs show that the specific water damage to the area under the clothes dryer and sink is related to the owner’s use of his own strata lot. The bylaws state that an owner must not cause damage other than reasonable wear and tear to the common property. Therefore, the strata should not be responsible for replacement of the perimeter joist near the clothes dryer and the perimeter joist under the sink in the kitchen.

41.   The owner also originally requested that the foundation be repaired. Again, this has already been agreed to and a consent order has been issued. Therefore, I make no further finding regarding the foundation.

42.   The owner also submitted that there are cracks inside his strata lot because the strata did not maintain the foundation. The owner provided two pictures of minor cracks above a door-jamb and on the ceiling but otherwise did not offer any evidence establishing that these minor cracks were caused by issues with the foundation. I dismiss this claim because the applicant has not proved on a balance of probabilities that the issues with the foundation led to these minor cracks. As set out in the bylaws, the owner is generally responsible for maintaining and repairing his strata lot.

TRIBUNAL FEES, EXPENSES, AND INTEREST

43.   The owner was substantially successful in this dispute. Under section 49 of the Act, and the tribunal’s 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 not to follow that general rule. I find the strata must reimburse the applicant the $225.00 he paid in tribunal fees.

44.   The strata corporation must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against the owner.

DECISION AND ORDERS

45.   I order that within 60 days the strata must replace the sill plate and joists in the crawlspace. However, the replacement of the perimeter joist near the clothes dryer and the perimeter joist under the sink in the kitchen are the responsibility of the owner.

46.   I order the strata to reimburse the applicant $225.00 in tribunal fees, within 21 days.

47.   The applicant is entitled to post-judgement interest under the Court Order Interest Act from the date of this order, as applicable.

48.   Under section 57 of the CRTA, a party can enforce this final tribunal decision by filing, in the Supreme Court of British Columbia (BCSC), 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 a BCSC order.

49.   Orders for financial compensation or the return of personal property can also be enforced through the Provincial Court of British Columbia (BCPC). However, the principal amount or the value of the personal property must be within the BCPC’s monetary limit for claims under the Small Claims Act (currently $35,000). Under section 58 of the CRTA, the owner can enforce this final decision by filing a validated copy of the attached order in the BCPC. The order can only be filed if, among other things, the time for an appeal under section 123.1 of the CRTA 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 a BCPC order.