Date Issued: May 8, 2020

File: ST-2019-010876

Type: Strata

Civil Resolution Tribunal

Indexed as: Hooper v. The Owners, Strata Plan LMS 1121, 2020 BCCRT 504

Between:

BRYAN HOOPER

Applicant

And:

The Owners, Strata Plan LMS 1121

Respondent

INTRODUCTION

1.      This dispute is about payment for maintenance and repairs in a residential strata lot.

2.      The applicant, Bryan Hooper (owner), owns strata lot 19, also known as unit 19, in the respondent strata corporation, The Owners, Strata Plan LMS 1121 (strata). An outdoor water tap failed and water leaked into the wall between the owner’s strata lot and an adjacent strata lot. The strata paid a restoration company to make emergency repairs and to dry the two strata lots’ floors. The strata charged the owner $1,260, the amount it paid to dry unit 19’s floor, but did not charge the owners of the adjacent lot for the cost of drying their floor.

3.      The applicant says he does not owe the $1,260 because the drying was unnecessary, and the strata ordered it without his approval. He seeks an order that the strata reverse the corresponding charge to his strata account.

4.      The strata says the floor drying was necessary, and the owner must pay for it because the strata lot’s hardwood floor is a “betterment” and was not originally installed by the strata’s owner developer. The strata denies the owner’s claim.

5.      The owner is self-represented in this dispute. The strata is represented by a strata council member.

JURISDICTION AND PROCEDURE

6.      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.

7.      The tribunal has discretion to decide the format of the hearing, including in writing, by telephone, videoconferencing, or a combination of these. I am satisfied an oral hearing is not required as I can fairly decide the dispute based on the evidence and submissions provided.

8.      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.

9.      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.

10.   The owner says if he is required to pay the strata for the floor drying, his strata lot account should at least be credited $1,152.19, the amount the strata paid to dry the neighbouring strata lot’s floor. Alternatively, he suggests his cost of flood-related repairs to his strata lot’s walls should be set off against the floor drying charges. The owner did not counterclaim for those amounts. Given the outcome of my decision, it was not necessary to consider a credit or set-off.

ISSUE

11.   The issue in this dispute is whether the owner is responsible for paying for the floor drying in his strata lot that was initiated by the strata.

EVIDENCE AND ANALYSIS

12.   In a civil proceeding like this one, the applicant must prove his claims on a balance of probabilities. I have read all of the submitted evidence, but refer only to the evidence I find relevant to provide context for my decision.

13.   The strata was created in 1993 under the Condominium Act (CA), a predecessor to the Strata Property Act (SPA), and now exists under the SPA. On January 1, 2002, the SPA’s Standard Bylaws replaced all bylaws filed under the CA except those that conflicted with the Standard Bylaws but not the SPA (under section 17.11 of the Strata Property Regulation). Based on my review of the filed bylaws, I find there are no filed CA bylaws that conflict with the Standard Bylaws. Therefore, I find the applicable strata bylaws are the Standard Bylaws as they have been amended, which I discuss further below.

14.   The undisputed evidence is that an outdoor water tap at the strata failed on July 16, 2019, causing water to enter the wall between the owner’s strata lot and an adjacent strata lot, and to leak into the 2 strata lots and through the ceiling of the strata’s parkade below. The parties do not deny, and I find, that the failed tap was common property. Therefore, I find the leaked water originated from common property, and not the owner’s strata lot or another strata lot.

15.   The owner says he provided his door access code to the strata so it could investigate the leak. I infer from this and other evidence that the owner did not reside in the strata lot at the time of the leak or during the repairs that followed. The strata hired a restoration company, Walsh, to determine the source of the leak and to repair it. To do this, Walsh cut holes in the drywall of both the owner’s strata lot and the adjacent lot.

16.   Walsh provided dehumidifiers and fans, as well as “floor drying systems” in the owner’s strata lot. The strata says this system included, but was not limited to, special drying pads designed for an engineered hardwood floor like the one in the owner’s strata lot, which had replaced the original carpet. The adjacent lot still had carpeted flooring.

17.   Among other fees, Walsh invoiced the strata $1,260 for 4 days of floor drying systems, which the strata charged to the owner. The owner disputes this charge. He confirms that the strata refused to reverse the charge after he presented his case at a December 9, 2019 strata council hearing.

18.   The key point in this dispute is that a strata corporation cannot charge an owner for costs it has incurred without an enforceable bylaw or rule giving it authority to do so. This was the finding of the BC Court of Appeal in Ward v. Strata Plan VIS #6115, 2011 BCCA 512, as well as Rintoul et al v. The Owners, Strata Plan KAS 2428, 2019 BCCRT 1007, which is not binding on me but I find is persuasive.

19.   I turn now to the strata’s bylaws, and whether they give the strata authority to charge the owner for floor drying costs. The owner submitted a document that appeared to be a consolidation of strata bylaws, and the strata also submitted an excerpt of a bylaw, both of which contained bylaws that are not filed in the BC Land Title Office (LTO). Under SPA section 128(2), amendments to bylaws are of no effect until they are filed in the LTO, so I considered only the Standard Bylaws and the relevant amendments that have been filed in the LTO.

20.   The strata added a bylaw in 2006, which it numbered bylaw 5, although it appears as bylaw 2(5) in the bylaw consolidation document submitted by the owner. This bylaw was added, and did not replace Standard Bylaw 5. Therefore, I find both Standard Bylaw 5 and the 2006 bylaw 5 are bylaws of the strata. When I refer to bylaw 5 below, I mean the bylaw 5 that was added in 2006.

21.   Bylaw 5 says a strata lot owner is liable to the strata for damage caused by water originating from within an owner’s strata lot, up to the strata’s insurance deductible. However, bylaw 5 also says an owner’s responsibility for water damage caused by water ingress from outside the strata lot is specifically excluded. As the water here originated from a common property tap, outside the owner’s strata lot, I find the owner is not liable to the strata for damage charges under bylaw 5.

22.   Bylaw 2 says an owner must repair and maintain his strata lot, except for repair and maintenance that is the responsibility of the strata under its bylaws. The strata submitted a different version of bylaw 2(1) that is not filed in the LTO, but it says essentially the same thing. Bylaw 8 says the strata must repair and maintain common property that is not limited common property, as well as certain parts of strata lots including the structure of a building, exteriors, and other features such as doors, balconies, and fences. Based on the boundaries described in SPA section 68(1), I find the hardwood floor is part of the owner’s strata lot, and is not common property.

23.   Was the strata responsible for any floor repairs under bylaw 8? The strata says moisture was detected in the strata lot’s floor, and if Walsh had not dried it there “may have been significant damage” to the floor. A photo submitted by the strata shows what I presume to be a handheld moisture detector on a wooden floor, displaying “999”. But the evidence does not contain a description of the units measured by the detector or the significance of the “999” reading. Further, there is no evidence from Walsh or a person with floor restoration experience saying that the floor was damaged, or would have been damaged if it had not been dried. I find determining the likelihood of permanent floor damage here requires expert evidence, and there is none.

24.   As a result, I find the evidence does not show the leak caused, or would have caused, any damage to the structure of the building underneath the floor or to common property below the floor, areas for which the strata was responsible. I find the strata’s obligations under bylaw 8 did not extend to the strata lot floor itself. So, I find the owner was responsible for maintaining the strata lot floor and repairing any damage to it.

25.   My finding that the owner alone was responsible for repairing and maintaining the strata lot floor does not necessarily mean he was required to pay the strata for flooring work the strata completed on its own initiative. There still must be a bylaw or rule specifically permitting such a charge-back.

26.   The strata relies on bylaw 2(1), although it submitted a version of that bylaw that is not filed at the LTO. Regardless, both the strata bylaw and the version submitted by the strata say that an owner must repair and maintain the owner’s strata lot, which I found above includes the floor. However, the bylaw does not permit the strata to charge the owner for costs the strata incurs for repairing and maintaining the strata lot floor.

27.   The strata also relies on section 149(1)(d) of the SPA, which requires strata corporations to maintain property insurance on fixtures built or installed in a strata lot by the owner developer as part of the strata lot’s original construction. According to section 9.1(1) of the Strata Property Regulation, such fixtures include floor coverings, so I find the floor of the strata lot is a fixture. The parties do not deny that the strata lot’s hardwood floor is not original, and is a “betterment” that the strata does not have to insure.

28.   However, the strata says that the costs of repairing the water leak were less than its insurance deductible, so no insurance claim was made. Importantly, while SPA section 149 says the strata does not have to carry insurance for the owner’s improved strata lot floor, it does not permit the strata to charge the owner for costs incurred in drying the floor. The strata suggests that because the owner’s floor is different than the original floor, it required a different drying technique than the adjacent strata lot floor, so the owner should pay the drying costs. I find this is not relevant to the question of whether the bylaws permitted to strata to charge the owner for strata lot floor drying.

29.   Having considered the evidence, I find there is no provision in the SPA, and no bylaw or rule, permitting the strata to charge the owner for flooring repairs or maintenance in his strata lot, including floor drying.

30.   I also considered whether there was evidence that the owner asked the strata to initiate floor-drying services on his behalf, in which case he may have agreed to be responsible for those costs. The strata says it informed the owner of the repair measures being put in place, which the owner monitored via a webcam in the strata lot. The strata also says it notified the owner of his alleged responsibility for floor drying costs, and discussed the payment of water leak repairs with the owner. But I find the evidence shows the notification and discussions took place well after the repairs were completed. So, I find the owner did not request or authorize the strata to initiate any floor-drying activities in his strata lot on his behalf, and the owner did not agree to pay for any floor drying.

31.   I note that the owner did not specifically forbid the floor drying initiated by the strata. But I do not consider this to be an authorization for the strata to perform floor drying on the owner’s behalf. I accept the owner’s argument suggesting that he would not have permitted the drying if he had known he would be charged for it. The floor is the owner’s responsibility, and whether his floor was damaged and needed drying services was his decision to make. Further, it appears the strata paid for all other Walsh repairs and services related to the water leak. I accept the owner’s undisputed evidence that the strata did not contact him about payment for specific leak repairs and services until after the floor drying was completed by the strata and Walsh, even though the drying took place over several days. So, I find it was reasonable for the owner to believe the strata would pay for the floor drying it initiated, in the same way it paid for the other repairs it undertook.

32.   I also note there is no evidence of an indemnity agreement under which the owner would be required to indemnify the strata for the costs of drying the strata lot’s floor.

33.   Overall, the SPA and bylaws do not permit the strata to charge the owner for the strata lot floor drying, the owner did not authorize or agree to the floor drying, and the owner did not agree to indemnify the strata for drying costs. Therefore, following the Ward decision, I find the strata was not permitted to charge the floor drying costs to the owner. I allow the owner’s claim, and order the strata to reverse the $1,260 charge on the owner’s strata account. If the $1,260 account charge has already been paid to the strata, I instead order the strata to pay the owner $1,260 as reimbursement.

TRIBUNAL FEES AND EXPENSES

34.   Under section 49 of the CRTA and 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 not to follow that general rule. The owner was successful, so I find he is entitled to reimbursement of $225 for tribunal fees. No expenses were claimed.

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

ORDER

36.   I order that, within 30 days of the date of this decision, the strata must:

a.    reverse the $1,260 floor drying charge on the owner’s strata account, unless that charge has already been paid, in which case the strata must instead pay the owner $1,260 as reimbursement, and

b.    in either case, pay the owner $225 for tribunal fees.

37.   The owner is entitled to post-judgment interest under the Court Order Interest Act, as applicable.

38.   Under section 57 of the CRTA, a party can enforce this final tribunal decision by filing a validated copy of the attached order in the Supreme Court of British Columbia (BCSC). Once filed, a tribunal order has the same force and effect as a BCSC order.

39.   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. Once filed, a tribunal order has the same force and effect as a BCPC order.