Date Issued: September 17, 2020
File: ST-2019-009557
Type: Strata
Civil Resolution Tribunal
Indexed as: Chen v. The Owners, Strata Plan BCS 4311, 2020 BCCRT 1053
Between:
YU ERH CHEN
Applicant
And:
The Owners, Strata Plan BCS 4311
Respondent
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REASONS FOR DECISION |
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Tribunal Member: |
J. Garth Cambrey, Vice Chair |
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INTRODUCTION
1. This is a strata property dispute about water damage to a strata lot.
2. The applicant, Yu Erh Chen, co-owns a strata lot (SL1) in the respondent strata corporation, The Owners, Strata Plan BCS 4311 (strata). Ms. Chen is self-represented, and the strata is represented by a strata council member.
3. Ms. Chen says the strata is responsible, under the Strata Property Act (SPA) and its bylaws, to complete certain structural and interior repairs to SL1.
4. Ms. Chen seeks orders that the strata repair or replace the following specific damage within SL1:
a. 1st floor living room ceiling and flooring,
b. Corroded steel framing located at the base of the north living room wall, and at the base of the 2nd floor bedroom, west wall,
c. All damage in the 2nd floor bathroom, including corroded steel framing at the base of the north and west walls,
d. 3rd floor south facing window, and windowsills in the 3 windows located on the north wall of the living room.
5. Ms. Chen also seeks orders that the strata cancel “all charge back amounts” and reimburse her $12,097.28 for engineering and architectural expenses detailed in 5 invoices dated between March 21, 2019 and May 20, 2020.
6. The strata denies it is responsible for any damage or repairs to SL1. It says Ms. Chen is responsible for the charge back amounts and the cost of her engineer. The strata asks that Ms. Chen’s claims be dismissed.
7. For the reasons that follow, I dismiss Ms. Chen’s claims and this dispute.
JURISDICTION AND PROCEDURE
8. These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over strata property claims under section 121 of the Civil Resolution Tribunal Act (CRTA). The CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. The CRT must act fairly and follow the law. It must also recognize any relationships between dispute parties that will likely continue after the CRT’s process has ended.
9. The CRT has discretion to decide the format of the hearing, including in writing, by telephone, videoconferencing, email, 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.
10. The CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in court. The CRT may also ask the parties and witnesses questions and inform itself in any way it considers appropriate.
11. Under section 123 of the CRTA and the CRT rules, in resolving this dispute the CRT may order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the CRT considers appropriate.
ISSUES
12. In her submissions, Ms. Chen withdrew her claim that the strata repair polyethene sheeting within the walls of the 2nd floor west bedroom. As a result, I find this matter is not before me and I will not address it in these reasons.
13. The remaining issues in this dispute are:
a. What portion of the walls, floors, windows, and ceilings of SL1 are the strata’s responsibility under the SPA and bylaws?
b. What is the cause of the damage to SL1?
c. What repairs to SL1, if any, are the strata’s responsibility?
d. What charge back amounts, if any, are Ms. Chen’s responsibility?
e. Is the strata responsible to reimburse Ms. Chen $12,097.98 for engineer and architect expenses?
BACKGROUND, EVIDENCE AND ANALYSIS
14. In a civil proceeding such as this, the applicant, Ms. Chen, must prove her claims on a balance of probabilities.
15. I have read all the submissions and evidence provided but refer only to information I find relevant to provide context for my decision.
16. In the submissions and evidence provided, Ms. Chen’s strata lot was often referenced as “T/H 2222” or “2222 Douglas Rd.” or some similar variation of these. Based on my overall review of the evidence and arguments provided by the parties, I find that the submissions and evidence that contain these references are references to SL1, because the civic address of SL1 is 2222 Douglas Road. I also find that reference to “TH1” is a reference to SL1, as SL1 is the first townhouse in the row of townhouses.
17. The strata was created in December 2011 under the SPA. It consists of 291 residential strata lots located in Burnaby, BC. Of the 291 strata lots, 281 are apartment-style strata lots located in 2 high-rise buildings and 10 are townhouse-style strata lots located on the ground level. SL1 is a townhouse-style strata lot. Strata lots 1 through 5, including Ms. Chen’s SL1, are located in a separate building away from the high-rise buildings.
18. SL1 is located at the west end of the separate building. Its north, west, and south walls are exterior walls. The east wall of SL1 is a common interior wall with strata lot 2. SL1 is 2 levels plus a roof deck on the 3rd floor. The roof deck is limited common property (LCP) designated for the exclusive use of SL1. There is a CP planter about 3 feet wide located around most of the perimeter of the roof deck.
19. The strata filed bylaw amendments that repealed and replaced all registered bylaws with the Land Title Office (LTO) on August 8, 2013. LTO records show 5 subsequent bylaw amendments were filed but I find these bylaw amendments are not relevant to this dispute. I find the Schedule of Standard Bylaws does not apply. I discuss the bylaws applicable to this dispute below as necessary.
20. The basic facts and chronology of events that follow are not disputed.
21. Ms. Chen purchased SL1 in June 2016.
22. The strata investigated interior water damage to SL1 in by retaining Bemco Pacific Services (Bemco) in December 2017 and On Side Restoration (On Side) in January 2018. Bemco completed minor repairs to the exterior of SL1 that included repairs to a crack in the exterior wall above the leak in the living room ceiling and outside the 2nd floor bedroom and bathroom. Bemco also repaired a cold joint in the exterior concrete wall. On Side’s investigation concluded the SL1 water damage was caused by water penetrating the exterior walls and high humidity inside SL1. On Side recommend the strata retain a building envelope consultant.
23. In February 2018, the strata reported the SL1 damage to its insurer. Following a physical investigation, an insurance adjuster determined the cause of interior water damage to SL1 was inconclusive. The insurance adjuster recommended the strata retain a building envelope consultant.
24. In March 2018, the strata retained a building envelope consultant, Morrison Hershfield Ltd. (MH), to investigate the SL1 water damage. MH provided a letter report dated March 19, 2018 (March 2018 MH report). The March 2018 MH report details the physical investigation completed by MH that concluded condensation was occurring at windows and walls within SL1. However, MH did not identify the source of the water and stated the cracks in the exterior concrete wall might be contributing to the condensation issues. To eliminate water penetration from the building exterior as a potential source, MH recommended water testing the exterior concrete wall. It also recommended a detailed review of the mechanical ventilation system in SL1 to confirm whether it was “installed and functioning per the design intent”. The strata agreed with MHs recommendations and retained MH to complete the additional investigation.
25. On April 16, 2018, MH issued a second letter report (April 2018 MH report) following its water testing of the building’s exterior and investigation of the SL1 ventilation system. The report stated no active leaks through the north and west exterior walls were observed during the testing and that the ventilation system was performing satisfactorily. Based on the April 2018 MH report, I find the mechanical ventilation system for SL1 is self-contained within SL1 and not part of a system shared with other strata lots. MH concluded the cause of the SL1 water damage was “interior generated condensation”. The report stated the condensation needed to be controlled by installing larger exhaust and ceiling fans, using de-humidifiers, and allowing for better circulation of air within SL1, such as keeping window coverings open. MH suggested that doing these things would eliminate high moisture levels in SL1. In its May 2020 MH report discussed below, MH says the larger exhaust and ceiling fans had been installed, and that dehumidifiers had been installed on floors 1 and 2.
26. MH provided an alternative recommendation to control the condensation issues in SL1. The alternative provided was to remove all interior wall components and install a spray foam insulation on the interior of the exterior concrete walls. MH noted that this option was not cost effective.
27. The evidence suggests, and I find, the strata’s insurer determined the water damage was not covered under the strata’s policy. It appears the insurer made this determination based on the April 2018 MH report that the strata provided to its insurer.
28. On July 20, 2018, the strata wrote to Ms. Chen through its property manager advising that she was responsible to pay an On Side invoice (#10160779) in the amount of $3,078.30. A copy of the On Side invoice was attached to the strata’s letter noting a November 1, 2017 loss date entitled “Emergency Invoice”. A breakdown of costs was also attached that shows labour of $472.50 and includes $1,600.00 for drying equipment. I find the invoice relates to the strata’s initial call out of On Side to investigate Ms. Chen’s concern about water ingress.
29. The strata held a hearing with Ms. Chen and her lawyer on September 10, 2018. On September 11, 2018, the strata wrote to Ms. Chen thanking her for her attendance and stating that the strata council “had not changed its position”. Details of why the hearing was held are not before me, but I infer the hearing was arranged to address the same or similar issues that are before me here, including requested repairs to SL1 and payment of the On Side invoice.
30. Ms. Chen retained LDR Engineering Group (LDR) to further investigate the source of the water damage in SL1. LDR provided a report dated March 20, 2019 (March 2019 LDR report) that detailed LDR’s investigation and findings. The report states the 2 previous MH reports were provided to LDR for its review. LDR’s investigation, that included interior exploratory openings, focused on the west walls of the 2nd floor bedroom and bathroom and the 1st floor living room ceiling. The March 2019 LDR report concluded that the condensation in SL1 was caused by the original construction of the building. The report stated that thermal bridging (discussed further below) was occurring at base of wall and windows assemblies in the 2nd floor bedroom and bathroom respectively. LDR suspected that condensation from the bathroom was contributing to the living room ceiling moisture issue immediately below. No testing was conducted.
31. The March 2019 LDR report recommended the corroded metal framing be replaced or repaired and that further investigation, especially in the 2nd floor bathroom, be undertaken to determine the extent of the condensation issue. LDR agreed with MH that spray foam insulation could be added to the interior of the exterior concrete wall.
32. About 1 year later, Ms. Chen retained LDR to further investigate the identified bathroom condensation issues. LDR completed its investigation and issued its 2nd report dated March 11, 2020 (March 2020 LDR report). The March 2020 LDR report identified further areas of steel framing damage along the west wall and also along the north wall of the bathroom and again recommended the steel framing be replaced or repaired. Other recommendations to address the condensation issues were also suggested that included improving the ventilation of exterior wall cavities and other methods of reducing condensation within SL1.
33. In April 2020, Ms. Chen again retained LDR, this time to investigate water damage in the north living room wall on the 1st floor and below a 3rd floor window on the south elevation. LDR provide a 3rd report dated April 7, 2020 that details its investigation and recommendations (April 2020 LDR report). The April 2020 LDR report identified moisture on the interior of the concrete wall assembly along the north wall of the living room stating, “we suspect the moisture occurring at the interior surface could be caused by condensation and/or water ingress”. I note that LDR did not conduct any water testing of the exterior wall.
34. The April 2020 LDR report also identified “warped” hardwood flooring along the north wall of the living room. LDR also investigated the flooring and determined that the damage was “likely caused” by moisture getting between the parging (leveling compound) and the concrete floor slab causing the parging to delaminate from the concrete slab and bulge, thus causing the flooring to warp. I note that no moisture was identified under the hardwood flooring or the parging at the time of the inspection. The April 2020 LDR report stated LDR “suspected” the moisture “could be caused by vapour transmission from below grade and/or water ingress from the north elevation exterior wall”.
35. As for the 3rd floor window investigation, the April 2020 LDR report identified “minor” water staining on the interior side of the concrete wall below the window and no metal framing corrosion. The report recommended replacement or repair of the metal framing along the base of the north living room wall and that the sources of moisture in the north wall and below the living room floor be addressed. Again, the report does not state any testing was completed.
36. Ms. Chen also retained koka architecture + design inc. (Koka) to provide an opinion on the structural components of the walls, floors, and ceiling of SL1 dated March 12, 2020 and updated on March 18, 2020 (Koka report). The author of the Koka report, an architect, provided answers to specific questions posed by Ms. Chen, but did not attend SL1. I address the Koka report in greater detail below.
37. The strata retained MH to investigate SL1 a final time after it had received the 3 LDR reports obtained by Ms. Chen. MH issued its final report on May 21, 2020 (2020 MH report). The report states it had reviewed the 3 LDR reports but does not mention reviewing the Koka report. Therefore, I infer MH was not provided with the Koka report. The 2020 MH report was completed at a time when SL1 was vacant and Ms. Chen was allegedly on vacation. The report states that MH inspected all previous wall openings and did not observe any evidence of active water ingress or condensation. MH partially attributes the lack of condensation to the vacant strata lot, that the heating system was switched off, and that many of the exploratory openings were open to allow air flow. As for the LDR reports, MH agreed with the wall construction and proposed recommendations, namely replacement or repair of the steel framing and but expressly stated the steel framing is not a structural component of the exterior wall.
38. I accept the MH, LDR, and Koka reports are provided by persons having specialized knowledge and expertise in the areas covered by the reports, but I do not find any of the reports meet the criteria for an expert report set out in CRT rule 8.3. I say this because, except for the 2020 MH report, the authors’ qualifications were not included with the report. Also, it appears the written evidence was provided to advocate for specific parties.
What portion of the walls, floors and ceilings of SL1 are the strata’s responsibility under the SPA and bylaws?
39. Ms. Chen says that the strata is responsible for the repair and maintenance of her claimed portions of SL1 because they are all either part of the structure of her strata lot or the exterior of the building. The strata accepts responsibility for the exterior of the building. It says it repaired the exterior walls within its responsibility in a timely manner when it retained Bemco to repair the cracked concrete and seal the concrete cold joints. The strata says it is not responsible for anything within SL1.
40. Section 72(1) of the SPA requires the strata to repair and maintain CP and common assets. This statutory requirement is restated in the strata’s bylaw 8(a) and (b). Bylaw 2 requires an owner to repair and maintain their strata lot except for repair and maintenance that is the strata’s responsibility. Under bylaw 8(d), as permitted by section 72(3), the strata has taken responsibility to repair and maintain parts of a strata lot that include, among other things that do not apply here, the structure of the building, the exterior of the building, and doors and windows on the exterior of the building or that front on the CP. Under section 1(1) of the SPA, CP includes part of the building shown on a strata plan that is not part of a strata lot.
41. Based on sections 1(1) and 72 of the SPA, and bylaws 8(a) and (d), I find the strata is responsible to repair and maintain the exterior of the building comprising SL1 and the 3rd floor window of SL1 because it fronts on the CP. The strata is also responsible for the north windows of the living room of SL1 and the west window of 2nd floor bathroom because they front on CP, but Ms. Chen does not request repair of the living room windows.
42. Section 68(1) of the SPA identifies the boundaries of a strata lot where the strata lot is separated from CP or another strata lot by a wall, floor, or ceiling. Section 68(1) states the strata lot boundary is “midway between the surface of the structural portion of the wall floor or ceiling” that separates the strata lot from the CP or another strata lot, unless the strata plan identifies different boundaries. [My emphasis.]
43. Here, the strata plan does not identify different boundaries, so section 68(1) applies. As mentioned, through its bylaws, the strata has taken responsibility to repair and maintain the structure of SL1. However, the parties disagree on what parts of the walls, floors, and ceilings makes up the “structural portion” as set out in section 68 of the SPA.
The walls
44. I first address the walls. There is no issue with the east wall of SL1 that is a common wall dividing SL1 and strata lot 2 so I will not address it. The remaining 3 walls of SL1 (north, east, and south), are exterior walls of the same construction. There is no dispute about the construction of the exterior walls. MH and LDR agree the exterior wall assembly, from exterior to interior, consists of the following:
a. Painted cast-in-place concrete,
b. 1” airspace,
c. 2 ½” steel studs filled with batt insulation in the stud cavity,
d. Polyethylene (plastic) sheeting,
e. ½” gypsum wall board (drywall).
45. However, the parties disagree on the strata lot boundary in the exterior walls. Ms. Chen relies on the Koka report that states the strata lot boundary is the centre line of the exterior wall. The strata relies on MH’s opinion that the strata lot boundary is the midpoint of the concrete portion of the exterior wall. For the following reasons, I agree with the strata.
46. The Koka report shows copies of the LDR reports were provided to its author, but not the MH reports. I find nothing turns on the fact Koka was not provided with the MH reports as MH agreed with LDR on the construction of the exterior walls of SL1. I find the dispute about responsibility of wall repairs turns on the interpretation of the SPA and the exterior wall construction, not simply the width of the entire wall.
47. Koka appears not have reviewed sections 1(1) and 68(1) of the SPA. It incorrectly relies on a BC land surveyor’s alleged comments that a strata lot boundary is the “centre line” of the wall rather than “midway between the surface of the structural portion of the wall”. I disagree the strata lot boundary definition was different in 2011 when the strata was created as suggested in the Koka report. Based on my review of SPA legislative changes, the last amendment to section 68 was in April 2004, well before the creation of the strata. That means, the current version of section 68 described above was in place in 2011. There is no need for me to address whether a different version of SPA section 68 might apply.
48. Based on the exterior wall construction described above, I find the structural portion of the wall is the concrete portion of the wall. I agree with MH and the strata that the metal framing is not structural and is intended only to hold the interior drywall finishes of SL1. Therefore, I find the strata lot boundary with CP is midway through the concrete wall. Thus, strata is responsible for the repair and maintenance of the exterior of the concrete wall only. Ms. Chen is responsible for the steel framing, insulation, and drywall finishes located on the interior of SL1. In the context of Ms. Chen’s claims, this includes the north living room wall, the west walls of the 2nd floor bedroom, and the north and west walls of the 2nd floor bathroom.
The living room floor
49. As noted, SL1 is 2 levels plus a roof deck. The living room of SL1 is located on the 1st or ground level.
50. The Koka report states that the living room flooring is considered part of the structure of SL1 if it is “mechanically fastened to the load bearing floor structure.” Koka’s opinion is that whether the flooring is part of the SL1 structure is “less clear” if the flooring is not mechanically fastened to the loadbearing floor structure. Koka relies on strata bylaw 5 that addresses alterations to a strata lot, including structural alterations.
51. I agree the loadbearing floor structure is the concrete slab. However, I do not agree that simply because a bylaw defines an alteration as being structural, means the alteration itself, in this case the flooring, is also structural. I say this for 2 reasons.
52. First, there is no evidence to suggest the hardwood flooring is an alteration as contemplated under bylaw 5. In order to be considered an alteration, the hardwood flooring would need to have installed by Ms. Chen or a previous owner and the hardwood installation details have not been provided.
53. Second, I find that attaching something to a structure does not make the attached thing a structure, especially if the thing can be removed without causing damage to the structure. Here, the April 2020 LDR report says the hardwood flooring is not mechanically fastened to the floor slab, which I accept, given MH did not state otherwise. The evidence is, and I find, the hardwood flooring is located on top of the parging that is attached to the loadbearing floor. Based on my overall review of the submissions, I find the concrete floor slab forms the ground level floor structure of SL1. I do not agree that the parging or the hardwood flooring form part of the structure.
54. For completeness, applying section 68(1) to the living room floor construction of SL1, I find the strata lot boundary is midway through the floor slab. This means the hardwood flooring (and parging) are also within SL1.
The living room ceiling and 2nd level bathroom floor
55. I accept that the 2nd level bathroom is located above the damaged portion of the living room ceiling as reported by LDR. The MH and LDR reports state, and I accept, that SL1’s 1st floor ceiling (or 2nd level bathroom floor) is cast-in-place concrete. Although the ceiling (or floor) is located entirely within SL1, I find it is a structural component of SL1 and therefore the strata’s responsibility to repair and maintain under bylaw 8(d)(i).
56. The photographs provided in evidence show the living room ceiling is a stippled or painted finish. The water damage was only visually investigated and shows only staining. Neither the MH nor the LDR reports address whether the ceiling finish is attached directly to the concrete or if there is a drop ceiling. Nor does the Koka report address this construction. However, no matter how the ceiling is finished, I do not find the stipple, paint, or a drop ceiling is structural. In each case, the interior ceiling finish would be attached to the concrete.
57. For the same reasons as stated for the hardwood flooring above, I do not find attaching something to a structure makes the attached thing part of the structure, especially if the attached thing can be removed without causing damage to the structure. There is no evidence to suggest the structural concrete is in need of repair. Rather the evidence suggests the ceiling is water stained. I expect the stain could be repaired without repairing the concrete, such as scraping off the stipple or paint finish, or repairing the drop ceiling. Therefore, I find the living room ceiling damage is not structural and thus the strata is not responsible to repair it.
58. In summary, and in the context of this dispute based on the SPA and bylaws, I find the strata is responsible for the 3rd floor south window, the 1st floor north windows of the living room, and the west window of 2nd floor bathroom because they front on CP. I also find the strata is responsible for the exterior of the concrete walls forming the structural component of the north, west, and south walls of SL1. Consequently, I find Ms. Chen is responsible for all interior walls and finishes on all levels of SL1, including the steel framing. I also find Ms. Chen is responsible for the living room hardwood flooring and ceiling finish.
What is the cause of the damage to SL1?
59. I rely on the MH and LDR reports to determine the cause of the damage to SL1. The Koka report did not address causation. In the March 2018 MH report, MH concluded that condensation was occurring on some windows in SL1 and on the interior side of the exterior concrete wall on the west elevation of the 2nd floor bedroom wall. MH was unable to conclude whether water ingress through the concrete wall was contributing to the moisture problems in SL1 and recommended exterior water testing be completed. The April 2018 MH report confirms, and I accept, the north and west exterior concrete walls were not leaking. The report also confirms that condensation was occurring in the north and west walls, including the 2nd floor bathroom.
60. I find the LDR reports agree with the MH reports in that the main source of the moisture in SL1 is condensation. Although the LDR reports mention that water ingress through the exterior concrete wall could be a factor, LDR did not test the exterior walls nor did it disagree with MH’s conclusions that the walls were not leaking.
61. Weighing all the evidence, I find that it is more likely than not that condensation is the single source of the moisture in SL1. In reaching that conclusion , I have placed more weight on the MH reports than on the LDR reports because MH water tested the exterior walls that are the subject of this dispute and determined no water ingress was occurring. Conversely, LDR did not undertake any water testing.
62. I also note LDR’s assertion that damage to the living room hardwood floor was caused by moisture is speculative as no moisture was observed during the inspection. Further, other potential reasons why the parging may have caused the flooring to “warp” in one location and not others, such as poor installation or excessive weight, were not addressed by LDR.
What damage to SL1, if any, is the strata’s responsibility?
63. Regardless of the bylaws, the strata may be liable for the damage to SL1 if it was negligent in repairing and maintaining CP (see Basic v. Strata Plan LMS 0304, 2011 BCCA 231 and Kayne v. LMS 2374, 2013 BCSC 51). Although not argued by Ms. Chen, the strata submits it was not negligent. I will briefly address the strata’s potential negligence.
64. In order to establish the strata was negligent, it must be shown the strata owed Ms. Chen a duty of care, that the strata breached the standard of care, and that Ms. Chen sustained damage as a result of that breach (see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27). The standard of care that applies to a strata corporation with respect to repair and maintenance of CP is reasonableness (see Weir v. Owners, Strata Plan NW 17, 2010 BCSC 784). Based on Weir, I find the strata’s standard of care with respect to repair and maintenance of structural components within SL1 is also reasonableness.
65. I find the strata owed Ms. Chen a duty of care to repair and maintain the CP and the structural components of SL1. However, I do not find the strata acted unreasonably when it took steps to have Bemco make repairs to the exterior concrete wall of SL1 or retained On Side and MH to further investigate and test the SL1 moisture issues. Therefore, I find the strata has not been negligent in attending to repairs that are its responsibility such as the exterior concrete walls and structure of SL1.
66. I find that all of the damages or repairs claimed by Ms. Chen are within SL1. Further, I find condensation is generated from within SL1 depending on a number of factors, including living habits of the occupants and use of ventilation systems as described by both MH and LDR. MH and LDR agree that condensation typically occurs when humid indoor air comes in contact with cold surfaces, when the surface temperatures are below the dew point of the indoor air. The cold surfaces here are windows and thermal bridges within the exterior wall assembly.
67. MH and LDR agree the windows are not thermally broken . That is, the window frames run continuously from the exterior to the interior, which can contribute to condensation. Both MH and LDR recommend that that the condensation be managed. Neither firm recommended replacement of the windows with thermally broken windows. Whether the installed windows act as a thermal bridge, does not mean they need to be replaced. For example, if the windows are performing as intended and meet Building Code requirements, which is not argued and implied here, I find it would not be reasonable to replace them in an attempt to reduce condensation in SL1. I find it more appropriate for Ms. Chen to take steps to reduce condensation as both MH and LDR recommend in their reports.
68. MH and LDR also agree the construction of SL1, where the concrete ceiling of the 1st and 2nd levels extends to the outside edge of the exterior concrete wall, creates a thermal bridge. That is, because the concrete ceiling runs continuously from the exterior to the interior of SL1 it acts in the same manner as the metal window frames creating a thermal bridge. For the same reasons as I stated above for the window replacement, but on a much larger scale and cost, I do not find it reasonable for the strata to alter the building construction to attempt to reduce condensation within SL1. I also note Ms. Chen did not request the strata do so.
69. I will now address each of Ms. Chen’s requested repairs in turn based on my findings above.
1st floor living room ceiling and flooring
70. I have found that the damaged living room ceiling area is not structural, and it is not reasonable nor requested for the strata to rectify any thermal bridge caused by the building’s construction. Therefore, I find the living room ceiling damage is not the strata’s responsibility to repair.
71. As for the flooring, I have found it is not CP or a structural component of SL1. I have also found that there is no evidence moisture caused damage to the flooring. Therefore, I find the strata is not responsible for living room flooring repairs in SL1.
72. Accordingly, I dismiss Ms. Chen’s claims that the strata is responsible to repair the damaged living room ceiling and hardwood flooring.
Corroded steel framing located at the base of the north living room wall, and at the base of the 2nd floor bedroom west wall
73. I have found steel framing located in the exterior walls is not CP and is entirely within SL1. Also, I have found it is not part of the building’s structure. I have also found the cause of the moisture within the wall cavity is from condensation, generated from within SL1. Therefore, I dismiss Ms. Chen’s claim that the strata is responsible to repair the damaged steel framing located at the base of the north living room wall and the 2nd floor bedroom west wall.
All damage in the 2nd floor bathroom, including corroded steel framing at the base of the north and west walls
74. The base of wall construction of the 2nd floor bathroom west wall is the same as the living room and bedroom walls discussed above. For the same reasons, I find it is not the strata’s responsibility to repair the steel framing at the base of the bathroom’s north and west walls.
75. At the time of the April 2019 MH report, MH identified condensation forming on the bathroom window frame. LDR did not identify condensation at the time of its inspection in the March 2019 LDR report, but concluded that condensation was likely the cause.
76. LDR also commented that high amounts of humid air can be expected to be generated in a bathroom and stated the construction around the bathroom window “is a design/construction deficiency”. No other evidence supporting LDR’s finding of a “deficiency” was provided. MH did not comment on the alleged deficiency. In these circumstances, I find Ms. Chen has not met her burden to prove a deficiency exists or that the strata is responsible for the deficiency if one does exist. Therefore, I find the strata is not responsible for the bathroom window repairs, if any are required.
77. For these reasons, I dismiss Ms. Chen’s claims for repairs to the 2nd floor bathroom.
3rd floor south facing window, and windowsills in the 3 windows located on the north wall of the living room.
78. I have found the windows fronting on CP are the strata’s responsibility under bylaw 8(d)(iv). This includes the windows that form part of this dispute. Based on the March 2020 LDR report, I conclude the 3rd floor south facing window is located in an exterior wall with the same wall construction shown to exist in the north and west exterior walls.
79. The March 2020 LDR report indicated a slight amount of moisture within the south wall under the 3rd floor window, but no damage to the steel framing. However, the report did not identify what caused the moisture to occur. Specifically, the report did not identify a source of moisture other than condensation, such as a window leak. Therefore, given Ms. Chen has not proven the strata is responsible for repairs to the 3rd floor window, I dismiss her claim against the strata for 3rd floor window repairs.
80. As for the windowsills of the 3 north facing living room windows, I find windowsills do not form part of the windows. I find the 3 windowsills are also located within SL1, and are not part of the building’s structure. Therefore, I find the windowsills are not the strata’s responsibility to repair and maintain. On this basis, I dismiss the Ms. Chen’s claim that the strata repair the windowsills of the 3 north facing living room windows of SL1.
What charge back amounts, if any, are Ms. Chen’s responsibility?
81. Ms. Chen requests an order that “all charge backs” be removed but did not identify any specific charge backs the strata has assessed against SL1. Conversely, the strata says that “all charge backs are valid” and should not be reversed. Copies of Ms. Chen’s SL1 account were not in evidence so I am unable to determine what specific charge backs were made by the strata.
82. However, as mentioned, the strata provided a July 20, 2018 letter its property manager wrote to Ms. Chen. The letter requested payment of the attached July 12, 2018 On Side invoice #10160779 in the amount of $3,078.30 for the “cost of repairs due to water damage in [SL1]”. The letter did not mention the strata’s authority to charge back the cost of the invoice to Ms. Chen.
83. The charge back of the On Side invoice is not captured by section 116 of the SPA and is commonly referred to as a non-lienable amount as it cannot be included in the amount of a Certificate of Lien filed under section 116 of SPA. In order to collect a non-lienable amount, the strata must have the authority to do so under a valid and enforceable bylaw or rule that creates the debt. (see Ward v. Strata Plan VIS #6115, 2011 BCCA 512 at paragraphs 40 and 41)
84. Arguments on the validity of the charge back of the invoice were not made by either party. However, I find the strata’s bylaw 61 applies to the charge back of non-lienable expenses. I summarize bylaw 61 in part as follows [my emphasis]:
61(1) An owner is responsible for loss or damage to a strata lot if:
(a) the damage originates within the owner’s strata lot
(b) the “damage results from that owner’s negligence or an act of that owner, or the negligence or action of any invitee, guest, occupant or individual present in the strata lot…”
(2) An owner shall repay to the strata:
(a) all amounts paid out by the strata to “assess, remediate, repair, rebuild…” any strata lot if “said property … is damaged and the owner is responsible for the damage.”
85. Although bylaw 61 could have been better drafted, I interpret it to mean that the strata can charge back expenses paid by the strata to assess or investigate damage caused by an owner’s act or negligence. In other words, I find the owner does not need to be negligent in causing damage for the strata to be able charge back their costs. Further, costs include costs to assess the damage.
86. Here, I have found the damage was caused by condensation generated with SL1, which I find is captured by bylaw 61.
87. Based on the evidence before me, it is clear that the strata retained On Side to investigate the water damage in SL1. The invoice was not charged back to Ms. Chen until July 2018, after MH had determined the water damage was caused by condensation. Although the strata’s July 20, 2018 letter to Ms. Chen could have contained additional details, such as the bylaw relied on by the strata to charge back the invoice, I find Ms. Chen must pay the strata $3,078.30 for On Side invoice #10160779 and I so order.
88. I make no decision on other charge backs as there is no evidence about them before me.
Is the strata responsible to reimburse Ms. Chen $12,097.98 for engineer and architect expenses?
89. I find that Ms. Chen’s claimed expenses are dispute-related expenses under the CRTA.
90. Under section 49 of the CRTA, and the CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for reasonable dispute-related expenses. Given, Ms. Chen has not been successful in this dispute I find she is not entitled to be reimbursed for her engineer and architect expenses.
CRT FEES
91. Also under section 49 of the CRTA, and the CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees. The strata was the successful party in this dispute but did not pay CRT fees, so I order none.
92. The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against Ms. Chen.
ORDER
93. I dismiss Ms. Chen’s claims and this dispute.
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J. Garth Cambrey, Vice Chair |