Date Issued: November 20, 2020

File: ST-2020-003405

Type: Strata

Civil Resolution Tribunal

Indexed as: Latimer v. The Owners, Strata Plan 761, 2020 BCCRT 1314

Between:

BENJAMIN LATIMER

Applicant

And:

The Owners, Strata Plan 761

Respondent

REASONS FOR DECISION
Tribunal Member:	Lynn Scrivener

INTRODUCTION

1.      This is a dispute about bylaw enforcement. The applicant, Benjamin Latimer, owns a strata lot in the respondent strata corporation, The Owners, Strata Plan 761 (strata). Mr. Latimer says that the strata has failed to follow and enforce its bylaws about landscaping, fences, patio size, and the construction of sheds on strata lots. He asks for an order that the strata enforce the bylaws and comply with the bylaws, the Strata Property Act (SPA), and the Land Use Contract (LUC) that applies to the strata’s property. The strata denies that it has failed to enforce its bylaws.

2.      Mr. Latimer is self-represented. The strata is represented by a member of the strata council.

JURISDICTION AND PROCEDURE

3.      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.

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

5.      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.

6.      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

7.      The issues in this dispute are:

a.    Whether the strata has failed to enforce the LUC,

b.    Whether the strata has failed to enforce its bylaws about landscaping, fences, patios and sheds, and

c.    What is the appropriate remedy for any non-compliant alterations.

EVIDENCE AND ANALYSIS

8.      In a civil dispute like this, an applicant bears the burden of proof on a balance of probabilities. Both parties provided evidence and submissions in support of their respective positions. I also note that late evidence provided by Mr. Latimer was disclosed to the strata and it had an opportunity to respond, so I find there is no procedural unfairness in accepting it. While I will consider all of the information provided by the parties, I will refer to only what is necessary to provide context to my decision.

9.      The strata is a bare land strata comprised of 235 strata lots with mobile homes on concrete slabs. Each strata lot has a rear yard area, where many owners have installed structures such as decks and sheds, and a variety of trees and plants in addition to the existing lawn areas.

10.   A portion of the strata’s property abuts a park and, as there is a fish-bearing stream nearby, the strata must follow some riparian regulations in addition to the municipal bylaws.

11.   Development on the strata’s property is subject to the LUC, which was signed between the owner developer and the local municipality in 1978. The LUC governs how the strata’s property may be used, and sets out how and where buildings, structures, and other items may be placed on the property. The LUC is registered against the titles of the individual strata lots.

12.   Mr. Latimer became a member of the strata council in the spring of 2019. He was appointed as the strata’s improvements officer and, in this capacity, says he became aware of inconsistences in how applications for alterations were handled dating back to 2017. According to Mr. Latimer, certain owners were receiving preferential treatment in that the strata council was not requiring them to follow the bylaws, resulting in a “situation that pits neighbour against neighbour”. Mr. Latimer says that he asked the council to clarify the proper procedure for requesting and approving alterations, but it did not do so. Mr. Latimer resigned from the strata council in August of 2019 due to what he felt was unfair treatment from strata council members in trying to address the situation. He says that the strata denied his request for a hearing about these issues.

13.   Mr. Latimer says that strata lots 42, 129, 130, 134 and 206 have alterations that do not comply with the LUC and the strata’s bylaws. He asks for orders that the strata enforce the LUC and bylaws, and rectify the non-compliance at these strata lots.

14.   According to the strata, previous strata councils took a rather informal approach to alterations and sometimes work was done on strata lots without the proper approvals. However, the strata says that the approval process has been “tightened up”, and current alterations are approved as required by the bylaws. The strata did not specifically address the LUC.

15.   The strata says that it approved the alterations at the identified strata lots, or worked with strata lot owners (and, in one case, the municipality) to address alterations that were done without approval. The strata’s position is that the alterations described by Mr. Latimer are the subject of disputes between neighbours. It says that new strata lot owners have been requesting more modern landscaping concepts and that some owners have been unwilling to accept that these changes have been approved.

Enforcement of the LUC

16.   Although the strata suggested that Mr. Latimer did not raise the LUC in his Dispute Notice, I find that he did because Mr. Latimer asked for an order that the strata abide by and enforce the LUC. Accordingly, the issue of whether the strata must enforce the LUC is before me in this dispute.

17.   As discussed above, the LUC sets out the terms for the property’s development. Mr. Latimer says that the strata has failed to enforce the LUC’s requirements about setbacks, the development’s open space concept, lot line barriers, the appearance of additions, and deck and patio sizes. The following sections of the LUC are relevant to the issues in this dispute:

a.    section 7.8 places limits on additions to mobile homes and, in particular, limits the size of sundecks to 192 square feet,

b.    section 7.9 provides that the design of additions must complement the main structure,

c.    section 7.10 says that a storage facility (shed) or greenhouse may be constructed on each lot, provided that it is compatible in appearance with the appearance of the mobile home, is 500 to 900 square feet in volume, and does not exceed 2.4 meters (or 8 feet) in height,

d.    section 7.12 addresses setbacks, and requires that no part of a mobile home or addition may be located within 1.5 metres of the rear or side strata lot lines,

e.    section 7.15 explains that the development is intended to have an open space concept, and that “individual lots shall not be delineated by fences, tree lines, hedges, shrubbery or other barriers whether visual or otherwise”. These types of lot line barriers are not allowed between strata lots or abutting a roadway.

18.   The LUC appears to be equivalent to a zoning scheme. The evidence suggests that, although the LUC remains in force at present, it will be replaced by municipal zoning in the next few years.

19.   The owner developer entered into the LUC with the municipality, and section 24 states that the LUC is “binding upon the parties hereto and their respective heirs, executors, administrators, successors and assigns”. The LUC does not address enforcement or identify which entity, if any, is responsible for enforcing its requirements.

20.   Messages from municipal employees suggest that enforcement of the LUC may be a municipal responsibility. An October 29, 2019 email from a municipal employee about landscaping alterations confirms that the proposed alterations conformed to the LUC. The employee warned the owners that, if the strata required any changes to the planned alterations, they should “confirm conformance with the LUC with the Town before proceeding with construction”. Similarly, an August 11, 2020 email about a shed states that, as a shed may be oversized according to the strata’s bylaw but not the LUC, “the strata council would be responsible for enforcing that aspect”. I find that these messages are consistent with municipal, rather than strata, responsibility to enforce the LUC.

21.   However, this is not the end of the matter. While previous versions of the bylaws did not mention the LUC, the bylaws filed that the Land Title Office in 2019 say at bylaw 4.1(8) that any alterations must not violate the LUC, notwithstanding any provisions in the bylaws or permissions received from the strata council. According to section 26 of the SPA, a strata council is required to perform the duties and exercise the powers of the strata, including enforcing the bylaws. I find that the inclusion of bylaw 4.1(8) effectively incorporates a portion of the LUC into the bylaws and imposes responsibility on the strata to enforce the parts of the LUC related to alterations.

Enforcement of Bylaws

22.   As noted, section 26 of the SPA requires the strata council to perform the duties of the, including enforcing the bylaws. Mr. Latimer claims, and the strata denies, that the strata failed to follow and enforce its bylaws about the approval of alterations, particularly with respect to fences, patio sizes, landscaping, and sheds.

23.   Two sets of bylaws apply to the time period in question, namely consolidations filed at the Land Title Office in 2001 (with subsequent amendments) and in 2019. The two sets of bylaws have similar provisions, but the exact wording differs. They do not contain definitions of terms such as shed, fence or privacy screen. I will refer to these as the Old Bylaws and New Bylaws, respectively.

24.   The relevant sections of the Old Bylaws are as follows:

a.    3(4)(a) - additions or removals of landscaping require permission from the strata council,

b.    3(4)(c) - no fences are permitted except as required by law, as set out in the general plan of development, or to provide privacy as approved by the strata,

c.    3(4)(e) - patios must not exceed 200 square feet,

d.    3(4)(f) - no hedge or tree line may be used to define property lines except on abutting rear yard or to provide privacy as approved by the strata council,

e.    3(4)(h) - all yards must be sown with grass and all lawns will be mowed by the strata,

f.     3(4)(i) - no rock or any composite material of any type is to be used in landscaping on any strata lot or common area without the approval of the strata council, and

g.    3(2)(n) – an owner must not permit any exterior work to a strata lot without the express written permission of the strata council prior to beginning work. All requests must be accompanied by drawings, colour and material samples.

25.   The New Bylaws state that:

a.    2(5) – owners may not replace existing fences or non-conforming privacy screens without the express written consent of the strata council,

b.    3(12) – with the written approval of the strata council, an owner may erect a shed, lean to or green house on their strata lot, so long as any such accessory structure  is limited to 1 per strata lot, be the same material and colour as the dwelling, located in the backyard, be no more than 8 feet tall and 110 square feet, and be screened from the road,

c.    4.1(1) – an owner must obtain the written approval of the strata before modifying the exterior of a building, shed, patio, fence, privacy screen,

d.    4.1(3) – an application for alteration must be in writing and must include details of the proposed alteration,

e.    4.1(5) – the strata must not unreasonably refuse to permit an owner to make an alteration to the strata lot and  “must ensure that any conditions attached to a grant of approval of a proposed alteration must be proportionate with the type and extent of the proposed alteration and its potential impact on other strata lots and the building as a whole”,

f.     4.1(9) - if an owner installs alterations without prior written permission from the strata, the owner may apply for permission to retain it,

g.    4.1(10) – the strata may refuse to approve the unauthorized alteration and may require its removal,

h.    4.1(11) – if the strata retroactively approves an unauthorized alteration, the approval must be in compliance with the bylaws,

i.      29(2) – owners may not erect fences of any kind on their strata lots,

j.      30(3)(a) - owners must obtain written approval from the strata before planting trees and shrubs on strata lots or CP,

k.    30(3)(d) – owners must not construct patios or decks that exceed 200 square feet in size,

l.      30(3)(g) - owners must have yards sown with grass unless approved in writing by the strata council, and

m.  30(3)(h) – owners must not install rock in the strata lot’s landscaping or on CP without approval from the strata council.

26.   The strata’s practice is to consider a request for alterations and provide its handwritten approval using a memo pad that produces carbon copies. The level of detail included in the approvals varies considerably. Further, some retroactive approvals of previously unauthorized alterations do not appear to be documented in writing.

27.   The evidence shows that the strata has taken action against unauthorized alterations. While some unauthorized alterations receive retroactive approval (either as installed or with changes), the strata has required that others be removed at the owners’ expense.

28.   The evidence suggests that the strata has taken the view that, if the municipality approves an alteration that is not compliant with the bylaws (such as the location or size of a shed) that it also must provide approval. Section 121 of the SPA says that a strata’s bylaw is not enforceable to the extent that it contravenes any other enactment or law. However, there is nothing in the bylaws or the SPA that states that municipal approval for an alteration overrides the strata’s bylaws. The strata is not required to approve an alteration that does not comply with its bylaws.

29.   According to the evidence, the strata draws a distinction between fences and privacy screens. As these are not defined terms in the bylaws, it is open to the strata to treat these items differently according to its own definitions. However, it must ensure that it is consistent with its decisions about these items in order to ensure that it does not create significantly unfair decisions as contemplated by section 164 of the SPA.

30.    I will summarize the specific allegations for each strata lot in turn.

Strata Lot 42

31.   Mr. Latimer says there are numerous bylaw violations at this strata lot. Although the owners requested approval for renovations and alterations, Mr. Latimer says they installed more landscaping than was approved (particularly with respect to boulders and the size of berms), installed an oversized patio instead of the approved deck,  and installed an oversized shed that is not screened from the road. These owners also made changes to their driveway, but these do not appear to be the subject of any complaints.

32.   The strata provided approval for the berms and plantings (which did not specify the permitted dimensions) on May 1, 2018 and May 19, 2019. The owners did install more boulders than had been included on the approved plan. As noted in the February 19, 2019 meeting minutes, the strata council decided that the unapproved rocks must be removed. The owners did remove at least 3 boulders, but, in an April 2019 letter, the owners asked for approval for the remaining boulders. The strata says the remaining boulders were approved but it is not clear whether this was documented in writing.

33.   On May 19, 2016, the strata provided approval for a deck, but the owners later installed a patio as a temporary measure due to financial constraints. As the patio was oversized, they requested permission to install a shed and cedar storage units on top of the patio to leave an exposed area of 200 square feet as permitted by the bylaws. The strata approved this request in writing on May 19, 2019.

34.   The strata says the municipality approved and inspected the shed, and says that it is not visible from the road in the strata’s property, but rather from a road that runs through the adjacent park. I find that the requirement in bylaw 3(12)(c) that a shed must be located in the back yard and screened from the road is intended to benefit the strata’s property, not the park. If bylaw 3(12)(c) applied to all roads, it would have the effect of prohibiting a number of strata lots from having any shed at all, which would be significantly unfair to those owners. I find that it is not a violation of the bylaws for a strata lot to have a shed in its backyard that is visible from the neighbouring park road.

35.   Mr. Latimer also says there is more than 1 shed on the strata lot and that approval was never requested for additional structures. Photographs show smaller pre-fabricated storage units that stand against exterior walls of some strata lots. It is not clear whether this type of unit fits within the strata’s interpretation of “accessory structure” in bylaw 3(12). It does not appear that the strata has turned its mind to the matter or responded to complaints about this strata lot, or other strata lots with similar structures.

36.   The evidence suggests that the patio, plantings, and shed on this strata lot may not be in compliance with the requirements for setbacks and lot line barriers in the LUC. However, the evidence before me does not definitively establish violations.

Strata Lot 129

37.   Mr. Latimer says the there is a shed that is not hidden from the road, is not placed correctly, and that does not match the house. He also says there is an additional shed which has not been approved. The strata says it approved the shed and that the municipality inspected it. The strata says that the shed was installed with permission by previous owners of the strata lot, and the current owners requested permission to move it. However, they later cancelled this request and the shed was not moved.

Strata Lot 130

38.   Mr. Latimer says that this strata lot’s shed does not match the house and does not comply with the strata’s size bylaw. He also says there are additional sheds which have not been approved.

39.   The strata says it approved the shed. A July 10, 2020 memo gives “final approval” for a 9x12 shed allowed by the municipal development permit. I note that this strata lot also received permission to paint the house, to install cedar trim, and to install raised garden beds and other landscaping items.

40.   Photographs in evidence show that there are several storage units in the carport and against exterior walls of the home.

41.   Although Mr. Latimer says that the placement of shed contravenes section 7.12 of the LUC about setbacks, I find that the evidence before me is not sufficient for me to come to a firm conclusion.

Strata Lot 134

42.   Mr. Latimer says that this strata lot has a non-compliant shed, as well as plantings and artificial grass. The strata says that the owners of this strata lot did landscaping without following the approvals they were given. According to the strata, it worked with the owners and the municipality to resolve the issues, which have now been approved. The strata also says that the municipality approved and inspected the shed.

43.   The strata gave approval on December 12, 2018 for “various landscaping projects”. A lack of detail both in the owners’ request and in the written approval caused some confusion about what improvements had been approved. The strata required the owners to remove some of the plantings and alterations at a significant cost to them. The owners believed that they had approval for the alterations and requested reimbursement, which the strata declined to provide. It does not appear that all of the approvals were documented in writing.

44.   The evidence before me is not sufficient to establish whether the plantings or shed in this strata lot violate the LUC’s requirements for setbacks and lot line barriers.

Strata Lot 206

45.   Mr. Latimer says that the owner of strata lot 206 requested approval for a walkway from the rear of the carport to his shed. The strata approved this request without specifying the location. The walkway was installed to the street and in front of the home. The latter portion apparently was used as a patio instead of a walkway.

46.   The strata says that some of the approvals for the walkway were given verbally due to the owner’s need for a mobility scooter. It says the owner later provided incomplete information for the project. However, a May 14, 2020 handwritten memo gave permission for the “concrete patio & pathways” that had been approved by the municipality.

47.   Mr. Latimer also says the placement of the shed on this strata lot does not comply with the bylaw, it does not match the house, and may be seen from the road. The strata says the shed was approved, and the evidence contains a June 25, 2019 memo approving a shed “at rear”. A photograph in evidence appears to show a shed installed at the rear of the home. Its exact placement is not clear based on the evidence before me.

Summary

48.   Based on the evidence before me, it appears that the sheds that may not comply with the bylaws have all been approved by the municipality and, in turn, by the strata. While I was unable to come to a conclusion that any of the alterations violated the LUC, the cited examples were also approved by the strata.

49.   I do not find that the strata deliberately acted in a way that created preferential treatment or allowed certain owners to circumvent or ignore the bylaws. However, I do find that, by approving non-compliant alterations, the strata has failed to enforce the bylaws. Further, it is apparent that the strata has been operating under a misunderstanding that it is required to approve any alteration approved by the municipality and that it is not required to enforce the LUC as it relates to alterations. It has also not consistently documented approved alterations in writing, as required by the bylaws.

50.   The strata must ensure that approvals for alterations are written rather than verbal, that the written approvals provide clear detail about the scope of the approved alteration work, and that the approved work complies with its bylaws and LUC. While I acknowledge the strata’s preference to take a collaborative approach to address unauthorized alterations, it must ensure that the decisions to provide approval for these alterations are documented in writing.

51.   As for the previously unauthorized alterations at strata lots 42, 129, 130, 134 and 206 that the strata says are now approved, the strata must ensure that all of these approvals are documented in writing.

52.   Based on the evidence before me, it appears that the strata council did not respond to complaints about multiple “sheds” on certain strata lots and did not turn its mind to whether the existing storage units were accessory structures under the bylaws. The strata must consider whether the storage units at strata lots 42 and 130 amount to accessory structures. The strata must address any non-compliant structures with the owners.

Remedy for Non-Compliant Alterations

53.   Mr. Latimer’s position is that all non-compliant alterations must be removed or revised to comply with the bylaws. I disagree. The non-conforming alterations have been approved by the strata and installed at the owners’ expense. I find that it would be significantly unfair to those owners to require them to pay to remove or revise alterations that have been approved. While I will not order that these alterations be removed or revised, the strata must bear the non-conforming status in mind when considering any future requests for alterations at these strata lots. It may require the owners to remedy the lack of compliance if those areas are involved in future alteration projects.

54.   Nothing in my decision would prevent the municipality from taking a different view of any non-conforming alterations that violate the LUC.

CRT FEES AND EXPENSES

55.   Under section 49 of the CRTA, and the CRT rules, the CRT generally will order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. As Mr. Latimer has been largely successful, I order the strata to reimburse him for the $225 he paid in CRT fees. Mr. Latimer did not make a claim for dispute-related expenses.

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

ORDERS

57.   I order that:

a.    The strata must ensure that future approvals for alterations are in writing, provide clear detail about the scope of the approved alteration work, and that the approved work complies with its bylaws and the LUC,

b.    The strata must ensure that all future decisions to approve previously unauthorized alterations are documented in writing,

c.    The strata must ensure that the previously unauthorized alterations at strata lots 42, 129, 130, 134 and 206 that it says are now approved are documented in writing,

d.    The strata must consider whether the storage units at strata lots 42 and 130 amount to accessory structures, and address any non-compliant structures with the owners, and

e.    Within 30 days of the date of this decision, the strata must pay Mr. Latimer $225 as reimbursement of his CRT fees.

58.   Mr. Latimer is also entitled to post-judgement interest under the Court Order Interest Act.

59.   Under section 57 of the CRTA, a validated copy of the CRT’s order can be enforced through the British Columbia Supreme Court. Under section 58 of the CRTA, the order can be enforced through the British Columbia Provincial Court if it is an order for financial compensation or return of personal property under $35,000. Once filed, a CRT order has the same force and effect as an order of the court that it is filed in.