Date Issued: November 26, 2020

File: ST-2020-003302

Type: Strata

Civil Resolution Tribunal

Indexed as: Bryant v. The Owners, Strata Plan NW10, 2020 BCCRT 1342

Between:

BARRY BRYANT, SAMIR BADR AND ARLENE BADR

ApplicantS

And:

The Owners, Strata Plan NW10

Respondent

REASONS FOR DECISION
Tribunal Member:	Richard McAndrew

INTRODUCTION

1.      The applicant, Barry Bryant, co-owns strata lot 78 in the respondent strata corporation, the Owners, Strata Plan NW10 (strata). The applicants, Samir Badr and Arlene Badr, own strata lot 22 in the strata.

2.      The applicants ask for an order requiring the strata to repair or replace leaking carports and replace carports that the strata removed. The strata says it has removed 2 of the strata’s 10 carports for safety concerns. The strata says it will discuss plans to repair the remaining carports and replace the removed carports at the next Annual General Meeting (AGM). The strata says it is making temporary repairs to the carports pending the AGM.

3.      Mr. Bryant and the Badrs are self-represented. The strata is represented by a strata council member.

4.      For the reasons that follow, I grant the applicants’ claims to replace the removed carports, unless the removal is approved by 3/4 of the owners. I also grant the applicants’ request to repair the remaining carports.

JURISDICTION AND PROCEDURE

5.      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.

6.      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 an oral hearing is not required as I can fairly decide the dispute based on the evidence and submissions provided.

7.      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.

8.      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

9.      The issues in this dispute are:

a.    Must the strata repair the remaining carports?

b.    Must the strata replace the removed carports?

BACKGROUND AND EVIDENCE

10.   I have read all of the submissions and evidence provided, but refer only to information I find relevant to provide context for my decision.

11.   The strata was created in September 1969 and is currently subject to the Strata Property Act (SPA). The strata consists of 86 residential strata lots in 15 buildings.

12.   Section 119 of the SPA allows strata corporations to govern the use and maintenance of common property (CP) with bylaws. The relevant consolidated bylaws wiled at the Land Title Office on January 23, 2008. Subsequent bylaw amendments are not applicable to this dispute.

13.   Section 72 of the SPA and bylaw 9 requires the strata to repair and maintain CP.

14.   There are multiple carports located on the strata. The SPA defines CP as land and buildings shown on a strata plan that is not part of a strata lot. I note that the carports are not shown the strata plan. However, based on the photographs and the parking map provided, I find that carports are attached to the land at locations that are not designated as part of any strata lots. So, I find that the carports are CP.

15.   At a July 2017 Special General Meeting (SGM), the strata owners approved the hiring of an engineer to review the carports and other CP areas. The engineers inspected the carports and submitted a report on February 1, 2019. Since the report was prepared by a professional engineer, I find the consultant had sufficient education, training and expertise to make the engineering report. So, I find that the engineering report meets the criteria for an expert report under CRT rule 8.3.

16.   The engineering report noted that the strata had 10 standalone wood-framed carport structures supported by metal posts. The report says the carports were tilted and at risk of collapse. The report also said that 6 of the carport roofs were worn out and leaking. To improve the structural stability of the carports, the report recommended the installation of H3 ties at each connection between the joists and the beams and the installation of joist straps. The report also recommended reroofing of the 6 worn out carport roofs. The report says the strata might want to remove the carports if the repairs were not done.

17.   At the February 6, 2019 AGM, the owners defeated a resolution to remove the carports. The owners also defeated a resolution to impose a special levy to repair the carports and other CP. The owners also defeated another resolution to impose a special levy for carport and CP repairs on May 7, 2019.

18.   Although it is undisputed that the strata has removed 2 of the carports after the engineering report was prepared, there is no evidence before me establishing specifically when the carports were removed. The strata says these carports were removed based on the engineering recommendations and because these carports were freestanding. The strata says the remaining carports are more stable because they are attached to buildings.

ANALYSIS AND DECISION

19.   In a civil proceeding such as this, the applicant owners must prove their claims on a balance of probabilities.

 

Must the strata repair the existing carports?

20.   As stated above, section 72 of the SPA and bylaw 9 requires the strata to repair CP which, as noted above, includes the carports. Based on the engineering report, I am satisfied that the remaining carports need repairs for structural integrity and to prevent water leaks.

21.   The strata does not dispute the need for the repairs. However, the strata says it will address the repair options at an upcoming AGM. A strata is not held to a standard of perfection in its maintenance and repair obligations. The strata only has a duty to make repairs that are reasonable in the circumstances: Wright v. The Owners, Strata Plan #205, 996 CanLII 2460 (S.C.), aff’d (1998), 43 B.C.L.R. (3d) 1, 1998 CanLII 5823 (C.A.). Determining what is reasonable may involve assessing whether a solution is good, better, or best: Weir v. The Owners, Strata Plan NW 17, 2010 BCSC 784. Also, an owner cannot direct the strata how to conduct its repairs: Swan v. The Owners, Strata Plan LMS 410, 2018 BCCRT 241.

22.   In Weir, the Court said the strata council is entitled to deference, as approved by the owners, in fulfilling its maintenance and repair obligations because the strata council must act in the best interest of all owners, which requires it to balance competing interests and work within a budget that the owners can afford. With that in mind, the Court found that it is not necessarily unreasonable for a strata corporation to decide not to choose the best repair option. This means that the strata may prioritize between different maintenance projects and may choose a lower standard of maintenance for financial or practical reasons, as long as the decision is reasonable. The fact that an individual owner may be unhappy with the strata’s choices does not mean that the strata breached its duty under section 72 of the SPA.

23.   In this dispute, based on my findings that the carports are not structurally stable and at risk of collapse and that some carport roofs are leaking, I find that the standard of reasonableness requires the strata to perform the repairs recommended in the engineering report. So, under section 72 of the SPA, I order the strata to repair and stabilize the carports and repair the carport roofs identified in engineering report within 6 months.

24.   I note that the carport repairs can include removal (see Gibson v. The Owners, Strata Plan NW 1076, 2018 BCCRT 583, at paragraph 53). However, if the strata chooses to remove the remaining carports, it must comply with section 71 of the SPA which requires a 3/4 owners’ vote unless immediate removal is necessary for safety reasons or to prevent significant damage.

Must the strata replace the removed carports?

25.   The applicants also request an order requiring the strata to replace the 2 carports it removed. For the reasons that follow, I order the strata to do so.

26.   As stated above, section 71 of the SPA says the strata cannot make a significant change in the use or appearance of CP unless either the change is approved by a 3/4 vote at an AGM or SGM, or there are reasonable grounds to believe that immediate change is necessary to ensure safety or prevent significant loss or damage. As there is no evidence before me that the owners approved the carport removals, and because the owners specifically defeated a motion to remove the carports at the February 2019 AGM, I find that the owners did not approve the strata’s removal of 2 carports.

27.   To determine whether the strata complied with section 71 of the SPA, I will first consider whether the carport removal was a significant change in the use or appearance of the CP. The criteria for making this determination were clearly summarized in Foley v. The Owners, Strata Plan VR 387, 2014 BCSC 1333 at paragraph 19:

a.    A change would be more significant based on its visibility or non-visibility to residents and its visibility are non-visibility towards the general public;

b.    Whether the change to CP affects the use or enjoyment of the unit or number of units or an existing benefit of all unit or units;

c.    Is there a direct interference or disruption as a result of the change of use?

d.    Does the change impact on the marketability or value of the unit?

e.    The number of units in the building may be significant along with the general use, such as whether it is commercial, residential or mixed-use;

f.     Consideration should be given as to how the strata corporation has governed itself in the past and what it is followed. For example, has it permitted similar changes in the past? Has it operated on a consensus basis or has it followed the rules regarding meetings, minutes and notices as provided in the SPA?

28.   Applying these criteria to this dispute, I find the removal of the carports did result in a significant change in the use or appearance of the CP. In reaching this conclusion, I find that the removal of the carports is likely visible to most owners. Further, I find it likely the carports’ presence improved the owners’ use and enjoyment of their strata lots and the marketability and value of the strata lots with assigned parking under the carports. I also find that the carport removals likely disrupted the owners’ ability to conveniently park in a location sheltered from the weather. Further, I find the removal of the 2 carports affects a significant number of owners. In addition, I have also considered that the owners previously rejected a resolution to remove the carports. For these reasons, I find the removal of the carports was a significant change in the use or appearance of the CP.

29.   I have also considered whether the strata was permitted to remove the carports under section 71(b) of the SPA because there were reasonable grounds to believe that the immediate removal of the carports was necessary to ensure safety or prevent significant loss or damage.

30.   Based on the engineering report, I am satisfied that the carports needed repairs. However, I am not satisfied that it was necessary to immediately remove the carports. In the non-binding, but persuasive decision in Lane et al v. The Owners, Strata Plan 212, 2019 BCCRT 249, a tribunal member found that the “immediate” provision in section 71(b) gives strata corporations the ability to deal with true emergency situations that cannot reasonably wait for an SGM without posing a risk to people or property. Section 45 of the SPA says that an SGM can be called on 2 weeks’ written notice. In this dispute, I am not satisfied that a true emergency existed necessitated the removal of the carports without scheduling an SGM on 2 weeks’ notice.

31.   The strata says the engineering report recommended the removal of the carports. I disagree. The engineering report recommended the installation of ties and straps to reinforce the carport and the report only suggested removing the carports if they were not repaired. There is no evidence before me that the carports could not have been reinforced as recommended in the engineering report. So, I am not satisfied that the removal of the carports was immediately needed for safety reasons or to prevent damage.

32.   For the above reasons, I find that the strata has removed the carports in violation of section 71 of the SPA. The BC Supreme Court considered similar facts in Foley where alterations to CP were made in violation of section 71. In Foley, the court found that the owners should have an opportunity to exercise their democratic rights under the SPA to approve the changes to the CP even though the alterations were already made. I find that this remedy is also appropriate in this dispute. So, under section 123 of the CRTA, I order the strata to conduct an SGM or AGM, following the procedures in its bylaws, including notice of the meeting to all owners, within 90 days of this order, for the purpose of determining whether the removal of the carports is approved by a resolution passed by a 3/4 majority of the owners. If the resolution is not approved by a 3/4 majority of the owners, the strata must replace the removed carports within 6 months of the date of the SGM or AGM.

TRIBUNAL FEES AND EXPENSES

33.   Under section 49 of the Act, and the tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. Since the applicants were successful in this dispute, I find that they are entitled to reimbursement of their CRT fees of $225. As there were no requests for reimbursement of dispute-related expenses, none are ordered.

34.   The strata must comply with the provisions in section 189.4 of the SPA, such as not charging dispute-related expenses against Mr. Bryant or the Badrs.

ORDERS

35.   Within 30 days, I order the strata to pay the total of $225 to Mr. Bryant and the Badrs, jointly for reimbursement of CRT fees.

36.   Mr. Bryant and the Badrs are also entitled to post-judgement interest under the Court Order Interest Act.

37.   I order the strata to repair the remaining carports within 6 months to stabilize the carports and repair the carport roofs identified in the February 1, 2019 engineering report.

38.   I order the strata to conduct an SGM or AGM, following the procedures in its bylaws, including notice of the meeting to all owners, within 90 days of this order, for the purpose of determining whether the removal of the carports is approved by a resolution passed by a 3/4 majority of the owners. If the resolution is not approved by a 3/4 majority of the owners, the strata must replace the removed carports within 6 months of the date of the SGM or AGM.

39.   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.