Date Issued: January 7, 2021

Date Amended: January 11, 2021

File: ST-2020-003745

Type: Strata

Civil Resolution Tribunal

Indexed as: Ojani v. The Owners, Strata Plan EPS3505, 2021 BCCRT 14

Between:

NASROLLAH OJANI

Applicant

And:

The Owners, Strata Plan EPS3505

Respondent

INTRODUCTION

1.      This is a strata property dispute about a strata corporation’s obligation to add a potable (drinkable) water supply to a roof deck. This is 1 of 2 linked disputes involving similar claims from different owners in the same strata corporation. The other dispute is ST-2020-002595 (linked dispute), for which I have written a separate decision.

2.      The applicant in this dispute, Nasrollah Ojani, co-owns strata lot 111 (SL111) in the respondent strata corporation, The Owners, Strata Plan EPS3505 (strata). Mr. Ojani is self-represented, and the strata is represented by a strata council member.

3.      Mr. Ojani says the strata is responsible for installing a hose bib on the roof deck of SL111, connected to a potable water supply, to allow him to properly maintain his hot tub (hose bib). As a result of not having a potable water supply on the roof deck level, Mr. Ojani says he cannot properly maintain his hot tub. Unlike his neighbour in the linked dispute, he does not have a hose bib next to SL111 from which to run a hose.

4.      Mr. Ojani seeks an order that the strata install a hose bib on the roof deck of SL111. From his submissions, I understand he agrees to share a hose bib on the roof deck of strata lot 110 (SL110) with his neighbour, who is the applicant in the linked dispute. I have not considered the possibility of a shared hosed bib with the SL110 because that was not identified by Mr. Ojani in the Dispute Notice nor was it raised in the linked dispute. In addition, I find it would not be practical for me to address the possibility of a shared hose bib, given my final decision in the linked dispute not to order the strata install a hose bib on the roof deck of SL110.

5.      The strata acknowledges that a hose bib has not been installed on the roof deck of SL111, and says it is not responsible to install one. The strata asks that this dispute be dismissed.

6.      For the reasons that follow, I dismiss Mr. Ojani’s claims and this dispute.

JURISDICTION AND PROCEDURE

7.      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.

8.      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.

9.      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.

10.   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.

ISSUE

11.   The sole issue in this dispute is whether the strata is responsible to install a hose bib on the roof deck of SL111.

BACKGROUND, EVIDENCE AND ANALYSIS

12.   In a civil proceeding such as this, the applicant, Mr. Ojani, must prove his claims on a balance of probabilities.

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

14.   The strata is an air space parcel strata corporation created in July 2016 under the SPA. It consists of 111 residential strata lots in a single 13-storey building located in North Vancouver, BC. I note the strata plan shows a hot tub and patio on the same floor level as the SL111 roof deck. Both are marked as common property on the plan. This dispute is not about that area of the roof.

15.   The owner developer filed bylaws at the Land Title Office (LTO) under section 245(d) of the SPA that differed from the Schedule of Standard Bylaws, on July 11, 2016. I find that subsequent bylaw amendments are not relevant to this dispute. I address applicable bylaws in my reasons, as necessary.

16.   LTO and other documents show Mr. Ojani purchased SL111 in August 2016 from the owner developer. SL111 is 1 of 3 strata lots located on the uppermost levels of building. The living area is on 1 level and a roof deck is directly above the living area.

Is the strata responsible to install a hose bib on the roof deck of SL111?

17.   It is undisputed that the roof deck is limited common property (LCP) designated for the exclusive use of Mr. Ojani, as owner of SL111. The strata plan confirms this. LCP is a form of common property, the repair and maintenance of which is addressed under section 72 of the SPA and the strata’s bylaws.

18.   Section 72 says a strata corporation must repair and maintain common property, but may, through its bylaws, make an owner responsible for repair and maintenance of LCP they have right to use. The strata has such a bylaw. Bylaw 2.1 states the strata must repair and maintain LCP if, in the ordinary course of events, the repair and maintenance occurs less often than once per year, or if it is required to certain parts of the exterior of the building. Some of things the strata is responsible to repair and maintain include patios and balconies, and things that enclose patios and balconies. I find the LCP roof deck is a balcony for the purposes of bylaw 2.1.

19.   Neither party argued SPA section 72 or bylaw 2.1, but I have considered them here for completeness. Section 72 governs the strata’s repair duties and obligations, and doesn’t require the installation of a hose bib. I find bylaw 2.1 also does not apply to this claim. I say that because this claim has to do with a hose bib that does not exist. I do not find the installation of a hose bib, where one did not exist before, to be a repair and maintenance issue.

20.   Mr. Ojani argues the strata is responsible for the hose bib installation because he purchased the hot tub as part of SL111, he says it was the intention of the owner developer to install a hose bib on the SL111 roof deck, and the strata is “legally required” to have a source of potable water available for him to maintain his hot tub.

21.   There is no dispute that Mr. Ojani purchased the hot tub as part of his SL111 purchase. Mr. Ojani provided a sales brochure given to him at the time of his purchase that shows a hot tub on the roof deck, and a letter from his realtor confirming the hot tub was included in his purchase. However, these things do not make it the strata’s responsibility to install a hose bib. Rather, I find they confirm the hot tub belongs to Mr. Ojani and is therefore his responsibility to maintain.

22.   I agree with the strata that the hot tub itself on the SL111 roof deck is not identified on the strata plan at all. This also supports a conclusion that the hot tub is the responsibility of Mr. Ojani. Based on the overall evidence before me, I find the hot tub located on the roof deck of SL111 is not owned by the strata. Therefore, I find the strata has no responsibility with respect to the hot tub, including installing a hose bib to fill it.

23.   The only evidence provided by Mr. Ojani to support his statement that the developer intended to install a hose bib on the SL111 roof deck is a letter addressed to his neighbour in the linked dispute. The letter was written by a professional engineer employed by EMEC Engineering dated September 11, 2020 addressed to his neighbour in SL110 that contains a partial drawing showing a hose bib on the SL111 roof deck (EMEC letter). The EMEC letter states there are no potable water hose bibs installed on the roof deck as shown in mechanical drawings the engineer had reviewed, but does not provide details of the drawings that were reviewed. Without knowing what drawings were reviewed, it is not possible to determine if the owner developer intended to install a hose bib.

24.   Specifically, if the drawings are not final drawings, issued after construction was completed, the drawings reviewed by the EMEC engineer may have been amended to exclude the hose bib shown. In other words, while it may have been the owner developer’s original intention to install the hose bib requested by Mr. Ojani, it is quite possible the owner developer changed its intention during construction. I do not find the EMEC letter is proof the owner developer intended to install a hose bib on the roof deck of SL111.

25.   Even if I had found the owner developer had intended to install a hose bib on the roof deck, but later did not, I would not find the strata responsible to install one simply because the owner developer did not. The owner developer is a distinct entity defined under the SPA that has certain duties and obligations to the strata. However, there is nothing in the SPA that requires a strata to perform the duties and obligations of an owner developer, if the owner developer fails to perform or complete them.

26.   As for Mr. Ojani’s argument that the strata is legally required to install the requested hose bib. I do not agree.

27.   The owner developer retained a warranty provider (Travellers) on behalf of the strata for the building’s construction, which I understand was a legislated requirement. It is undisputed that the lack of a hose bib on the roof deck formed part of a deficiency list the strata provided to Travellers. The evidence shows Travellers found the lack of the subject hose bib was outside the scope of its policy. The strata provided a spreadsheet of all deficiencies claimed by the strata that appears to have been maintained by Travellers. Line item 629 on the spreadsheet under “Investigation Results” refers to the comments under line item 628 as being identical. Line item 628 is about the hose bib in the linked dispute and states, in part, that Travellers determined the drawings did not specify a hose bib be installed on the roof deck and that “there are no code requirements for each individual rooftop patio to have hose bibs installed” for owners to use. Mr. Ojani did not specifically address the Travellers spreadsheet content.

28.   The strata provided an August 19, 2019 email from a City plumbing and gas inspector in response to questions it had posed. In the email, the City inspector clearly states a developer is not required to supply potable water to a common roof top patio and that “hot tub treatment and maintenance are not regulated within the building code”. I infer the inspector was referring to the B.C. Building Code.

29.   The EMEC letter appears to contradict the email statements made by the City inspector. However, I prefer the statements of the City inspector for the following reasons.

30.   First, I find the engineer’s letter does not meet requirements for an expert opinion because it does not set out the author’s qualifications for education, training, or experience as required under CRT rule 8.3(3). Specifically, it does not state the author has any expertise in plumbing or is qualified to make a statement about the strata’s responsibility.

31.   Second, there is no evidence that the drawings referenced in the letter are the final drawings of the constructed building as I noted earlier. It is possible that the drawings were amended prior to the completion of the building to remove the hose bib from SL111’s roof deck, but even if they were not, the SPA does not require the strata to fulfill the owner developer’s intentions or obligations.

32.   For all of these reasons, I find Mr. Ojani has not proven his claim that the strata is responsible to install a potable water hose bib on the SL111 roof deck. Therefore, I dismiss his claim in this regard.

33.   I make the following comments in an effort to assist the parties.

34.   In his submissions, Mr. Ojani says the only permanent solution is to install a hose bib on the roof deck. He admits this is a “modest expense”. As the strata correctly points out, Mr. Ojani has the option under bylaw 1.5 of requesting permission from the strata council to alter common property to install the requested hose bib at his expense. It does not appear he has made such a request or even considered it. I would encourage him to do so as that option seems to be the most practical and offer finality to this dispute. It should also be noted that the bylaw says the strata cannot unreasonably refuse to withhold its approval about a request to alter common property.

35.   Alternatively, Mr. Ojani may wish to consider a joint strata council request with his neighbour under bylaw 1.5 to install a shared hose bib.

CRT FEES AND EXPENSES

36.   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 and reasonable dispute-related expenses. The strata is the successful party but did not pay CRT fees or claim dispute-related expenses. Therefore, I make no order for CRT fees and dispute-related expenses.

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

ORDER

38.   I dismiss Mr. Ojani’s claims and this dispute.