Date Issued: February 5, 2021
File: ST-2020-005852
Type: Strata
Civil Resolution Tribunal
Indexed as: Hoggard v. The Owners, Strata Plan 158, 2021 BCCRT 143
Between:
TINI CHARLOTTE HOGGARD
Applicant
And:
The Owners, Strata Plan 158 and CHRISTINA HERBERT
RespondentS
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REASONS FOR DECISION |
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Tribunal Member: |
Kate Campbell, Vice Chair |
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INTRODUCTION
1. This dispute is about noise reduction and repairs in a strata corporation.
2. The applicant, Tini Charlotte Hoggard, owns strata lot 16 (SL16) in the respondent strata corporation, The Owners, Strata Plan 158 (strata). The other respondent, Christina Herbert, owns strata lot 17 (SL17) in the strata. The strata plan shows that SL16 and SL17 are 2-storey townhouse-style strata lots located next door to each other in one of the strata buildings. They share an interior wall. The building was built around 1974, when the strata was created.
3. Ms. Hoggard says SL16 is occupied by her adult daughter, HA, who is disabled, HA’s spouse, and HA’s 9-year-old daughter. Ms. Hoggard says HA is her tenant, which is not disputed.
4. Ms. Hoggard says that Ms. Herbert, who is on the strata council, complained to the strata about ongoing noise from SL16, and also called the police and Ministry of Children and Family Development. Ms. Hoggard says she told Ms. Herbert about HA’s health problems, but Ms. Herbert continued to complain to the strata about noise and put letters about it in HA’s mailbox.
5. Ms. Hoggard says the wall between SL16 and SL17 is made of uninsulated brick, and provides no sound barrier. She says the strata failed to act, so she obtained a contractor’s estimate to install a sound barrier. She requested the strata’ permission to alter the wall, received it, and signed a property alteration agreement (alteration agreement) stating that she would be solely responsible for the costs of the alteration. Ms. Hoggard now says the alteration agreement is contrary to the Strata Property Act (SPA), and is therefore not enforceable.
6. Ms. Hoggard also says that in 2017-2018, the common property crawlspaces and attics surrounding SL16 and SL17 had mold and water seepage. She says the strata immediately repaired the areas around Ms. Herbert’s SL17 because Ms. Herbert is a council member, but did not repair the crawlspace or attic around SL16 for 2 years, leading to mold problems and continuous moisture issues during that period.
7. In this dispute, Ms. Hoggard requests the following:
a. An order that the strata and Ms. Herbert jointly reimburse her $3,780 for the cost of installing the sound barrier between SL16 and SL17.
b. An order that the strata cannot require an owner to waive a potential claim against another owner in order to receive permission for alterations.
c. An order that the strata must not prioritize council members’ strata lots when approving and scheduling repairs.
8. Ms. Hoggard and Ms. Herbert are both self-represented in this dispute. The strata is represented by a strata council member, PV.
9. The strata says Ms. Hoggard’s claims should be dismissed. It says when she signed the alteration agreement, she agreed to pay the entire cost of the alteration. The strata denies prioritizing its common property repairs to benefit a council member.
10. Ms. Herbert disputes Ms. Hoggard’s descriptions of events related to the noise complaints. Ms. Herbert says she should not be held responsible for any cost of the sound barrier, as it was initiated by Ms. Hoggard. Ms. Herbert takes no position on the enforceability of the alteration agreement, or the strata’s prioritization of repairs.
11. For the reasons set out below, I dismiss Ms. Hoggard’s claims and this dispute.
JURISDICTION AND PROCEDURE
12. 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 legal principles. It must also recognize any relationships between dispute parties that will likely continue after the CRT’s process has ended.
13. The CRT has discretion to decide the format of the hearing, including in writing, by telephone, videoconference, 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.
14. 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.
15. 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
16. The issues in this dispute are:
a. Is the alteration agreement enforceable?
b. Must the strata or Ms. Herbert reimburse Ms. Hoggard for the sound barrier?
c. Did the strata breach its obligations in repairing and maintaining the attic and crawlspace around SL16?
BACKGROUND FACTS
18. The strata repealed and replaced its bylaws by filing new bylaws with the Land Title Office on May 15, 2008. I find these are the bylaws applicable to this dispute. The strata filed 3 sets of bylaw amendments after May 2008, but they are not relevant here.
19. Both Ms. Hoggard and Ms. Herbert provided evidence about the extent and nature of noise between their strata lots, and the noise complaint history. However, the question of whether anyone breached the strata’s noise bylaw, bylaw 3(1), is not before me to decide in this dispute. For that reason, I make no findings about the noise.
FINDINGS AND REASONS
Is the alteration agreement enforceable?
20. In her dispute application, Ms. Hoggard asks for an order that the strata may not require an owner to waive any claim against another owner in order to receive approval for a property alteration. I find that this is a declaratory order, which the CRT does not have jurisdiction to make. The reasons for this are explained in Fisher v. The Owners, Strata Plan VR 1420, 2019 BCCRT 1379, at paragraphs 62 to 69. While Fisher is not a binding precedent, I find its reasoning about declaratory orders applicable here and adopt it.
21. However, I find the CRT does have jurisdiction under CRTA section 121(1) to make a finding about whether the specific alteration agreement Ms. Hoggard signed is enforceable. This is because CRTA section 121(1)(a) says the CRT has jurisdiction over a claim concerning the interpretation or application of the SPA, or a bylaw under the SPA.
22. I find there is nothing in the SPA or the strata’s bylaws which prevents the strata from requiring an owner to sign an indemnity agreement, such as the one Ms. Hoggard signed, as a condition of approving an alteration request.
23. In July 2020, Ms. Hoggard submitted her alteration request to the strata. It says she wished to have sound barrier insulation and drywall added to the brick wall between SL16 and SL17. The nature of the work is set out in her contractor’s estimate, which was attached to the alteration request. The contractor wrote that the project involved attaching wooden 2 by 4 framing to the brick wall, on the SL16 side, installing sound-dampening insulation, and putting drywall over it.
24. In this case, the building plans show that the entire wall was made of brick. Ms. Hoggard describes it as a firewall, which is not disputed. Based on this evidence, I find the wall is part of the building’s structure.
25. I find the wall is not limited common property (LCP), as Ms. Hoggard asserts. It is not marked as LCP on the strata plan, and there is no evidence of a filed resolution in the Land Title Office designating it as LCP as required under SPA section 74(3). These are the only ways property can be designated as LCP.
26. Rather, based on SPA section 68, I find the portion of the wall that Ms. Hoggard altered is part of SL16. SPA section 68 governs strata lot boundaries. It says, in part, that unless otherwise shown on the strata plan, if a strata lot is separated from another strata lot by a wall, the boundary of the strata lot is midway between the surface of the structural portion of the wall that faces the strata lot and the surface of the structural portion of the wall that faces the other strata lot. Thus, the dividing line between SL16 and SL17 is the middle of the brick wall. The half of the wall facing SL16 is part of SL16, and the half of the wall facing SL17 is part of SL17.
27. Bylaw 5(1)(a) says an owner must obtain the strata’s written approval before making alterations to a strata lot that include the structure of a building. I find that the soundproofing described in the contractor’s estimate, and subsequent invoice, are alterations to a strata lot that include the structure of a building. That is because the actual work performed involved drilling into the structural brick wall and attaching framing, insulation and drywall that now exist within SL16.
28. Bylaws 5(3) says that as a condition of approving alterations listed in bylaw 5(1), the strata may require that the owner agree in writing to take responsibility for any expenses relating to the alteration. I note that strata bylaw 5(3) is taken directly from the Standard Bylaws in the SPA, and have identical wording. I therefore find it is necessarily enforceable under the SPA.
29. Even if the brick wall was common property, which I find it was not, my reasons and conclusion would not change. That is because bylaws 6(1) and 6(2) set out the same requirements for approval of alterations to common property, and also permit the strata to require that the owner accept responsibility for all expenses.
30. The alteration agreement Ms. Hoggard signed, dated July 13, 2020, says that she, as owner, would be responsible for all costs arising from the alteration. It also says the approved alteration would not result in additional expense to other owners.
31. I find that the alteration agreement generally, and the terms making Ms. Hoggard responsible for all costs of the alterations, are permitted under bylaw 5(3), or alternatively under bylaw 6(2). I therefore find the alteration agreement is enforceable, and dismiss Ms. Hoggard’s claim that it is not.
Must the strata or Ms. Herbert reimburse Ms. Hoggard for the sound barrier?
32. Ms. Hoggard raises a number of arguments about why the strata, or Ms. Herbert, should be ordered to share the cost of the wall alteration.
33. As previously explained, she suggests the alteration agreement was not enforceable. I disagree, for the reasons set out above. I find the alteration agreement is permissible under bylaws 5(3) and 6(2), and is enforceable. Since Ms. Hoggard signed the agreement, which says she would be solely responsible for all costs of the alteration, I find that neither the strata nor Ms. Herbert are responsible for any portion of the alteration.
34. However, even if Ms. Hoggard had not signed the alteration agreement, I find she would not be entitled to reimbursement for any of the alteration costs.
35. Significantly, neither the strata nor Ms. Herbert agreed to pay. Ms. Hoggard asked them to do so, and in emails provided in evidence, both parties rejected those requests and said they would not pay.
36. Ms. Hoggard cites Strata Property Regulation (Regulation) sections 6.4 and 6.5, and submits the strata or Ms. Herbert may be obligated to contribute to the soundproofing under those provisions. I find these regulations do not apply. Section 6.4 is about sharing operating expenses for LCP and “types” of strata lots. As discussed above, the alterations did not involve LCP, and there are no types of strata lots designated in the bylaws. Also, the alterations are not an operating expense. Similarly, Regulation section 6.5 does not apply, because it is solely about operating expenses and special levies.
37. I find there is no legal reason Ms. Herbert would be required to pay to add soundproofing either to SL16 or to common property. There is nothing in the SPA, Regulation, or bylaws that would require it. Ms. Hoggard essentially argues that Ms. Herbert’s noise complaints were a nuisance to her and her daughter, HA. Ms. Hoggard asserts that the complaints damaged HA’s health. However, as a strata lot owner, Ms. Herbert was entitled to raise noise complaints and seek enforcement of the strata’s noise and nuisance bylaws. She is not required to pay to remedy the problem. I therefore dismiss Ms. Hoggard’s claim against Mr. Herbert.
38. I find Ms. Hoggard has also not proven that the strata is required to contribute to the cost of the sound barrier. While Ms. Hoggard says the brick wall was uninsulated, there is no evidence before me, such a report from an acoustic engineer, showing that the wall had unusually high levels of noise transfer, or that it did not meet Building Code requirements. Thus, I find Ms. Hoggard has not proven that soundproofing was necessary, or even helpful, in mitigating the noise. Ms. Hoggard says the wall was “deficient”, but I find she has not proven that assertion. This is particularly true since the wall has been the same since 1974, and there is no evidence that it required modification in the past.
39. Ms. Hoggard suggests that the strata is obligated to contribute to the soundproofing because Ms. Herbert’s noise complaints were damaging HA’s health. She says the soundproofing was “absolutely necessary” for that reason. Again, I find that Ms. Herbert was entitled to make noise complaints under the strata’s bylaws.
40. Ms. Herbert is essentially arguing the strata had a duty under the BC Human Rights Code (Code) to accommodate HA, due to HA’s disability.
41. In general, strata corporations may have a duty under the Code to accommodate tenants with disabilities. However, I find the link between Ms. Herbert’s noise complaints and HA’s disabilities is unproven. While Ms. Hoggard asserts that HA suffered negative health consequences, she provided no evidence, such as a medical report. Also, as explained above, Ms. Hoggard has not proven that installing the soundproofing recommended by the contractor could or did improve the problem. Finally, even if the strata did have a duty to accommodate HA, Ms. Hoggard cannot simply take action and then retroactively request reimbursement. Rather, as stated by the Supreme Court of Canada, the duty to accommodate under the Code is a multi-party process, in which all parties are under a legal obligation to act reasonably and cooperatively, working together to find a reasonable solution: Central Okanagan School District No. 23 v. Renaud (1992), 16 C.H.R.R. D/425, paras. 43-44.
42. In particular, I note that Ms. Hoggard’s emails to the strata asking for it to pay for the sound barrier do not mention or explain HA’s disability, or request accommodation of that disability. Ms. Hoggard’s emails say that Ms. Herbert’s noise complaints, and noise coming from SL17, were “impacting her tenant’s health.” However, I find that this was not sufficient to trigger a duty to accommodate on the part of the strata. Even if it were, I find the evidence before me does not establish that soundproofing the wall, in the manner undertaken by the contractor, was the best or most reasonable accommodation in the circumstances.
43. For these reasons, I dismiss Ms. Hoggard’s claim for soundproofing reimbursement.
Did the strata breach its obligations in repairing and maintaining the attic and crawlspace around SL16?
44. I find, and the parties do not particularly dispute, that the attics and crawlspaces around SL16 and SL17 are common property. I find this because the strata plan does not show the attics or crawlspaces at all, but clearly shows that SL16 is wholly contained within the first and second floors of the building. Thus, I conclude that the surrounding attics and crawlspaces are common property.
45. SPA section 72 says a strata corporation is generally responsible to repair and maintain common property. The BC Supreme Court (BCSC) has said that in meeting this duty, a strata corporation must act reasonably in the circumstances: Wright v. The Owners, Strata Plan #205, 1996 CanLII 2460.
46. I find that Ms. Hoggard has not proved the strata acted unreasonably in its approach to maintaining and repairing the common property attic and crawlspace around SL16.
47. In a May 21, 2020 email to the strata’s property manager, Ms. Hoggard wrote that she had ongoing damage to her strata lot because the strata did not correct the moisture problem when it was originally reported. Ms. Hoggard also wrote that Ms. Herbert, who is a council member, had her attic and crawlspace moisture issues corrected immediately. In her CRT dispute application, Ms. Hoggard said continuous moisture issues for 2 years caused mold to grow on the main structural beam of SL16.
48. I find Ms. Hoggard has not proved any of these assertions. While she says she complained about moisture problems for 2 years, she provided no evidence of this, such as copies of her initial complaints. Also, Ms. Hoggard provided no evidence to confirm her claims of damage to SL16, such as photographs, contractor’s estimates, or an opinion from a builder, engineer or other expert. I place no weight on Ms. Hoggard’s own opinion about the existence of damage, or its cause, as she is not an expert in construction or building technology.
49. Ms. Hoggard says the strata wrongfully prioritized repairs to the crawlspace and attic around Ms. Herbert’s strata lot, because Ms. Herbert is on the strata council. I find this allegation is also not proven, based on the evidence before me. The strata says that during a routine inspection of the perimeter drains outside its buildings, it discovered a problem with a section of drain behind SL17. The strata says the pipe had been crushed and broken, causing water to back up. It says it quickly fixed the problem, which may also have been causing moisture ingress into the SL16 crawlspace. The strata says all work was completed outside, and it did no work inside SL17 or its adjacent crawlspace.
50. Ms. Hoggard provided no contrary evidence. I find she has not proven that further work was required in SL16 or its crawlspace, and she provided no evidence at all about alleged problems in the attic above SL16.
51. In Leclerc v. The Owners, Strata Plan LMS 614, 2012 BCSC 74, the court considered a case of water ingress into a strata lot. The court said that although the strata could perhaps have hastened its investigations of the problem, there was no evidence of deliberate foot-dragging. The court said a strata council is not required to be perfect, only to act reasonably with fair regard for the interests of all concerned (paragraph 61).
52. Based on the evidence before me, I find Ms. Hoggard has not proven that the strata deliberately delayed any repairs to the common property surrounding SL16, or otherwise failed to meet its repair and maintenance obligations. I also find Ms. Hoggard has not proven that the strata did any repairs to the crawlspace or attic around SL17, which means she has not proven her claim that the strata in appropriately prioritized such repairs over other work that would have benefitted SL16. I therefore dismiss this claim.
CRT FEES AND EXPENSES
53. Under CRTA section 49 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. I see no reason in this case not to follow that general rule.
54. The strata and Ms. Herbert are the successful parties. They paid no CRT fees and claim no dispute-related expenses. I therefore do not award them to any party.
55. The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against Ms. Hoggard.
ORDER
56. I dismiss Ms. Hoggard’s claims and this dispute.
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Kate Campbell, Vice Chair |