Date Issued: March 9, 2021

File: ST-2020-007559

Type: Strata

Civil Resolution Tribunal

Indexed as: Fung v. The Owners, Strata Plan NW 2361, 2021 BCCRT 267

Between:

WAI CHEONG FUNG and KAM HA YOUNG

ApplicantS

And:

The Owners, Strata Plan NWS2361

Respondent

REASONS FOR DECISION
Tribunal Member:	Julie K. Gibson

INTRODUCTION

1.      This dispute is about who must pay to repair damage in a strata lot, and the extent of a strata’s obligation to repair and maintain common property (CP).

2.      The applicants Wai Cheong Fung, also called Frankie, and Kam Ha Young (owners) own separate strata lots in the respondent strata corporation The Owners, Strata Plan NWS2361 (strata).

3.      The owners ask me to order the strata to repair the ceiling and drywall holes made during a water leak investigation. The owners also seek an order requiring the strata to repair the building envelope.

4.      The strata says the cause of the water damage has not been determined. The strata suggests that the water damage may have originated inside a strata lot. The strata says the building envelope is not leaking, so no CP repairs are required. Under the bylaws, the strata says the owners are responsible for strata lot repairs. The strata asks me to dismiss the dispute.

5.      Frankie Fung is primary applicant, representing both owners. The strata is represented by a strata council member.

JURISDICTION AND PROCEDURE

6.      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.

7.      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.

8.      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.

9.      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

10.   The issues in this dispute are:

a.    What was the likely source of the water damage?

b.    Is the strata required to repair the holes in the strata lot wall and ceiling drywall, made by strata contractors who were investigating the source of the water leak?

c.    Is the strata required to repair the building envelope?

EVIDENCE AND ANALYSIS

11.   In a civil claim such as this, the applicant owners must prove their claims on a balance of probabilities. I have considered all the parties’ evidence and submissions, but only refer to what is necessary to explain and give context to my decision.

Bylaws

12.   The applicable bylaws were filed at the Land Title Office (LTO) on May 24, 2016 (Bylaws), subject to amendments filed on May 31, 2018, and some other amendments that I find are not relevant to this dispute.

13.   Bylaw 3 provides that an owner must repair and maintain their strata lot, except for repair and maintenance that is a strata responsibility under the Bylaws.

14.   Bylaw 10 provides that the strata must repair and maintain all CP, limited common property (LCP) on the building exterior including doors, windows and skylights on the building exterior. It also provides that the strata must repair and maintain parts of the strata lot that are on the building exterior or make up the building’s structure, or are doors, windows and skylights on the building’s exterior or that front on CP.

Background

15.   The strata is made up of four three-storey wood framed multi-family buildings built between 1986 and 1992. The strata lots involved in this dispute are located in one of those buildings, identified as Building B2 on the strata plan.

16.   Frankie Fung jointly owns strata lot 47 (unit 201) with another person who is not a party to this dispute. Kam Ha Young owns strata lot 39 (unit 101).

17.   Unit 101 and 201 share an identical interior footprint, with unit 201 directly above unit 101. Unit 301 is above unit 201.

18.   In 2019, the owners were away from the Lower Mainland, where the strata is located. In late 2019, water damage was discovered in units 201 and 101.

19.   The strata arranged for a series of tradespeople to open the ceiling and partition wall of both units, to investigate the source of the water migration.

20.   The owners submit that they did not consent to the strata accessing their strata lots for the first part of the investigation. The strata says it obtained consent from the son of one of the owners. The strata did not provide documents to prove this consent. Given that Bylaw 9 provides that a strata resident must allow a strata-authorized person to enter a strata lot in an emergency to prevent significant loss or damage, I find that the strata was initially permitted to enter for this purpose.

21.   The parties disagree about the location and mechanism of the leak. They rely on their respective understandings of the water leak to support other submissions they make in this dispute. Below, I review the evidence about the water leak’s origin and mechanism in some detail.

22.   The strata says that units 101 and 201 had been left vacant for a long period with the heat off. The strata submits that, as a result, condensation on the pipes inside the strata lots caused the water damage. As discussed further below, the overall evidence does not prove that water originated from pipes inside the strata lots.

23.   According to an email written by the property manager, in October 2019, a plumber told the strata property manager that there was a “good possibility” that the leak was related to a building envelope issue.

24.   On October 22, 2019, the strata property manager noted that upon inspecting the roof and unit 301 balcony, no obvious problems were identified. The strata property manager then discovered that the gutter above the unit 301 kitchen was full of water and not draining properly. The property manager emailed the owners to say that when the gutter fills up, the water runs over the back side and enters the building through an opening behind the gutter. The water then runs down into the units below. The property manager asked Abney Roofing (Abney) to check the gutter.

25.   Abney attended. I find that either the property manager or Abney cleared the blocked gutter. Upon inspection, MA of Abney wrote that there was some:

window trim board separation (warping) and no sealant between the trim and windowsill (creating a large opening), and there is metal coping transition and gutter end cap transition with the siding/masonry wall that is suspect for water ingress … It appears that the entry point is on level three and has followed the wall cavity down to #201 (which had the most damage).

26.   MA also observed that there was no scupper overflow drain on the flat roof above unit 301. According to MA, the flat roof drains were in the centre of the roof, “not in the correct location”. From these observations, I find that MA assessed that it was likely that water overflow from the gutter had entered the building through the gutter end cap transition and siding and masonry wall defects.

27.   On December 5, 2019, a Platinum Pro-Claim Restoration (Platinum) employee wrote to the strata council president and the property manager to report that Platinum had visited unit 301 and found evidence of some water “very localized” in front of a dishwasher, but otherwise no evidence of leaks. In unit 201, they observed evidence of water leakage on the floor near the kitchen counter.

28.   On December 6, 2019, Abney issued an invoice to the strata (Abney Invoice). On the Abney Invoice, an unidentified person from Abney reported that the exterior building deficiencies were not responsible for the water ingress, but that the “leak was likely plumbing related and originated from one of the suites”.

29.   On December 6, 2019, a Platinum representative, ST, emailed the strata’s property manager. ST wrote that, upon further consideration, the water leak had not originated within unit 201 “as was first indicated”. Instead, ST noted that copper lines running from the roof may have allowed water to leak into the two strata lots. ST suggested that the roof caps/flashings and vent lines from the roof be further inspected. ST also wrote that it had ruled out the idea that a unit 301 dishwasher had caused the leak.

30.   On January 16, 2020, Platinum provided the strata’s property manager with a $3,338.74 estimate for drywall and paint repairs to units 201 and 101. I find that this is an estimate of the cost to repair the holes in the drywall made to facilitate the water migration investigation.

31.   On February 25, 2020, units 201 and 101 were inspected by restoration contractor OnSite. In its quote documents, OnSite assessed that an exterior gutter above unit 201 was not draining and had likely overflowed, causing water to enter unit 201 and then unit 101.

32.   The insurance providers for the personal contents and interior upgrades in both strata lots required a “definitive cause of loss opinion”. As a result, on July 2, 2020, InspectRight, a certified third-party property inspection service, prepared a report of its review into the water migration into units 201 and 101 (InspectRight Report).

33.   The InspectRight Report was authored by certified building technologist, water migration and restoration technologist, building envelope technologist, quality assurance observer, and roof assembly/roof system inspector DS. DS provided his qualifications in the InspectRight Report. Based on those qualifications, I find that DS is qualified to comment on the cause of water ingress into the strata building.

34.   InspectRight concluded that the water ingress into units 101 and 201 was likely caused by rainwater migration through the open and unsealed voids present along the open deck assembly above unit 201.

35.   The InspectRight Report also rules out a cause of the water damage from inside the strata lot. The InspectRight Report describes the following:

a.    Some open components, including deteriorated or missing seals, were identified across the wall cladding and wall cladding components of the face sealed building envelope assembly. These defects permitted rainwater to migrate into unit 101 and unit 201 on an ongoing basis.

b.    A single window assembly directly above unit 201 had a severely compromised wood trim detail around the sill area, allowing water to move down the roof rafters to the exterior wall of unit 201 and through to unit 101 where the roof assembly intersected at the exterior loadbearing wall, extending from and off of the interior loadbearing wall where the water damaged drywall was observed.

c.    There were several open voids along the open deck assembly directly above unit 201 where the unintended movement of water permitted migration into the exterior wall cavity of unit 201 or beneath the PVC wall cladding of the building envelope assembly and into one or both units.

d.    There was an area on the open deck floor surface where rainwater was accumulating. When the rainwater accumulated along the corner detail of the deck assembly directly above Unit 201 and reached a height above the liquid membrane on the vertical walls, the rainwater spilled into the exterior wall framing and into the strata building’s structure.

e.    Although large open voids were present between the staked and overlapping gutter trough above unit 201, the ceiling damage to unit 101 was too remote for the gutter overflow have been the origin of the single water migration.

f.     All drain sumps on the flat roof assembly of the building contained standing water, making “deterioration of the membrane” an “ongoing condition.”

g.    There was no Building Code compliant overflow drainage on the flat roof perimeter.

h.    Based on visual inspection, acoustical testing and thermographic imaging, water migration into units 201 and 101 did not originate from the interior of the multifamily structure or from and through each unit.

36.   The InspectRight Report concluded that the building envelope assembly of Building B required the following specific repairs:

a.    repair of damaged exterior seals in the building envelope assembly,

b.    replacement of exterior seals within 5 years, to maintain watertight capability of the obsolete face sealed building envelope assembly,

c.    repairs to the deck assembly above unit 201,

d.    repairs to the window assembly servicing the suite directly above unit 201, and

e.    installation of code-compliant emergency overflow roof drains or where roof perimeter construction extends above the roof in such a way that water may be entrapped if primary drains are blocked.

37.   In November 2020, a roof inspector from BC Roof Inspection (BCRI), MK, wrote to the strata property manager to provide the following information:

a.    The building roofs had periodic maintenance performed since 2009. Although I infer that MK had been involved in this maintenance, MK did not provide details of the frequency or content of these maintenance activities.

b.    The drain sumps had been coated with protective layers to prevent membrane granule loss.

c.    BCRI would “certainly recommend” installation of overflows “…but it would likely be best to wait until the roof is being replaced as it looks like the walls would need to be opened and the new plumbing routed through the soffit.“

What was the source of water in the owners’ strata lot?

38.   For the reasons given below, I conclude that the water in the owners’ strata lot came from the CP, not from within the strata lot.

39.   The strata suggests that I treat the Abney Invoice and some emails between Abney and the property manager as an expert opinion that the cause of the leak was located inside one of the strata lots.

40.   CRT rule 8.3(2) requires an expert to state their qualifications in any written expert opinion evidence. The Abney Invoice does not identify the name or qualifications of its author, nor did anyone file a complete copy of the invoice in evidence. I find the Abney Invoice does not meet the CRT rule 8.3 requirements for expert evidence. For these reasons, I place no weight on it.

41.   On December 21, 2020, the strata obtained a response to the InspectRight Report from QM, President of Vanguard Painting Ltd (QM Report).

42.   QM described that he attended units 101 and 201 shortly after the “single water movement event” that gave rise to the water damage in November 2019. QM then returned to the building exterior to inspect it, after reading the InspectRight Report.

43.   QM noted some small voids in a few caulking joints and areas on the door sills that “needed addressing” and wood trim, flashing detail, overlapping gutters and some areas where vinyl siding was not property installed.

44.   However, QM offered his opinion that these conditions did not “meaningfully contribute” to the single water movement event that is the subject of this dispute. QM pointed out that, despite heavy rains, the leak had not reoccurred.

45.   To the extent that QM’s report and the InspectRight Report differ, I prefer the InspectRight report because it is written by an expert qualified to comment on water migration, roofing and building envelope technology. By contrast, QM did not lay out qualifications except as president of a painting company.

46.   I find that the InspectRight Report was based on a thorough inspection of many aspects of the roof, drainage systems and the building envelope, supported by a series of labelled photographs.

47.   Because DS of InspectRight is a qualified expert in water migration, and based the InspectRight Report, I accept his conclusions. I find that the water ingress did not start inside a strata lot, but from the CP. Based on the InspectRight Report, I find that the leak was likely caused by rainwater migration from the open deck assembly, with contribution from the open voids, missing seals, lack of overflow drainage and the damaged window sill assembly above unit 201.

Is the strata responsible to repair the openings in the ceiling and interior wall of the strata lots, made during the water leak investigation?

48.   The owners say the strata should pay to repair the openings in the ceilings and walls of both strata lots made during its water ingress investigation. Since the water ingress originated in CP, the owners reason that damage created by the investigation is the strata’s responsibility.

49.   The strata disagrees, and says it is not responsible for repair and maintenance of strata lots except as provided in the SPA and Bylaws. Put differently, the strata says it must repair and maintain CP, not strata lot interiors.

50.   Under the strata’s Bylaws, the owners must repair and maintain their strata lots, except for the structure and exterior of the building, windows, doors and attachments such as balconies and railings. I find the owners’ ceiling and interior wall drywall are part of their strata lots and the owners’ responsibility to repair.

51.   The owners draw an analogy to a strata council member accessing a CP area through a strata lot. If a strata council member were to bring a ladder through the strata lot, carelessly scratching the strata lot wall, the owners say the strata would have to pay to repair the scratch.

52.   The strata is not an insurer. Unless bylaws provide otherwise, a strata is only responsible to repair a strata lot interior where it has been negligent: Basic v. Strata Plan LMS 0304, 2011 BCCA 231.

53.   Applying this reasoning to the owners’ analogy, a ladder that is carried through a strata lot in an unreasonable manner, damaging a wall, may trigger the strata’s responsibility to repair the wall under a negligence analysis.

54.   The evidence before me does not establish that the strata was negligent in making holes in the strata lots to investigate the water leak. Rather, those holes were a necessary step in the leak investigation.

55.   I turn to the question of whether the strata was negligent in meetings its SPA section 72 obligation to repair and maintain the building envelope to a reasonable standard, causing the water damage and the need for investigation.

56.   InspectRight offered its opinion that there were “missing” exterior seals along the building envelope of Building B2, that had completely deteriorated over an extended period and were now permitting unintended migration of rainwater into units 101 and 102. InspectRight also identified a “severely compromised” window assembly directly above unit 201. As well, InspectRight identified the absence of any overflow drainage from the flat roof. Based on the InspectRight Report, I find that the strata did not employ reasonable maintenance of these aspects of the building envelope, and that this failure caused the water damage and the surrounding investigation. Therefore, I find that the strata was negligent and did not met a reasonable standard in fulfilling its section 72 SPA obligation.

57.   Given my conclusion that the strata was negligent, I order the strata to repair the holes in the strata lot made to facilitate the water leak investigation, at the strata’s expense.

Is the strata required to repair the building envelope?

58.   The owners submit that the strata must conduct all repairs recommended by InspectRight. They say that their insurer will not renew their coverage until those repairs are completed.

59.   The strata submits that no repairs are needed to CP.

60.   SPA section 72 sets out the strata’s obligation to repair and maintain CP and common assets. The availability of insurance to individual owners does not dictate the extent of a strata’s responsibility to repair and maintain CP.

61.   Under Bylaw 10, the strata must repair and maintain CP and limited common property (with some restrictions that are not relevant to this dispute).

62.   I find that the building envelope, wall cladding, roof, drainage system and window sills are the strata’s responsibility to repair and maintain under the Bylaws.

63.   When assessing the extent of a strata corporation’s duty to repair under the SPA, the standard is not perfection, but reasonableness. Determining what is reasonable may involve assessing whether a solution is good, better, or best. The strata must act in the best interests of all owners and try to achieve the greatest good for the greatest number, which involves balancing competing needs and priorities: Weir v. The Owners, Strata Plan NW 17, 2010 BCSC 784.

64.   The strata submits that because water leakage “stopped without any repairs to the building exterior”, no further repairs are required. The fact that the leak stopped does not end the matter. InspectRight noted that primary drainage from the roof could again become blocked by ice or debris, making absent overflow drainage a recurring problem.

65.   I also find that overflow drains are a necessary component of reasonable leak prevention, based on recommendations from both InspectRight and BCRI.

66.   The water ingress here caused significant damage. Although it has not reoccurred, I find the InspectRight Report establishes that several remedial actions are necessary to mitigate the risk of further water damage. A central recommendation to install overflow drainage for the flat roof was also adopted by BCRI. The strata’s submission that the CP does not require any repairs communicates that it plans to ignore these recommendations.

67.   A strata is generally able determine how it meets CP repair and maintenance obligations. However, I find it unreasonable for the strata to disregard recommendations for necessary repair and maintenance of the roof, building exterior, window sills and drainage system, given the evidence. I find that the strata fell below a reasonable standard by failing to address the drainage, window and deck assembly repairs recommended in the InspectRight report.

68.   While BCRI suggested that the strata may want to wait until it is replacing the roof to install overflow drains, I find that some overflow drains are a necessity to avoid further leaks given the flat roof, based on the InspectRight Report. Therefore, I order that overflow drains be installed within 6 months of this decision.

69.   Based on the InspectRight Report’s recommendations, I find that the following repair tasks are necessary to meet a reasonable standard of CP repair and maintenance of Building B2:

a.    repair any damaged seals in the building envelope assembly,

b.    replace exterior seals within 5 years, to maintain watertight capability of the obsolete face sealed building envelope assembly,

c.    repair the deck assembly above unit 201,

d.    repair the window assembly above unit 201, and

e.    install code-compliant emergency overflow roof drains or scuppers where roof perimeter construction extends above the roof in such a way that water may be entrapped if primary drains are blocked.

 

CRT FEES and EXPENSES

70.   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. Here, the owners were successful in the dispute. I therefore order the strata to reimburse the owners for $225 in CRT fees. The owners did not claim dispute-related expenses.

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

ORDERS

72.   I order the strata to repair unit 101 and 201 drywall and ceiling holes that were made to investigate the water damage, at the strata’s cost, within 60 days of this decision.

73.   I order that the strata implement repair and maintenance steps for the Building B2 envelope, as follows, within 120 days of this decision:

a.    repair any missing or damaged exterior seals in the building envelope assembly,

b.    repair the deck assembly above unit 201,

c.    repair the window assembly servicing unit 301, and

d.    install code-compliant emergency overflow roof drains or scuppers where roof perimeter construction extends above the roof in such a way that water may be entrapped if primary drains are blocked.

74.   I also order the strata to fully replace the exterior seals of the Building B2 building envelope assembly, within 5 years.

 

75.   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.