Date Issued: July 15, 2021

File: ST-2020-009232

Type: Strata

 

Civil Resolution Tribunal

Indexed as: Borghardt v. Strata Plan BCS 1135, 2021 BCCRT 777

Between:

LARS BORGHARDT and LAURA BORGHARDT

ApplicantS

And:

The Owners, Strata Plan BCS 1135

Respondent

REASONS FOR DECISION
Tribunal Member:	Richard McAndrew

INTRODUCTION

1.      This dispute is about a freestanding patio cover. The applicants, Lars Borghardt and Laura Borghardt, co-own a strata lot in the respondent strata corporation, The Owners, Strata Plan BCS 1135 (strata). The Borghardts placed a patio cover on their backyard patio which they say does not violate the strata’s bylaws. They request an order requiring the strata to approve the patio cover.

2.      The strata says that the patio cover violates the strata bylaws and, after a hearing, it ordered the Borghardts to remove it.

3.      The Borghardts are self-represented. The strata is represented by a council member.

JURISDICTION AND PROCEDURE

4.      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.

5.      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.

6.      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.

7.      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

8.      The issues in this dispute are:

a.    Does the Borghardt’s patio cover violate the strata bylaws?

b.    Should the strata be required to approve it?

BACKGROUND AND ANALYSIS

9.      In a civil dispute such as this, the Borghardts, as the applicants, must prove their claims. They bear the burden of proof on a balance of probabilities. Though I have read all of the evidence provided, I refer only to evidence I find relevant to provide context for my decision.

10.    The strata plan shows that the strata was created in 2005, under the Strata Property Act (SPA).

11.   The strata filed consolidated bylaws with the Land Title Office in April 2014. The strata filed some other amendments after April 2014, which I find are not relevant to this dispute.

12.   It is undisputed that the Borghardts placed a freestanding patio cover on their backyard patio in September 2018. I find that this patio area is limited common property because it is so designated on the strata plan.

13.   On February 10, 2020, the strata sent the Borghardts a letter saying that it received a complaint about their patio cover. The letter said the Borghardts violated bylaws 5.1(f) and 35.1 by placing the patio cover without strata approval. Bylaw 5.1(f) says that an owner must have prior written approval from the strata before altering a strata lot that involves fences, railings or similar structures that enclose a patio. Bylaw 35.1 says that owners cannot place awnings or shades on the exterior of a strata lot or limited common property without prior strata council approval.

14.   The strata’s February 10, 2020 letter told the Borghardts to remove the patio cover by February 29, 2020 or it might levy fines. The letter also informed the Borghardts of their right to respond to the complaint and request a hearing.

15.   Ms. Borghardt sent the strata council an email on February 15, 2020 requesting permission to keep the patio cover. The Borghardts also sent the strata an indemnity form for the patio cover. Strata council member MK sent Ms. Borghardt and the strata council members a February 20, 2021 email saying that he was “good with this request.”

16.   On March 9, 2000, the strata sent the Borghardts a letter saying that the strata council was considering their request to keep the patio cover. The letter says that this matter, and the permission to install pergolas in general, would be discussed at the 2020 annual general meeting (AGM). The letter says that the strata council would make a decision about the Borghardts’ patio cover after the AGM. However, the strata says that this issue was not discussed at the AGM because the agenda was streamlined as a result of COVID-19.

17.   The strata sent the Borghardts letters on September 16, September 30, October 30 and November 6, 2020 demanding the removal of the patio cover.

18.   The strata held a hearing about the patio cover at a strata council meeting on November 18, 2020. On November 25, 2020, the strata sent the Borghardts its decision denying their request to keep the patio cover. The letter demanded the removal of the patio cover and warned the Borghardts that a fine would be imposed if they failed to do so. There is no evidence before me showing the imposition of any strata bylaw fines against the Borghardts’ strata lot account related to the patio cover.

REASONING AND ANALYSIS

Do the bylaws prohibit the Borghardts patio cover without prior approval?

19.   As discussed above, the strata notified the Borghardts that the patio cover violated bylaws 5.1(f) and 35.1 by placing the patio cover without strata approval. In its submissions, the strata also argues that the Borghardts violated bylaw 5.1(g) by altering limited common property without prior written strata approval.

20.   I will first consider whether the placement of the patio cover violated bylaw 35.1, which prohibits the placement of awnings or shades, upon or attached to limited common property. The Borghardts argue that this bylaw only applies to items attached to the property, which they say does not include their free standing patio cover. However, I disagree. Bylaw 35.1 specifically prohibits the placement of awnings or shades on limited common property without approval, which I find includes free standing patio covers, such as the Borghardts’ (my bold emphasis added). So, I find that bylaw 35.1 prohibited the Borghardts from placing their patio cover on the limited common property patio without strata approval. Based on this finding, I find it unnecessary to also determine whether the patio cover also violated bylaws 5.1(f) and 5.1(g).

Did the strata approve the patio cover?

21.   In their application for dispute resolution, the Borghardts admit that they did not obtain prior approval to place the patio cover. However, the Borghardts argue that the strata later approved the patio cover retroactively. The strata denies this.

22.   The Borghardts argue that strata council member MK’s February 20, 2020 saying that he was “good” with the Borghardt’s request to keep the patio cover constituted strata approval. The strata sent the Borghardts a September 20, 2020 saying that the strata did not approve the patio cover and that the Borghardts did not properly follow approval procedure. The letter says that the Borghardts should have sent the approval request to the strata council president who would then present it to strata council.

23.   The bylaws do not provide a specific procedure for requesting strata approval. However, bylaw 20.1 says that strata council meeting decisions, which I find includes approval requests, must be made by majority vote. I find that the Borghardts have not provided sufficient evidence to show that a strata council meeting was held or that the strata council approved their request by a majority vote. Even if strata council member MK supported their request, I do not find that this constituted strata approval without a majority vote of the strata council under bylaw 20.1.

24.   Further, section 71 of the SPA says that the strata corporation must not make or approve a significant change in the use or appearance or use of common property, unless the change is approved by 3/4 of the owners at a general meeting or there are reasonable grounds to believe that an immediate change is necessary to ensure safety or prevent significant loss or damage. Section 1(1) of the SPA says that limited common property is a form of common property. This means that section 71 applies to limited common property.

25.   In the CRT decision in Giddings et al v. The Owners, Strata Plan BCS 3620, 2018 BCCRT 61, a Vice Chair found that the placement of a free standing hard-roofed gazebo with 4 metal legs and a metal roof-frame on the owner’s limited common property patio was a significant change of use from a previous tent-like patio cover. Although non-binding, I find the reasoning in Giddings persuasive and apply it here. Based on the photographs, the Borghardt’s patio cover appears to very similar to the gazebo described in Giddings so I find that the placement of the Borghardt’s patio cover is a significant change of use of the limited common property requiring 3/4 owner approval. However, there is no evidence before that the owners approved the patio cover and the strata says that the issue of patio covers was removed from the 2020 AGM’s agenda. So, I find that the placement of the Borghardt’s patio cover was not approved by 3/4 of the owners at a general meeting as required by SPA section 71.

26.   The Borghardts also argue that the strata condoned the patio cover or provided its informed consent to it, by waiting until February 2020 to demand its removal. However, I do not find that this delay in enforcing the bylaw is equivalent to strata council approval by a majority vote of the patio cover, as required under bylaw 20.1, or approval by 3/4 of the owners as required by SPA section 71.

27.   For the above reasons, I find that the strata did not approve the patio cover.

Did the strata unreasonably deny approval of the patio cover?

28.   The Borghardts argue that the strata unreasonably denied their request for approval of the patio cover. The strata says that it denied their request because they did not seek prior approval before installing the patio cover.

29.   Bylaw 5(2) says that the strata must not unreasonably withhold approval under bylaw 5(1). Although there is no bylaw preventing the strata from unreasonably withholding its approval for a request under bylaw 35.1, the strata must act reasonably in making strata decisions.

30.   I find that the strata did not act unreasonably by denying approval on the basis that the Borghardts did not request prior approval before installing the patio cover, as required by bylaw 35.1. I do not find the strata’s insistence in following strata bylaws when making a request to strata council to be unreasonable. Further, since as discussed above, the installation of the patio cover was a significant change in the use and appearance of the limited common property, and there is no evidence before me that the owners have approved the alterations in accordance with SPA section 71, I find that strata was unable to retroactively approve the patio cover without a 3/4 owners’ vote anyway. So, I find that the strata did not unreasonably deny approval of the patio cover.

31.   Although the Borghardts do not specifically say that the strata has treated them in a significantly unfair manner, I find that the allegations in their application for dispute resolution raise this issue.

32.   Section 164 of the SPA sets out the authority of the British Columbia Supreme Court to remedy significantly unfair actions. Under section 123(2) of the CRTA, the CRT has jurisdiction to consider whether an action enumerated under s. 121(1) (e) to (g) of the CRTA is significantly unfair (see Time Share Section of The Owners, Strata Plan N 50 v. Residential Section of The Owners, Strata Plan N 50, 2021 BCSC 486). I find the strata’s decision to deny the Borghardt’s request for approval of the patio cover falls within CRTA section 121(1)(f), as it concerns a decision of the strata council in relation to an owner.

33.   The courts have interpreted “significantly unfair” to mean conduct that is oppressive or unfairly prejudicial. “Oppressive” conduct has been interpreted as conduct that is burdensome, harsh, wrongful, lacking fair dealing or done in bad faith. “Prejudicial” conduct means conduct that is unjust and inequitable (Reid v. Strata Plan LMS 2503, 2001 BCSC 1578, affirmed 2003 BCCA 126).

34.   The test for significant unfairness was summarized by a CRT Vice Chair in A.P. v. The Owners, Strata Plan ABC, 2017 BCCRT 94, with reference to Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44: what is or was the expectation of the affected owner or tenant? Was that expectation on the part of the owner or tenant objectively reasonable? If so, was that expectation violated by an action that was significantly unfair?

35.   The British Columbia Court of Appeal recently confirmed that consideration of the reasonable expectations of a party is “simply one relevant factor to be taken into account” (see King Day Holdings Ltd. v. The Owners, Strata Plan LMS3851, 2020 BCCA 342 at paragraph 89).

36.   The Borghardts say the patio cover provides necessary shade relief for their patio’s Southern exposure which significantly improves the use and enjoyment of their property. They also say that the strata has allowed 7 strata lots, including the Borghardts, to attach awnings to the buildings on their strata lot. Since the strata does not dispute this, I accept it as accurate. The Borghardts also argue that the strata is improperly evaluating their approval request based on potential bylaws that have not yet been implemented. The strata says that it denied the Borghardts’ approval request because they did not request prior approval as required by the bylaws.

37.   Although the Borghardts expected the strata to retroactively approve their patio cover, I find that it was objectively unreasonable to expect approval of alterations to limited common property without the required approval of 3/4 of the owners at a general meeting as required by SPA section 71.

 

38.   Further, I find that the Borghardts have not proved that the strata acted significantly unfairly by treating the Borghardts differently than other owners. Though the strata has approved attached awnings for other strata lots, including the Borghardts’ strata lot, I find that the Borghardts have not proved that these approved awnings are similar to their free standing patio cover. Further, the Borghardts did not provide evidence showing that these awnings were installed without prior approval like their patio cover. I find that that the Borghardts have not proved that the strata has treated them significantly unfairly by treating them differently from other owners.

39.   The Borghardts also argue that the strata has improperly considered their request based on potential future bylaws rather than the current bylaw. However, since the patio cover violates the existing bylaws, I find that nothing turns on whether or not the patio cover also violates potential bylaws.

40.   For the above reasons, I find that the patio cover violates by 35.1 and I find that the bylaws do not require the strata to approve it. Further, I find that the strata’s refusal to approve the patio cover is not significantly unfair. So, I dismiss the Borghardt’s request that I order the strata to approve their request to keep their patio cover.

CRT FEES AND EXPENSES

41.   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. I see no reason in this case not to follow that general rule. Since the Borghardts were unsuccessful, I dismiss their request for reimbursement of CRT fee. The strata did not request reimbursement of dispute-related expenses.

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

 

ORDER

43.   I dismiss the Borghardts’ claims and this dispute.