Date Issued: July 23, 2021

File: ST-2020-008651

Type: Strata

Civil Resolution Tribunal

Indexed as: Muller v. The Owners, Strata Plan NW 281, 2021 BCCRT 807

Between:

BRITTANY MULLER

Applicant

And:

The Owners, Strata Plan NW 281

Respondent

REASONS FOR DECISION
Tribunal Member:	Eric Regehr

INTRODUCTION

1.      The applicant, Brittany Muller, owns strata lot 43 (unit 43) in the respondent strata corporation, The Owners, Strata Plan NW 281 (strata).

2.      Ms. Muller’s primary claim is about the removal of a hose bib that was attached to the exterior of the strata building her back yard. She says that the strata allowed her former neighbour, the owner of unit 42, to remove the hose bib. Ms. Muller says that the hose bib was common property. She asks for an order that it be replaced, and for $58.86, the cost of a 75-foot hose. Ms. Muller also makes claims about the strata’s governance, which I describe in more detail below.

3.      The strata says that the hose bib was not original so the strata had no responsibility for it. The strata also says that it does its best to comply with the Strata Property Act (SPA) and the strata’s bylaws. The strata asks me to dismiss Ms. Muller’s claims.

4.      Ms. Muller is self-represented. The strata is represented by a strata council member.

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.      Under section 10 of the CRTA, the CRT must refuse to resolve a claim that it considers to be outside the CRT’s jurisdiction.

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 tribunal 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.   Ms. Muller initially made a claim about the accuracy of the strata council’s July 2020 meeting minutes. Ms. Muller withdrew that claim during the CRT’s facilitation process, so I find that issue is not before me.

11.   The issues in this dispute are:

a.    Should I refuse to resolve any of Ms. Muller’s claims?

b.    Is the strata required to replace Ms. Muller’s hose bib and pay $58.86 for a garden hose?

BACKGROUND AND EVIDENCE

12.   In a civil claim such as this, Ms. Muller as the applicant must prove her case on a balance of probabilities. While I have read all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision.

13.   The strata consists of 30 townhouse-style residential strata lots in 12 buildings. It was originally built in the 1970s. Unit 43 is a middle unit in a building with 5 other strata lots. Unit 42 is next door. I note that the unit 42 owner involved in the events in this dispute has since moved.

14.   According to the strata plan, there is no limited common property in the strata. There are also no resolutions filed in the Land Title Office designating common property as limited common property under section 74 of the SPA. So, even though the units each have areas that the residents treat as yards, I find that these areas area all undesignated common property.

15.   The strata filed a complete set of bylaws on March 3, 2015, which I find apply to this dispute. Bylaw 10.1 requires owners to obtain written approval before altering common property. Bylaw 10.5 says that the strata will not permit an alteration to common property unless the owner signed an Assumption of Liability Waiver form. Bylaw 12.1(c), which requires the strata to repair and maintain common property. This reflects section 72 of the SPA, which also requires the strata to repair and maintain common property.

ANALYSIS

Should I refuse to resolve any of Ms. Muller’s claims?

16.   Section 11(1)(b) of the CRTA says, in part, that the CRT may refuse to resolve a claim within its jurisdiction if the request for resolution does not disclose a reasonable claim.

17.   Ms. Muller asks for several general orders about the strata’s future conduct, namely (reproduced as written):

a.    An order that the strata council make decisions as a council, not allowing individual owners to make decisions for them as outlined in the SPA and NW281 bylaws.

b.    An order that strata council investigate complaints regarding bylaw infractions and deal with bylaw infractions appropriately.

c.    An order that strata council record all of their decisions, specifically in this case, decisions relating to approval for alterations to common property and response to bylaw infractions.

d.    An order that strata council stop treating the owner in a significantly unfair manner.

e.    An order that on receiving a request relating to sections 35 and 36 of the SPA, council make the records available for inspection by, and provide copies of them to, an owner within 2 weeks as required.

f.     An order that following a hearing in which an owner is seeking a decision of council, strata council provide a written decision to the owner within 1 week after the hearing, in accordance with the SPA.

g.    An order that on receiving a request for a hearing, Strata Council will provide an opportunity for a hearing within 4 weeks as required, in accordance with the SPA and NW281 bylaws.

18.   In previous disputes, the CRT has found that generally, requested orders that a strata corporation comply with the SPA or its bylaws do not disclose a reasonable claim. This is because an order that the strata do something that it is already legally obligated to do is unenforceable and generally serves no real purpose. I agree with these decisions, and in particular, Larocque v. The Owners, Strata Plan VR 255, 2021 BCCRT 617, even though it is not binding no me. This does not mean that the strata does not have to comply with the SPA. It means that the strata must comply with the SPA whether the CRT orders it to or not. I find that this reasoning applies to the first 3 of the above orders.

19.   I draw a different conclusion about the last 3 requested orders, which are about complying with the timelines in sections 34.1 and 36 of the SPA. I find that an order that a strata corporation comply with a particular SPA provision or bylaw can sometimes be useful and appropriate. For example, such an order may be useful when it addresses a specific and ongoing issue and where there is no other practical remedy available. In these circumstances, an order that a strata corporation comply with a particular SPA provision or bylaw can also further the CRT’s mandate that includes recognizing ongoing relationships.

20.   In this dispute, the strata admittedly did not comply with the deadlines in sections 34.1 and 36 of the SPA on multiple occasions. The strata’s submissions suggest that it should be excused from compliance because it is run by busy volunteers who tried their best. I reject this explanation because Ms. Muller’s records requests were relatively simple and the strata was weeks or months late in responding, if it responded at all. In any event the deadlines in sections 34.1 and 36 are mandatory. In these circumstances, I find that it is appropriate to order the strata to immediately comply with sections 34.1 and 36 of the SPA.

21.   As for the requested order about significantly unfair treatment, Ms. Muller alleges several examples, including the failure to disclose records and to provide a written decision after a hearing. However, Ms. Muller does not ask for any orders that would remedy the alleged significantly unfair actions. For example, she does not ask for an order that the strata disclose any outstanding documents or provide a written decision.

22.   Section 123(2) of the CRTA says that the CRT can make an order to prevent or remedy a significantly unfair action or decision. I find that a general order that the strata not treat Ms. Muller significantly unfairly in the future does nothing to prevent or remedy a past significantly unfair decision or action. I therefore find that this requested order does not disclose a reasonable claim.

23.   For these reasons, I find that the first 4 requested orders in the above list do not disclose a reasonable claim, and I refuse to resolve them under section 11(1)(b) of the CRTA.

24.   This leaves 3 requested orders, all related to the removal of Ms. Muller’s hose bib. Given my conclusions above, I will not further address the parties’ arguments about any issues other than the removal of the hose bib.

Is the strata required to replace Ms. Muller’s hose bib and pay $58.86 for a garden hose?

25.   Unit 43 used to have a hose bib attached to the exterior wall in Ms. Muller’s back yard. Because units 43 and 42 are offset, this exterior wall is shared with unit 42. So, unit 43’s hose bib connected to plumbing in an exterior wall between unit 42 and common property. Unit 43’s hose bib had splitter. A hose supplied water to unit 42’s back yard from the splitter through a hole in a fence. In this way, both units’ back yards had water connections.

26.   On April 17, 2020, the strata emailed Ms. Muller to tell her that unit 43’s hose bib was leaking into unit 42 and would be repaired by a plumber the next day. It is undisputed that later that day, the unit 42 owner told the strata that they wanted to be in charge of the repairs, and the strata agreed. It is also undisputed that on April 20, 2020, unit 42’s plumber removed unit 43’s hose bib and plugged the hole in the fence. Unit 42 did not tell the strata or Ms. Muller that they would be doing this.

27.   Later that day, Ms. Muller emailed the strata to express concern that the strata had effectively delegated responsibility over repairing common property to an owner. She asked that the strata replace the hose bib. On April 28, 2020, she requested a hearing about the issue, which was held on June 26, 2020.

28.   Ms. Muller says that at this hearing, the strata said that because the hose bib was not original, the owner whose plumbing the hose bib connected to was responsible for it. As described above, the hose bib in unit 43’s yard connected to unit 42’s plumbing.

29.   Ms. Muller says that on July 22, 2020, she learned that the strata paid for the plumber who removed the hose bib. The strata does not dispute this, or explain why it did so.

30.   In the strata council minutes for its July 2020 meeting, the strata said that it had denied Ms. Muller’s request to replace the hose bib. The minutes said that the water supply for unit 43’s hose bib was “entirely within unit 42’s wall” and “therefore belongs to unit 42”. Ms. Muller says that this statement makes no sense since the strata paid for the removal. This is apparently the first time the strata communicated its decision refusing to replace the hose bib to Ms. Muller.

 

31.   Ms. Muller argues that the hose bib was common property that the strata was responsible for repairing and maintaining. Section 1 of the SPA defines common property as including water pipes if they are located within a wall that forms a boundary between 2 strata lots or between a strata lot and common property. It also says that common property includes any part of the land and buildings that is not part of a strata lot on the strata plan.

32.   I find that the hose bib is common property. The strata plan says that the strata lot’s boundary is the “extreme building perimeter”. I find that this means that any attachments that protrude out from the building’s perimeter are not part of the strata lot. By definition, this means that they are common property. Even if I am wrong and the hose bib is properly understood to be part of the water system, I find that this plumbing is also common property because it is within a wall that is between unit 42 and common property.

33.   The strata does not directly address whether the hose bib is common property as defined in the SPA. The strata says that the hose bib is not its responsibility because it was “not original”, although there is no evidence to support this assertion. The strata says that if an owner adds a “betterment” to common property and signs an assumption agreement, the owner becomes responsible for the betterment. The strata also says that over the decades, some owners have added betterments or otherwise altered common property without strata knowledge or approval. It says that it should not be responsible to repair and maintain common property that owners have installed without approval and without an assumption agreement.

34.   I disagree with the strata’s argument. I find that if an owner alters common property and does not sign an assumption agreement, the altered common property becomes the strata’s responsibility to repair and maintain. I find that the strata’s concerns that owners can unilaterally impose new repair and maintenance obligations on the strata by making unapproved alterations are unfounded. Section 133 of the SPA says that the strata may do work on common property to remedy a bylaw contravention and charge the costs to the offending owner. So, if an owner breaches the bylaws by altering common property without approval, the strata can undo the alteration at the owner’s cost. It is only if the strata fails to enforce its bylaws that it becomes responsible for repairing and maintaining an unapproved alteration to common property.

35.   For these reasons, I find that the hose bib was common property that the strata had to repair and maintain it. I find that the strata breached this duty by effectively delegating the responsibility for repairing the hose bib to an individual owner, who removed it. I turn then to what remedy is appropriate.

36.   First, Ms. Muller says that she had to buy an extra long hose after the hose bib was removed because the only hose bib she had left was in the front of her unit. So, to water her backyard, she had to run a hose from the front through her house. Based on the video of unit 43 provided by Ms. Muller, I agree that the strata’s breach required Ms. Muller to buy this hose. I order the strata to reimburse Ms. Muller $58.86, the cost of the hose.

37.   As for replacing the hose bib, the strata argues that if it has to replace unit 43’s hose bib, it would have to provide all owners with a back hose bib. The strata points out that very few strata lots currently have them. I disagree with this argument. I find that the strata’s duty to repair and maintain common property does not require the strata to make sure that everyone has the exact same common property. So, replacing unit 43’s back hose bib does not impose any obligation on the strata to provide every owner with a back hose bib.

38.   I order the strata to replace unit 43’s back hose bib. Given the evidence that the previous hose bib was connected through some unusual plumbing, I do not order that the strata replace it in the same place or same configuration. Rather, I will leave the order general to allow the strata to work with a plumber to identify a sensible and cost-effective way to replace the hose bib. The strata will have 60 days to complete this work.

CRT FEES, EXPENSES AND INTEREST

39.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. While I refused to resolve some of her claims, I find that Ms. Muller was successful on the central issue between the parties about the hose bib. So, I find she is entitled to reimbursement of her $225 in CRT fees. She did not claim any dispute-related expenses.

40.   The Court Order Interest Act (COIA) applies to the CRT. I find that Ms. Muller is entitled to pre-judgement interest on the $58.86 she paid for the hose from May 7, 2020, the day she bought it, to the date of this decision. This equals $0.45.

41.   The strata must comply with the provisions in section 189.4 of the SPA, which includes not charging dispute-related expenses against Ms. Muller.

DECISION AND ORDERS

42.   I order the strata to immediately comply with sections 34.1 and 36 of the SPA.

43.   I order that within 30 days of the date of this order, the strata pay Ms. Muller a total of $284.31, broken down as follows:

a.    $58.86 for the hose,

b.    $0.45 in prejudgment interest under the COIA, and

c.    $225 for CRT fees.

44.   I order that within 60 days of the date of this order, the strata install a hose bib in the back of strata lot 43, at the strata’s expense.

45.   I refuse to resolve Ms. Muller’s remaining claims under section 11 of the CRTA.

46.   Ms. Muller is entitled to post-judgment interest under the COIA.

47.   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.