Date Issued: September 27, 2021

File: ST-2021-001013

Type: Strata

Civil Resolution Tribunal

Indexed as: Renaud v. The Owners, Strata Plan 38, 2021 BCCRT 1036

Between:

                        GERALD RENAUD and DARLENE RENAUD

ApplicantS

And:

The Owners, Strata Plan 38

Respondent

REASONS FOR DECISION
Tribunal Member:	Leah Volkers

INTRODUCTION

1.      This strata property dispute is about who must pay to maintain a common property (CP) dryer vent. The applicants, Gerald Renaud and Darlene Renaud (owners), own a strata lot in the respondent strata corporation, The Owners, Strata Plan 38 (strata). The owners allege that the strata has failed to maintain the dryer vent since its installation nine years ago. The owners seek an order that the strata maintain the CP dryer vents and common assets of the strata for the benefit of all strata lot owners.

2.      The strata denies the owners’ claims. The strata says the owners installed the dryer vent and agreed to be responsible for maintenance. The strata says the owners continue to use the dryer despite the clogged dryer vent, and request a “temporary injunction” to prevent the owners from using the dryer until it is cleared.

3.      The owners are represented by Mr. Renaud. The strata is represented by a strata 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). CRTA section 2 says the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between the dispute’s parties that will likely continue after the CRT process has ended.

5.      CRTA section 39 says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice and fairness.

6.      CRTA section 42 says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, even where the information would not be admissible in court. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

7.      Under CRTA section 123, 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.

Preliminary Issues

Injunctive relief

8.      In its Dispute Response, the strata requested a temporary injunction to prevent the owners from using their dryer until the dryer vent is cleared. This is a request for injunctive relief, which is an order for someone to stop doing something. Here, the strata has not filed a counterclaim against the owners, so, I have not addressed the strata’s request for a temporary injunction.

ISSUES

9.      The issues in this dispute are:

a.    Whether the strata is responsible for maintaining and repairing the dryer vent, and

b.    What remedies, if any, are appropriate?

EVIDENCE AND ANALYSIS

10.   In a civil proceeding like this one, the owners must prove their claims on a balance of probabilities. I have read all the parties’ evidence and submissions but refer only to what is necessary to explain my decision.

Is the strata required to maintain the CP dryer vents?

11.   It is undisputed that On Jun 11, 2011, the strata approved the owners’ installation of a washer and dryer in the owners’ strata lot, including the installation of a dryer vent. The parties agree that the dryer vent is CP. I find this is correct because CP is defined in SPA section 1 and includes pipes, wires, cables, ducts, and other facilities for the passage or provision of water, sewage, drainage, electricity, heating systems and other similar services if they are located within the walls or boundaries between strata lots or common property. The dryer vent undisputedly runs from the owners’ strata lot, through the wall, and to the outside of the strata’s building.

12.   As noted, the parties disagree over who is responsible to repair and maintain the dryer vent. The owners say the SPA clearly states that the strata must maintain CP and common assets. The owner relies on SPA sections 3 and 72, which say the strata is responsible for managing, repairing, and maintaining CP and common assets, unless designated at limited common property (LCP) and allocated to the owners in the bylaws.

13.   According to the strata plan, there are no dryer vents designated as LCP in the strata. There are also no resolutions filed in the Land Title Office (LTO) designating the dryer vent, or the area it is located, as LCP under section 74 of the SPA. So, I find the dryer vent is undesignated CP.

14.   The strata does not dispute that SPA section 72 usually requires the strata to repair and maintain CP. However, the strata says that the owners agreed to maintain the dryer vent when the strata approved the owners’ CP alteration request in 2011. The owners dispute this. The strata also says that its bylaws make the owners responsible for dryer vent maintenance.

2011 Alteration Agreement

15.   At the time the strata approved the owners’ CP alteration in 2011, the strata did not have any bylaws registered in the Land Title Office, so I find the SPA Schedule of Standard Bylaws applies to this dispute. Bylaw 6 says that the strata may require as a condition of its approval that the owner agree, in writing, to take responsibility for any expenses relating to the alteration.

16.   Both the owners and the strata say that the June 11, 2011 letter from the strata to the owners is the alteration agreement, despite the fact that it is unsigned by the owners. The owners submitted the alteration agreement in evidence and say that it was agreed to both verbally and in writing and “interpreted by both parties to be the fact of the matter”. So, I find it undisputed that all parties agreed to the alteration agreement. There is nothing in the SPA or the strata’s bylaws which prevents the strata from requiring an alteration agreement as a condition of approving an alteration request.

17.   The owners say the alteration agreement shows that the strata is responsible for the dryer vent’s repair and maintenance. The alteration agreement says, in part, “the location of the dryer exhaust would require it to be maintained by Strata however this vent is solely for the benefit of your suite and so this approval is contingent on you maintaining the vent in a weatherproof condition”.

18.   The owners say the words “the location of the dryer exhaust would require it to be maintained by the Strata” show that the strata was acknowledging it was responsible for the dryer vent maintenance. The owners say that the rest of the sentence “could refer to the fact that because we installed the vent, we would be responsible for costs associated with the vent cover & ducting in keeping the vent in weatherproof condition”.

19.   The strata disputes this and says when you read the sentence as a whole (reproduced above), it is clear that the strata was allocating the dryer vent maintenance and repair obligations to the owners, who had the benefit of the dryer vent.

20.   I agree with the strata and I find that the alteration agreement assigned the dryer vent’s maintenance and repair obligations to the owners. I find the owners’ suggested interpretation does not accord with the alteration agreement as a whole. I find the purpose of the alteration agreement was to assign maintenance and repair obligations to the owners prior to the strata approving an alteration request, which the strata was entitled to do under bylaw 6. I find there an alteration agreement would be unnecessary if the strata did not intend to assign the responsibility for the alterations to the owners. I say this because the strata is already required to repair and maintain CP under SPA section 72, and does not need an alteration agreement in order to do so.

21.   So, I find that the alteration agreement is enforceable. I therefore find the owners responsible for all repair and maintenance of the dryer vent.

Strata bylaws

22.   As noted above, the strata also says that under its bylaws, the owners are responsible for the dryer vent’s repair and maintenance.

23.   The strata filed a complete set of bylaws in the LTO on November 22, 2012 (2012 bylaws), after the parties agreed to the alteration agreement. Bylaw 6 requires strata lot owners to obtain the strata’s written consent and sign an indemnity and alteration agreement prior to making any strata lot or CP alterations. Bylaw 8 states that current owners are responsible to maintain, repair or replace any CP alterations already in place where the strata lot owner has the benefit of the alteration.

24.   The strata made further bylaw amendments in 2017, 2019, and 2020. In particular, amendments to bylaw 2(3) in 2019 and 2020 also shift responsibility of maintenance, repair and replacement of CP alterations to the strata lot owner that has the benefit of the alteration.

25.   As noted above, SPA section 72 says the strata cannot make an owner responsible for the repair and maintenance of CP unless designated as LCP or identified in the regulations and subject to prescribed restrictions. No dryer vents are designated as LCP and the regulations do not currently permit the strata to make an owner responsible for common property. SPA section 121 says that the strata cannot enforce a bylaw that is contrary to the SPA.

26.   Given SPA sections 72 and 121, I question whether the bylaws that assign responsibility for the maintenance and repair of CP alterations to owners are enforceable. However, I find I do not need to determine whether the bylaws are enforceable because I have already found that the owners as responsible for the repair and maintenance of the dryer vent under the alteration agreement. Alteration agreements are legally different from bylaws assigning responsibility. As noted above, alteration agreements assigning CP repairs to owners were and are permissible under Standard Bylaw 6(2).

Significant unfairness

27.   The owners also say that the strata’s decision not to maintain the dryer vent is significantly unfair to them. CRTA section 123(2) says that in resolving a strata property claim the CRT may make an order necessary to prevent or remedy a significantly unfair action or decision by the strata in relation to an owner or tenant.

28.   In Reid v. Strata Plan LMS 2503, 2003 BCCA 126, the BC Court of Appeal said a significantly unfair action is one that is burdensome, harsh, wrongful, lacking in probity or fair dealing, done in bad faith, unjust or inequitable.

29.   In considering an owner’s reasonable expectations the courts have applied the following test from Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44:

a.    What was the owners’ expectation?

b.    Was the expectation objectively reasonable?

c.    Did the strata violate that expectation with a significantly unfair action or decision?

30.   In King Day Holdings Ltd. v. The Owners, Strata Plan LMS3851, 2020 BCCA 342, the BC Court of Appeal confirmed that an owner’s reasonable expectations continue to be relevant to determining whether the strata’s actions were significantly unfair.

31.   In this dispute, the owners’ expectation was that the strata would repair and maintain the dryer vent. For the following reasons, I find this expectation was not reasonable.

32.   I have already found that the alteration agreement assigned the dryer vent’s maintenance and repair obligations to the owners. The strata’s decision not to repair and maintain the dryer vent was based on the alteration agreement, which the owners undisputedly agreed to. So, I find that the owners’ expectation that the strata would maintain and repair the dryer vent is unreasonable. I therefore find that the strata’s decision not to repair and maintain the dryer vent was not significantly unfair to the owners.  

CRT FEES AND EXPENSES

33.   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. As the owners were unsuccessful, I dismiss their claims for CRT fees and dispute-related expenses. The strata did not pay any CRT fees or claim any dispute-related expenses, so I award none.

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

ORDER

35.   I dismiss the owners’ claims and this dispute.