Date Issued: November 24, 2021

File: ST-2021-003221

Type: Strata

Civil Resolution Tribunal

Indexed as: Kabos v. The Owners, Strata Plan KAS 977, 2021 BCCRT 1238

Between:

ERIK KABOS

Applicant

And:

The Owners, Strata Plan KAS 977

Respondent

REASONS FOR DECISION
Tribunal Member:	J. Garth Cambrey, Vice Chair

INTRODUCTION

1.      This strata property dispute is about use of a parking area designated for recreational vehicles (RVs) and related rules.

2.      The applicant, Erik Kabos, co-owns a strata lot in the respondent strata corporation, The Owners, Strata Plan KAS 977 (strata).

3.      Mr. Kabos says the strata wrongfully revoked parking privileges for his trailer in the RV parking area located on common property (CP). Mr. Kabos also says that a recent change to the strata’s rules prohibiting parking trailers such as his, anywhere on the CP was both improper and significantly unfair. Mr. Kabos seeks orders that the strata reinstate his parking privileges so he can park his utility trailer in the RV parking area, and reimburse him for offsite trailer storage costs paid of $584 plus about $73 per month for ongoing storage costs.

4.      The strata says it is enforcing the new rule passed by its ownership as it is obligated to do. It does not agree to reimburse Mr. Kabos for storage costs. The strata also refuses to allow Mr. Kabos to park his trailer in the RV parking area because it says to do so would be contrary to the newly passed rule.

5.      Mr. Kabos is self-represented. The strata is represented by a strata council member.

6.    For the reasons that follow, I find in favour of Mr. Kabos.

JURISDICTION AND PROCEDURE

7.      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.

8.      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.

9.      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.

10.   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.

Preliminary Issues

Strata Council Member Conduct

11.   In his submissions, Mr. Kabos argues that certain strata council members acted contrary to Strata Property Act (SPA) section 31, fraudulently, and in a harassing manner. However, Mr. Kabos did not raise these claims in the Dispute Notice, so I decline to address them here. I find to do so, would be procedurally unfair, given the strata did not have an opportunity to fully address the allegations.

12.   Further, in Rochette v. Bradburn, 2021 BCSC 1752, the BC Supreme Court has recently confirmed that an owner does not have a legal right (standing) to bring a claim against a strata corporation because they believe that strata council members breached SPA section 31, which I find includes claims of fraud and harassment.

Additional Claims

13.   In his reply submissions, Mr. Kabos says the strata improperly collected RV parking fees from him for a parking space that was not located on CP and seeks reimbursement of $120 for parking fees he paid. As discussed below, I find the RV parking area is CP, but I decline to address Mr. Kabos’ claim for reimbursement of his RV parking fees as this claim was not identified in the Dispute Notice. Mr. Kabos had the opportunity to request to amend the Dispute Notice to include this additional claim but elected not to do so. I find strata has not had the opportunity to respond to the claim so it would be procedurally unfair for me to address it here.

Late Evidence

14.   Mr. Kabos provided evidence after the deadline given to him by CRT staff and during the strata’s submission window. However, the strata’s deadline for providing submissions and evidence was extended as a result of Mr. Kabos’ late evidence, so I have allowed the evidence as I find the strata is not prejudiced by me admitting it.

ISSUES

15.   The issues in this dispute are:

a.    Do the strata rules prohibit parking a utility trailer in the RV parking area?

b.    If yes, did the strata act in a significantly unfair manner when it required Mr. Kabos to remove his trailer from CP?

c.    What remedies, if any, are appropriate?

BACKGROUND

16.   In a civil proceeding such as this, as applicant, Mr. Kabos must prove his claims on a balance of probabilities. I have read all the submissions and evidence provided by the parties, but refer only to information I find relevant to give context for my decision.

17.   The strata is a residential strata corporation consisting of 30 townhouse-style strata lots in 5 buildings. It was created in December 1991 under the Condominium Act and continues to exist under the SPA. The strata plan shows the RV parking area is CP. Although the parties provided some evidence and submissions that part of the RV parking area might be located on land licenced from the Province of B.C., I find there is insufficient evidence to support such a finding. Therefore I have relied on the strata plan and find the RV parking area is CP.

18.   On July 11, 2008, the strata filed a complete new set of bylaws with the Land Title Office (LTO). The filed Form I confirms the bylaw amendments replaced all previously filed bylaws, Part 5 bylaws under the Condominium Act, and the Schedule of Standard Bylaws under the SPA, except for the rental restriction bylaw. No subsequent bylaw amendments have been filed, so I find the July 2008 bylaws apply to this dispute. Based on my review of the relevant bylaws, I note there are no bylaws that address the RV parking area.

19.   The strata also has rules as permitted under SPA section 125 which form the basis of this dispute and which I discuss further below.

20.   The basic facts that follow are not disputed.

21.   Mr. Kabos owns a small trailer that he uses to transport a kayak and other items he says uses for recreational purposes. The trailer has side walls but is not fully enclosed.

22.   At the strata’s annual general meeting (AGM) held August 24, 2020 (2020 AGM), the strata ratified an amendment to rule 1(c) that the strata says expressly addressed parking of “utility trailers”. I discuss this amendment in greater detail below. Mr. Kabos did not attend the 2020 AGM. He alleges that he did not attend the AGM because he was not permitted to vote, but nothing turns on this allegation.

23.   At the time of the 2020 AGM until about September 19, 2020, Mr. Kabos rented space in the strata’s RV parking area, located at the rear (or west side) of the strata’s property. This is where Mr. Kabos was permitted to park his trailer. In September 2020, Mr. Kabos removed his trailer from the strata’s property and stored it offsite to comply with the strata’s interpretation of the newly passed rule and avoid fines. Mr. Kabos paid for offsite trailer storage since September 19, 2020.

24.   In February 2021, the strata denied Mr. Kabos’ request to rent an RV parking space to store his trailer.

25.   At an AGM held July 21, 2021 (2021 AGM), the strata approved further amendments to its rules, including rule 6(a), which includes the definition of an RV.

EVIDENCE AND ANALYSIS

Do the strata rules prohibit parking a utility trailer in the RV parking area?

26.   Although some of the evidence suggests that Mr. Kabos disagreed his trailer was a utility trailer, I find the overall evidence and submissions show he ultimately agreed his trailer falls under that category.

27.   Mr. Kabos’ main argument is that the proposed amendment to rule 1(c), as ratified at the 2020 AGM, was altered after it was voted on. He says the amendment to rule 1(c) that was approved at the 2020 AGM did not prohibit parking a utility trailer in the RV parking area. The strata did not address Mr. Kabos’ argument, even though it had the opportunity to do so.

28.   For the reasons that follow, I agree with Mr. Kabos.

29.   Under SPA section 125, the strata is permitted to make rules governing the use, safety and condition of CP and common assets. A rule is generally put in place by a strata council, but it must be ratified by a majority vote at a general meeting for it to continue to have effect past the next AGM.

30.   The parties agree a new rule 1(c) was ratified at the 2020 AGM. Mr. Kabos says the wording of the proposed rule as contained in the 2020 AGM notice in evidence read as follows:

1 – PROHIBITIONS ON THE USE OF COMMON PROPERTY

  Owners, residents, occupants shall not:

(c) Park vehicles anywhere on the common property except in carports or marked parking spaces, except that owners, residents, and/or occupants may park recreational vehicles, moving trucks etc. on common property roads to permit loading or unloading for no more than 24 hours, provided the vehicle does not impede the safe and free flow of traffic on the street. No utility trailers are to be parked in the carports.

31.   This is also the wording of new rule 1(c) that the 2020 AGM minutes show was ratified.

32.   However, the amended consolidated rules document dated August 25, 2020, the day after the 2020 AGM, show rule 1(c) reads as follows (my emphasis):

1 – PROHIBITIONS ON THE USE OF COMMON PROPERTY

  Owners, residents, occupants shall not:

(c) Park vehicles anywhere on the common property except in carports. Owners, residents and/or occupants may park recreational vehicles, moving trucks or enclosed trailers on common property roads to permit loading or unloading for no more than 24 hours, provided the vehicle does not impede the safe and free flow of traffic on the street. No utility trailers are to be parked in the carports or on common property.

33.   The significant difference is that the wording of rule 1(c) as contained in the strata’s consolidated rules does not match the rule that was ratified at the 2020 AGM. It is clear the ratified rule approved at the 2020 AGM does not restrict owners from parking utility trailers on CP, which includes the RV parking area, contrary to what the strata says. The ratified rule only restricts utility trailers from being parked in carports.

34.   Therefore, I find the version of rule 1(c) that was ratified at the 2020 AGM was the rule that was proposed in the 2020 AGM notice and not the version of the rule that is included in the consolidated strata rules document.

35.   SPA section 125(7) says a ratified rule is effective until it is “repealed, replaced or altered, without the need for further ratification”. At the 2021 AGM, the 2020 AGM minutes were approved with a “correction” to rule 1(c) to add the phrase “or on Common Property” to the end of the ratified rule. However, I do not find the 2021 AGM minutes amended rule 1(c) because correcting minutes is different from repealing, replacing or ratifying a rule under the SPA. In order to properly amend rule 1(c) to prohibit utility trailers on CP, the strata must follow SPA section 125 to amend the rule and ratify it at the next general meeting.

36.   For these reasons, I find rule 1(c), as currently ratified, does not prohibit an owner, resident, or occupant from parking a utility trailer on CP.

37.   Evidence and submissions were also provided about rule 6(a) which defines and RV as “any equipment used by the resident for recreational purposes”. The rule sets out some examples of RVs, which were amended at the 2021 AGM, however the definition was not changed. Mr. Kabos suggests rules 1(c) and 6(a) conflict, but I do not agree. Based on a plain reading of both rules, I find there is no conflict between rule 1(c) as ratified at the 2020 AGM and rule 6(a), either as it was worded before the 2021 AGM or after. I say this because it is possible that a utility trailer could fall under the definition of an RV and, as I have found, owners are not prohibited from parking utility trailers in the RV parking area.

38.   Given my conclusion above, I find there is no need to consider Mr. Kabos’ argument about significant unfairness. Nothing in this decision restricts Mr. Kabos from filing a fresh claim for significant unfairness should the strata properly amend its rules or bylaws to restrict the parking of utility trailers, such as the one used by Mr. Kabos, in the RV parking area.

What remedies, if any, are appropriate?

39.   Given my finding that the ratified rules do not prohibit Mr. Kabos from parking his utility trailer in the RV parking area, I order the strata to immediately permit Mr. Kabos to do so at the established parking rental rate.

40.   Mr. Kabos provided copies of a printout from Easy Lock RV Super Centre confirming he paid it $808.50 between September 14, 2020 and August 13, 2021. He also provided a copy of an August 10, 2021 payment receipt in the amount of $147.00 for the period August 14, 2021 through October 13, 2021. The total payment of $955.50 for the 13 months equals $73.50 per month, which I find is what Mr. Kabos claims as reimbursement. I infer his stated claim of $73 was a rounded amount. I accept that this is the amount Mr. Kabos paid to store his trailer offsite for the period noted.

41.   I find it appropriate to order the strata to reimburse Mr. Kabos his offsite storage costs as the strata rules do not prohibit him from storing his trailing on CP. Given the strata did not dispute the payment amount, I order the strata to reimburse Mr. Kabos $955.50.

42.   I decline to address storage fees that may have been paid by Mr. Kabos past October 13, 2021 as there is no evidence before me to confirm what fees he paid.

CRT FEES AND EXPENSES

43.   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. Mr. Kabos was the successful party in this dispute and paid $225.00 in CRT fees, so I order the strata to reimburse him that amount. Neither party claims dispute-related fees so I make no order for that.

44.   The Court Order Interest Act (COIA) applies to the CRT. I find Mr. Kabos is entitled to prejudgement interest under the COIA for the offsite storage costs he paid from the dates they were paid until the date of this decision. I calculate the total prejudgement interest to be $3.22 and order the strata to pay this amount to Mr. Kabos.

45.   The strata must comply with SPA section 189.4, which includes not charging dispute-related expenses against Mr. Kabos.

ORDERS

46.   I order the strata must:

a.    Immediately permit Mr. Kabos to park his trailer in the strata’s RV parking area at the current rental rate, and

b.    Within 30 days of the date of this decision, reimburse Mr. Kabos a total of $1,183.72, broken down as follows:

                              i.        $955.50 for offsite trailer storage fees,

                            ii.        $225.00 for CRT fees, and

                           iii.        $3.22 in prejudgement interest under the COIA.

47.   Mr. Kabos is entitled to postjudgement interest under the COIA, as applicable.

48.   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.