Date Issued: January 5, 2022

File: ST-2020-009844

Type: Strata

Civil Resolution Tribunal

            Indexed as: Larsen v. The Owners, Strata Plan LMS 2385, 2022 BCCRT 9           

Between:

JORGEN LARSEN

Applicant

And:

The Owners, Strata Plan LMS 2385

Respondent

REASONS FOR DECISION
Tribunal Member:	David Jiang

INTRODUCTION

1.      This dispute is about information requests and reimbursement of money. The applicant, Jorgen Larsen, was formerly 1 of 2 owners of a strata lot in the respondent strata corporation, The Owners, Strata Plan LMS 2385 (strata). Jorgen Larsen seeks orders for the strata to provide “clarification” about 1) how owners voted at the May 2020 annual general meeting (AGM), 2) the balance of the strata’s contingency reserve fund (CRF) as of June 30, 2020, and 3) the amount shown as owing to the strata on a July 14, 2020 Form B information certificate. They also seeks reimbursement of 1) $915 paid to replace and power wash common property and 2) $1,000 paid to the strata as a holdback for building envelope repairs.

2.      The strata did not object to the information requests and says it has provided the information sought in this dispute. It disagrees with Jorgen Larsen’s claims for reimbursement.

3.      Jorgen Larsen is self-represented. A strata council member represents the strata. I have used Jorgen Larsen’s full name throughout because they indicated a preference for this.

4.      For the reasons that follow, I find Jorgen Larsen has partially proven their claims. I make the orders set out below.

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). 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.

6.      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.

7.      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.

8.      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.

9.      Under section 189.1 of the Strata Property Act (SPA), an owner may request that the CRT resolve a dispute concerning any strata property matter within the CRT’s jurisdiction. A statement of adjustments shows Jorgen Larsen was formerly 1 of 2 owners of strata lot 9 in the strata. They sold strata lot 9 on September 28, 2020. I find that I have jurisdiction to decide this dispute because Jorgen Larsen is a former owner of a strata lot in the strata. I reach this decision for the reasons stated by the Vice Chair in the non-binding decision of Gill v. The Owners, Strata Plan EPS 4403, 2020 BCCRT 228, citing Downing v. Strata Plan VR2356, 2019 BCSC 1745.

10.   Jorgen Larsen provided submissions and evidence but no reply arguments. CRT staff notes indicate they followed up with Jorgen Larsen and they did not respond. I infer from this that Jorgen Larsen did not wish to reply to the arguments of the strata and have decided this dispute on that basis.

ISSUES

11.   The issues in this dispute are as follows:

a.    Must the strata provide further clarification on how members voted at the May 2020 AGM, the balance of the CRT as of June 30, 2020, or the amount shown as owing on the July 14, 2020 information certificate?  

b.    Must the strata reimburse Jorgen Larsen $915 for repairing and pressure washing common property?

c.    Must the strata reimburse Jorgen Larsen $1,000 for a holdback paid to the strata when strata lot 9 was sold?

BACKGROUND, EVIDENCE AND ANALYSIS

12.   In a civil proceeding like this one, Jorgen Larsen as applicant must prove their claims on a balance of probabilities. I have read all the parties’ submissions but refer only to the evidence and arguments that I find relevant to provide context for my decision.

13.   As background, Jorgen Larsen requested a hearing with the strata council in March 2021. The strata council refused this request in a March 10, 2021 letter. It said it would not hold the hearing because Jorgen Larsen was a former owner. As noted above, I find that as a former owner Jorgen Larsen has standing to make claims against the strata in this dispute.

Issue #1. Must the strata provide further clarification on how members voted at the May 2020 AGM, the balance of the CRF as of June 30, 2020, or the amount shown in a Form B?

14.   Jorgen Larsen asked for clarification on who voted and how at the May 19, 2020 AGM. In this dispute, the strata provided a copy of the May 19, 2020 AGM minutes. The strata attached a detailed voting record that included the strata lot number, the owner or owners of the strata lot, and how they voted on each resolution at the AGM. Given this document, I find the strata provided the requested remedy.

15.   Jorgen Larsen also asked the strata to tell them the balance of the CRF as of June 30, 2020. The strata provided financial statements showing that the CRT had a balance of $392,609.76 as of that date. So, I find the strata provided this requested remedy as well.

16.   Finally, Jorgen Larsen asked about the amount shown as owing on a July 14, 2020 Form B information certificate. Under SPA section 59, owners may request such a certificate from the strata. The certificate must show information that includes any amount the owners owe the strata corporation. Jorgen Larsen asked why the certificate showed $1,116.31 as owing. The strata provided a breakdown, showing that Jorgen Larsen failed to pay strata fees of $417.81 in May 2020 and $139.70 for each of the month of February, March, April, June, and July 2020. These sums total the certificate amount of $1,116.31. Jorgen Larsen did not say they required further explanation. So, I find the strata provided this requested remedy.

17.   Given the above, I find these claims are now moot and I dismiss them.

Issue #2. Must the strata reimburse Jorgen Larsen $915 for repairing and pressure washing common property?

18.   Jorgen Larsen says they paid $600 to repair a common property fence and $315 to power wash other common property. They say they did so because the strata failed its obligation to maintain the fence and power wash common property as needed.

19.   The strata registered a complete set of bylaws and subsequent amendments in the Land Title Office. I find that bylaw 10.1 applies. Under bylaw 10.1, the strata must repair and maintain common property and limited common property that includes items such as fences. It is undisputed that the strata is responsible for repairing the maintaining the fence and whatever else Jorgen Larsen power washed.

20.   The strata’s obligation to repair and maintain such property is measured by the test of what is reasonable in all circumstances and can include replacement when necessary. The standard is not one of perfection. The strata has discretion to approved “good, better or best” solutions. The CRT will not interfere with a strata’s decision to choose a “good”, less expensive, and less permanent solution although “better” and “best” solutions may have been available. See Ricci v. The Owners, Strata Plan LMS 3940, 2021 BCCRT 755 at paragraph 40, citing The Owners of Strata Plan NWS 254 v. Hall, 2016 BCSC 2363 and Weir v. Owners, Strata Plan NW 17, 2010 BCSC 784.

21.   An owner is not entitled to direct the strata on how to conduct its repairs or maintenance. In general, an owner cannot unilaterally spend money to repair or maintain common property and then expect the strata to reimburse them. See Garry v. The Owners, Strata Plan EPS2501, 2021 BCCRT 409, citing Swan v. The Owners, Strata Plan LMS 410, 2018 BCCRT 241.

22.   Jorgen Larsen says they decided on their own to repair the fence and power wash the common property. There is no indication they ever asked the strata to do this work. Given this, and consistent with the above-cited CRT decisions, which are not binding but I find persuasive, I find that Jorgen Larsen could not reasonably expect to be reimbursed for unilaterally deciding to spend money on the fence and power washing. I dismiss this claim.

Issue #3. Must the strata reimburse Jorgen Larsen $1,000 for a holdback paid to the strata when strata lot 9 was sold?

23.   In a September 21, 2020 letter, the strata alleged that Jorgen Larsen had damaged the strata’s siding and building envelope by installing fencing and security cameras without permission. It said this breached bylaw 3.4. Bylaw 3.4 says an owner must not cause damage, other than reasonable wear and tear, to the common property or the parts of a strata lot the strata must repair and maintain under the bylaws or insure under SPA section 149.

24.   The strata said it had obtained a quote for repairs to the damaged exterior siding, trim, and a fence section, and that the repairs were expected to cost less than $1,000. The strata said it would include the cost of repairs to the lawyer’s undertaking and once any repairs were completed, the remaining money would be refunded to Jorgen Larsen’s notary or lawyer. The strata also provided Jorgen Larsen an opportunity to respond. The strata said that if they did not, it would fine Jorgen Larsen’s strata lot account up to $100 under bylaw 28.

25.   The strata’s evidence is that the repairs ultimately cost $504 as shown in a January 4, 2021 invoice. Despite costing less than $1,000, the strata did not return any holdback funds to Jorgen Larsen. The strata did not explain why.

26.   Section 116(1) of the SPA allows the strata to register a lien against a strata lot for certain unpaid debts, such as strata fees. However, a chargeback of common property repair costs is not a lienable amount under section 116 or the other provisions of the SPA. For the strata to charge back repair costs to a strata lot account, it must have the authority to do so under a valid and enforceable bylaw or rule that creates the debt. See Ward v. Strata Plan VIS #6115, 2011 BCCA 512 at paragraphs 40 to 41.

27.   From my review of the bylaws and amendments I find the strata’s only chargeback bylaw is bylaw 2.4. I find it inapplicable as it is about repairs to damage done to lawns, trees, and “other plantings”. So, I find the strata was not permitted to charge back the repair costs to Jorgen Larsen’s strata lot account or request a holdback for such repairs.

28.   I note that under SPA section 133, a strata corporation may do what is reasonably necessary to remedy a contravention of its bylaws, which includes doing work on common property. It also says that the strata may require the owner to pay the reasonable costs of remedying the contravention. However, under SPA section 135(1), before requiring a person to pay the costs of remedying a bylaw contravention, the strata must have received a complaint, given the owner written particulars of the complaint and a reasonable opportunity to answer the complaint, including a hearing if one is requested.

29.   The September 21, 2020 letter shows the strata did not fulfill the SPA section 135(1) requirements for the holdback. It imposed the holdback before Jorgen Larsen could respond. So, I find the strata cannot rely on SPA section 133. Given this, I find the strata must reimburse Jorgen Larsen the entire holdback of $1,000.

30.   The Court Order Interest Act (COIA) applies to the CRT. Jorgen Larsen is entitled to prejudgment interest on the damages award of $1,000 from September 21, 2020, the date of the holdback letter, to the date of this decision. This equals $5.80.

CRT FEES AND EXPENSES

31.   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.

32.   I find Jorgen Larsen was partially successful as they proved some claims and not others. So, I order the strata to reimburse Jorgen Larsen half their CRT fees, which equals $112.50.

33.   In submissions, Jorgen Larsen also claimed reimbursement for lawyer’s fees of $1,350. Jorgen Larsen did not support this claim with an invoice or statement of account, so I find it unproven. Also, CRT rule 9.5(3) says that the CRT will not order one party to pay another party any fees charged by a lawyer in the CRT dispute process unless there are extraordinary circumstances. I do not find anything in this dispute was extraordinary. It did not involve complex issues or evidence. Jorgen Larsen’s lawyer also did not represent them in this dispute.

ORDERS

34.   I order that within 30 days of the date of this decision, the strata must pay Jorgen Larsen a total of $1,118.30, broken down as follows:

a.    $1,000 as reimbursement for the September 2020 holdback,

b.    $5.80 in prejudgment interest under the COIA, and

c.    $112.50 in CRT fees.

35.   Jorgen Larsen is entitled to post-judgment interest under the COIA.

36.   I dismiss Jorgen Larsen’s remaining claims.

 

37.   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.