Date Issued: January 17, 2022

File: ST-2021-004506

Type: Strata

Civil Resolution Tribunal

Indexed as: Champagne v. The Owners, Strata Plan VIS 2920, 2022 BCCRT 57

Between:

KAREN RUTH CHAMPAGNE

Applicant

And:

The Owners, Strata Plan VIS 2920

Respondent

INTRODUCTION

1.      This dispute is about the replacement of a privacy fence. Karen Ruth Champagne (owner) owns a strata lot in the strata corporation The Owners, Strata Plan VIS 2920 (strata). There is currently a 4-foot high privacy fence on the common property between her back patio and her neighbour’s back patio. She requested approval from the strata to replace it with a 6-foot high privacy fence, but the strata refused. She says that the strata’s decision was significantly unfair because there are other 6-foot privacy fences in the strata. She asks for an order that the strata approve the 6-foot privacy fence.

2.      In its Dispute Response, the strata said that it acted reasonably when it rejected the owner’s request to increase the height of the privacy fence because the neighbour opposed it. As discussed in more detail below, in its later submissions the strata has taken a more favourable stance towards the owner’s request, although it does not explicitly ask the Civil Resolution Tribunal (CRT) to find in the owner’s favour.

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

JURISDICTION AND PROCEDURE

4.      These are the CRT’s formal written reasons. 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 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.

8.      Before turning to the merits of this dispute, I will address some preliminary issues. First, in her submissions, the owner asks for an order that strata send a letter to the neighbour telling them that her patio is “not common strata property” but is her “private space”. I find that this remedy was not in her Dispute Notice, so I find that it is not properly before me and have not considered it further.

9.      Next, both parties made submissions about whether the owner breached the strata’s bylaws by putting planters on her patio. Because the owner does not ask for any orders about this, I have not considered whether the bylaws prohibited the owner from putting the planters on her patio.

10.   Finally, the owner uploaded evidence after the CRT’s deadline. The strata did not object and I find it had an opportunity to review and comment on this late evidence. Given the CRT’s mandate for a flexible and informal procedure, I have admitted and considered this late evidence.

ISSUE

11.   The issue in this dispute is whether the strata acted significantly unfairly when it denied the owner’s request for a higher privacy fence.

BACKGROUND

12.   In a civil claim such as this, the owner 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 127 residential townhouse-style strata lots. The owner owns strata lot 10 (SL10), which is the end unit of a building with 4 strata lots. The neighbouring strata lot located in the same building is strata lot 9 (SL9). SL9 and SL10 each have a rear patio that is limited common property (LCP). There is a small gap between the 2 LCP patios where the fence starts, which is common property. The rest of the area behind their strata lots is also common property. For clarity, I attach below the relevant part of the strata plan:

14.   The existing privacy fence starts at the building, runs between the LCP patios, and continues into the common property area behind the patios. It is 16 feet long and 4 feet high, consisting of two 8-foot panels. The existing privacy fence is original from the strata’s construction in the late 1990s. None of this is disputed.

15.   The strata filed a complete set of bylaws on November 27, 2001, which replaced all previous bylaws. The strata has filed numerous amendments since then. I find that the Standard Bylaws do not apply. The relevant bylaws are as follows. Bylaw 6(1) says that an owner must not alter common property unless they have written strata approval. Bylaw 6(2) says that the strata may require an owner to take responsible for any expenses related to an alteration to common property. As the owner points out, there is nothing in the bylaws requiring the strata to obtain affected owners’ consent before approving a common property alteration.

EVIDENCE AND ANALYSIS

Did the strata act significantly unfairly by denying the owner’s request for a higher privacy fence?

16.   Before turning to the background, I note that neither party provided me with copies of their email correspondence about the privacy fence. However, the owner outlines a timeline of events, which the strata does not dispute. I have therefore accepted her summary as accurate.

17.   The owner has lived in SL10 since June 2014. Her neighbour moved into SL9 about 2 to 3 years ago.

18.   The owner says that she wants a higher privacy fence because the neighbour’s behaviour makes her uncomfortable. She says that they stare at her when she is outside, both from inside the neighbour’s home and from their own patio. She says this is only possible because the privacy fence is 4 feet high. I note that there is no evidence from the neighbour before me, so I do not have their perspective. In the absence of that evidence, I make no comments about the neighbour’s behaviour, although I accept that the owner is sincere that she would feel safer and more comfortable with a 6-foot privacy fence.

19.   On January 12, 2021, the owner asked the strata for permission to increase the height of the first panel of the privacy fence from 4 to 6 feet. I infer that she was content to leave the second panel at 4 feet since it has a far lesser impact on her privacy. The strata denied the request because the neighbour felt it would “drastically limit the enjoyment and property value” of their unit. She says that her neighbour’s opposition to the higher privacy fence is “extremely creepy”, since the only impact it would have on his “enjoyment” of his strata lot is that it would restrict his ability to see the owner while she is on her patio.

20.   The owner says that there are other examples of higher privacy fences throughout the strata. The strata admits this, but says that it approved these fences because both affected owners wanted them. Notably, there is a privacy fence on the other side of the neighbour’s patio that is 8.5 feet long and over 6 feet tall, which the neighbour agreed to, and the strata approved.

21.   In February 2021, strata council members visited both the owner and neighbour to discuss the owner’s proposal. The neighbour maintained their opposition, so the strata maintained its denial. The strata says that it was simply following its “alteration approval procedure”, which I infer is an unwritten policy that says, in part, that the strata will only approve changes to privacy fences if both adjacent owners agree. As mentioned above, this requirement for owner approval is not set out in the bylaws. There is no suggestion that the strata has adopted any rules

22.   As mentioned above, the strata stood by its decision in its Dispute Response, which it filed in June 2021. There, the strata asserted that the proposed fence would “significantly affect the [neighbour’s] sightlines”.

23.   In July 2021, strata council members again visited the owner’s home. This time, the strata proposed a compromise fence design in attempt to mediate a compromise between the owner and the neighbour. The owner agreed to the proposed design, but the neighbour did not.

24.   The strata did not provide any evidence about what exactly happened between the council members and the neighbour in the July 2021 meeting. However, the strata made its submissions in this dispute after this meeting, and in those submissions the strata softened its position considerably. While the strata maintains that it followed its standard procedure and tried to act fairly, the strata implies that it no longer objects to the higher privacy fence. The strata says that the owner “raises good points” about the fairness of the strata’s decision. The strata says that the neighbour’s opposition to the fence is “hypocritical and self-serving”. The strata agrees that there are other, similar privacy fences in the strata, including on the other side of the neighbour’s patio, and invites the CRT to “consider these precedents” in making its decision. I find from this change in tone that the strata no longer believes that the proposed privacy fence will have a meaningful impact on the neighbour or that the neighbour has any legitimate reason to oppose it.

25.   With that background in mind, I turn to the applicable law. Section 123(2) of the CRTA gives the CRT the power to make an order directed at the strata to remedy a significantly unfair action or decision. This provision mirrors section 164(1) of the Strata Property Act (SPA), which gives the same power to the court.

26.   In Reid v. Strata Plan LMS 2503, 2003 BCCA 126, the BC Court of Appeal interpreted a significantly unfair action as one that is burdensome, harsh, wrongful, lacking in probity or fair dealing, done in bad faith, unjust or inequitable. In King Day Holdings Ltd. v. The Owners, Strata Plan LMS3851, 2020 BCCA 342, the BC Court of Appeal confirmed that the reasonable expectations of an owner may be relevant to determining whether the strata’s actions were significantly unfair. When an owner’s reasonable expectations are relevant, as I find they are here, I must determine whether the strata violated those expectations with a significantly unfair action or decision: see Dollan v. The Owners, Strata Plan BCS 1589, 2012 44.

27.   In Gentis v. The Owners, Strata Plan VR 368, 2003 BCSC 120, the court noted that a strata corporation’s role often requires it to balance competing interests between owners. The court found that it should not interfere in a strata corporation’s exercise of discretion lightly. I find that these comments apply here because the strata’s authority over common property required it to choose between opposing viewpoints. Whatever the strata decided about the privacy fence, someone was going to be disappointed.

28.   The circumstances of this dispute are unique. If the strata had maintained its position as set out in its Dispute Response, I would have dismissed the owner’s claims. According to that response, the strata had to choose between the owner’s interest in privacy and the neighbour’s interest in more expansive views. The strata accepted that both owners had legitimate reasons for their stated positions. Faced with that choice, the strata opted to maintain the status quo, which I find on its face was not significantly unfair. In other words, I find that the mere fact that there are similar fences in other parts of the strata does not mean that the strata had to agree to the owner’s request. This is because the perspective of neighbouring owners is a valid and relevant factor for the strata to consider in such requests. With that, I find that the owner’s expectation that the strata would approve a higher privacy fence based on precedent within the strata was not reasonable.

29.   The unique circumstance in this dispute is that the strata has since changed its views. The strata no longer accepts the neighbour’s opposition as rational or justified. The strata implies in its submissions that the CRT should find in the owner’s favour, although I recognize that the strata does not say so explicitly.

30.   I find that the owner had a reasonable expectation that the strata would make its decision about the fence based on its own objective assessment of the request. I find that the strata has not done so. Rather, it has maintained its denial in the face of its own opinion that the neighbour’s opposition was unreasonable, effectively giving the neighbour a veto over the strata’s discretionary power. No owner has a veto over what a strata corporation may permit on common property. I find that the strata’s failure to make a decision consistent with its own assessment of the owner’s request violated the owner’s reasonable expectations in a way that was inequitable and unjust. I therefore find that the strata acted significantly unfairly by refusing to approve the higher privacy request solely because the neighbour opposed it even after the strata decided that the neighbour’s opposition was unjustified.

31.   Turning to the remedy, the owner only asked to replace the first panel of the privacy fence because that is the fence that would give her privacy in her home and on her patio. With that, I order the strata to approve the owner’s request to alter common property by replacing the first panel of the privacy fence between SL9 and SL10 with a 6-foot privacy fence.

32.   In her submissions the owner says that the strata should have to pay for the new fence because of how it treated her. I disagree. I find that an order requiring the strata to approve the owner’s original request is enough to remedy the strata’s significant unfair action. I find that the strata may require the owner to agree, in writing, to take responsibility for any expenses relating to the new privacy fence, as set out in bylaw 6(2).

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 order the strata to reimburse the owner $250 for her paid CRT fees. The owner did not claim any dispute-related expenses.

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

DECISION AND ORDERS

35.   I order that the strata immediately:

a.    Approve the owner’s request to replace the first panel of the privacy fence between SL9 and SL10 with a 6-foot privacy fence, subject to the strata’s right to require the owner to agree, in writing, to take responsibility for any expenses relating to the new privacy fence.

b.    Pay the owner $250 in CRT fees.

36.   The owner is entitled to post judgement interest under the Court Order Interest Act, as applicable.

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.