Date Issued: March 31, 2022

File: ST-2021-000151

Type: Strata

Civil Resolution Tribunal

Indexed as: Gaspar v. MacDonald, 2022 BCCRT 367

Between:

ANTO GASPAR and LJILJANA GASPAR

ApplicantS

And:

SCOTT ALAN MACDONALD, ANDREA TRICKETT and The Owners, Strata Plan NW2128

RespondentS

REASONS FOR DECISION
Tribunal Member:	Richard McAndrew

INTRODUCTION

1.      This dispute is about alterations to a duplex in the respondent 2-unit strata corporation, The Owners, Strata Plan NW2128 (strata).

2.      The applicants, Anto Gaspar and Ljiljana Gaspar co-own strata lot 1 (SL1). The individual respondents, Scott MacDonald and Andrea Trickett co-own strata lot 2 (SL2). The applicants claim that the respondent owners improperly altered their deck and converted the applicants’ limited common property (LCP) storage area to the respondents’ use.

3.      The applicants claim the following relief:

a.    $12,000 in damages for trespass to their LCP storage area.

b.    An order requiring the respondents to restore their deck to its previous condition.

c.    An order requiring the respondents to hire an engineer to inspect the beam’s condition and the condition of the applicants’ waterproofing protection layer.

d.    An order requiring the respondents to perform the engineer’s recommended repairs.

e.    An order requiring the respondents to restore the storage area to the strata plan’s specifications.

4.      The applicants and the respondents are self-represented. The strata is in default.

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.

Late evidence

9.      The respondents submitted late evidence, consisting of witness statements, photographs and a video. The applicants objected to this late evidence. I find that applicants have not prejudiced by this late evidence because they had an opportunity to respond. Further, I find that this late evidence is relevant to the issues raised in this dispute. So, I have allowed the respondents’ late evidence and I have considered it in my decision.

Claim not raised in the Dispute Notice

10.   In their submissions, the applicants added a claim requesting the respondents to provide structural support for their deck railing. This claim was not included in the Dispute Notice. Though the CRTA and CRT rules permit applicants to request to amend the Dispute Notice to add new claims or remedies, the applicants did not do so. I find the purpose of a Dispute Notice is to define the issues and provide notice to the respondents of the claims against them. CRT rule 1.17 says that the Dispute Notice will only be amended after the dispute has entered the CRT decision process where exceptional circumstances apply. I find no exceptional circumstances here that would justify adding new claims or remedies at this late stage in the CRT process. Therefore, I decline to address the applicants’ claim about the railings.

ISSUES

11.   The issues in this dispute are:

a.    Did the respondents trespass on the applicants’ LCP storage area? If so, how much damages do the respondents owe the applicants?

b.    Must the respondents remove the wall from the storage area?

c.    Must the respondents remove portions of their deck?

d.    Must the respondents hire an engineer to inspect the beam and waterproofing?

e.    Must the respondents perform the engineer’s recommended repairs?

EVIDENCE AND ANALYSIS

12.   In a civil claim such as this, the applicants must prove their claims on a balance of probabilities. I have read all the parties’ submissions but refer only to the evidence and argument that I find relevant to provide context for my decision.

13.   The strata is a side-by-side duplex. The registered strata plan shows that the strata consists of a 2-storey residential building and a separate single-storey carport structure. The residential building is divided into two strata lots. Each strata has a small LCP deck at the front and a larger LCP deck at the rear. Both strata lots have an LCP parking area and an LCP storage area in the carport structure. Based on the strata plan, I find that the land surrounding the structures is CP.

14.   There is no evidence that the parties were following the procedural requirements of the Strata Property Act (SPA). It is clear from the parties’ submissions that they were operating the strata informally with no strata council meetings, contrary to the SPA.

15.   The strata did not pass amended bylaws, and therefore, the SPA’s Schedule of Standard Bylaws apply to this dispute.

Did the respondents trespass on the applicants’ LCP storage area?

16.   The applicants claim the respondents improperly built a wall through the applicants’ LCP storage area in the carport structure.

17.   The strata plan shows that SL1 has an LCP storage area in the carport, measuring approximately 2.93 to 2.95 meters wide and 1.14 meters deep. The SPA says that strata lot owners have exclusive use of their LCP. The applicants claim that the respondents are trespassing on the applicants’ LCP by partially blocking this area with a wall.

18.   I have considered whether this claim is within the CRT’s strata jurisdiction, as it is essentially a claim between 2 sets of owners. CRTA Section 121 gives the CRT jurisdiction over a claim “in respect of” the SPA and sets out the scope of the CRT’s strata property jurisdiction. Under CRTA section 121(1), the CRT has jurisdiction to decide a claim “in respect of” the SPA. By contrast, CRTA section 118 gives the CRT jurisdiction to resolve a claim for damages based in tort, including trespass, that is not “in respect of” the SPA. In the non-binding but persuasive decision in Alameer v. Zhang, 2021 BCCRT 435, a Vice Chair found that a claim “in respect of” the SPA is one that could only proceed by relying on the SPA. I find that this dispute could only proceed by relying on the SPA because the applicants’ right to exclusive use of their LCP only arises under the SPA. So, I find that I have jurisdiction under the CRT strata property jurisdiction to consider this claim.

19.   In Lahti v. Chateauvert, 2019 BCSC 1081, the court said that trespass to land consists of entering upon the land of another without lawful justification, directly interfering with another’s land. I find that this includes entry onto the applicants’ LCP storage area.

20.   The respondents admit placing a wall in the applicants’ LCP storage area. The applicants provided a photograph showing their storage area only 32 cm deep after the respondents built the wall. Since the respondents do not dispute this, I accept this measurement as accurate and find that the respondent owners’ carport wall blocks approximately 82 cm of the applicants’ LCP storage area. I find that this interferes with the applicants’ use of their LCP storage area.

21.   However, Andrea Trickett says that Mr. Gaspar specifically asked the respondents to place the wall in that location in the carport. Andrea Trickett says that Mr. Gaspar wanted to replace the carport’s storage areas with a straight wall. The respondent owners provided a June 28, 2021 statement from HK, a friend of the applicants. HK said that they heard Mr. Gaspar ask the respondent owners to place the wall there in March 2020. Further, Andrea Trickett says that the respondent owners asked Mr. Gaspar to remove his possessions from the storage area so they could build the wall there. Andrea Trickett says that Mr. Gaspar did so without objection.

22.   The applicants deny consenting to the wall’s construction. The respondents provided a July 27, 2021 statement from JG, a deck contractor. JG says that an applicant shoved a subcontractor when they stepped on the applicants’ deck to attach a railing. The respondents also provided a video showing the applicants angrily chasing a respondent away from a CP driveway near the applicants’ carport. Based on the applicants’ aggressive behavior, I find it unlikely that they would have let the respondents complete the construction of the wall through their LCP storage area if they had not consented to it. On balance, I find it more likely that the applicants did consent to the storage area wall.

23.   For the above reasons, I find that there was no trespass and I dismiss this claim.

Must the respondents remove the wall from the storage area?

24.   The applicants ask for order removing the wall from the storage area to return it to the strata plan’s specifications. The SPA says that the applicants are entitled to exclusive use their LCP. However, as discussed above, I find that the wall installed by the respondents blocks a portion of their LCP storage area.

25.   Though I have found above that the applicants consented to the wall’s installation, I find that the applicants can withdraw this consent and that they have done so by applying for dispute resolution. Based on this withdrawal of consent, I find the applicants are entitled to the full and exclusive use of their LCP storage area, as designated on the strata plan.

26.   For the above reasons, I order that the LCP storage area be restored to the strata plan’s specifications within 6 months. Since both owners agreed to build the wall, I find that it is not appropriate to require the respondents to pay for the restoration expense. Rather, I order both sets of owners to equally pay the costs of removing the wall, based on the strata’s responsibility to repair and maintain LCP under SPA section 72 and bylaw 8.

Must the respondents remove portions of their deck?

27.   The applicants claim that the respondent owners breached the bylaws and SPA section 71 by altering their rear deck. Section 71 of the SPA says that a strata corporation must not make a significant change to the use or appearance of common property unless it is approved by a 3/4 vote at a general meeting. While the precise wording of section 71 of the SPA governs the actions of the strata corporation and not individual owners, the court has applied section 71 to owners who make alterations to common property without strata permission (see Foley v. The Owners, Strata Plan VR 387, 2014 BCSC 1333).

28.   It is undisputed that the respondents renovated their rear deck. The applicants say that respondents’ new deck improperly extends over CP and has a larger cover. In contrast, the respondents say that their new deck actually occupies a smaller area than the previous deck.

29.   The strata plan shows that both strata lots have small LCP decks at the rear of the residential building. The strata plan shows that both LCP decks extend from the edge of the residential building and attach to the edge of the LCP carport, located approximately 3.5 meters away.

30.   The respondents provided a June 15, 2021 survey plan which shows that both strata lots have significantly different rear decks than shown on the strata plan. Since the survey plan was prepared by a licensed surveyor, I find the surveyor had sufficient education, training and expertise to prepare the survey. So, I find that the survey plan meets the criteria for an expert report under CRT rule 8.3.

31.   The June 15, 2021 survey plan shows that both strata lots have built large decks extending from the edge of their LCP deck areas, over the LCP carport structure. SL2’s deck is rectangular and measures approximately 9.26 meters long and 6.24 meters wide. SL1’s deck is irregularly shaped and is approximately 6.1 to 7.27 meters long and 6.37 meters wide. Based on the strata plan, I find that both decks extend past the LCP carports and onto the CP land beyond.

32.   Based on the strata plan and the June 15, 2021 survey plan, I find that SL2’s new deck extends approximately 3.49 meters over the CP. The respondents’ previous deck had an upper level above the carport and a lower level at ground level beyond the carport. The respondents say their new deck’s total footprint is smaller than that of the previous deck. Since the applicants do not dispute this, I accept this as accurate.

33.   The applicants argue that the respondents’ deck renovations violated the bylaws or SPA section 71.

34.   Standard bylaw 6(1) says that an owner must obtain the written approval of the strata corporation before altering CP or LCP. Since the strata has only 2 sets of owners, bylaw 6(1) effectively requires the respondents to obtain the applicants’ written approval before making any such alteration. The applicants argue that neither they, nor the strata, approved the respondents’ renovations.

35.   As discussed above, SPA section 71 says that a strata corporation must not make a significant change to the use or appearance of common property unless it is approved by a 3/4 vote at a general meeting.

36.   So, l must determine whether the respondents’ deck renovations constitute alterations to CP or LCP that fall within the scope of bylaw 6 in that they have significantly changed the use or physical appearance of the CP or LCP (see, Anthony v. Schnapp, 2016 BCSC 1839, at paragraph 33)

37.   In Foley, the court set out the following criteria for determining what is a significant change in use and appearance under section 71 of the SPA:

a.    Is the change visible to other residents or the general public?

b.    Does the change affect the use or enjoyment of another unit or an existing benefit of another unit?

c.    Is there a direct interference or disruption because of the changed use?

d.    Does the change impact the marketability or value of the unit?

e.    How many units are in the strata and what is the strata’s general use?

f.     How is the strata governed itself in the past and what has it allowed?

38.   Based on the parties’ submissions and photographs provided, I find that the respondents’ deck renovation is visible to the applicants.

39.   The applicants argue that the respondents’ new deck disrupts the use of their deck. Specifically, the applicants say that the respondents’ new deck larger cover reduces the amount of sunlight on their deck. Further, the applicants say the deck is more visible to the applicants because the entire deck is at the same height as the applicants’ deck. The respondents’ previous deck was partially located at ground level, below the applicants’ deck. The respondents say their awning does not affect the applicants’ light access since the applicants’ deck is located on the southwest portion of the property.

40.   On balance I find that the respondents’ deck renovation does affect the applicants’ sight lines to some degree. So, I find that the changes likely have somewhat negatively affected the applicants’ use of their deck. However, I find that the impact on the applicants’ use of the CP is minimal since the renovated deck is smaller than the previous deck.

41.   The applicants argue that the deck renovations have reduced their strata lot’s marketability because their deck is no longer waterproofed and a support beam has removed. The applicant provided photographs showing beam work and exposed waterproofing on their deck.

42.   The respondents say that this beam was unstable and needed to be reinforced. They say that they beam was not removed. Rather, they say that they repaired the beam and now it is secure. Further, the respondents say that their deck renovation likely increased the strata lots’ property value. They say the previous deck was rotten and structurally unsafe and now the deck looks better and is structurally sound. I find that the applicants have not proved that the beam work reduced SL1’s marketability.

43.   The respondents admit removing a waterproof protection from the edge of the applicants’ deck. The respondents say that this was done because the applicants had improperly wrapped the waterproof layer from their deck around the support beam. Based on the applicants’ photographs showing exposed waterproofing on their deck, I find that the respondents’ removal of waterproofing protection from the edge of the applicants’ deck likely reduced SL1’s marketability somewhat. The respondents’ beam and waterproofing work is discussed further below.

44.   I have also considered how the strata has governed itself in the past. It is undisputed that the owners have not previously followed the strata corporation procedures set out in the SPA or the bylaws. However, the applicants argue that they discussed and worked together on projects that affected the CP with the previous owners. Further, the applicants say the owners would discuss and share common expenses. In doing so, the applicants say that they complied with the spirit of the SPA.

45.   The respondents submitted a July 28, 2021 statement from KW, the former co-owner of SL2. KW said that the applicants never once discussed the strata during the 14 years she lived next to the applicants at SL2. KW says that owners of both strata lots made improvements to their own “sides” without seeking approval from the other. Further, the respondents say that the applicants told them when they moved in that each owner would just take care of their own half the of property

46.   The applicants argue that KW’s statement is inaccurate. The applicants say that they discussed strata issues with KW’s spouse, not KW. Further, the applicants argue that KW never needed the applicants’ permission to make alterations because KW’s renovations did not interfere with the applicants’ use of their own property. The applicants say that they were not concerned with KW’s renovations on her “half of the property” as long as it did not damage SL1. I find that this is generally consistent with the respondents’ submissions and KW’s statement that the owners treated property as separate lots, rather than as a strata corporation.

47.   The respondents refer to the CRT decision in Richardson v. Simmons, 2020 BCCRT 241. In Richardson, a tribunal member considered whether the construction of a deck extension over CP was a significant change. The tribunal member found that the strata had a long history of allowing owners to extend their decks into common property without approval from the ownership under section 71 of the SPA. The tribunal member found that the strata’s historical treatment of deck extensions outweighed the other factors set out in Foley. So, the tribunal member found that the deck extension was not a significant change in the use or appearance of common property under section 71 of the SPA. Although the decision in Richardson is non-binding, I find the reasoning persuasive and apply it here and find that the owners have a history of performing alterations without seeking each others’ approval.

48.   The applicants relied on the decision in Anthony, cited above. The court in Anthony found that an owner could not rely on the strata’s informal operation to make alterations without the strata’s approval in the face of opposition from the other owner. However, I find that the facts in this dispute significantly differ from those in Anthony since it is undisputed that the respondents notified the applicants of the proposed renovation but the applicants did not respond. Without expressing an objection to the renovations, I find that respondents’ reasonably relied on the parties’ history of not requiring each others’ approval under bylaw 6(1).

49.   In weighing the above Foley factors, I find that the respondents’ deck renovation was not a significant change in the use or appearance of common property under section 71 of the SPA. So, I dismiss the applicants’ claim to remove the deck renovations.

Must the respondents hire an engineer to inspect the beam and waterproofing?

50.   The applicants claim that the respondents severed a supporting beam in the LCP carport, under the applicants’ deck. The applicants also claim that the respondents pierced the building envelope, causing water damage. However, based on the photographs and the parties submissions, I find that this claim relates to the applicants’ deck waterproofing, not a building envelope.

51.   The applicants argue that this violated the bylaws and SPA section 66. SPA section 66 says that owners own a share of the CP, based on their unit entitlement. I find that this section is not relevant to this claim. However, I do find that SPA section 71 applies to CP and LCP alterations such as these. To determine whether these were a significant change in the CP or LCP, I consider the Foley factors discussed above.

52.   The respondents admit that their contractors severed a horizontal beam that ran under both decks. The respondents say this was necessary to provide proper sloping for their new single level deck. However, the respondents say that the severed beam was properly reconnected and secured by 6 vertical beams. The respondents say the beam was previously only supported by 5 vertical beams.

53.   The respondents provided a July 28, 2021 statement from Tyler Strohm, an apprentice carpenter who worked on the deck. As an apprentice carpenter, I am satisfied that Mr. Strohm has sufficient training and experience to provide an expert carpentry opinion under CRT rule 8.3 about deck construction. However, I am not satisfied that he has sufficient training and experience to provide an expert engineering opinion about the structural integrity of the beam work. In the absence of expert engineering evidence, I find that the respondents’ severance of a supporting beam raises significant concerns about the carport’s structural integrity, and that of the applicants’ decks above. I find that this structural concern is sufficient on its own to conclude that the beam work was a significant alteration of the LCP.

54.   The applicants also claim that the respondents improperly removed waterproofing protection from their deck. Mr. Strohm said that the applicants had improperly installed “peel and stick” waterproofing around the beam. Mr. Strohm says this funneled water into the framing of the respondents’ previous deck, causing rot. Though Mr. Strohm says he rewrapped and repaired the beam to waterproof it, he does not say that he repaired the applicants’ waterproof protection that he had removed from their deck.

55.   Based on the photographs provided, and both sets of owners’ submissions, I find that the respondents removed a portion of the applicants’ waterproofing protection layer from the edge of their deck. I find that this likely exposed the applicants’ deck to an increased risk of water damage, reducing the applicants’ use of their deck.

56.   Further, as discussed above, I find that the respondents’ removal of the waterproofing protection also reduced SL1’s marketability.

57.   For the above reasons, I find that the respondents’ beam work and waterproofing removal were significant alterations of the LCP. Further, since it is undisputed that the owners did not approve the alterations by a 3/4 vote, I find that the respondents breached SPA section 71.

58.   I find that the applicants’ request for an engineering assessment is appropriate based on the structural concerns raised by the respondents’ alterations. So, I order the respondents to retain an engineer to perform a structural assessment of the beam that they altered and the waterproofing layer they partially removed within 6 months of this decision. This engineering report will be prepared at the respondent owners’ expense. The respondent owners must distribute the engineering report to the applicants within 7 days of receipt.

Must the respondents perform the engineer’s recommended repairs?

59.   For the reasons discussed above, I find it is appropriate to order the respondents to perform the engineer’s recommended repairs, if any. So, I order the respondents to perform all remedial work recommended by the engineer report required to support the altered beam and repair the waterproof seal to the edge of the applicants’ deck. The repairs must be performed, at the respondent owners’ expense, within 6 months of receipt of the engineering report.

CRT FEES AND EXPENSES

60.   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. Since the applicants were partially successful, I find that they are entitled to reimbursement of one-half of their CRT fees. This is $112.50.

61.   The applicants claim reimbursement of dispute-related expenses. Specifically, they claim reimbursement of $4,000 in legal expenses. The applicants provided a July 12, 2021 lawyer’s letter saying that they had charged $2,996.36 for legal services. The lawyer also estimated that further legal costs of $1,000 would likely be incurred. CRT Rule 9.5(3) says that except in extraordinary circumstances, the CRT will not order reimbursement of legal fees in a strata property dispute. Rule 9.5(3) says that relevant factors in assessing whether the dispute is extraordinary, the CRT may consider the complexity of the dispute, to what degree representatives were involved, whether there was unnecessary delay or expense. The applicants argue that an award of legal fees is appropriate because the respondents allegedly acted reprehensibly during the dispute. However, I find that these allegations are not relevant since the applicants have not provided evidence or submissions showing that the respondents’ alleged conduct caused any unnecessary delay or expense. Further, I find that the issues in the dispute were not particularly complex. For the above reasons, I find that there are no extraordinary circumstances in this dispute to justify reimbursement of legal fees. So, I dismiss the applicants’ claim for reimbursement of legal fees and disbursements.

62.   The applicants also seek reimbursement of dispute-related expense of $29 for city land fill charges and $8,000 for cabinets that were allegedly disposed of after the storage area was altered. I find that the applicants have not proved that either of these expenses were reasonably related to participation in this dispute. So, I dismiss these requests for reimbursement.

63.   The applicants also request special costs in the amount of $5,000 based on the respondent owners’ allegedly reprehensible conduct. I find that CRT Rule 9.5 does not permit special cost awards. So, I dismiss this claim.

64.   The respondents did not request reimbursement of dispute-related expenses.

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

ORDERS

66.   I order that:

a.    Within 30 days, the respondent owners pay the applicants $112.50 in CRT fees.

b.    Within 6 months of this order, the respondent owners must retain an engineer to perform a structural assessment of the beam that they altered and an assessment of the portion of the waterproofing layer that the respondent owners removed. This engineering report will be prepared at the respondent owners’ expense. The engineering report must be distributed to the applicants and the strata within 7 days of receipt.

c.    Within 6 months of receiving the completed engineering report, the respondent owners must perform all repairs to the beam support integrity and the waterproofing layer at the edge of the applicants’ deck, as recommended in the report.

d.    Within 6 months of this decision, the applicants and the respondent owners must restore the LCP storage areas to the strata’s plan specifications. The cost of this work must be shared equally between the applicants and the respondent owners.

67.   All other claims are dismissed.

68.   The applicants are entitled to post judgment interest from the respondent owners under the Court Order Interest Act, as applicable.

69.   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.