Date Issued: April 14, 2022

File: ST-2021-006856

Type: Strata

Civil Resolution Tribunal

Indexed as: Malin v. The Owners, Strata Plan VR1543, 2022 BCCRT 439

Between:

PAUL MALIN

Applicant

And:

The Owners, Strata Plan VR1543

Respondent

REASONS FOR DECISION
Tribunal Member:	Laylí Antinuk

INTRODUCTION

1.      This is a strata dispute about bylaw validity and enforcement.

2.      The applicant, Paul Malin, owns strata lot 23 (SL23) in the respondent strata corporation, The Owners, Strata Plan VR1543 (strata). Mr. Malin says the strata’s move-in fee bylaw contravenes the Strata Property Act (SPA). Mr. Malin also says the strata is not enforcing certain bylaws properly and has “breached procedure and proper practice” when dealing with his complaints. He asks me to order the strata to refund a move-in fee he paid, properly enforce certain bylaws, “acknowledge” that the move-in fee bylaw was put in place improperly and follow correct procedure when dealing with owner complaints.

3.      The strata says the move-in fee bylaw does not contravene the SPA and was put in place properly. The strata also says that where bylaw breaches are trivial, which it says is the case here, it is not obliged to enforce bylaws just because it can. It also says it has properly dealt with Mr. Malin’s complaints.

4.      Mr. Malin represents himself. A strata council member represents the strata.

5.      As explained below, I dismiss Mr. Malin’s claims.

JURISDICTION AND PROCEDURE

6.      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). 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 parties that will likely continue after the CRT process has ended.

7.      The CRT has the discretion to decide how to hold the hearing. A hearing can occur by writing, telephone, videoconferencing, email, or a combination of these. I have decided that a written hearing is appropriate in this case. I find I can properly assess and weigh the documentary evidence and submissions before me without resort to an oral hearing.

8.      The CRT can accept any evidence that it considers relevant, necessary and appropriate, even if the evidence would not be admissible in court. The CRT may also ask parties and witnesses questions and inform itself in any other appropriate way.

9.      In resolving this dispute, the CRT may order a party to pay money, or to do or stop doing something. The CRT may also order any other appropriate terms or conditions.

ISSUES

10.   The issues in this dispute are:

a.    Does the strata’s move-in fee contravene the SPA? If so, should I order the strata to refund Mr. Malin’s $150 move-in fee?

b.    Has the strata properly investigated Mr. Malin’s complaints and enforced the bylaws? If not, what remedy (if any) is appropriate?

c.    Has the strata “breached procedure and proper practice” when dealing with Mr. Malin’s complaints? If so, what remedy (if any) is appropriate?

EVIDENCE AND ANALYSIS

11.   As the applicant in this civil claim, Mr. Malin must prove his claims on a balance of probabilities (meaning “more likely than not”). I have reviewed all the parties’ evidence and argument but refer only to what is necessary to explain my decision. I note that the strata did not submit any evidence despite having the opportunity to do so.

12.   The strata was created in 1985 under the Condominium Act and continues under the SPA. It consists of 39 residential strata lots in a single building. In 2020, the strata repealed and replaced all previous bylaws by filing a consolidated set of bylaws with the Land Title Office. I discuss the relevant bylaws below.

Does the move-in fee contravene the SPA?

13.   The strata’s bylaws impose a $150 move-in fee for all owners, tenants and occupants (see bylaw 10.1). I find that this move-in fee is a user fee under the SPA.

14.   The SPA and Strata Property Regulation (Regulation) require user fees to be reasonable and set out in a bylaw or a properly ratified rule (SPA section 110 and Regulation section 6.9). Here, the strata undisputedly passed bylaw 10.1 validly. So, the only question is whether the $150 move-in fee is reasonable.

15.   The courts have said “reasonable” means objectively reasonable, and the test for whether move-in fees are reasonable depends on:

a.    Prevailing market conditions at the time; and/or

b.    The costs incurred by the strata corporation in facilitating moves in and out of the property.

See The Owners, Strata Plan LMS 3883 v. De Vuyst, 2011 BCSC 1252 and Zeng v. The Owners, Strata Plan VR 55, 2018 BCCRT 190 at paragraph 90.

16.   Neither party submitted any objective evidence about prevailing market conditions, or the costs incurred by the strata to facilitate moves into the strata building. For example, I have no evidence to show how much time or money the strata or its strata manager has spent on moves or damage caused by moves in the past. There is also no evidence to show how common move-in fees are or what the average move-in fee is in a strata property in the current market.

17.   That said, the strata argues that “a simple online search of rental apartment listings” shows that a $150 move-in fee is standard. Mr. Malin does not dispute that $150 move-in fee may be standard for “rental apartment listings.” Instead, he argues that the strata property at issue here is not a rental building and says, “rental buildings have several costs that result from tenant move ins and move outs which makes the move in fee reasonable.”

18.   For example, Mr. Malin argues that rental buildings incur moving-related costs for things like unit inspection and cleaning, credit checks, fob/intercom reprograming, vacancy advertising, and on-site staff facilitating moves. Mr. Malin says he is a strata council member, so he knows the strata incurs none of these types of costs when people move into the building. Given this, he argues that the move-in fees are unreasonable in all cases. Additionally, Mr. Malin says he rents his strata lot fully furnished so the fee is also unreasonable in his specific case.

19.   The strata says it incurs “administrative costs” associated with every move regardless of whether the move involves furniture. The strata says these costs include paying its strata manager to do paperwork to process new residents. The strata also draws my attention to 2 prior CRT cases in which tribunal members found move-in fees reasonable despite the fact that the moves at issue involved fully furnished strata lots. See The Owners, Strata Plan LMS 2174 v. Angara Properties Ltd., 2020 BCCRT 54 and Wadler v. The Owners, Strata Plan VR 495, 2018 BCCRT 567. The strata also says the fees add to the operating budget to repair any moving-related damage.

20.   Mr. Malin argues that bylaw 10.3 already makes owners or tenants responsible for the cost of moving-related damage. I disagree. Bylaw 10.3 allows the strata to recoup the cost of removing any boxes or waste resulting from a move. I find that this bylaw does not allow the strata to recover the cost of damage caused by a move. Instead, it allows cost-recovery for garbage removal.

21.   Overall, I find the parties’ arguments about the move-in fee equally persuasive (and equally unsupported by objective evidence). So, I find there is an evidentiary tie. As noted, Mr. Malin bears the burden of proving his position is correct on a balance of probabilities. I find that he has not done so. As a result, I am unable to conclude that the move-in fee is unreasonable. So, I dismiss Mr. Malin’s move-in fee claims.

Has the strata properly investigated complaints and enforced its bylaws?

22.   Mr. Malin says that his neighbour (neighbour) keeps a kitty litter box (box) on her balcony and installed a special door (cat door) in a window for her cat to access the box. He says this violates the bylaws.

23.   The relevant bylaws say:

a.    Owners must not use strata lots or common property in a way that causes a nuisance or hazard to anyone or unreasonably interferes with the rights of others to use and enjoy the strata property (bylaws 3.2(a) and (c), which I will call the nuisance bylaws),

b.    Owners must not store anything other than outdoor furniture or potted plants on their balconies (bylaw 3.5(j), which I will call the balcony bylaw),

c.    Owners must obtain the strata’s written approval before making alterations to a strata lot, including alterations to exterior windows (bylaw 7.2), and

d.    An “alteration” includes the replacement, modification or addition of any building component (bylaw 7.1).

24.   Mr. Malin undisputedly complained to the strata about the cat door and the box, which he says he can smell and see from SL23. The strata undisputedly investigated the complaint and decided the alleged violations were trivial, so it chose not to take any enforcement action. Mr. Malin says the strata’s investigation was not good enough and the violations are not trivial.

25.   I begin with the strata’s investigation, then turn to its enforcement decision.

26.   The SPA does not set out any procedures for bylaw complaint investigations. The courts have said that a strata council has the discretion to investigate bylaw complaints as it sees fit, provided it complies with the principles of procedural fairness and is not significantly unfair to anyone. See Chorney v. Strata Plan VIS 770, 2016 BCSC 148. The CRT has also said a strata’s investigation must be objective. See Cavin v. The Owners, Strata Plan VR 2526, 2021 BCCRT 1329.

27.   Mr. Malin acknowledges that a strata council member (investigator) attended SL23 and stood on SL23’s balcony to investigate his complaint. However, he claims the investigation lasted only “15 seconds” and says the investigator did not investigate other areas of SL23 or open a bedroom window.

28.   I am not persuaded that the strata should have investigated anything other than SL23’s balcony or for any particular amount of time. As noted, Mr. Malin says the investigator did not open a bedroom window or investigate beyond the balcony. However, he does not say that he asked the investigator to do any of those things or explained their significance at the time. There is no suggestion that the investigator refused to investigate any area of SL23.

29.   Mr. Malin also says the box’s smell is not consistent and depends on the wind and how full the box is. Again, there is no suggestion that Mr. Malin explained this at the time or asked the investigator to stay in SL23 for any specific length of time or return to SL23 on a particularly smelly day. I find it was open to Mr. Malin to ask the investigator to return to SL23 on a windy or smelly day. There is no evidence to show that he did so.

30.   Given the above, I am not persuaded that the strata’s investigation was unreasonable in the circumstances, particularly given the investigator’s conclusions, which I discuss further below.

31.   I turn to the strata’s enforcement decision, beginning with the legal principles.

32.   The courts have said strata councils have a certain amount of discretion when it comes to bylaw enforcement. For example, strata councils need not enforce trifling or trivial bylaw infractions. Strata councils have a duty to enforce bylaws, but “enforcement vigour must be tempered with prudence and good faith.” That said, a strata’s enforcement discretion is limited by owners’ objectively reasonable expectations that the strata will consistently enforce its bylaws within the SPA’s parameters. See Abdoh v. Owners of Strata Plan KAS 2003, 2013 BCSC 817 at paragraph 36 (affirmed 2014 BCCA 270) and Strata Plan LMS 3259 v. Sze Hang Holding Inc., 2016 BCSC 32 at paragraphs 237-238.

33.   The strata says it decided the alleged violations were trivial because the investigator determined that the box cannot be seen or smelled from SL23, which the strata says is 1 floor down and across the building from the box.

34.   The strata also says the cat door does not violate the alteration bylaws because the neighbor received the strata’s approval for the window alterations before installing the cat door in 1988. However, the strata says the paperwork cannot be located after so many years.

35.   On balance, I find it unproven that the cat door violates the alteration bylaws. I find that the SPA and Regulations do not require the strata to retain alteration approvals for 34 years. So, I find it reasonable that the strata does not have a copy of its approval anymore. Despite the lack of documentary evidence, I am satisfied the strata approved the alterations in 1988 because there is no evidence to suggest otherwise.

36.   The strata argues that Mr. Malin has failed to submit any evidence to show that the box “is an actual problem or danger” to the strata building or residents. The strata says the box has been on the neighbour’s balcony since 1988 without any problems or other complaints. The strata acknowledges that the box violates the balcony bylaw. However, the strata says that many owners have breached the balcony bylaw over the years by storing items on their balconies, including bicycles, large quantities of toilet paper, bird feeders and decorative lights. So, the strata says the owners do not have an objectively reasonable expectation that the strata will enforce the balcony bylaw consistently. I find the strata’s arguments persuasive. My reasons follow.

37.   As noted above, Mr. Malin claims the box can be seen and smelled from SL23 but the investigator found it could not be seen or smelled. Mr. Malin claims that it is “both unsightly and unpleasant to watch someone shovel cat excrement from a litter box, when sitting on the balcony trying to enjoy the view.”

38.   I find that the parties’ submissions directly contradict one another. The strata says the box cannot be seen from SL23’s balcony and Mr. Malin says it can. This contradiction matters because I find that part of the strata’s decision about triviality turns on the box’s visibility.

39.   Mr. Malin bears the burden of proof, yet without explanation he did not submit photographs (or other evidence) to show the box’s visibility. I find this type of evidence relevant and find it would not have been difficult to provide. In the circumstances, I find it appropriate to draw an adverse inference. An adverse inference allows a decision maker to assume that a party did not provide certain evidence because that evidence would not support their case. Here, I find it more likely than not that the box cannot be seen from SL23’s balcony. So, I find it reasonable that the strata concluded the box is, at most, a trivial violation of the balcony and nuisance bylaws.

40.   Additionally, on balance, I accept that no one else has complained about the box or door because Mr. Malin submitted no evidence to prove otherwise. Mr. Malin says the strata is simply accepting his neighbour’s word about past complaints because the current strata council cannot know whether anyone has ever complained about the box since 1988. However, I find nothing in the evidence to suggest that the neighbour is being untruthful, and Mr. Malin bears the burden of proof. I also note that Mr. Malin says he is on the council, so I find it more likely than not that he would know of other (recent) complaints about the box.

41.   Mr. Malin argues that bylaw enforcement is complaints-based. So, he says the strata needs to provide evidence of past balcony bylaw complaints it rejected to prove that the owners do not expect the strata to consistently enforce the balcony bylaw. I disagree for 2 reasons.

42.   First, Mr. Malin bears the burden of proof not the strata. Second, and more significantly, I find that an owner’s reasonable expectations are influenced by a variety of objective factors, including the easily observable behaviour of other strata residents. For example, if owners see that other strata residents regularly keep things like bicycles and bird feeders on their balconies, I find it likely that owners would not expect the strata to enforce the balcony bylaw consistently. I also find that such an expectation would be reasonable because it is based on objective, easily observable information. Relatedly, I find it unlikely that a strata, acting reasonably, would consistently ignore a large volume of complaints about balcony bylaw breaches. So, I find that more complaints would likely lead to more enforcement, resulting in less balconies with bikes and bird feeders on them.

43.   Taking all this into account, I dismiss Mr. Malin’s claims about the cat door and box.

Has the strata “breached procedure and proper practice”?

44.   Mr. Malin argues that the strata has continuously breached “procedure” when dealing with his complaints, which he says has led to unnecessary legal fees. He says the strata has “continually attempted to avoid any form of recorded communication through this process by initiating private phone calls and using council meetings as a platform to discuss my complaints as an owner when a formal hearing has not been requested.” He also claims the strata “provided none of the evidence” he requested about the cat door approval. Mr. Malin also objects to the strata engaging a lawyer to write him a letter about his bylaw complaint. He says the strata should only engage legal counsel to “confirm legislation or provide an answer from a legal stand point.”

45.   Mr. Malin does not refer to any SPA provisions or bylaws that set out procedures or practices that the strata has failed to follow.

46.   With a few exceptions, I find nothing in the bylaws or SPA that requires a strata council to communicate with owners about their complaints, or with each other about an owner’s complaints, in any specific way. The exceptions to this are SPA section 35 and section 34.1. Section 35 requires the strata to take minutes at every council meeting, which must contain the results of any votes taken at the meeting. There is no suggestion that the strata has not taken minutes as required. SPA section 34.1 allows an owner to request a strata council hearing in writing. Once a hearing is requested, the strata must hold the hearing within 4 weeks and must give the applicant a written decision within 1 week of the hearing, if a decision is requested. There is also no suggestion that the strata contravened section 34.1.

47.   When it comes to the “evidence” Mr. Malin says the strata did not provide on request, such as its written approval for the cat door and an Assumption of Liability signed by the neighbour, I note that SPA section 35 sets out certain types of records that the strata must prepare or retain. SPA section 36 says that the strata must make the section 35 records available to a strata lot owner on request. In Kayne v. The Owners Strata Plan LMS 2374, 2007 BCSC 1610, the court said owners are not entitled to documents beyond those listed in SPA section 35.

48.   Section 4.1 of the Regulations sets out record retention time periods. As noted, the strata says a previous council approved the cat door window alteration in 1988, about 34 years ago. As stated above, I find that the Regulations do not require the strata to retain a copy of this approval for 34 years.

49.   Lastly, nothing in the SPA or bylaws prevents the council from hiring a lawyer for any reason it sees fit.

50.   For all these reasons, I do not accept that strata “breached procedure and proper practice” when dealing with Mr. Malin’s complaints. I dismiss this aspect of Mr. Malin’s claim.

CRT fees and dispute-related expenses

51.   Mr. Malin did not succeed in this dispute. So, under CRTA section 49 and the CRT rules, I dismiss his claim for CRT fee reimbursement. Neither party claims any dispute-related expenses, so I make no order about that.

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

ORDER

53.   I dismiss Mr. Malin’s claims and this dispute.