Date Issued: April 25, 2022

File: ST-2021-005267

Type: Strata

Civil Resolution Tribunal

Indexed as: Holtkamp v. The Owners, Strata Plan NW174, 2022 BCCRT 480

Between:

ANETTE HOLTKAMP

Applicant

And:

The Owners, Strata Plan NW174

Respondent

REASONS FOR DECISION
Tribunal Member:	Richard McAndrew

INTRODUCTION

1.      This dispute is about mold in an attic and a strata lot. The applicant, Anette Holtkamp, owns a strata lot (SL14) in the respondent strata corporation, The Owners, Strata Plan NW174 (strata). Ms. Holtkamp claims the strata failed to maintain the attic, causing mold growth in the attic and her strata lot. Ms. Holtkamp claims that the strata owes her $1,155 for mold remediation expenses.

2.      The strata denies Ms. Holtkamp’s claim. The strata says that Ms. Holtkamp is responsible for the mold repair expenses because she allegedly stored items in the attic in violation of strata bylaw 3(12)(v). Further, the strata says that the attic space is limited common property (LCP) which it says that Ms. Holtkamp is responsible for.

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

JURISDICTION AND PROCEDURE

4.      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.

5.      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.

6.      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.

7.      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

8.      Ms. Holtkamp submitted late evidence, consisting of photographs of a closet inside her strata lot. I find that the strata was not prejudiced by this late evidence because it 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 Ms. Holtkamp’s late evidence and I have considered it in my decision.

ISSUES

9.      The issues in this dispute are:

a.    Must the strata reimburse Ms. Holtkamp’s mold remediation expenses relating to the attic above SL14?

b.    Must the strata reimburse Ms. Holtkamp’s mold remediation expenses relating to SL14’s closet?

EVIDENCE AND ANALYSIS

10.   In a civil claim such as this, Ms. Holtkamp, as the applicant, bears the burden of proving her claim on a balance of probabilities. I have reviewed all of the evidence, but I have only referred to the evidence and arguments to the extent necessary to explain my decision.

11.   The strata was created in 1973 and consists of multiple residential buildings. The strata filed a complete set of bylaw amendments at the Land Title Office (LTO) on December 21, 2001. The strata filed another bylaw amendment at the LTO on March 9, 2021, adding bylaw 3(12)(v). This bylaw prohibits attic storage and says owners who do so are responsible for any resulting damage. I find these are the relevant strata bylaws. Further bylaw amendments have been filed at the LTO which are not relevant to this dispute.

12.   The parties agree that mold was present under the attic’s plywood roof sheathing above SL14. Ms. Holtkamp says that mold was also present in a bedroom closet inside her strata lot. Ms. Holtkamp claims this closet mold was caused by moisture leaking from the attic. Ms. Holtkamp says the mold in the attic and her strata lot was professionally remediated on July 6, 2021. She says she paid the mold remediation business $1,155 to remove the mold, though she did not provide an invoice or receipt documenting this expense.

Attic mold

13.   Section 1(1) of the Strata Property Act (SPA) says common property includes the part of a building that is not part of a strata lot. SPA section 1(1) defines LCP as common property designated for the exclusive use of the owners of one or more strata lots. SPA section 53 says that common property can be designated as LCP in strata plan or by a special resolution, which requires a 3/4 owner vote. I find that the strata plan does not designate the attic area as LCP and there is no evidence or submissions showing that it was designated as LCP by a special resolution.

14.   Despite this, the strata argues that the attic area is LCP because it is only accessible through SL14. Since Ms. Holtkamp does not dispute this, I accept the strata’s submission that Ms. Holtkamp has exclusive physical access to the attic. However, I find that common property does not become LCP just because an owner has exclusive access to it. Rather, I find that under the SPA, common property can only become LCP if it is designated as such (see the non-binding but persuasive decision in Warren et al v. The Owners, Strata Plan VIS 3669, 2019 BCCRT 565). For the reasons discussed above, I find that the attic has not been designated as LCP and I find that it is common property.

15.   SPA section 72 and strata bylaw 8(1)(b) say the strata must repair and maintain common property. As discussed above, this includes the attic area above SL14. However, the strata argues that Ms. Holtkamp is responsible for the attic mold remediation expenses because she allegedly stored items in the attic in violation of bylaw 3(12)(v). The strata argues that this alleged attic storage caused the mold growth. Based on this, the strata argues that Ms. Holtkamp is responsible for the attic mold remediation expenses under strata bylaw 3(12)(v). Ms. Holtkamp denies storing items in the attic.

16.   The strata admits that the attic photographs provided do not show any stored items. However, it argues that the placement of wood planks and the square shape of an area of mold indicate that items were stored in the attic, resulting in mold damage. The strata also says that a tarp shown in the attic photographs was likely used by Ms. Holtkamp to cover stored items. The strata says this conclusion is supported by 2 unnamed strata council members who are allegedly employed as a structural engineer and as a renovation general contractor.

17.   Without providing a statement from these strata council members, I find that the strata’s summary of their opinions is hearsay evidence. While the CRT can accept hearsay evidence, I give this evidence very little weight because the strata did not identify the individuals or explain why it did not provide a statement directly from them.

18.   Further, CRT rule 8.3 says an expert must be identified and state their qualifications in writing in order to provide expert evidence. Without identifying the individuals or describing their credentials further, I am not satisfied that these unidentified strata council members are qualified to provide an expert opinion under CRT rule 8.3 about the mold. Further, I find that these individuals have an interest in the outcome of this dispute as strata council members. So, I find that the strata has not proven that these individuals are qualified to provide independent expert evidence about the mold and I do not accept their opinions as expert evidence.

19.   In contrast, Ms. Holtkamp says that she did not store items in the attic. She says that attic photographs show an insulating blanket in the attic, not a tarp. Ms. Holtkamp says the planks and insulating blanket were likely left by workers who previously installed the attic insulation.

20.   In the absence of supporting witnesses or photographs, I find the strata’s attic storage allegation to be speculative. In the absence of contrary evidence, I accept Ms. Holtkamp’s submission that she did not store items in the attic. So, I find that Ms. Holtkamp has not breached bylaw 3(12)(v).

21.   Based on the above, I find that the strata is responsible for repairing and maintaining the attic according to SPA section 72 and strata bylaw 8(1)(b).

22.   The strata’s obligation to repair and maintain common property is measured by the test of what is reasonable in all circumstances and can include replacement when necessary (see The Owners of Strata Plan NWS 254 v. Hall, 2016 BCSC 2363). The standard is not one of perfection. When deciding whether to repair common property, the strata has discretion to approved “good, better or best” solutions. The court (and 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 Weir v. Owners, Strata Plan NW 17, 2010 BCSC 784).

23.   Ms. Holtkamp says that she hired a mold remediation business to remove mold from the attic and her strata lot on July 6, 2021. However, Ms. Holtkamp did not provide a statement from the contractor describing the work done or whether the work was reasonably necessary.

24.   Both parties referred to an April 28, 2021 home inspection report prepared by James Dobney Inspections. The inspection report was hired by a prospective buyer of SL14 and a portion of the report was provided as evidence. Though the portion of the inspection report provided does not identify the specific inspector who prepared the report, I am satisfied that they had sufficient expertise under CRT rule 8.3 to provide an expert opinion of the attic’s condition since the report was prepared by a home inspection business. The home inspection report says that mold was observed in the attic and they recommended a consultation with a mold specialist. However, I note that the home inspection report did not recommend mold remediation.

25.   Ms. Holtkamp also says that 3 unidentified mold experts reported that the attic mold could have been caused by the lack of vent insulation and a roof leak. However, there is no evidence showing that these unidentified individuals expressed any opinions about the mold repairs that Ms. Holtkamp performed. Further, without providing statements from these individuals, I find that Ms. Holtkamp’s summary of their opinions is hearsay evidence. Since Ms. Holtkamp did not explain why she did not provide statements directly from them, I give her summary of their evidence very little weight. Further, without identifying these individuals or describing their credentials, I am not satisfied that they have sufficient expertise under CRT rule 8.3 to provide expert opinions about the mold. So, I do not accept their opinions as expert evidence.

26.   On balance, I find that Ms. Holtkamp has not proved that the strata’s common property repair obligations reasonably required it to remove the attic mold. So, I find that the strata is not responsible for reimbursing Ms. Holtkamp’s attic mold removal expenses. Further, even if Ms. Holtkamp had proved that this work was reasonably necessary, I find that, by not providing a supporting invoice or receipt, she has not proved the amount of her claimed mold remediation expenses.

27.   For the above reasons, I find that Ms. Holtkamp is not entitled to reimbursement of her mold removal expenses relating to the attic.

Strata lot mold

28.   Ms. Holtkamp also argues that moisture from the attic caused mold damage in a bedroom closet inside her strata lot. Ms. Holtkamp provided photographs showing apparent dark coloured stains running down a closet wall and a dark area on the carpet below.

29.   Bylaw 2(1) says owners are responsible for repairing and maintaining their own strata lots. I infer that Ms. Holtkamp claims that the strata is responsible for her strata lot’s alleged mold repairs because it allegedly resulted from the strata’s failure to maintain the attic. However, under the SPA and caselaw, a strata corporation is not responsible for strata lot damage resulting from inadequate common property repair or maintenance, unless the strata was negligent (see Basic v. Strata Plan LMS 0304, 2011 BCCA 231 and Kayne v. LMS 2374, 2013 BCSC 51). Notably, the courts have also confirmed that a strata corporation is not an insurer.

30.   To establish that the strata was negligent, Ms. Holtkamp must prove that the strata owed her a duty of care, the strata breached the applicable standard of care, she sustained damage, and that damage was caused by the strata’s breach (Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at paragraph 3).

31.   I find that the strata owed Ms. Holtkamp a duty to repair and maintain the attic under SPA section 72 and bylaw 8(1)(b). The standard of care owed by the strata was reasonableness. This means that in repairing and maintaining the attic area, the strata needed to act reasonably, not perfectly, in the circumstances (see Basic, referring to John Campbell Law Corp. v. Strata Plan 1350, 2001 BCSC 1342, Weir v. Strata Plan NW 17, 2010 BCSC 784, and Wright v. Strata Plan No. 205 (1996), 1996 CanLII 2460 (BCSC), aff’d (1998) 1998 CanLII 5823 (BCCA)).

32.   However, I find that Ms. Holtkamp has failed to prove that the strata breached the standard of care by failing to repair or maintain the attic or that the strata’s omissions caused mold to grow in Ms. Holtkamp’s strata lot. The only evidence that Ms. Holtkamp provided to prove that the attic was the source of her closet mold were photographs showing dark liquid stains on the closet wall and apparent mold on the closet carpet. I find that these photographs do not prove that moisture was leaking from the attic into Ms. Holtkamp’s closet as she claims. Further, even if moisture was leaking into her strata lot, I find that Ms. Holtkamp has not proved that the strata was aware, or reasonably should have been aware, of it. For the above reasons, I find that Ms. Holtkamp has not proved that the strata was negligent. So, I find that the strata is not responsible for Ms. Holtkamp’s strata lot mold remediation expenses. Further, as discussed above, I find that Ms. Holtkamp has not proved the amount of her claimed mold remediation expenses by failing to provide an invoice or receipt.

33.   For the above reasons, I find that Ms. Holtkamp has not proved that the strata is responsible for her mold remediation expenses and I dismiss her claim.

CRT FEES AND EXPENSES

34.   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 Ms. Holtkamp was not successful, I find that she is not entitled to reimbursement of CRT fees. The strata did not claim reimbursement of dispute-related expenses.

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

ORDER

36.   I dismiss Ms. Holtkamp’s claims and this dispute.