Date Issued: July 11, 2022

File: ST-2022-000612

Type: Strata

Civil Resolution Tribunal

Indexed as: Young v. The Owners, Strata Plan 111, 2022 BCCRT 793

Between:

SHAWNA YOUNG

Applicant

And:

The Owners, Strata Plan 111

Respondent

REASONS FOR DECISION
Tribunal Member:	Kate Campbell, Vice Chair

INTRODUCTION

1.      This strata property dispute is about common property (CP) repairs.

2.      The applicant, Shawna Young, owns strata lot 7 (SL7) in the respondent strata corporation, The Owners, Strata Plan 111 (strata).

3.      Ms. Young says the strata has failed to repair, maintain, or decommission the CP chimney adjacent to SL7. She also says the chimney goes through a south-facing CP deck, which the strata has also failed to repair or maintain. Ms. Young says the chimney is a hazard due to falling debris, and the deck is unsafe to use.

4.      Ms. Young requests the following remedies:

•         An order that the strata repair and maintain the chimney in accordance with the Strata Property Act (SPA) and strata bylaws.

•         An order that the strata repair and maintain the deck, to a standard similar to other decks in the strata.

•         Reimbursement of $2,500 in legal fees incurred before filing this dispute.

5.      The strata says Ms. Young’s claims should be dismissed. It says the chimney and deck were improvements made by a former owner, so under its bylaws the strata is not responsible to repair or maintain them. The strata also says Ms. Young knew this before she bought SL7, as it was included on the Form B Information Certificate (Form B) and property disclosure statement.

6.      Ms. Young is self-represented in this dispute. The strata is represented by a strata council member.

7.      For the reasons set out below, I find in favour of Ms. Young in this dispute.

JURISDICTION AND PROCEDURE

8.      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.

9.      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 which includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice and fairness.

10.   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.

11.   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.

ISSUES

12.   The issues in this dispute are:

a.    Is the strata obligated to repair and maintain the chimney or deck?

b.    If so, what remedies are appropriate?

BACKGROUND

13.   In a civil claim like this one, Ms. Young, as applicant, must prove her claims on a balance of probabilities (meaning “more likely than not”). I have read all the parties' evidence and submissions, but below I only refer to what is necessary to explain my decision.

14.   The strata was created in 1973. In 2016, the strata repealed and replaced all its bylaws by filing new bylaws in the Land Title Office. I find these are the bylaws applicable to this dispute. I discuss the relevant bylaws in my reasons below.

15.   The strata plan shows that SL7 is located in a 2-storey building labelled “apartment 2”. There are 4 strata lots in apartment 2, each of which has 2 floors and a basement.

16.   Minutes from a March 2, 1981 general meeting state that the strata approved a written request from Mr. C, a previous SL7 owner, to construct a chimney “in unit 7”. The parties agree these minutes refer to the chimney at issue in this dispute, so I accept that fact.

17.   Similarly, other minutes state that the strata approved Mr. C’s written request to build a sundeck “on his unit similar to those adjoining”. The partial copy of the minutes provided in evidence does not show a date, but the strata says the minutes are from April 1982. As this is not disputed, I accept it.

18.   Ms. Young purchased SL7 in 2015. She says the chimney was originally connected to a stove in SL7, but by the time she purchased SL7, the stove had been removed and the chimney closed off. This fact is confirmed by photos and a 2015 property disclosure statement (PDS), and the strata does not dispute it.

19.   The parties agree that both the chimney and deck adjoining SL7 are potentially hazardous and need significant repairs. The evidence and submissions also suggest the chimney may need to be decommissioned and partly or fully removed. The question in this dispute is who is responsible for this work.

20.   Ms. Young says the work is the strata’s responsibility, as the chimney and deck are CP. The strata says the chimney and deck are not CP, although they are located on CP. Rather, the strata says they are improvements that a former owner added in the early 1980s, and that they are Ms. Young’s responsibility to repair under the strata’s bylaws.

REASONS AND ANALYSIS

21.   The SPA does not have a provision that directly addresses who is responsible to repair and maintain alterations or improvements such as fences or decks made by owners to or on CP. Therefore, deciding who must repair and maintain alterations and improvements requires an analysis of the particular bylaws and evidence in each circumstance.

22.   SPA section 72 says the strata is responsible to maintain and repair all CP that is not limited common property (LCP). The parties agree there is no LCP in the strata, and since there no evidence showing otherwise, I find there is none.

23.   As noted by Ms. Young, under the current legislation, a strata corporation cannot make an owner responsible to repair or maintain any CP that is not LCP. This is because SPA section 72(2)(b) says a strata corporation can only make an owner responsible for repair and maintenance of non-LCP CP if “identified in the regulations”. There is currently no such regulation, and has been none in the past, so a strata corporation cannot make an owner responsible to repair and maintain non-LCP CP.

24.   However, I find that is not the end of the matter. Bylaw 6(2) in the SPA’s Schedule of Standard Bylaws says that as a condition of its approval for a owner alteration to CP, a strata corporation may require the owner to agree in writing to take responsibility for any expenses relating to the alteration.

25.   In this case, the strata repealed the standard bylaws, so I find they do not apply, and were not in force in the early 1980s when the chimney and deck were built. Regardless of what legislation and bylaws were in force at that time, I find there is no evidence before me establishing that Mr. C, or any subsequent owner, signed an alteration agreement, or made any agreement about responsibility for deck or chimney repairs.

26.   The strata wrote on the 2015 Form B that there was an alteration agreement attached to the form, but Ms. Young says it was not attached, and she never received it. The strata does not argue otherwise, and has not provided a copy of any alteration agreement. I find the strata’s assertion, now or in 2015, that an alteration agreement exists is not sufficient to prove that it does exist, or that it makes Ms. Young, as a subsequent owner of SL7, liable for any repair expenses.

27.   The strata has not provided any other evidence confirming the existence of an alteration agreement, such as witnesses statements from past council members who knew of the agreement. Also, I place significant weight on the fact that the 1981 and 1982 minutes approving Mr. C’s request to build the chimney and deck say nothing about an agreement about or liability for any repairs, expenses, or future costs. This suggests no agreement was signed.

28.   Also, I find the fact that the Form B listed the chimney and deck as owner-added improvements does not make Ms. Young liable for their repair, particularly since the alleged alteration agreement was not attached.

29.   The strata also relies on the PDS SL7’s seller provided to Ms. Young in 2015, as part of the contract for purchase and sale. On the disclosure statement, the seller checked box 3V indicating they were aware of additions, alterations, or upgrades to the unit. The seller also checked box 3W indicating there were “agreements under which the owner of the unit assumes responsibility for the installation and/or maintenance of alterations to the unit or common property.” As a note to 3W, the seller wrote that there was a “sealed” masonry chimney and a sundeck, as well as other items.

30.   I find these statements on the PDS do not make Ms. Young responsible for repairs to the chimney or deck. First, the PDS is a contract between Ms. Young and the seller, and the strata is not a party to it. So, the PDS does not determine liability between Ms. Young and the strata. Second, while the PDS mentions agreements about responsibility for alterations, no agreements were attached, and as previously noted, none were provided in evidence. In order to determine whether Ms. Young is bound by an agreement signed by a previous owner, I would need to consider the specific text of that agreement, which is not in evidence. Third, while the strata argues Ms. Young negotiated a $3,000 reduction in the purchase price for deck repairs, the strata has not provided evidence of this fact (and Ms. Young denies it). Even if was true, I find the contract between the seller and Ms. Young does not determine whether the strata is responsible to repair or maintain the chimney or deck.

31.   Based on these facts, I conclude that Ms. Young is not bound by the terms of any alteration agreement about the chimney or deck. The strata, which attempts to rely on that agreement, has not proved it exists, that it is binding on Ms. Young, or to what extent.

32.   The strata also says Ms. Young is liable for the chimney and deck repairs under the following bylaws, which I have summarized as relevant:

3(3) An owner shall repair, maintain and replace any additions or alterations made to his or her strata lot or CP.

3(4) An owner is responsible for and must repair, maintain and replace any improvements, alterations and additions made to their strata lot or adjoining CP, which they have the benefit of, which were made by them or a previous owner of their strata lot.

10(1) The strata must repair and maintain common assets and CP that is not LCP…provided always that the strata is not obligated to maintain, repair or replace any improvements make by an owner pursuant to bylaw 3(3) and 3(4) or any such improvements in place at the time of the passing of this bylaw, all of which shall be the sole responsibility of the owner for the time being of the strata lot which has the benefit of such improvement.

33.   As explained above, under SPA section 72, the strata cannot make an owner responsible to repair or maintain non-LCP CP, unless there is a specific agreement. SPA section 121 says a bylaw is unenforceable to the extent that contravenes the SPA. Therefore, to the extent that these bylaws make owners responsible to repair or maintain CP, I find they are unenforceable.

34.   The strata argues that the chimney and deck are not CP, although they rest on CP. So, the strata argues the bylaws are enforceable, because they do not make an owner responsible to repair CP. I am not persuaded by this argument, based on the law of fixtures, which I now discuss.

35.    SPA section 1(1) says CP includes that part of the land and buildings shown on a strata plan that is not part of a strata lot. The disputed chimney and deck are not shown on the strata plan. However, at common law, any fixtures affixed to land become part of the land: see Stack v. T. Eaton Co. (1902), 4 O.L.R. 335 at 338 (Div. Ct.).

36.   A fixture is legally defined as something permanently attached to real property. Whether an item is a fixture will usually depend on the particular facts of the case. In Zellstoff Celgar Limited v. British Columbia, 2014 BCCA 279 and Scott v. Filipovic, 2015 BCCA 409, the BC Court of Appeal cited the test from Stack for determining whether an item is a fixture or a chattel.

37.   For the purpose of this dispute, the relevant portion of the Stack test can be summarized as follows, as clarified in Zellstoff, Scott, North West Trust Co. v. Rezyn Developments Inc. (1991), 81 D.L.R. (4th) 751 (BCCA), and in Royal Bank of Canada v. Maple Ridge Farmers Market Ltd., 1995 CanLii 896 (BCSC):

a.    Unattached items hung by their own weight are presumed to be personal property, not fixtures.

b.    Items attached to the land “even slightly” are presumed to be fixtures.

c.    In considering whether the presumptions above should be rebutted, there is an objective examination of the “degree of affixation” and, in some exceptional cases, the “purpose of affixation”.

38.   In other words, the less portable and more permanently attached the item is, the more likely it is that the item is a fixture. For example, in Royal Bank, the court found that pictures hanging on a wall were chattels, because they hung by their own weight and could be removed without damage. The court said that while the nail that held the picture was a fixture, the picture itself was not. Similarly, in Manarin v. Stelmaschuk Doucette Realty Ltd. and Leckie, 2010 BCPC 81, the court found that items hanging on hooks or screws, and which could be removed without removing screws, not fixtures, but anything that required unscrewing to remove it was a fixture.

39.   Based on the Stack test, and the reasoning in these cases, I find that the chimney and deck are fixtures. They are affixed to CP (either the land, and/or the exterior CP walls of the building). They would each require significant “unscrewing” to remove.

40.   Since the chimney and deck are fixtures to CP, based on Stack and the other cited cases, I find they have become part of the CP. Given this finding, I agree with Ms. Young’s argument that under SPA section 72(2)(b) and the current regulations, the strata cannot, by bylaw, make an owner responsible to repair or maintain any CP, including the chimney or deck. The only way to make an owner responsible for these repair and maintenance duties is under an alteration agreement, or if they were designated as LCP under SPA section 73.

41.   For these reasons, I find that bylaws 3(3), 3(4), and 10(1) are unenforceable to the extent that they make an owner responsible to repair or maintain CP.

42.   I note that in her submissions, Ms. Young argues that the strata is obligated to repair and maintain the chimney and deck under bylaw 10(1)(d), which says the strata is responsible to repair and maintain parts of a strata lot, including chimneys and balconies. I find bylaw 10(1)(d) is not relevant to this dispute because it only applies to repairs to a strata lot, and not CP. This does not change the outcome of this dispute, since I find the strata is responsible for the chimney and deck under SPA section 72.

Remedies – Repair Orders

43.   Ms. Young asks for orders that the strata repair and maintain the chimney and deck. I find those orders are appropriate, given my findings about the strata’s responsibility for those repairs, and the parties’ agreement that the chimney and deck are unsafe.

44.   There is limited evidence before me about what specific repairs are necessary. Under the SPA and case law, the strata must act reasonably in carrying out its repair and maintenance duties: Wright v. The Owners, Strata Plan #205, 1996 CanLII 2460 (BC SC) and Weir v. Strata Plan NW 17, 2010 BCSC 784. Under this case law, it is up to the strata to decide how to undertake the work, and who should perform it. For example, it will be up to the strata to decide whether, or how, to remove the chimney, or to stabilize it in some way. As long as the strata acts reasonably, it will have met its duties under SPA section 72. The repair decisions must be made by the strata council, rather than Ms. Young or other individual owners.

45.   So, I order the strata to repair and/or remove the chimney to a safe condition within 6 months of this decision. Any repairs to SL7 resulting from chimney removal, if that occurs, are Ms. Young’s responsibility.

46.   I also order that within 6 months of this decision, the strata must either repair the deck to a safe and useable condition, or hold a ¾ vote of the strata ownership at a general meeting to approve removing the deck under SPA section 71. If the ownership does not approve removing the deck, the strata must repair it within 3 months of the vote.

Legal Fees

47.   Ms. Young requested reimbursement of $2,500 in legal fees she incurred before filing this dispute. I dismiss this claim, for the following reasons.

48.   CRT rule 9.5(3) says the CRT will not order reimbursement of lawyer’s fees in a strata dispute unless there are extraordinary circumstances. Ms. Young says her claim is for pre-dispute expenses, and not for dispute-related fees, so I assess it on that basis.

49.   There is nothing in the SPA or bylaws that makes the strata responsible for Ms. Young’s legal fees. The CRT has jurisdiction to make orders directed at a strata corporation if it is necessary to prevent or remedy a significantly unfair action or decision. 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. See also King Day Holdings Ltd. v. The Owners, Strata Plan LMS3851, 2020 BCCA 342.

50.   I have found that the strata’s position on its repair obligations was incorrect. However, I do not find that position unreasonable, given the complexity of the issue. The SPA does not clearly say who must repair and maintain alterations or improvements to CP, and there is little case law directly on point.

51.   In Leclerc v. The Owners, Strata Plan LMS 614, 2012 BCSC 74, the court said that a strata corporation is not held to a standard of perfection, but instead “reasonable action and fair regard for the interests of all concerned”. Ms. Young has succeeded in this dispute, and I understand her frustration in dealing with the strata on this issue. However, I find the strata’s actions do not justify ordering legal fees as damages for significant unfairness, particularly since the council is made up of volunteers. Also, legal fees are not generally recoverable as damages: see Voyer v. C.I.B.C., 1986 CanLII 1226 (BC SC).

52.   I therefore dismiss Ms. Young’s claim for reimbursement of legal fees.

CRT FEES AND EXPENSES

53.   As Ms. Young was largely successful in this dispute, in accordance with the CRTA and the CRT’s rules I find she is entitled to reimbursement of $225.00 in CRT fees. Neither party claimed dispute-related expenses, so I order no reimbursement.

54.   The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses to Ms. Young.

ORDERS

55.   I order that:

a.    Within 6 months of this decision, the strata must repair and/or remove the chimney to a safe condition.

b.    Within 6 months of this decision, the strata must either repair the deck to a safe and useable condition, or hold a ¾ vote at a general meeting to approve removing the deck. If the ownership does not approve removing the deck, the strata must repair it within 3 months of the vote.

c.    Within 30 days of this decision, the strata must reimburse Ms. Young $225 for CRT fees.

56.   I dismiss Ms. Young’s claim for reimbursement of legal fees.

57.   Ms. Young is entitled to postjudgment interest under the Court Order Interest Act, as applicable.

58.   Under CRTA section 57, a validated copy of the CRT’s order can be enforced through the British Columbia Supreme Court. Under CRTA section 58, 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.