Date Issued: September 1, 2022

File: ST-2022-000124

Type: Strata

Civil Resolution Tribunal

Indexed as: Lescisin v. The Owners, Strata Plan VR2402, 2022 BCCRT 980

Between:

DANNY LESCISIN

Applicant

And:

The Owners, Strata Plan VR 2402

Respondent

REASONS FOR DECISION
Tribunal Member:	Micah Carmody

INTRODUCTION

1.      This dispute is about renovations to an enclosed limited common property (LCP) patio.

2.      The applicant, Danny Lescisin, co-owns a strata lot in the respondent strata corporation, The Owners, Strata Plan VR 2402 (strata). Mr. Lescisin says the strata allowed the owners of strata lot 85 (SL85), who are not parties to this dispute, to convert SL85’s LCP patio into living space. He says this was a significant change in the use or appearance of common property and therefore required a 3⁄4 vote by the owners under section 71 of the Strata Property Act (SPA). Mr. Lescisin seeks an order that the “[LCP] walls, windows, doors and stucco should be returned to their original location and appearance.”

3.      The strata says SL85’s patio was enclosed in 1998 and there have been no significant changes since then. It says the current renovation, which it approved in July 2021, was not a significant change within the meaning of SPA section 71. The strata says I should dismiss the claim.

4.      Mr. Lescisin represents himself in this dispute. A strata council member represents the strata. For the reasons set out below, I dismiss Mr. Lescisin’s claim.

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. Based on the evidence and submissions provided, I am satisfied that I can fairly decide this dispute without an oral hearing.

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 the parties and witnesses questions of 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.

9.      The strata provided a late submission to the CRT that there were 5 other enclosed patios allowed on the strata property and that unit entitlement was not increased for the corresponding strata lots. Mr. Lescisin had already submitted that there were 5 other patio enclosures, so the number of patio enclosures was not new information. Whether or not unit entitlement was increased is not relevant to this dispute, for reasons that I explain below. So, I found the strata’s late submission did not provide any new relevant information, and it was not in the interests of efficiency to provide it to Mr. Lescisin for comment. The late submissions had no bearing on this dispute.

10.   In submissions, the strata asked for orders that Mr. Lescisin stop harassing SL85’s owners. The strata did not file a counterclaim. As well, orders to prevent harassment are likely unenforceable, as noted in Michaels et al v. The Owners, Strata Plan NW 526, 2018 BCCRT 917. For those reasons, I make no orders about harassment.

ISSUES

11.   The issues in this dispute are:

a.    Did the renovations to SL85’s LCP patio significantly change common property within the meaning of SPA section 71?

b.    Has the strata been significantly unfair to Mr. Lescisin?

c.    What remedy, if any, is appropriate?

EVIDENCE AND ANALYSIS

12.   As the applicant in this civil proceeding, Mr. Lescisin must prove his claims on a balance of probabilities, meaning more likely than not. While I have read all the parties’ evidence and submissions, I only refer to what is necessary to explain my decision.

13.   The strata was created in 1989 and includes 133 strata lots in two 4-storey buildings. SL85 is a ground floor strata lot. The strata plan shows an LCP patio of roughly 25 square meters for the exclusive use of SL85.

14.   In 2014, the strata repealed all bylaws previously filed at the Land Title Office and replaced them with a complete set of 42 bylaws. Those are the bylaws I find applicable to this dispute. Bylaw 6 requires owners to obtain strata approval before altering common property. Bylaw 7 addresses specific requirements for alterations of common property or strata lots.

15.   Minutes from the strata’s January 14, 1998 annual general meeting (AGM) show that the owners approved a “special resolution” allowing SL85 to enclose 50% of their LCP patio as a solarium, “similar to those previously enclosed” in the strata. The minutes do not show a precise vote count, but a special resolution under the SPA’s predecessor legislation in force at the time, the Condominium Act, required a 3⁄4 vote in favour. The minutes and the attached building permit do not make clear the extent of renovations, if any, approved for within the enclosed patio space.

16.   Mr. Lescisin does not take issue with the original enclosure but rather with the subsequent changes that he says converted the patio into living space. It is undisputed that at some point, a previous owner of SL85 replaced stucco on the walls separating SL85 from the enclosed patio with drywall, and removed the original sliding patio door. Hardwood flooring was also installed in the enclosed patio. It appears that these changes were made without the strata’s explicit approval.

17.   SL85’s current owners purchased it in 2021. They quickly applied for and received strata approval to renovate the strata lot and the enclosed LCP patio. The 2021 renovations included replacing the sliding door leading from the enclosed patio to the exposed patio with a folding door, and replacing the living room window. The strata approved the renovation application in July 2021.

Did the renovations to SL85’s LCP patio significantly change common property within the meaning of SPA section 71?

18.   SPA section 71 says that a strata corporation must not make a significant change in the use or appearance of common property (which includes LCP) unless the change is approved by a resolution passed by a 3⁄4 vote at a general meeting. Even though section 71 refers only to the strata, both the BC Supreme Court and the CRT have applied section 71 to alterations made by owners (see Foley v. The Owners, Strata Plan VR 387, 2014 BCSC 1333 and Richardson v. Simmons, 2020 BCCRT 241). I find that section 71 of the SPA applies to this dispute because the strata allowed changes to SL85’s LCP patio.

19.   I considered whether Limitation Act might prevent Mr. Lescisin from making a claim that the strata failed to comply with SPA section 71 with respect to previous SL85 owner’s changes before the 2021 renovations. However, the strata did not raise a limitation period defence, and it is not clear whether Mr. Lescisin discovered, or reasonably could have discovered, those SL85 changes before the July 2021 alteration approval. So, I have not considered the Limitation Act further and have considered all the post-enclosure changes here. Ultimately, my conclusion remains that the LCP patio changes were not significant within the meaning of SPA section 71.

20.   Mr. Lescisin notes that SL85’s square footage as listed on a 2021 real estate listing was 1,242 square feet. According to the strata plan, SL85’s unit entitlement is 1,007. The real estate listing also identified the enclosed patio as a den. Mr. Lescisin argues that the patio has, over the years, been upgraded to “habitable space” and should have required unanimous approval of the owners and amendment of the Schedule of Unit Entitlement under SPA section 70(4). However, SPA section 70(4) refers to increases or decreases in the habitable part of the area of a strata lot. It has no application to changes to common property, including LCP (see Richardson, at paragraph 87). So, I find this argument has no merit.

21.   The strata says the changes are not significant. Strata relies on Foley, as well as Frank v. The Owners Strata Plan LMS 355, 2016 BCSC 1206 (affirmed 2017 BCCA 92).

22.   The court in Foley summarized the following non-exhaustive criteria for a significant change:

a.    Is the change visible to residents and the general public?

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

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

d.    Does the change impact the marketability or value of the strata lot?

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

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

23.   In Frank, the court noted that individual owners have substantial control and “something approaching a beneficial or equitable interest” in LCP, particularly where LCP is designated in the original strata plan and can only be removed by unanimous vote. The court said the Foley factors must be assessed in the context of this heightened interest where LCP is involved.

24.   It is undisputed that the size of enclosed LCP patio has not changed since it was enclosed in 1998. From the photos and plans in evidence, I find the changes after the patio was enclosed were virtually invisible to residents and the general public. Interior drywall and flooring, and changes to fully-enclosed doors and windows would not be noticed by a person on the nearby pedestrian walkway, or by a resident not specifically looking for changes through SL85’s patio doors or the surrounding glass.

25.   The 2021 change from a sliding patio door to a folding glass patio door is, in my view, insignificant. Engineering drawings show that the size of the patio door opening did not change. The folding door’s colour and style match the existing style of other patio doors in the strata. Other photos also confirm that other strata lots have folding patio doors.

26.   Mr. Lescisin says the new living room window is out of character with the rest of the strata. I disagree. The new window has a thicker frame but is otherwise the same size as the window it replaced, and the frame is the same colour as other window frames in the strata. Mr. Lescisin does not dispute, and I accept, the strata’s evidence that the original aluminum-framed windows are no longer available and do not meet the current Building Code, so as they are replaced, new windows will not match the existing frames. I find an exact match was not reasonably possible, and the difference is not significant anyway.

27.   In Chan v The Owners, Strata Plan VR677, 2012 BCSC 2255, the addition of a door from a common property hall into a strata lot and the replacement of an exterior door with a window below street level were not considered significant changes. The court found the changes did not interfere with the use and enjoyment or the marketability of other strata units and were minimally visible to other strata members. I find the same reasoning applies here. I also note that the changes here were made to LCP, not common property.

28.   The strata plan shows 34 ground level strata lots with LCP patios. It is undisputed that 5 other strata lots have enclosed patios. Mr. Lescisin says the strata has not allowed others make similar changes to their LCP patios. However, the strata’s photos show that at least 1 other strata lot has installed laminate or hardwood flooring running through an enclosed patio to a living room.

29.   I find there has been no significant change in use of SL85 as the enclosed patio was always for the exclusive use of SL85’s owners. There is no direct interference or disruption to other residents. There is also little evidence of any negative impact on the use or enjoyment of other strata lots or the common property. The strata provided a statement from residents YD and JD who were pleased with the SL85 owners’ changes. Mr. Lescisin provided a statement form a resident, MC, who said many residents were against patio enclosures for aesthetic reasons. MC’s evidence, however, indicated that the strata has taken an even-handed approach, removing unapproved enclosures that damaged common property or did not protect the building’s structural integrity.

30.   Although there is no direct evidence on this point, I accept that enclosing the patio has increased the market value of the strata lot. A real estate listing shows the increase in claimed square footage as a result of the former patio being identified as a den. I accept that higher square footage generally means a higher selling price.

31.   Overall, I find the change in appearance is minimally visible, the patio remains for the exclusive use of SL85’s owners, and the changes do not affect other residents. Together, those factors outweigh the benefit that strata lot 85’s owners receive from the upgrades to the enclosed patio, and the associated increased value of the strata lot. I conclude that the renovations to SL85’s enclosed patio were not a significant change within the meaning of SPA section 71, and a 3⁄4 vote was not required.

Has the strata been significantly unfair to Mr. Lescisin?

32.   Although Mr. Lescisin did not frame his claim this way, I considered whether the strata’s approval of SL85’s 2021 renovations and refusal to accede to his request for a 3⁄4 vote was significantly unfair to him in light of the previous renovations and the surrounding circumstances.

33.   Under CRTA section 123(2), the CRT can make orders to remedy a strata’s significantly unfair actions or decisions. 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.

34.   The courts have held that by living in a strata community, a strata lot owner or tenant may be subject to unfairness or prejudicial actions and decisions. The key is whether the unfairness is significant enough to warrant court intervention. I found that a 3⁄4 vote was not required for the renovations to the enclosed patio, so it was not unfair for the strata to refuse Mr. Lescisin’s requests for a vote.

35.   In Milacek v. Strata Plan LMS 18 (1997), New Westminster S36466 (B.C.S.C.), the court denied a penthouse strata lot owner’s application to block installation of a radio transmitter on the rooftop. While prejudicial, the transmitter was not unfairly prejudicial because the owner chose to live in a strata community, the majority of owners approved the transmitter, and other penthouse owners did not object. Mr. Lescisin is also part of a strata community. There is limited evidence that other owners object to SL85’s renovations. Mr. Lescisin does not explain how the changes in SL85’s enclosed patio are a burden to him, or are unjust, or affect him in any tangible way.

36.   The strata says returning the SL85 patio to its pre-1998 condition would be unfair and unreasonable. I Infer the strata means it would be unfair and unreasonable to the SL85 owners, who purchased the strata lot after most of the changes that Mr. Lescisin finds objectionable. While there is no evidence from the SL85 owners about the impact of such an order, I agree that fairness to other owners was a relevant factor in the strata’s decision.

37.   The courts, and by extension the CRT, will only interfere if the strata’s conduct results in something more than “mere prejudice or trifling unfairness” (see Reid). The strata’s actions here cannot be said to exceed mere prejudice or trifling unfairness to Mr. Lescisin. So, I dismiss his claim.

CRT FEES AND EXPENSES

38.   Based on CRTA section 49 and the CRT’s rules, as Mr. Lescisin was unsuccessful, I find he is not entitled to reimbursement of CRT fees. Neither party claimed dispute-related expenses.

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

ORDERS

40.   I dismiss Mr. Lescisin’s claims and this dispute.