Date Issued: May 19, 2023

File: ST-2022-003261

Type: Strata

Civil Resolution Tribunal

Indexed as: The Owners, Strata Plan KAS2707 v. Foster, 2023 BCCRT 421

Between:

The Owners, Strata Plan KAS2707

Applicant

And:

SHELLY FOSTER and TINA CHRISTENSEN

Respondents

REASONS FOR DECISION
Tribunal Member:	Kristin Gardner

INTRODUCTION

1.      This strata property dispute is about alterations to a strata lot.

2.      The respondents, Shelly Foster and Tina Christensen, co-own strata lot 60 (SL60) in the applicant bare land strata corporation, The Owners, Strata Plan KAS2707 (strata). The strata says the respondents altered their strata lot by installing a “structure” along the boundary between SL60 and the neighbouring strata lot, without the strata’s approval. The strata says the alteration does not comply with the strata’s statutory building scheme (SBS). The strata seeks an order for the respondents to remove the alteration and submit an application to the strata for an alteration that complies with the SBS.

3.      The respondents say they installed a privacy screen that was designed and constructed according to the SBS and is similar to structures on other strata lots. So, the respondents say the strata’s failure to approve their privacy screen was significantly unfair. They also say an order to remove it would be burdensome, and they are concerned the strata would not consider any future alteration application honestly or in good faith.

4.      The strata is represented by a strata council member. The respondents are also represented by a lawyer, Brett McClelland.

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.

9.      In the Dispute Notice, the strata valued its claim at $19,000, but it did not otherwise explain that amount. The evidence indicates that the strata imposed continuing bylaw fines against the respondents for the allegedly non-compliant structure. Yet, it is unclear whether the noted $19,000 refers to unpaid bylaw fines. Further, the strata did not address bylaw fine payment or seek any orders about fines in the Dispute Notice or its submissions. The respondents also did not file a counterclaim seeking to reverse any fines. Therefore, I find the issue of bylaw fines is not before me, and I restrict my analysis below to whether the respondents must remove the alteration.

10.   The respondents submit that the strata’s evidence about events that occurred before June 18, 2020, is the subject of a separate legal proceeding and irrelevant to this dispute. While the respondents provided limited information about the nature of the other proceeding, I accept that it is generally undesirable for different legal proceedings to consider the same factual circumstances due to the potential for inconsistent findings of fact. On my review of the evidence, I agree with the respondents that events occurring before June 18, 2020 are not relevant to the issues in this dispute. So, I have not made any findings about those events below.

ISSUES

11.   The issues in this dispute are:

a.    Does the respondents’ alteration comply with the SBS?

b.    Did the strata act in a significantly unfair manner in refusing to approve the respondents’ alteration?

c.    Must the respondents remove the alteration?

BACKGROUND, EVIDENCE, AND ANALYSIS

12.   In a civil proceeding like this one, the applicant strata must prove its claims on a balance of probabilities (meaning “more likely than not”). I have read all of the parties’ evidence and submissions, but I refer only to what I find is necessary to explain my decision.

13.   The strata is a bare land strata corporation as defined in the Strata Property Act (SPA). The strata plan shows the strata has 61 strata lots. SL60 is located on a cul-de-sac, between strata lot 59 and strata lot 61 (SL61).

14.   The strata filed a completed set of bylaws in the Land Title Office on October 1, 2018, which replaced all previous bylaws. I find these are the applicable bylaws. The strata also filed subsequent bylaw amendments that I find are not relevant to this dispute.

15.   Bylaw 4 says each owner must observe the terms and conditions of the SBS registered against title to their strata lot.

16.   An SBS is a form of restrictive covenant under section 220 of the Land Title Act. Land title documents before me confirm that an SBS is registered against title on SL60. So, I find that the respondents, as owners of SL60, are required to comply with the terms and conditions set out in the applicable SBS.

17.   Bylaw 18 deals with altering a strata lot. Bylaw 18(2) says, in part, that any renovations, alterations, and additions to the strata lot’s land area must be approved in writing by the strata council and the community property committee. Under this bylaw, the owner must submit a specific application form for the strata council’s review, to confirm the alteration complies with the SBS and the bylaws. If the strata council approves the alteration, the application is forwarded to the community property committee, which acts as the strata developer’s design coordinator under the SBS.

18.   Bylaw 18(4) says that no renovations, alterations, or additions may be undertaken pending the alteration application review process.

19.   On June 18, 2020, the respondents emailed the strata manager, BS, that they were constructing privacy screening. They stated the screens would be constructed with cedar and stained to match their home’s colour. The respondents also stated they were simply advising the strata as a courtesy, as their plans complied with the strata’s bylaws and the SBS.

20.   On June 19, 2020, BS replied that the strata required the respondents to follow the proper procedures for installing a privacy screen. The email referred to bylaws 18(2) and (4) and requested the respondents submit an attached application with a sketch drawing of the privacy screen’s location and size, and an example of the materials.

21.   On June 23, 2020, BS emailed the respondents a notice of an alleged bylaw contravention form, which stated the council noticed the respondents had commenced strata lot alterations without following the approval process set out in bylaw 18(2). The notice also referred to bylaw 18(4) and stated the respondents must stop work on the alterations immediately, until the community property committee approves the alterations.

22.   Between June 24 and June 26, 2020, the respondents provided BS with their alteration application and other details about the privacy screen. In the meantime, the respondents undisputedly completed the installation.

23.   The strata council reviewed the respondents’ alteration application on June 30, 2020 and decided the alteration was not bylaw or SBS compliant. In a July 3, 2020 email, BS advised the respondents that the strata had decided their alteration was a fence, not a privacy screen as described, and it did not comply with the SBS height restrictions for fences. The email stated the strata could therefore not approve the alteration and demanded it be removed by July 24, 2020. It is undisputed the respondents have refused to remove the alteration.

Does the respondents’ alteration comply with the SBS?

24.   Section 6 of the SBS sets out the strata’s landscaping guidelines. Section 6(h) says, in part, that side yard fences on strata lots cannot be more than 5 feet high. Section 6(i) says privacy screens for rear yard patios require prior design approval and shall not extend more than 14.76 feet beyond the rearmost part of the home.

25.   There is some dispute between the parties about whether the respondents’ alteration is a privacy screen or a fence under the SBS. The respondents submit that they installed a privacy screen. The strata says the respondents’ alteration is a fence, but that even if it is a privacy screen, it still does not comply with the SBS. I find the alteration is a fence. My reasons follow.

26.   Neither the SBS nor the bylaws define “privacy screen” or “fence”. I find this leaves these terms somewhat open to the strata’s interpretation when considering whether a proposed alteration complies with the SBS. Nevertheless, I generally agree with the strata’s submission that a privacy screen is intended to screen a selected area, such as a patio, deck, or swimming pool, but not an entire yard, and a fence typically borders or encloses a large yard area or outdoor space. I find this interpretation is consistent with the SBS, which says that privacy screens are “for rear yard patios” and have length restrictions, while fences are for “side yards” with a height restriction.

27.   The plans and photos of the respondents’ alteration show it essentially runs the length of the property bordering SL61. It has 2 sections, with a pre-existing shed structure between them. The first section runs along the length of the house on SL60 to the shed and is about 25.5 feet long. The second section runs from the other side of the shed to the rear of the strata lot property, about 19.5 feet in length.

28.   Both sections are built of wood, each consisting of several panels connected by wooden 4x4 posts. The main portion of each panel is designed with narrow vertical and horizontal slats that cross one another, with small spaces between the slats. There is an approximate 6-inch gap above the crosshatch portion, with an 8-inch header board on top. In all, the structure is over 8 feet tall.

29.   As the respondents’ alteration extends from the back of the strata lot property to nearly the front yard, I find it goes well beyond a privacy screen for their rear patio. I find it is a side yard fence, as that term is used in the SBS. As noted, the SBS restricts the height of side yard fences to 5 feet. At more than 8 feet tall, I find the respondents’ fence does not comply with the SBS, and the respondents are in breach of bylaw 4.

30.   I note that it appears the respondents’ alteration application also included a 7-foot-long structure directly beside their rear patio, which I infer was intended as a separate privacy screen. However, neither party made any submissions about that separate smaller structure, so I make no findings about it.

Did the strata act significantly unfairly in in relation to the respondents’ alteration request?

31.   The respondents admit that they submitted their application to alter SL60 late, in breach of bylaw 18(2). However, they say the strata’s failure to retroactively approve their alteration request amounts to significantly unfair conduct.

32.   The CRT has authority to make orders remedying significantly unfair acts or decisions by a strata corporation under section 123(2) of the CRTA. This provision contains similar language to SPA section 164, which allows the BC Supreme Court to make orders remedying significantly unfair acts or decisions. The court recently confirmed that the legal test for significant unfairness is the same for CRT disputes and court actions. See Dolnik v. The Owners, Strata Plan LMS 1350, 2023 BCSC 113.

33.   In Kunzler v. The Owners, Strata Plan EPS 1433, 2021 BCCA 173, the court stated that significantly unfair actions are those that are burdensome, harsh, wrongful, lacking in probity or fair dealing, done in bad faith, unjust, or inequitable. In applying this test, the owner or tenant’s reasonable expectations are a relevant factor but are not determinative. The test for whether an owner’s expectation was reasonable includes asking a) whether the objective evidence supports the owner’s stated reasonable expectation, and b) whether a significantly unfair strata action violated that expectation. See Dolnik and Dollan v. The Owners, Strata Plan BCS 1589, 2012 BCCA 44.

34.   As it is the respondents who are alleging the strata’s actions were significantly unfair, I find the respondents bear the burden to prove this allegation on a balance of probabilities.

35.   The respondents’ submission that the strata acted significantly unfairly is largely based on their position that the alteration was a privacy screen rather than a fence. They argue the strata used an incorrect reference point to measure the structure’s length from the house and, as there are no height restrictions in the SBS for privacy screens, they say the strata wrongly found that it did not comply with the SBS. However, as I have found the alteration was a fence, I find this argument does not assist the respondents.

36.   The respondents also submit that the strata did not use the SBS at all in refusing to approve their alteration request. I find the evidence does not support that position. Initially, I find the strata started bylaw enforcement proceedings because the respondents had altered SL60 without the strata’s prior approval, in breach of bylaw 18(2). This process did not require any consideration of whether the alteration complied with the SBS. I also find it was independent of the strata’s decision whether to ultimately approve the alteration request.

37.   However, once the respondents submitted their alteration application, I find the strata relied on the SBS in deciding to not approve the alteration. As noted, BS’ July 3, 2020 email stated that the strata determined the alteration was a fence that did not comply with the applicable height restrictions in the SBS. I find the strata reasonably made that determination based on the respondents’ application materials. Therefore, I find the strata’s decision did not violate the respondents’ reasonable expectation that the strata would use the SBS to determine whether to approve the alteration.

38.   The respondents also argue that the overriding objectives of the SBS support their position that the strata should have approved the alteration. Specifically, the SBS’s introductory paragraphs state that the SBS acknowledges it is “important to allow for individuality in lifestyle and home design” and that the standards imposed are meant to provide “opportunities for personal touches and finishes that add to the richness of the community and the unique setting of the property”. The respondents say that the strata’s decision not to approve their alteration improperly ignored these objectives. I disagree. While the objective of the SBS may be to encourage complementary, rather than identical properties, I find there is nothing in the SBS’s objectives that suggests compliance with its specified terms and conditions is not required. I find the strata properly applied the height restrictions set out in SBS section 6(i) to the respondents’ alteration request.

39.   Finally, the respondents say that SL61 has an almost identical structure in its rear yard. From the respondents’ photos, I find that structure appears to be positioned along a deck, and it is much shorter in length than the respondents’ fence. So, while the panels of the respondents’ fence and the SL61 structure may be constructed in a similar manner, I find the SL61 structure likely qualifies as a privacy screen under the SBS. Therefore, I disagree that the structures are essentially the same. The respondents provided no other evidence that the strata approved other fences or structures similar to the respondents’ alteration. Overall, I find it unproven that the strata treated the respondents unfairly or differently from other owners.

40.   I acknowledge that the strata’s decision not to approve the respondents’ alteration was somewhat burdensome because the respondents had already constructed the fence. However, the strata advised the respondents on June 19, 2020 that the bylaws prohibited construction before receiving the strata’s approval, and the respondents went ahead anyway. Therefore, I find the strata’s decision to ultimately not approve the alteration was not harsh, wrongful, or unjust. I also find the respondents have not provided evidence the strata acted in bad faith. So, I find the respondents have not proven the strata acted in a significantly unfair manner in denying their application.

Must the respondents remove their fence?

41.   Given my findings above, I find it is appropriate to order the respondents to reverse the alteration by removing the fence they constructed along the property line bordering SL61 within 60 days, at the respondents’ cost.

42.   I leave it to the respondents to determine whether they want to submit a new alteration application for a fence or privacy screen that complies with the SBS.

CRT FEES AND EXPENSES

43.   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. As the successful party, I find the strata is entitled to reimbursement of $225 in CRT fees.

44.   The respondents did not pay any fees and neither party claimed dispute-related expenses.

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

ORDERS

46.   I order that:

a.    Within 60 days, the respondents must remove the fence they constructed along the property line bordering SL61, at the respondents’ cost.

b.    Within 30 days, the respondents pay the strata a total of $225 for CRT fees.

47.   I dismiss the strata’s remaining claims.

48.   The strata is also entitled to post-judgment interest under the Court Order Interest Act.

49.   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.