Date Issued: August 31, 2023

File: ST-2022-004196

Type: Strata

Civil Resolution Tribunal

Indexed as: Davie v. The Owners, Strata Plan EPS1292, 2023 BCCRT 747

Between:

CHERYL DAVIE

Applicant

And:

The Owners, Strata Plan EPS1292

Respondent

REASONS FOR DECISION
Tribunal Member:	Kate Campbell

INTRODUCTION

1.      This dispute is about maintenance, repairs, and significant changes to common property in a strata corporation.

2.      The applicant, Cheryl Davie, owns a strata lot in the respondent strata corporation, The Owners, Strata Plan EPS1292 (strata).

3.      Ms. Davie is self-represented in this dispute. The strata is represented by a strata council member.

4.      Ms. Davie says the strata has not done necessary repairs and maintenance of common property, including fixing fences and washing windows. She also says the strata has allowed several strata lot owners to make significant changes to common property without a ¾ vote of the ownership, contrary to Strata Property Act (SPA) section 71.

5.      As remedy for her claims, Ms. Davie requests that that CRT order the strata to do the following:

•           Fix all broken fences and gates, including those behind units 11, 25, and 26.

•           Wash all non-accessible windows.

•           Remove the pergola and fire pit from unit 84.

•           Remove the hot tub and wood deck behind unit 82.

•           Remove the wooden garden bed in front of unit 85.

•           Remove the vegetable garden and wooden border from unit 15, and restore the landscaping in that area to its previous condition.

•           Replace plants removed from in front of units 4 and 24, and restore the landscaping in those areas to their previous condition.

•           Remove trampolines from common property around units 64 and 73.

6.      The strata says it has now repaired the fences. It says the ownership did not approve a budget item for window washing at the 2022 annual general meeting (AGM), but it was scheduled for July 2023. The strata admits to some of the alleged alterations. It says some of them have been removed. It also says some of them occurred while Ms. Davie was strata council president, so she is partially responsible.

JURISDICTION AND PROCEDURE

7.      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.

8.      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.

9.      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.

10.   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

11.   The issues in this dispute are:

a.    Must the strata repair fences and gates?

b.    Must the strata wash the inaccessible windows?

c.    Have owners significantly changed common property without a ¾ vote, and if so, what remedies are appropriate?

BACKGROUND

12.   In a civil claim like this one, Ms. Davie, 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.

13.   The strata was created in 2013. It consists of 87 townhouse-style strata lots, in 18 buildings.

14.   In March 2015, the strata filed consolidated bylaws at the Land Title Office. The strata also filed bylaw amendments in July 2022, but I find these are not relevant to this dispute.

REASONS AND ANALYSIS

Must the strata repair fences and gates?

15.   Under SPA section 72, a strata corporation must repair and maintain common property and common assets. There may be an exception in strata bylaws for limited common property (LCP), but there is no suggestion that the fences and gates are LCP. Rather, the parties agree the fences and gates are common property.

16.   The courts have said the standard of care for a strata corporation’s repair and maintenance obligations is reasonableness, and not perfection. This means the strata must act reasonably in meeting these obligations: see Weir v. Strata Plan NW 17, 2010 BCSC 784, John Campbell Law Corp. v. Strata Plan 1350, 2001 BCSC 1342, and Wright v. Strata Plan #205 (Owners), 1998 CanLII 5823 (BC CA).

17.   The strata admits that the fences and gates needed repairs. The strata says it has now fixed the broken fences and gates, and provided 2 photos showing the repairs.

18.   Ms. Davie did not provide contrary evidence. For example, she did not provide photos or witness statements indicating a need for further repairs. So, I dismiss Ms. Davie’s claim for fence and gate repairs.

Must the strata wash the inaccessible windows?

19.   Ms. Davie did not provide any photos or other evidence showing the windows’ condition. The strata admits it is responsible for window cleaning. It provided an email confirming it had booked a contractor for 3 days of window washing starting on July 12, 2023. It is unclear from the evidence before me whether that cleaning has occurred. If it has occurred, the issue is moot.

20.   In any event, I would not order the strata to clean the windows. As noted above, the standard for the strata’s maintenance obligations is reasonableness, not perfection. Ms. Davie provided no evidence showing that the windows’ condition is unreasonable, unsafe, or structurally unsound. Also, the strata is entitled to prioritize its maintenance and repairs: see Warren v. The Owners, Strata Plan VIS 6261, 2017 BCCRT 139.

21.   For these reasons, I dismiss Ms. Davies’ claim for window cleaning.

Have owners significantly changed common property without a ¾ vote?

22.   SPA section 71 says the strata must not make a significant change in the use or appearance of common property unless the change is approved by a ¾ vote resolution or there are reasonable grounds to believe that immediate change is necessary to ensure safety or prevent significant loss or damage. Section 71 also applies where a strata allows an owner to significantly change common property: see Foley v. The Owners, Strata Plan VR 387, 2014 BCSC 1333.

23.   The “immediate change” argument has not been raised in this case, and I find it does not apply.

24.   In Foley, the court set out a non-exhaustive list of factors to consider when deciding whether a change is significant:

a.    Is the change visible to other residents or the general public?

b.    Does the change affect the use or enjoyment of a unit or existing benefit of another unit?

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

d.    Does the change impact the marketability or value of a 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?

25.   Also, strata bylaw 6(1) says an owner must obtain the strata’s written approval before altering common property, including limited common property.

26.   Ms. Davie alleges 6 different instances of owners significantly changing common property without the necessary ¾ vote. I deal with these instances in turn below.

27.   The strata says that some of these changes were made while Ms. Davie was on the strata council. However, I find that does not change the legal basis of these claims. Meaning, the strata must follow the SPA, regardless of who is on the strata council.

Unit 84 – pergola and fire pit

28.   Ms. Davie provided photos that the occupants of unit 84 have a pergola and “fire pit” on their deck. She says this is a significant change to the use and appearance of common property.

29.   The strata plan shows that the deck is LCP, which is defined in SPA section 1(1) as a form of common property. So, SPA section 71 applies.

30.   For the following reasons, I find neither the pergola nor the fire pit are significant changes to the use or appearance of common property. Specifically, I find that both items are not permanent, and are therefore not changes to the common property at all. Rather, they are merely items placed on common property.

31.   I find the photos show that the “fire pit” is a relatively small, box-like structure placed on the deck. I infer that it is gas-fueled. It is shorter than the nearby patio chairs, and shorter than the deck railing. The pergola is a larger structure, that appears to take up slightly more than ¼ of the deck. It appears to have an aluminum frame and a fabric roof. The photos show it is tied to the balcony railing with rope.

32.   In Reid v. Strata Plan LMS 2503, 2003 BCCA 126, the court found that placement of potted plants, cedars and other shrubs in a common property entrance was decorative and not a significant change. The court’s reasoning included that the potted plants could be removed if requested by the strata council.

33.   Based on the reasoning in Reid, I find the fire pit is not a significant change. Rather, it could be easily moved upon request. Applying the factors in Foley, I find the fire pit is minimally visible to others, and does not affect or disrupt the use of unit 84 or other strata lots. Since the item is easily removed, I find it does not change the value of any strata lot. There is also no evidence that the strata has a rule or bylaw prohibiting fire pits.

34.   So, I find the fire pit is not a significant change for the purpose of section 71. Ms. Davie also submits that it is a violation of bylaw 33, which says fire hazards must be minimized, and prohibits items that will increase or tend to increase fire risk or insurance rates. There is no claim for bylaw enforcement, and no reference to bylaw 33, in the Dispute Notice. So, I find this claim is not properly before me to decide. In any event, I find there is no evidence before me that the fire pit is a fire hazard or increases insurance.

35.   As for the pergola, I also find it is not a significant change to the use or appearance of common property.

36.   The CRT has decided numerous disputes about whether pergolas and similar structures are significant changes for the purposes of SPA section 71. In deciding those cases, the CRT has said that the more permanent a structure is, the more likely it is to be a significant change: see Braun v. The Owners, Strata Plan 1295, 2021 BCCRT 1221 and Parsons v. The Owners, Strata Plan KAS1436, 2022 BCCRT 721. Although prior CRT decisions are not binding on me, I find that reasoning persuasive and apply it here.

37.   Based on the photos in evidence, the pergola is relatively small and lightweight, and it is only attached with small ropes tied to the deck railing. There is no evidence that it is attached in any other way. Overall, I find the Foley factors and the pergola’s degree of permanence support the conclusion that the pergola is not a significant change.

38.   Ms. Davie also says the pergola may damage the deck membrane, but I find there is no evidence of that before me.

39.   I dismiss the portion of Ms. Davie’s claim about items on the unit 82 balcony. I note that in any event, I would not order the strata to simply remove the items as Ms. Davie requests. That is not permitted by the SPA until the strata has given notice under SPA section 135.

Unit 82 – hot tub and wood deck

40.   Ms. Davie provided photos showing that the unit 82 occupants installed a hot tub and wooden deck at the rear of their strata lot.

41.   The strata says the tenants who installed the hot tub have moved out, and the hot tub has been removed. Since Ms. Davie provided no contrary evidence, I find that part of the claim is moot.

42.   As for the deck, emails in evidence show the strata issued a bylaw violation notice to the owner, and conducted an email vote to remove the deck. An email vote by the strata council is not valid until ratified at a properly convened meeting: see Kayne v. The Owners, Strata Plan LMS 2374, 2007 BCSC 1610. There is no evidence that the decision to remove the deck was ever ratified, so I find this does not answer Ms. Davie’s claim.

43.   Based on the photos, on the Foley factors, and the degree of permanence, I find the deck is a significant change to the use and appearance of common property. It covers a significant portion of the yard area, and is not easily removed. It converts a grassy area to a hard-surface deck.

44.   Ms. Davie requests an order that the strata remove the deck. However, it is unclear whether the strata has given notice of this possibility to the unit 82 owners, as required under SPA section 135. So, I do not order removal. Also, it is possible for the strata ownership to approve a significant change, through a ¾ vote.

45.   So, unless the unit 82 owners remove the deck, I order that within 60 days of this decision, the strata must hold a ¾ vote at a general meeting on whether to approve the deck. If the deck is not approved, the strata must ensure it is removed within 90 days of the vote.

Unit 85 – wooden garden bed

46.   Ms. Davie provided photos showing that someone has installed an L-shaped raised, wood-framed garden bed next to the front stairs at unit 85. The strata says it has no opinion on this claim.

47.   Based on the photos, the Foley factors, and the degree of permanence, I find this garden bed is a significant change to the use and appearance common property. It is quite large, and clearly visible in front of the strata lot. It would not be easily removed, and it changes both the use and appearance of the landscaping in that area.

48.   Again, Ms. Davie requests an order that the strata remove the garden bed. For the same reasons as explained above, I find that remedy is not appropriate. Rather, I order that unless the unit 85 owners remove the garden bed, within 60 days of this decision, the strata must hold a ¾ vote at a general meeting on whether to approve the garden bed. If the garden bed is not approved, the strata must ensure it is removed within 90 days of the vote.

Unit 15 – vegetable garden and wooden border

49.   Ms. Davie provided before-and-after photos showing that someone has removed the landscaping shrubs from in front of unit 15, and replaced them with a gravel pad and 2 raised wooden garden beds. Ms. Davie requests an order that the strata remove the gravel and garden beds, and restore the landscaping to its previous condition.

50.   The strata does not dispute that this is a significant change to common property, but says it cannot afford to replace the shrubs.

51.   For the same reasons as in my analysis above of the unit 85 garden beds, I find unit 15’s gravel pad and raised wooden garden beds are significant changes to the use and appearance of common property. They are quite large, and clearly visible in front of the strata lot. They would not be easily removed, and change both the use and appearance of the landscaping in that area.

52.   Also for the same reasons as above, unless the unit 15 owners remove the gravel pad and raised beds, I order that within 60 days of this decision, the strata must hold a ¾ vote at a general meeting on whether to approve the landscaping changes. If the changes are not approved, the strata must ensure the gravel pad and raised beds are removed within 90 days of the vote.

53.   As for restoring the original shrubbery, I leave this for the strata to decide. I note that if the unit 15 occupants changed the landscaping without advance written permission, as appears to be the case, the strata may elect to enforce bylaw 6(1). Under SPA section 133, the strata may require a person who may be fined for a bylaw contravention to pay the reasonable costs of remedying the contravention.

Units 4 and 24 – landscaping

54.   Ms. Davie says the strata, or someone else, removed healthy plants and bushes from in front of units 4 and 24. She requests an order that the strata restore the landscaping to its original condition.

55.   In its Dispute Response, the strata agreed with this claim. In its submissions, the strata says that some plants simply died.

56.   Based on the photos in evidence, I find these landscaping changes are relatively minor. It is impossible for landscaping to remain identical over a span of years, since some plants will grow large, and others may die. Based on the Foley factors, I find the landscaping changes shown in the photos are not significant. There is no change in use, and the change to appearance is minimal. I find there is no affect on the enjoyment, use or value of any strata lot. Also, the evidence shows that the strata’s past approach to common property landscaping has been to allow a significant amount of owner intervention.

57.   So, I find there is no significant change to the landscaping in front of units 4 and 24. I dismiss this part of the claim.

Units 64 and 73 – trampolines

58.   Ms. Davie provided photos showing that someone has placed trampolines on lawn areas near units 64 and 73. She says these are a hazard and a liability, and requests an order that the strata remove them.

59.   I find the trampolines are not a significant change to common property. Following the reasoning in Reid, cited above, I find they are not permanent, and easily removed or relocated. This supports a finding that they are not a significant change. There is also no evidence that these trampolines have any impact on the use, enjoyment, or value of any strata lot.

60.   As for Ms. Davie’s argument about hazard and liability, I note that in February 2023, strata owners rejected a bylaw amendment resolution to ban trampolines. So, I find the strata owners have considered this issue, and made a democratic decision about it.

61.   I dismiss this part of the claim.

CRT FEES AND EXPENSES

62.   Ms. Davie was partially successful in this dispute. Under the CRTA and the CRT’s rules I find she is entitled to reimbursement of half her CRT fees, which equals $112.50. Neither party claimed dispute-related expenses, so I order none.

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

ORDERS

64.   I order that:

a.    Unless the unit 82 owners have removed the deck, within 60 days of this decision, the strata must hold a ¾ vote at a general meeting on whether to approve the deck. If the deck is not approved, the strata must ensure it is removed within 90 days of the vote.

b.    Unless the unit 85 owners have removed the garden bed, I order that within 60 days of this decision, the strata must hold a ¾ vote at a general meeting on whether to approve the garden bed. If the garden bed is not approved, the strata must ensure it is removed within 90 days of the vote.

c.    Unless the unit 15 owners have removed the gravel pad and raised beds, within 60 days of this decision, the strata must hold a ¾ vote at a general meeting on whether to approve the landscaping changes. If the changes are not approved, the strata must ensure the gravel pad and raised beds are removed within 90 days of the vote.

d.    Within 30 days of this decision, the strata must reimburse Ms. Davie $112.50 for CRT fees.

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

66.   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.