Date Issued: September 14, 2023
File: ST-2022-008890
Type: Strata
Civil Resolution Tribunal
Indexed as: Muzina v. The Owners, Strata Plan EPS502, 2023 BCCRT 778
Between:
ELVIS MUZINA
Applicant
And:
The Owners, Strata Plan EPS502
Respondent
REASONS FOR DECISION |
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Tribunal Member: |
Alison Wake |
NTRODUCTION
1. This dispute is about allocation of parking stalls. The applicant, Elvis Muzina, owns a strata lot in the respondent strata corporation, The Owners, Strata Plan EPS502 (strata). Mr. Muzina says the strata has acted unfairly and contrary to the Strata Property Act (SPA) by changing limited common property (LCP) parking stalls to visitor parking, and common property (CP) visitor parking stalls to owner parking. Mr. Muzina asks for an order that the strata move one of his parking stalls closer to his unit, or that the strata reverse the changes.
2. The strata says that it has acted fairly and in compliance with the SPA in its allocation of the parking stalls, and that it properly informed the owner about the changes. So, the strata says the changes should not be reversed.
3. Mr. Muzina 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. 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
7. The issues in this dispute are:
a. Did the strata comply with the SPA in converting LCP parking stalls to visitor parking?
b. Did the strata comply with the SPA in converting common property visitor parking stalls to owner parking?
c. Did the strata act in a manner that was significantly unfair to Mr. Muzina?
d. What remedies, if any, are appropriate?
BACKGROUND AND EVIDENCE
8. In a civil proceeding like this one, as the applicant Mr. Muzina must prove his claims on a balance of probabilities (meaning more likely than not). I have read all the parties’ submissions and evidence but refer only to the evidence and argument that I find relevant to provide context for my decision.
9. The strata is a phased strata corporation, consisting of 65 residential strata lots constructed in 14 phases. This dispute concerns phase 10, which includes a townhouse-style building containing strata lots 44 to 48 (phase 10 lots). Mr. Muzina owns strata lot 46 (SL46), which is the building’s middle lot.
10. The strata plan shows that 10 parking stalls are designated as LCP for the phase 10 lots. There are 4 parking stalls in front of the phase 10 lots (the near LCP stalls), and another 6 stalls some distance away, next to strata lots 16 and 17 (the far LCP stalls). Each of strata lots 44, 46, 47 and 48 is designated one of the near LCP stalls and one of the far LCP stalls. Strata lot 45 is designated 2 of the far LCP stalls.
11. There are also CP parking stalls located in front of the phase 10 lots, which the strata undisputedly previously used for visitor parking (the CP stalls). At the strata’s October 17, 2019 annual general meeting (AGM), the strata discussed reallocating the parking stalls so that the CP stalls, nearer to the phase 10 lots, could be used by the phase 10 owners and the far LCP stalls could be used as visitor parking. The strata passed a special resolution approving funds to conduct a land survey and to engage legal counsel to draft a resolution to consider at the 2020 AGM for the reallocation of the parking stalls.
12. Strata council meeting minutes show that at its November 14, 2019 meeting the strata council voted to engage a surveyor in relation to the parking stall reallocation. The strata council also voted to use short term exclusive use agreements under section 76 of the SPA to temporarily reallocate some stalls. More on this below.
13. On July 14, 2020, the strata manager emailed a letter to the phase 10 owners. I note Mr. Muzina denies receiving this email, but I find nothing turns on this given my conclusions below. The letter explained that line painting had been carried out to increase the 4 CP stalls, which had previously been used for visitor parking, to 5 stalls. The letter went on to explain that the visitor parking would be “relocated” and would be replaced by resident parking, with 4 stalls being allocated on a first come, first served basis. I note the strata does not explain why only 4 of the 5 stalls would be allocated in this way, but I infer from the evidence that the strata decided to assign one of the 5 stalls to SL45 outright because each of the other phase 10 lots had already been designated one of the near LCP stalls. The strata manager asked the phase 10 owners to contact them by 8:00 am on July 20, 2020, to indicate whether they wanted a second stall located closer to their unit.
14. The strata says it received responses from the owners of strata lots 44, 45, 47 and 48, and so it granted each of them short term exclusive use of the CP stalls. The strata meeting minutes from 2020 discuss providing these owners with short term exclusive use agreements for their assigned stalls, but the agreements themselves are not in evidence. I will discuss these agreements further below.
15. The strata provided an excerpt of its November 5, 2020 AGM minutes. These minutes show that the strata reported that it had moved owner parking for 5 units to be closer to their doors “on a limited use agreement basis”. I find this is likely an error as the strata undisputedly only moved owner parking for 4 units (strata lots 44, 45, 47 and 48). The November 2020 AGM minutes do not show that the strata considered or passed a resolution in relation to the parking changes, despite the resolution at the 2019 AGM approving funds to engage legal counsel to draft a resolution for consideration.
16. The strata says in its Dispute Response that it “tried for a unanimous vote” at its 2022 AGM to “make this change permanent”, but that it was unsuccessful. The strata did not provide minutes of this AGM in evidence.
17. The current situation as a result of the line painting and the apparent short term exclusive use agreements is that each of strata lots 44, 45, 47 and 48 has 2 designated parking stalls located in front of the phase 10 lots, whereas SL46 is only designated one stall in this location. A second stall is designated for SL46 in the far LCP stalls, the remainder of which are now labelled as visitor parking. Mr. Muzina says these changes are unfair and contrary to the SPA.
ANALYSIS
Did the strata comply with the SPA in converting LCP parking stalls to visitor parking?
18. As noted, the strata plan shows the far LCP stalls as being designated for the exclusive use of the phase 10 lots, with 2 stalls designated for strata lot 45 and 1 stall each designated for strata lots 44, 46, 47 and 48. It is undisputed that the line painting completed in the summer of 2020 converted these 6 stalls into 7. It is also undisputed that these stalls are currently labelled as visitor parking and are used for that purpose, except one stall which is reserved for SL46.
19. The effect of these changes is that the current parking arrangement is inconsistent with what is shown on the strata plan. I find that by resizing the far LCP stalls and permitting visitor parking in them, the strata has interfered with the LCP designation as shown on the strata plan and has encroached on the phase 10 owners’ rights to exclusively use their LCP. Although there is no evidence before me that the phase 10 owners other than Mr. Muzina dispute this, I find all phase 10 owners, including Mr. Muzina, are entitled to conformity with the strata plan and to the full benefit of their LCP: Re Owners of Strata Plan NW 2212, 2010 BCSC 519 at paragraph 46.
20. Where an LCP designation was made by the owner developer, which I find to be the case here, the only mechanism to remove the LCP designation is to amend the strata plan under section 257 of the SPA. This requires the strata to pass a resolution by unanimous vote at an AGM or special general meeting.
21. It is undisputed that the strata has not unanimously passed a resolution to remove the LCP designation from the far LCP stalls. The strata says the stalls are marked for visitors under a “short term agreement”. I infer the strata is referring to section 76 of the SPA, which permits a strata corporation to grant short term exclusive use of CP to an owner or tenant for a period of up to one year, subject to renewal. However, this section applies only to CP that is not already designated as LCP. Also, the current arrangement does not grant exclusive use of the far LCP stalls to a particular owner or tenant. Instead, under the current arrangement the far LCP stalls are reserved for visitors, other than one stall which is reserved for Mr. Muzina (but which as noted has been resized, so does not conform to the strata plan in any event).
22. So, I find section 76 of the SPA does not apply to the conversion of the far LCP stalls to visitor parking. I find the strata did not comply with the SPA in repainting the far LCP stalls’ lines to create 7 parking stalls, and in labelling 6 of those 7 stalls as visitor parking, without passing a unanimous resolution as required by section 257. I will address the appropriate remedy for this below.
Did the strata comply with the SPA in converting common property visitor parking stalls to owner parking?
23. As noted, in addition to labelling the far LCP stalls as visitor parking, the strata undisputedly converted the CP stalls from visitor parking to owner parking in July 2020. The strata says it has done this by implementing short term exclusive use agreements. As discussed above, section 76 of the SPA permits a strata corporation to give an owner exclusive use of common property for a period not to exceed one year, subject to renewal.
24. The strata council’s meeting minutes indicate that it entered into short term exclusive use agreements for the CP stalls with the “affected owners”, who I infer are the owners of strata lots 44, 45, 47 and 48. As noted, copies of these agreements are not in evidence, so the parties to them and the exact date they were entered into are not clear. The September 3, 2020 minutes indicate the strata intended to finalize the agreements by September 14, 2020, and the January 12, 2021 minutes indicate the agreements had been distributed to the affected owners, so I infer the agreements were finalized in that time.
25. However, Mr. Muzina says, and the strata does not dispute, that the strata did not renew these original short term exclusive use agreements after one year as required by section 76 of the SPA. In its Dispute Response, the strata indicated it had a “plan” to create a rule allowing the owners of strata lots 44-48 to “apply to participate”, and that it would hold a random draw annually to allocate parking among them. There is no evidence before me that the strata ever created such a rule. I note that the short term exclusive use agreements and the strata’s proposed rule would conflict with the strata’s bylaw 33(2)(a), which says that a resident will not park on any roadway, fire lane, visitor parking stall or CP unless such CP is a parking stall that is designated as LCP for the exclusive use of such resident’s strata lot.
26. In the absence of any evidence that the strata has granted permission for short term use of the CP stalls beyond the initial short term exclusive use agreements, I find the strata has not complied with section 76 of the SPA by continuing to allow the phase 10 owners, other than Mr. Muzina, to park in the CP stalls.
Did the strata act in a manner that was significantly unfair to Mr. Muzina?
27. Given my conclusions that the strata has not complied with the SPA, I find I do not need to consider whether the strata acted significantly unfairly towards Mr. Muzina in the reallocation process. The parties’ arguments on this point primarily relate to the strata’s communication with Mr. Muzina about the parking stall reallocation. I have found the strata did not comply with the SPA in reallocating the parking stalls, and I make orders below to address these breaches. I find the outcome of this decision would be the same whether or not I found the strata had acted significantly unfairly, so I have not addressed Mr. Muzina’s arguments about whether the process was fair.
What remedies are appropriate?
28. As noted, Mr. Muzina asks for an order that the strata move his parking stall away from visitor parking and closer to his unit. I accept the strata’s submission that because there are 5 phase 10 lots, and only 9 parking stalls directly in front of phase 10 (the CP stalls and the near LCP stalls), it cannot physically assign each phase 10 owner 2 parking stalls close to their unit. In L.S. v. The Owners, Strata Plan ABC XXXX, 2019 BCCRT 454, a CRT member found that an order requiring the strata to designate a parking stall to a particular owner would not be appropriate, because the allocation of parking stalls is within the strata council’s discretion, subject to its obligation to act in the best interests of all owners and in a way that is not significantly unfair. Although other CRT decisions are not binding on me, I find this reasoning persuasive and apply it here. For these reasons, I decline to order the strata to designate Mr. Muzina a particular parking stall closer to his unit.
29. However, given my findings that the strata’s reallocation of the far LCP stalls and the CP stalls did not comply with the SPA, I find the strata must take action to remedy these breaches. Because reversing the changes entirely will inevitably involve some expense to the strata and would affect other owners besides Mr. Muzina, I find it appropriate to first allow the strata an opportunity for the owners to consider and vote on the changes, including considering whether to remove the LCP designation from the far LCP stalls, and whether to designate the CP stalls as LCP. Because the removal of the LCP designation requires a unanimous vote, I find the strata will need sufficient time to inform the owners and take necessary steps to organize a vote if desired. I find 6 months is an appropriate time within which to do so, considering the strata’s notice obligations under the SPA.
30. So, within 6 months of the date of this decision, I order the strata to repaint the lines and stall numbers on the far LCP stalls to be consistent with the strata plan, and to remove any signage indicating the far LCP stalls are visitor parking, unless the strata has passed a unanimous resolution under section 257 of the SPA to remove the LCP designation from the far LCP stalls.
31. I pause to note that if such a unanimous resolution is not passed, nothing in this decision prevents individual phase 10 owners from agreeing with the strata that their LCP stalls may be used for visitor parking. I find the phase 10 owners’ entitlement to exclusive use of the LCP stalls extends to the ability to agree to let others use the LCP. However, this would still require that the far LCP stall lines be repainted to be consistent with the strata plan, because the owners may only grant permission for the use of the LCP that is designated to them on the strata plan.
32. I also order the strata to restore the CP stalls to visitor parking within 6 months of the date of this decision, unless any of the following occurs:
a. The strata has passed a unanimous resolution under section 257 of the SPA designating the CP stalls as LCP,
b. The strata has passed a ¾ resolution under section 74 of the SPA designating the CP stalls as LCP, or
c. The strata has given permission to an owner or tenant to exclusively use each of the CP stalls for a period of not more than one year under section 76 of the SPA.
33. I note here for certainty that this order does not require the strata to repaint the CP stalls’ lines, because these stalls are not depicted on the strata plan.
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. I therefore order the strata to reimburse Mr. Muzina for CRT fees of $225.
35. The strata must comply with section 189.4 of the SPA, which includes not charging dispute-related expenses against Mr. Muzina.
ORDERS
36. Within 21 days of this decision, I order the strata to reimburse Mr. Muzina $225 for CRT fees.
37. Within 6 months of this decision, I order the strata to repaint the lines and stall numbers on the far LCP stalls to be consistent with the strata plan, and to remove any signage indicating the far LCP stalls are visitor parking, unless the owners have passed a unanimous resolution under section 257 of the SPA to remove the LCP designation from the far LCP stalls.
38. Within 6 months of this decision, I order the strata to restore the CP stalls to visitor parking, unless any of the following has occurred:
a. The strata has passed a unanimous resolution under section 257 of the SPA designating the CP stalls as LCP,
b. The strata has passed a ¾ resolution under section 74 of the SPA designating the CP stalls as LCP, or
c. The strata has given permission to an owner or tenant to exclusively use each of the CP stalls for a period of not more than one year under section 76 of the SPA.
39. Mr. Muzina is entitled to post-judgment interest under the Court Order Interest Act.
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Alison Wake, Tribunal Member |
40. 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.