BC Court of Appeal reaffirms that a strata corporation’s duty to repair common property includes bringing common property “up to code”.
Frank v. The Owners, Strata Plan LMS 355, 2017 BCCA 92 on appeal from Frank v. The Owners Strata Plan LMS 355, 2016 BCSC 1206
Section 72 of the Strata Property Act (SPA) requires a strata corporation to repair and maintain the common property and common assets of the condominium. Reasonable people would agree that when common property is defective or failing to perform its intended function, it should be repaired or replaced. For example, if a roof deck membrane is leaking, the membrane is defective and failing to perform its intended purpose, namely, keeping rainwater out of the building. Obviously the membrane needs to be repaired or replaced.
But what if the only thing wrong with the roof deck is that the walls around it are too short?
In this case an owner with a limited common property (LCP) roof deck discovered that walls around his deck did not meet the height requirements of the BC Building Code. He applied to the strata for permission to bring the walls “up to code” by installing railings. The strata refused the permission, arguing that the installation of railings was a “significant use in change or appearance” that could only be done with a ¾ vote resolution of the ownership as required by section 71 of the SPA.
The strata’s position was rooted in its belief that the deck was originally intended to enclose HVAC equipment servicing the owner’s strata lot. In other words, the deck was not meant to be used by people, so the railings were unnecessary.
The ¾ vote resolution to approve the railings failed, so the unit owner took the strata to the BC Supreme Court. The owner went one step further, though, by seeking an order that the strata corporation be required to install the railings at its own expense. He took the position that the railings were a “necessary repair” under section 72 of the SPA. The Court agreed and ordered the strata to install the railings.
The strata appealed that decision to the BC Court of Appeal.
In the Court of Appeal the strata argued that the railings were “an upgrade” to what was otherwise “non-defective” common property. The strata repeated its argument from the Supreme Court, namely that the roof deck was not intended to be used as a deck, and that increasing the height of the walls was only required because of the owner’s intention to change the use of the deck.
In dismissing the appeal, the Court Of Appeal relied on an often cited passage from a BC Supreme Court case known as Taychuk v. Owners, Strata Plan LMS 744, which contains this definition of “repair” from the 1957 decision of the Supreme Court of Canada in Burns v. National Coal Board:
It is true that the primary meaning of the word “repair” is to restore to sound condition that which has previously been sound, but the word is also properly used in a sense of to make good. Moreover, the word is commonly used to describe the operation of making an article good or sound, irrespective of whether the article has been good or sound before.
The idea that the duty to repair under section 72 of the SPA encompasses “making an article good, regardless of whether the article has been good or sound before” is important for strata councils and strata managers to understand.
The deck in this case could not be used as deck without railings. The fact that the City had previously approved the deck without railings, or that the deck had not previously been used as a deck was irrelevant. The common property deck could not be used by people at all without the installation of these railings. Accordingly, the installation of the railings was a repair and not an upgrade.
WHAT WE DO: Lesperance Mendes has been advising strata corporations, strata owners and strata property managers on repair and maintenance issues since 1997. We have successfully applied to court for orders approving needed repairs when necessary. If you or your strata is struggling with repair and maintenance issues, contact Paul G Mendes, partner at 604-685-4894 or by email at PGM@LMLAW.CA.