BCSC establishes a test on what constitutes a “significant change” in the use or appearance of common property under s. 71 of the Strata Property Act

In an unreported decision from last year, the BC Supreme Court articulated the factors to be considered by the court and, by extension, councils when considering changes to the use or appearance of the common property. Under s. 71 of the Act, the strata corporation must not make a “significant change” in the use or appearance of common property or land that is a common asset unless (a) the change is approved by a resolution passed by a 3/4 vote at an annual or special general meeting, or (b) there are reasonable grounds to believe that immediate change is necessary to ensure safety or prevent significant loss or damage. Councils are often concerned about when it is appropriate to refer a proposed change to a ¾ vote (see, for example, the Dollar case).

In Chan v. The Owners, Strata Plan VR677, Vancouver Registry No. S115516, February 2, 2012, the owners of a strata lot in a tri-plex brought a court action to stop one of the owners from making changes to the exterior of the building that was previously approved by 2 of the 3 owners (including the owner who sought to make the change). The petitioners believed the changes, which involved among other things, moving a door and a window, were “significant” and therefore required more than a 2/3rds approval of the owners. In dismissing the petitioners’ complaint, the court set out a “non-exhaustive” list of objective and subjective factors that should be considered under s. 71, including:

•1. whether the proposed change is visible to other owners or the general public;

•2. whether the change will affect the use or enjoyment of one or more strata lots;

•3. whether the change will impact market value;

•4. the number of units in the strata; or

•5. whether the development is residential, commercial or mixed use.

Not included in the factors set out by the Court, although it was mentioned in the summary of the facts, is that the petitioners had previously made alterations to their own strata lots and the common property without seeking the approval of the strata corporation. As noted above, this case is unreported. Please email me if you would like a copy of the decision.

WHAT WE DO: Lesperance Mendes advises strata councils, property managers and strata lot owners on strata property law, building warranty/ renovation claims, and environmental claims. To find out more about our strata law practice, contact Paul G. Mendes at pgm@lmlaw.ca. To find out more about our construction law practice, contact John G. Mendes at jgm@lmlaw.ca. To find out more about our environmental law practice, contact Bob Lesperance at rjl@lmlaw.ca.

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