Strata Alert: Significant Changes in Use or Appearance of Common Property

Lisa Frey, admin@lmlaw.ca Phone: 604-685-3567.

In  Foley v. Strata Plan VR 387, 2014 BCSC 1333, a group of unhappy condo owners successfully petitioned the court regarding what they felt was a significant alteration to their building without proper approval.  The case provides some further guidance for strata councils as to what constitutes a “significant” change in appearance or use necessitating ¾ approval by the ownership, as opposed to the types of minor decisions which can be made by the council.

In this strata building, all of the decks and roof areas were common property.  As part of an authorized repair, however, the respondent, Troy Martin, “accidentally” extended his penthouse suite deck beyond the boundaries originally approved by the council.  When he was fined for doing so, and asked to return it to its original state, Mr. Martin met with council and together they worked out with the council what seemed like a good compromise.  He would install a gate which would restrict access to the front 5 feet of the deck, but Mr. Martin could place planters on the front portion of the new deck and could venture onto that portion to water them.

Unfortunately for Mr. Martin, his furtive deck expansion ruffled a few feathers.  It happened to be right above the bedroom of his neighbor, Mr. Foley, whose partner worked night-shift and did not appreciate the added noise.  Several other neighbors lost privacy, their decks or sunrooms now being exposed to anyone standing on the deck above.

The group of owners attained the number of votes required for a general meeting but (presumably deciding not to hire strata lawyer), their resolutions did not accord with the Strata Property Act and did not pass.

When the unhappy owners brought their argument to the courthouse, the strata council argued that this type of a change to the common property was not a significant change in appearance or use.  The Court, however, disagreed.

What are the factors in which the council must consider when deciding if they have to consult all of the owners?  This case affirmed earlier criteria, including (among others) how visible the change is to residents and the general public, whether the change affects the use and enjoyment of other units, whether the change causes direct interference or disruption to existing units, and whether the change enhances the value of the unit.  In this case, the Court found that the fact that Mr. Martin had effectively incorporated a common area into his “private area” alone may have been enough to find that the change required approval at a general meeting.

In the end, the parties were ordered back to the democratic drawing board to pass a ¾ vote determining whether Mr. Martin could keep his extended balcony, showing once again the Court’s appetite for political solutions to strata problems rather than litigious ones.

WHAT WE DO:  Since 1997 Lesperance Mendes has been advising strata corporations and condominium owners on a wide range of legal topics, including bylaw amendments and enforcement.  To find out more about our condominium and strata law practice, please contact Paul G. Mendes at 604-685-4894 or pgm@lmlaw.ca

Lesperance Mendes Lawyers
900 Howe St #550, Vancouver, BC V6Z 2M4
(604) 685-3567