BC Appeal Court Confirms the Strata Council’s Discretion on Bylaw Enforcement
Robert Mallett, Associate
Email: ram@lmlaw.ca
Phone: 604-685-3560
Abdoh v. The Owners of Strata Plan KAS2003, 2014 BCCA 270
This case was an appeal by the plaintiffs, the Ab does, who owned a residential strata lot at Sun Peaks resort. There was a commercial strata lot in the same complex that had been occupied by a restaurant for about 15 years.
Originally, a portion of an underground floor had been designated limited common property (LCP) in favour of residential owners. The developer had allowed the restaurant to leave refrigeration equipment in the LCP. The LCP designation over some of the used space was supposedly changed in favor of the restaurant at a 1998 AGM.
The equipment was never removed but no one ever complained – until Mr. Abdoh moved to the building and insisted in 2010 that the restaurant could not use the LCP. It was not clear why this equipment upset him. The equipment would have been expensive to relocate. The majority of the council members agreed to allow the restaurant to continue to use the space but didn’t provide Mr. Abdoh with a legal basis for this decision.
Mr. Abdoh then sued the strata and the restaurant. He wanted an order stating that the restaurant could not use the space and the strata could not give them permission.
The BCCA approved the following considerations of the trial judge:
a) the number of owners seeking relief;
b) whether the order sought was in the best interests of the Strata Corporation; and
c) whether inaction would unfairly prejudice the applicants.
The BCCA found the trial judge properly concluded that this contravention was trifling and the strata then had no duty to demand that the restaurant remove the equipment. The court approved of strata corporations’ application of the maxim ‘de minimis non-curat lex’ (the law does not concern itself with trifles) in strata decisions.
WHAT WE DO: Lesperance Mendes is a trusted advisor to strata corporations, strata councils, strata owners and property managers on strata property law issues and bylaw enforcement. For more information about strata property law or speak with one of the lawyers, please contact Paul G. Mendes, Partner, at pgm@lmlaw.ca or by phone at 604-685-4894.
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