Strata Alert: CRT rules against strata corporation in dispute over accessible parking
By Paul G. Mendes and Amanda Magee
Paul G. Mendes, Partner Amanda Magee, Associate
Phone: 604-685-4894 Phone: 604-685-5438
Email: pgm@lmlaw.ca Email: amm@lmlaw.ca
Lisa Marie Ehrne v. The Owners, Strata Plan VR2601.
The Civil Resolutions Tribunal (CRT) has issued another default order, this time against a strata corporation in a dispute over accessible parking (formerly known as disabled parking).
This case involved a three-story residential stratum in North Vancouver. The building had a parkade located within the strata plan, and six of the parking stalls were noted on the strata plan as “Handicapped Parking”. The City of North Vancouver’s zoning bylaws requires at least one designated accessible parking or ‘handicap’ stall available for visitors in residential buildings.
When this building was completed in 1990, the owner-developer passed a ¾ vote resolution to designate all of the parking stalls as limited common property (LCP) for the exclusive use of individual owner purchasers, except for one parking stall that remained the common property and was designated as the ‘accessible parking’ stall. Over the years that stall was used by owners and visitors to the building, including the applicant until 2014 when the strata council assigned the stall to a new purchaser and painted over the accessible parking sign.
After the applicant complained to the strata corporation about the loss of the accessible parking stall, the strata responded by making her LCP parking space an accessible parking space. They did it without a vote of the strata corporation, and by bolting an accessible parking sign in her stall.
The CRT found that the strata did not have the right to paint over the original accessible parking stall or assign it to an owner for three reasons: (1) it was a violation of the City’s requirement to have one accessible stall; (2) it was a significant change in the use or appearance of common property which required approval from the owners by ¾ vote pursuant to section 71 of the Strata Property Act; and (3) the strata had not complied with the provisions under section 76 of the Act for a short-term exclusive use when it assigned the stall to the new owner, which it ought to have done since that stall was common property.
The Tribunal’s decision turned on the fact that the strata corporation was in violation of the City’s zoning bylaws by failing to have one accessible stall available. While it is common practice for developers to sell parking stalls to purchasing owners that may be been labelled as ‘handicapped parking’ on the strata plan, this decision suggests that neither the developer nor a ¾ vote of the subsequent owners can legally designate or assign a handicap parking stall to an individual owner, if doing so effectively means that the strata no longer has the minimum required accessible stalls under the relevant municipal zoning bylaws.
The Tribunal also found that the strata did not have the right to install accessible parking signage over the applicant’s parking stall. The sign implied that the applicant’s stall was common property to be used by any owner or visitor with an accessible parking permit, which effectively took away the applicant’s exclusive use of her limited common property.
While the Tribunal ultimately focused on the City’s zoning bylaws to reach its decision, this case is an important reminder that strata corporations should err on the side of caution by obtaining ¾ vote approval from the owners when making changes to common property areas which may be considered ‘significant’. In this case, the Tribunal found that removing the only accessible stall was a “direct interference and disruption” for the owners and visitors who required accessible parking.
This decision also highlights the importance of filing a Dispute Response form in the short 14-day window provided. If an application owner can provide proof that he or she properly served the Dispute Notice on the strata corporation (by registered mail to the most recent address on file for the strata corporation at the Land Title Office) then the CRT has the ability to make a binding decision without the strata corporation participating in the hearing whatsoever.
WHAT WE DO: Lesperance Mendes advises strata corporations, strata managers, and strata property owners on how to effectively advance or defend their rights through the Civil Resolutions Tribunal and the courts. We are also experienced with arbitrations and mediations of all manner of strata disputes. For more information on how experienced legal advice can assist you in your unsettling strata problem, please contact Paul G Mendes, partner, at 604-685-4894 or by email at pgm@lmlaw.ca.
THIS ARTICLE IS NOT LEGAL ADVICE: This article provides general information and should not be relied on upon without independent legal advice.
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