Strata Alert: Court of Appeal Clarifies Rights of Owners to Control Limited Common Property

Alex J. Chang, JD
P:  604-685-1255

Court of Appeal Clarifies Rights of Owners to Control Limited Common Property

In Stratton v. Richter, 2022 BCCA 337, Lesperance Mendes won a victory for our clients in the Court of Appeal, securing their right to the exclusive use of a deck designated as limited common property (LCP) for their strata lot.

Although this was a modest dispute on the facts, the Court’s comment on the law should be of interest to real estate and strata law practitioners.

The Strata Property Act (SPA) provides that areas of common property may be designated as LCP. Such common property, while not forming part of an individual strata lot, is designated for the exclusive use of one or more strata lots. Where land is designated as LCP, the owner of the strata lot that is given exclusive use of that property will have considerable control over it.

In this case, the LCP deck was designated for the exclusive use of the owners of the appellants’ strata lot. However, from very early in the strata development’s history, the various owners of the strata lot owned by the respondent used the LCP deck to access a stairway without any objection. A couple of years after purchasing, the appellants had a falling out with the respondent and denied access to the deck. The respondent filed a Petition seeking an easement under the equitable doctrine of proprietary estoppel.

The appellants took the position that the LCP designation on the registered strata plan granted them the right to exclusive use of the deck and that recognizing or granting an unregistered easement would override the consumer protections and property rights guaranteed to owners under the SPA and Land Title Act (LTA).

In granting the appeal the Court cautioned against recognizing unregistered property rights or granting easements as a remedy in equity, particularly in the strata context. The Court confirmed that an easement did not exist because it had not been created under the “specific mechanisms” set out in the SPA. The Court also cast “considerable doubt” on whether an easement could be granted as an equitable remedy because “[t]here is no general power in a court to override a statute in order to effect equity.”

The Court also provided greater certainty over the divergent authority concerning s. 29 of the LTA. Section 29(2) provides that a person dealing with a registered owner of land is not affected by an unregistered interest affecting the land or charge unless he or she has participated in fraud.  The Court held that the BC Supreme Court had seemingly reached a consensus around the legal test for fraud and itself held that the correct question was “whether [the appellants] were involved in fraudulent behaviour, not whether they had notice of any claim”.

The Court cast doubt on whether an easement could be granted under the doctrine of proprietary estoppel despite the LTA and SPA and went on to find that the doctrine did not apply in any event. The respondent principally relied on a promise by the appellants’ predecessor in title that she would “always allow [the respondent] to use that right of way, even though it was undocumented.” The Court took issue with several aspects of this representation as a basis for finding the test proprietary estoppel was made out. First, the promise to the respondent by the prior owner was vague. Second, the previous owner did not exclusively own the common property deck and therefore, did not have the authority to grant an easement. Finally, the appellants were not privies to the personal promise of the prior owner.

Another interesting aspect of the case was that the respondent sought to discredit the appellants’ registered rights under the strata plan by alleging it had several inconsistencies. A strata plan is a fundamental document that sets out the property rights of strata owners. Nevertheless, the Chambers Judge accepted the respondent’s arguments which led him to err in his analysis. In addressing these errors, the Court of Appeal provided helpful guidance for properly interpreting property rights and duties set out in strata plans.

The Court of Appeal’s decision provides greater certainty for purchasers of real property that they can rely on their registered and legislated property rights, including LCP designations. Likewise, it is a caution against those that might seek to override those rights based on vague or informal promises or the law of equity, particularly in the highly regulated strata property context.

Lesperance Mendes has been representing and advising British Columbia strata corporations, strata owners, and strata managers since 1997. To find out more about our strata property law practice, contact any member of our strata property law practice group: Paul Mendes, Sat Harwood, Alex Chang, or Amanda Magee.


THIS ARTICLE IS NOT LEGAL ADVICE:  This article provides general information and should not be relied upon without independent legal advice with respect to the specific facts of your case.