The following article was co-authored by Sat D. Harwood of Lesperance Mendes and Alexandre Bouchard, P.Eng of Best Consultants.
Strata councils are frequently presented with requests from their owners to make alterations to the common property or limited common property bordering their strata lot. Such proposals should not be taken lightly as the decision to approve such alterations can have significant implications for both the strata corporation and individual owners.
The Strata Property Act (the “Act”) and the Strata Property Act Regulation (the “Regulation”) do not allow strata corporations to make an owner responsible for maintaining common property. However, the standard bylaws which are attached to the Act require that an owner obtain strata corporation approval before altering common property. The standard bylaws further provide that as a condition of its approval, the strata corporation may require the owner to assume responsibility for any expenses related to that alteration.
Given this legal framework, strata councils should ensure that the materials and/or products selected, as well as their installation are completed in a manner that will minimize potential damage to the common property and its surroundings and mitigate potential liability for the strata corporation.
To accomplish this, we suggest that, at a minimum, the strata council should require the following information prior to considering any request for approval:
• A detailed description of the proposed alterations including copies of product information and design documentation such as site plans, specifications, or shop drawings illustrating the proposed alterations.
• These documents should be prepared and/or approved by a professional.
• A detailed description of the location being altered.
• A copy of any building permits (if applicable).
• Information with respect to the qualifications of the proposed contractor who will undertake the work.
• Proof of liability and WorkSafeBC insurance carried by the proposed contractor(s).
• Proof of insurance carried by the owner(s).
This information will provide the strata council with a better understanding how the alterations may impact common property or limited common property.
Once the above information is received, the strata council may wish to:
• Retain a qualified architect or professional engineer to review the information, answer any questions and provide the strata council with written confirmation that the proposed alterations will not result in damage to the common property, limited common property or its surroundings.
• Retain legal counsel to draft an agreement requiring, at a minimum, that:
• The alteration be completed in compliance with the plans and specifications.
• The alteration be reviewed by an engineer or architect.
• The engineer or architect submit a written report confirming that the alteration complies with the approved documents and is otherwise free from defects.
• The owner provide copies of the liability and WorkSafeBC insurance policies carried by its contractors and consultants.
• The owner provide proof of his/her own insurance in respect of the alterations.
• The owner be responsible for repairing and maintaining the alterations.
• The owner indemnify the strata corporation for any claims arising from the alterations including, for example, deficiency claims and builders’ lien claims.
To ensure greater transparency with the process, the strata council may wish to enact revisions to the bylaws describing the above process in detail.
Where we can help
BEST Consultants specializes in the field of Building Science and Engineering and can assist in reviewing proposed alterations to common property and advising strata councils how to mitigate potential damages to the building and its systems. Any questions pertaining to building science or engineering services can be forwarded to Alexandre Bouchard, P.Eng. at abouchard@bestbse.ca or by phone at 604-356-5022.
Lesperance Mendes Lawyers assists strata corporations and owners on strata governance and construction matters including alteration agreements and bylaw amendments. Any questions pertaining to the legal implications of common property or strata lot alterations can be directed to Sat D. Harwood at sdh@lmlaw.ca or by phone at 604-685-3550.
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.