Alterations to Common Property

All strata corporations in BC are required to have bylaws. If they haven't passed their own, the standard bylaws of the Strata Property Act apply. The standard bylaws require strata council approval before an owner can make alterations to common property. However, in certain cases, council doesn't have the authority to approve alterations to common property and a 3/4 vote of the owners is required. A 3/4 vote is only required when the alterations are significant in the use or appearance of the common property. What is significant is a fact dependent question and can be different for every strata corporation.

In some cases, a dispute arises over alterations to common property. In the case of The Owners, Strata Plan KAS 510 v Nicholson, 2017 BCCRT 48, the strata corporation was in a dispute with the owner over a deck extension. The strata had sued the owner (Nicholson) wanting the owner to restore the deck to its original depth and length, stating that she didn't have the proper approval for her extension because the owner had been on council when the extension was approved and was in a conflict of interest.

The CRT noted that there were no council minutes confirming council's approval of the deck extension at the time. However, the owner had received written confirmation from the strata council for the deck extension. As a result, the CRT found that the written email confirming approval was sufficient. The CRT specifically noted:

"What is missing in this case is formal documentation of the deck extension. There is nothing in the SPA that specifically states such approval must be documented in minutes although doing so would certainly be prudent."

Further, the CRT found that the extension approval was not affected by the owner being on council because the owner took no part in the vote to approve her request.

Lastly, the CRT also commented that, even if the deck extension hadn't been properly approved, the strata corporation waited too long to sue the owner. A CRT claim (or court claim) must be commenced within 2 years (with some exceptions) from the day that the claim is discovered, or the day that the claim would reasonably have been discovered. Because the deck extension had been completed more than 2 years before the strata started the CRT action, the CRT indicated that the claim would have also been dismissed for being out of time.

Because the deck extension was easily visible to anyone who looked at the deck, the strata council couldn't say they didn't know about the deck extension until later. The strata couldn't argue that a new council became concerned about the deck extension after elected. The deck had been completed more than 2 years before the claim was filed.

As a result, the strata's claim was dismissed on both grounds: approval was properly granted, and the claim was out of time. The owner was able to keep her deck extension.

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TAEYA FITZPATRICK Taeya Fitzpatrick has specialized in strata law for most of her practice, has won cases for her clients in the BC Supreme Court, the BC Court of Appeal, and assisted with a client succeeding in defending a Civil Resolution Tribunal claim. Taeya offers full services to a strata corporation or a strata owner from redrafting the strata’s bylaws, collection of outstanding strata fees or other charges, issues with bylaw enforcement, to amending the strata plan. For more information on the services provided, you can reach Taeya by email, phone: 250-763-4323, or at her Web Page.