Executive Summary: Key Legal and Evidentiary Issues

• Dispute over responsibility for repairs and maintenance of common property and limited common property under the Strata Property Act (SPA)

• Allegations of significantly unfair treatment and inconsistent application of bylaws by the strata corporation against the petitioners

• Determination of the lawful placement of a patio railing and whether historical use or bylaw compliance should prevail

• Consideration of whether the strata corporation can require owners to pay for repairs to common property

• Petitioners’ request to convert limited common property into strata lot property and adjust unit entitlement

• Assessment of whether the strata corporation’s actions amounted to bad faith or merely unfairness

Facts and outcome of the case

Background and parties

Diana Dorrance Maughan and Walter Maughan, the petitioners, are owners and occupants of strata lot #35 in a five-storey residential strata building known as “The Briar” in Vancouver, British Columbia. The respondents include The Owners, Strata Plan VR 778, and several individual members of the strata council. The central dispute arose when the strata corporation insisted that the petitioners pay for repairs to certain elements of their rooftop patio, including pavers, a railing, and glass, which the petitioners argued were the exclusive responsibility of the strata corporation as common property.

Key legal issues and positions

The petitioners claimed that the strata corporation’s actions were significantly unfair, inconsistent, and inequitable, particularly as they were being singled out compared to other owners with similar patios. They sought relief under section 164 of the Strata Property Act, which provides remedies for significantly unfair conduct by a strata corporation. The petitioners also requested that part of their limited common property (LCP), which had been converted into habitable space, be formally recognized as part of their strata lot, thereby increasing their unit entitlement.

The strata corporation argued that the petitioners had made unapproved alterations to common property, including the relocation of the patio railing and extension of pavers, and that any repairs required as a result were the petitioners’ responsibility under the bylaws. The corporation maintained that it had acted reasonably, in accordance with expert advice, and in the best interests of all owners.

Court’s analysis

The court examined whether the strata corporation’s actions constituted significantly unfair conduct under section 164 of the SPA and whether it had breached its statutory duty under section 72 to repair and maintain common property. The court found that the patio areas in question, including the railing and pavers, were common property and that the strata corporation could not require the petitioners to pay for their repair. The court also noted that the petitioners had been treated differently from other owners with similar patios, and that the historical placement of the railing had been accepted for decades without objection.

The court rejected the strata corporation’s arguments that a democratic vote or expert advice justified its actions, emphasizing that fairness under the SPA is not overridden by majority rule if the result is significantly unfair to minority owners. The court also found no compelling evidence that bylaw or building code compliance required the changes sought by the strata corporation.

Outcome and remedies

The court ruled in favor of the petitioners, finding that the strata corporation had acted in a significantly unfair manner. The court ordered the strata corporation to pay for the repairs to the common property areas of the patio, to restore the railing and pavers to their previous locations, and to convert the relevant LCP areas into part of the petitioners’ strata lot, with an adjustment to their unit entitlement. The petitioners were granted full use of the patio space, and the court awarded them the costs of the proceeding. No specific monetary damages were awarded, but the petitioners were entitled to their legal costs.