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CONDOMINIUMS - Declarations - Essential elements - Statement of common areas and elements available

Tuesday, February 07, 2017 @ 10:39 AM  

Appeal by the Strata Plan and the co-petitioners from a judgment granting minority owners exclusive use of seven disputed parking spaces. The parties disagreed over the legal status of seven parking spaces in a 37-unit townhouse development. Each townhouse had a garage. Seven parking spaces were adjacent to seven townhouses. Historically, the spaces were described in the original disclosure statement as visitors parking and were treated as such by the owners, and by new purchasers. However, it subsequently surfaced that the strata plan did not show the parking spaces as common property. Instead, the spaces were described as limited common property, such that the owners of the adjacent units were able to assert exclusive right to use of the spaces. The majority of owners argued that the description of the parking spaces as limited common property was a mistake. The dissenting owners brought a petition claiming exclusive use of the parking spaces with related relief to protect that use. The majority of the owners brought a co-petition alleging the description of the parking spaces was in error, and the Strata Plan acted unfairly in failing to amend it through a resolution pursuant to s. 257 of the Strata Property Act. The judge allowed the dissenting owners' petition and dismissed the co-petition. The co-petitioners appealed.

HELD: Appeal allowed. The manner in which the issues were framed before the judge led to the erroneous view that the only way to amend the strata plan was by way of a resolution pursuant to s. 257 of the Strata Property Act. The judge erred in concluding that neither the disclosure statement nor the surveyor's evidence could affect the registered strata plan, essentially dismissing the surveyor's acknowledgement of an error in the plan as purely speculative and irrelevant. In fact, the issue of whether the strata plan contained an error in its description of the parking spots as limited common property was a threshold issue, as any such error was capable of rectification pursuant to s. 14.12 of the Strata Property Regulation. Had the procedure been followed, there may have been no need to resort to a s. 257 resolution, and no need to determine whether the Strata Plan acted unfairly in failing to pass a s. 257 resolution. Based on the record, it was necessary to remit the petitions for new hearings.

Chow v. Owners Strata Plan NW 3243, [2017] B.C.J. No. 71, British Columbia Court of Appeal, D.C. Harris, L. Fenlon and G. Dickson JJ.A., January 19, 2017. Digest No. 3637-013