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CONDOMINIUMS - Unit holders - Duties of - Adherence to bylaws and rules

Monday, September 11, 2017 @ 8:52 AM  


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Appeal by the Herods and the Burgesses, neighbours of the Patersons in a strata development, from a declaration that the Patersons were entitled to construct a new home on their lot that did not accord with the applicable statutory building scheme for the development. The development was created in 1982 by the Hudsons, who desired to create a neighbourhood of single-family homes. The character of the neighbourhood was to be closely controlled by a series of restrictive covenants, the statutory building scheme, covering matters including the materials that could be used to roof the homes and the use of antennas. The Patersons owned lot 6, the largest lot in the development and the only one with an existing house on it at the time that the statutory building scheme was created. In 2014, the Patersons made plans to replace the existing house with a larger, more modern one. The planned house would have a setback from one of the lot lines less than that required by the building scheme. The strata council refused to relax the setback requirement, therefore the Patersons commenced an action for a declaration that the scheme did not apply to lot 6. The judge granted the declaration sought, declared the setback requirements obsolete because the neighbourhood had been created as the Hudsons desired, and cancelled them. He also granted a declaration that Patersons could proceed with their proposed build.

HELD: Appeal allowed. The judge erred in interpreting the building scheme by failing to consider the scheme as a whole. He placed too much emphasis on the reference in the scheme to dwellings yet to be built. Although the fact that there was already a house on lot 6 meant that certain provisions of the scheme did not apply to it, there was no solid reason to exempt future development on the lot from the scheme. The judge also erred in finding the scheme obsolete. It was not so, because the covenants in the scheme remained current and minor relaxations of the setback requirements over the years fell far short of disuse. The scheme’s importance was not exhausted because the character of the neighbourhood had been established. The scheme remained important to ensure that the character was also preserved. The judge erred by focussing his attention on the particular building planned by the Patersons rather than on the broader effects of the restrictive covenants. Accordingly, the declarations and orders cancelling the building scheme were set aside.

Paterson v. Strata Plan 1186, [2017] B.C.J. No. 1598, British Columbia Court of Appeal, S.D. Frankel, H. Groberman and L. Fenlon JJ.A., August 16, 2017. Digest No. TLD-Sept112017002