Carrying Out Repairs

 

When considering a repair or maintenance problem, it is important to keep in mind two separate questions. First, who is responsible to carry out the repair or maintenance work? Second, who is ultimately responsible to pay for that work?

The Strata Property Act consistently uses the phrase, repair and maintain, which suggests that repairs differ from maintenance. Neither term is defined in the legislation. Despite any technical difference in their meaning, the legislation clearly treats both repairs and maintenance the same. Accordingly, every reference below to repairs includes maintenance, unless context requires otherwise.

To answer the question, “Who is responsible to carry out certain repair work?” a strata corporation must look to the Strata Property Act and the corporation’s bylaws. In this chapter, we assume that a strata corporation has the Standard Bylaws under the Act. To the extent that a strata corporation amends its bylaws to deal differently with repairs, the answer will differ. Before applying the analysis in this chapter, verify whether the repair bylaws under consideration are those found in the Standard Bylaws. If a strata corporation’s repair bylaws differ from the Standard Bylaws, then together with the Act the corporation’s particular bylaws will govern the answer.

This chapter explains how to determine who must actually perform a repair under the Strata Property Act. After determining who must make the repair, the next question is who must ultimately pay for it. For information about answering the second question, see Chapter 26, Paying For Repairs.

The Standard Bylaws

The Strata Property Act deals more clearly with the subject of repairs than the former Condominium Act. Unfortunately, the most significant repair provisions are found in the Standard Bylaws, rather than in the body of the Act. This means that a strata corporation may change its repair scheme by amending the corporation’s bylaws. When it comes to repairs, however, most strata corporations use the Standard Bylaws. Some strata corporations do not.

It is essential to identify a strata corporation’s repair bylaws before approaching any repair problem. For information about identifying a strata corporation’s statutory repair bylaws and the extent to which those bylaws are altered by any amended bylaw, see Chapter 19, Statutory Bylaws and the Effect of the Strata Property Act.

The Repair Scheme

The Strata Property Act and the Standard Bylaws together dictate who must perform a repair, according to whether the subject of the repair is common property, limited common property (“LCP”) or part of a strata lot. In each case, the Act and Standard Bylaws divide responsibility between the strata corporation and an owner, depending whether the repair occurs in common property, LCP or a strata lot.

The following explanation tracks this scheme.

Common Property and Common Assets

As a general rule, if the subject of a repair is common property, or a common asset, the strata corporation must carry out the repair. 1 There are a few exceptions in which an owner may be responsible to make the repair.

For the purpose of determining responsibility for making a repair, the Strata Property Act and the Standard Bylaws treat both common property and common assets the same. Accordingly, when speaking of repairs, in this chapter every reference to common property includes common assets, unless the context requires otherwise.

Strata Corporation’s Responsibility

The Strata Property Act requires a strata corporation to repair common property and common assets. 2 In particular, if property is common property (and has not been designated as limited common property), the strata corporation must repair it. This is a statutory duty and the strata corporation cannot escape its responsibility. Tadeson v. Strata Plan NW 2644 3 is a good example.

Case Study

A residential strata complex contained 35 units. The building envelope suffered water penetration. An engineering report recommended extensive repairs to the building envelope, which was common property.

The strata council presented special resolutions (now called “3/4 vote” resolutions) at two separate general meetings to carry out the repairs. In each case, the resolutions failed because too many owners objected to the cost of the work.

In frustration, three owners applied to the Supreme Court of British Columbia for an order requiring the strata corporation to carry out the repairs.

The court ordered the repairs and authorized a special assessment (now called a special levy) to all of the owners for $312,645 to pay for the work.

The court held that the strata corporation must fulfill its statutory duty to repair. The eligible voters, by defeating the special resolutions, could not, in effect, agree to excuse the strata corporation from its statutory obligation to repair the common property. 4

Strata Corporation Must Act Reasonably

A strata corporation’s obligation to repair common property must be judged with a test of reasonableness. The principle is summarized in Wright v. Strata Plan No. 205, 5 a case decided under the former Condominium Act:

In other words, a strata corporation must act reasonably when carrying out its duty to repair and maintain.

In John Campbell Law Corporation v. The Owners, Strata Plan 1350, an owner sued a strata corporation for damages on several grounds, including breach of statutory duty and negligence. The damages occurred when sewage backed up into the owner’s unit from a sewer pipe that was common property. The owner claimed the strata corporation was strictly liable as a result of a breach of its statutory duty under section 72 of the Strata Property Act to repair and maintain common property. The central question was whether, under the Strata Property Act, a strata corporation is strictly liable for a breach of its statutory duty to maintain and repair, or liable only where the corporation fails to act reasonably. The court reaffirmed that a standard of reasonableness prevails, saying in part: 6

By analogy to the standard of care of a reasonable person in the law of negligence, the John Campbell case effectively confirms a standard of care of the reasonable strata corporation in a claim for breach of statutory duty. An owner wishing to sue a strata corporation for damages for breach of the statutory duty to repair must show that the corporation failed to take all reasonable steps to inspect and maintain the relevant property, consistent with the practice of other strata associations generally. As in a negligence claim, in a suit against a strata corporation for breach of a statutory duty to repair, the claimant must present evidence to establish the standard among strata corporations generally for inspection, repair and maintenance. In other words, one has to first establish a benchmark before one can prove that someone has failed to achieve that benchmark. After the norm among strata corporations is established, the court may then measure whether the strata corporation in question acted reasonably in the circumstances. A claimant who fails to produce such evidence risks the dismissal of his or her lawsuit for failure to establish the relevant benchmark.

In the John Campbell case, the sewage backup occurred when roots from a tree on a neighbouring property blocked the strata corporation’s sewage pipe. Since the strata corporation had never before experienced problems with the pipe, the corporation had not previously inspected it for potential blockages. Nor did the corporation have any policy for regularly inspecting the sewage pipe. There was no evidence, however, to suggest that other strata corporations made regular inspections of their sewer pipes, whether or not a problem had occurred. In addition, the evidence revealed that most strata corporations do not usually flush sewer pipes unless a problem has first presented itself.

The court dismissed the owner’s claims for breach of statutory duty and negligence. The court found that unless there was some obvious reason to regularly inspect the sewer pipe, the lack of an inspection policy could not be held against the strata corporation. Bearing in mind the evidence concerning the inspection and maintenance practices of other strata corporations, the strata corporation in question acted reasonably. Even though the strata corporation never inspected or maintained the sewer pipe before the incident, there was no reason to be concerned about a sewage blockage, especially where no other strata corporations inspected their sewer pipes in similar circumstances.

In Basic v. Strata Plan LMS 0304, the British Columbia Court of Appeal reiterated that a strata corporation must act reasonably when carrying out its duties to maintain and repair common property. 7  In Basic, an owner had the use of a common property storage locker. There was a drain near the locker. In 1997 and 1999 water backed up through the drain wetting the contents of the owner’s locker. In each case, the strata corporation promptly hired plumbers who cleared the drain with a roto-rooter.

In 2000, water from the drain again reached the owner’s locker. He spent two days cleaning the locker and its wet contents. When the owner told strata council about the problem, it arranged within a day for a plumber to cap the drain.

Still, the water problem persisted. In September 2001 the strata corporation hired an engineer, who recommended re-routing the drains to the parkade below. Within two months, the strata corporation implemented the engineer’s suggestions, completing the work by November that year.

In November 2006, a leaky pipe inside the locker caused another flood. The strata corporation repaired the pipe by early 2007.

The strata corporation also posted notices warning owners to elevate the contents of their lockers above the floor. In addition, every night a strata council member inspected the common property areas, including the storage area in question.

The owner sued the strata corporation for damages for negligence and breach of statutory duty to repair common property. He claimed that during the 2000 clean-up he was exposed to harmful mould, which caused him cold-like symptoms, including shortness of breath.

While a strata corporation must act reasonably to maintain and repair the common property, the trial court emphasized that the strata corporation is not an insurer. The 2000 flood was not the result of any negligence or breach of statutory duty by the strata corporation. The court dismissed the owner’s claim, finding that here the strata corporation acted reasonably to repair the various water problems.

In another case, a strata corporation breached its statutory duty to repair common property when it failed for a period of approximately eight months to assess the condition of a building’s envelope. 8 The strata council had received an engineer’s report to the effect that building envelope deficiencies in one strata lot may also exist in other strata lots in the building. The council members and owners were well aware that their six-storey, 22-unit building had suffered water ingress problems for years. An assessment of the building envelope was not only prudent, it was necessary.

After receiving the engineer’s report, it was unreasonable in the circumstances to wait approximately eight months to take action regarding a building envelope assessment.

Similarly, a strata corporation acts unreasonably if it attempts without justification to shift its responsibility to repair common property to an owner. 9 For example, in Taychuk v. The Owners, Strata Plan LMS 744, 10 certain pipes inside a strata lot were common property. The pipes supplied badly discoloured water to the unit, and the strata corporation was responsible to repair the water problem. Except for one period of roughly 18 months, the strata corporation took consistent steps over seven years to solve the problem, including consulting experts, flushing the system, and replacing certain valves. Progress stalled for approximately 18 months when the strata corporation proposed installing a particular filtration system in the owners’ unit and insisted that the owners would have to bear the cost of replacing the filters and maintaining the system. The owners objected. The owners commenced legal proceedings and, for a time, the strata corporation took no further steps to solve the problem.

The court found that the strata corporation breached its duty to act reasonably by making the filtration option dependant on the owners paying to maintain it. Since it was the strata corporation’s duty to repair and maintain the common property, it was not reasonable for the strata corporation to require the owners to assume that obligation. 11

The court declared that the strata corporation breached its duty to repair during the relevant period. The court gave the successful owners liberty to apply again to the court if the discoloration problems returned. The court also awarded costs in favour of the owners who brought the application.

An owner cannot be relieved from paying his or her proportionate share of a special levy to repair common property merely because the strata corporation has, in the past, breached its duty to the owner to act reasonably regarding the repair of that common property. 12 In the Taychuk case, the successful owners asked the court for a remedy in the nature of an order to exempt them from paying any share of a special levy to raise funds to repair the common property hot-water system. The court held that the Strata Property Act does not permit such a remedy.

The court, however, exempted the successful owners under section 167(2) of the Strata Property Act from paying any of the strata corporation’s legal expenses in the proceeding. 13

A Good Repair Versus The Best Possible Repair

A strata corporation which chooses a good repair solution, as opposed to the best repair solution, is not necessarily, for that reason alone, acting unreasonably. 14

Weir v. Strata Plan NW 17 is a good illustration. 15

Strata Corporation’s Liability For Injury

In addition, if injury is caused by a strata corporation’s failure to repair common property, the corporation may incur liability. Cater (Guardian Ad Litem) v. Ghag Enterprises Ltd. (No. 1 and 2), 16 is a good illustration.

Case Study

The owner was a corporation that leased the strata lot to a young family. At the time, the owner’s representative told the tenants that the lease, in effect, entitled them to use the driveway in front of the unit.

The driveway was common property. The driveway contained a hole described as a depression about three to four feet wide and five inches deep. The depression was in plain view and remained there for some months.

The tenants’ eight-year-old daughter rode her bike through the depression and fell. She suffered a broken leg. On behalf of their daughter, the tenants successfully sued the owner of the strata lot and the strata corporation for damages under the Occupiers Liability Act.

The Occupiers Liability Act defines the term occupier as a person who is in physical possession of premises or has responsibility for, and control over, the condition of the premises, the activities conducted on those premises and the persons allowed to enter those premises. Under the Occupiers Liability Act, every occupier has a duty to take care that persons are reasonably safe in using the premises. 17

The court found that the strata corporation and the owner were both occupiers within the meaning of the Occupiers Liability Act. Since the driveway was common property, the strata corporation was an occupier because it had a statutory duty under the condominium legislation to repair and properly maintain the driveway. The owner was also an occupier because it had legal control, as a landlord, over the premises, including the associated right to use the driveway.

The court found the child partly at fault and allocated 25 per cent (25%) of responsibility for the accident to the child. The court assigned 75 per cent (75%) of the liability equally between the owner and the strata corporation, who were each 37.5 per cent (37.5%) responsible.

Owner’s Responsibility

Section 72(2)(b) of the Strata Property Act permits a strata corporation, by bylaw, to make an owner responsible for repairs to common property, “only if identified in the regulations and subject to prescribed restrictions.” When the province first brought the Act into force on July 1, 2000, the government specifically refrained from proclaiming section 72(2)(b) into force.

Effective October 12, 2001, the province brought section 72(2)(b) of the Strata Property Act into force. 18 Unfortunately, however, the regulation that brought section 72(2)(b) into force does not identify any specific common property to which it applies or prescribe any restrictions. Since section 72(2)(b) only permits a strata corporation, by bylaw, to make an owner responsible for repairs to common property that is, “identified in the regulations,” this section cannot be used until the government creates a regulation to identify the applicable common property. For this reason, in Fraser v. Strata Plan VR 1411, the court found that several of a strata corporation’s amended bylaws were unenforceable to the extent they required an owner to repair features that were common property. For instance, one of the amended bylaws in question said: 19

Since all, or virtually all, of the features listed in paragraphs (a) through (e) of this amended bylaw were part of the common property, the court held the amended bylaw unenforceable. The court found that the strata corporation could not, by bylaw, require an owner to repair common property until the province enacts the required regulation to identify what repairs to common property may be the subject of such bylaws and to prescribe the necessary restrictions.

It appears, however, that in at least two situations a strata corporation may by agreement, rather than a bylaw, compel an owner to repair common property.

First, under the Standard Bylaws, an owner may ask the strata corporation for permission to alter common property, including LCP, or a common asset. The Standard Bylaws permit the strata corporation to require, as a condition of its approval, that the owner take responsibility for any expenses relating to the alteration. 20Presumably, the owner will be responsible for expenses relating not only to the initial alteration but to any further expenses that arise as a result of the alteration, including repairs or additional insurance. Note, also, that section 59(3) of the Strata Property Act requires each Information Certificate (Form B) to disclose any agreements under which the owner takes responsibility for expenses relating to alterations to the common property or common assets, among other things. 21 For information about the Information Certificate (Form B), see Chapter 13, Record Keeping.

If a strata corporation approves an owner’s request to alter common property in exchange for the owner’s promise to pay for any expenses relating to the alteration, the strata corporation should always record the agreement in writing. The written document will serve as an accurate record of the agreement for future strata councils and property managers. Experience also suggests that recording the agreement in writing tends to avoid disputes later.

Note that an owner’s agreement, in exchange for permission to alter common property, is not likely binding on subsequent owners of the same strata lot. Normally, an agreement is binding only on the parties to it. If a strata corporation wishes to make an owner’s agreement to pay for repairs to alterations to common property binding on subsequent owners, the corporation should seek legal advice.

At present, our land title registration system does not appear to offer any type of charge that a strata corporation might register against title to the owner’s strata lot to bind subsequent owners to the agreement. From the strata corporation’s perspective, the corporation may wish, as a term of the owner’s agreement to repair common property, to insist that if the owner sells his or her strata lot, he or she must require the buyer to assume the owner’s obligations to the corporation under the agreement.

In theory, if an owner enters an agreement with the corporation to repair common property, that owner’s liability may continue indefinitely, depending on the wording of the agreement. For instance, in the absence of wording that terminates the owner’s liability upon a sale of the strata lot, an owner who sells his or her strata lot may nevertheless remain liable to the corporation for the cost of repairs, even though he or she is no longer a member of the corporation. Where repair costs are potentially significant, an owner may wish to obtain legal advice before finalizing any agreement with the strata corporation.

Second, the Strata Property Act permits a strata corporation to enter into a short term exclusive use agreement with an owner or tenant to give that person the right to exclusively use common assets or common property that is not designated as LCP. 22 When a strata corporation gives an owner or tenant exclusive permission to use common property under these provisions, the corporation may make the arrangement subject to conditions. 23 It appears possible for a strata corporation to require, as part of the agreement, that the owner or tenant carry out certain repair work on the common property allocated for that person’s exclusive use. To avoid disputes, the corporation should record any short term exclusive use agreement in writing. For information about a short term exclusive use agreement, see Chapter 17, Common Property.

Limited Common Property

Where the subject matter of a repair is LCP, the Standard Bylaws divide responsibility for repair work between the strata corporation and an owner. 24

Strata Corporation’s Responsibility

The Standard Bylaws specifically require a strata corporation to carry out repair work on LCP in certain circumstances.

The Standard Bylaws require a strata corporation to carry out all repair work on LCP that, in the ordinary course of events, occurs less often than once a year. 25

In addition, if any of the following is designated as LCP, the Standard Bylaws make the strata corporation responsible to carry out the repair work, no matter how often the repairs ordinarily occur: 26

  • the structure of the building,
  • the exterior of the building,
  • chimneys, stairs, balconies and other things attached to the exterior of the building,
  • doors, windows and skylights on the exterior of a building or that front on the common property, or
  • fences, railings and similar structures that enclose patios, balconies and yards.

The Standard Bylaws differ significantly from the approach taken under the former Condominium Act. Under the former Act, an owner typically carried out all routine repairs on LCP for the exclusive benefit of his or her strata lot. 27

Owner’s Responsibility

Where the common property has been designated as LCP, the strata corporation may, by bylaw, make an owner who has a right to use the LCP responsible for its repair. 28

Note that a bylaw is required; strata council alone does not have the authority to make an owner responsible for LCP repairs. In Guenther v. Strata Plan KAS431, there was a three-storey wooden-frame building with 42 strata lots. 29Every unit had an LCP balcony. All but one of the balconies had earlier been enclosed by the various owners.

The strata corporation’s repair bylaws corresponded to those in the standard bylaws. With regard to LCP, the strata corporation’s bylaw said,

The bylaws restricted the strata corporation’s duty to repair and maintain LCP to repairs and maintenance that ordinarily occur less than once a year. The bylaws also required the corporation to repair and maintain LCP such as “railings and similar structures that enclose balconies,” no matter how often the repair or maintenance ordinarily occurs.

Repairs became necessary when the strata corporation discovered that water was penetrating many of the balcony enclosures. In response, the strata council passed a motion in 1999 declaring that it is an owner’s responsibility to repair his or her balcony. The motion also required an owner to first obtain the strata council’s approval before making repairs and to use an appropriate construction professional. Despite strata council’s motion, it appears that none of the owners repaired their LCP balconies. In 2009, an owner asked the Supreme Court of British Columbia for a declaration that the strata corporation was in breach of its duty to repair the LCP balconies.

Since the bylaws required the strata corporation to repair LCP “railings and similar structures that enclose balconies”, the corporation breached its duty to repair the LCP balconies. The Strata Property Act permits a strata corporation to make an owner responsible for LCP repairs by enacting a suitable bylaw. Since a bylaw was necessary, the strata council alone had no authority to make owners responsible for balcony repairs. The council’s motion was of no force or effect. If the strata corporation wished to change the allocation of responsibility for LCP repairs to the balconies, a bylaw amendment was necessary.

The Standard Bylaws require every owner with the use of LCP to repair it, except to the extent that the strata corporation has that responsibility under the bylaws. 30

Under the Standard Bylaws, for example, if a parking stall is designated as LCP, the owner is responsible to carry out most repair work on the parking stall. Any repair, however, that occurs less often than once a year, such as repainting lines, or resurfacing, is the responsibility of the strata corporation to perform.

Strata Lot

Where the subject of a repair is part of a building strata lot (that is, a strata lot that is not part of bare land strata plan) the Standard Bylaws divide responsibility to perform the repair between the strata corporation and an owner.

Strata Corporation’s Responsibility

The Standard Bylaws require a strata corporation to repair the following if they are part of building strata lot (that is, a strata lot that is not part of bare land strata plan): 31

  • the structure of the building,
  • the exterior of the building,
  • chimneys, stairs, balconies and other things attached to the exterior of a building,
  • doors, windows and skylights on the exterior of a building or that front on the common property, and
  • fences, railings and similar structures that enclose patios, balconies and yards.

The Strata Property Act also permits the strata corporation, by bylaw, to take responsibility for the repair and maintenance of specified portions of a strata lot. 32 For example, a strata corporation may amend this provision in the Standard Bylaws to expand or reduce the corporation’s duty to carry out repair work on particular portions of a strata lot.

Owner’s Responsibility

The Standard Bylaws require each owner to repair and maintain his or her own strata lot, except to the extent that the strata corporation has that responsibility under the bylaws. 33

Duty to Repair v. Insurance

Some individuals mistakenly try to determine the duty to perform a repair on the basis of whose insurance covers the problem. This is wrong. Whether the strata corporation, or an owner or tenant, or some or all of them have insurance has nothing to do with determining who is responsible to carry out a repair. The liability to carry out a repair is determined according to the Strata Property Act and the bylaws, as described in this chapter. For an illustration of the irrelevance of insurance to the duty to make a repair, see “Insurance v. Duty to Repair” in Chapter 16, Insurance.