Common Property

 

Collectively, all the strata lot owners, as tenants in common, own the common property, with each having a share equal to the owner’s proportional share of unit entitlement. 1 The strata corporation, however, exclusively controls the common property. Every owner is entitled to use the common property, except to the extent the Strata Property Act, the regulations, bylaws or rules restrict its use.

Definition

In a strata plan, everything is either part of a strata lot or part of the common property. 2

The Strata Property Act defines common property as follows:

By virtue of paragraph (b)(ii) of this definition, “pipes, wires, cables, chutes, ducts and other facilities” are common property, even if they are located “wholly or partially within a strata lot, if they are capable of being and intended to be used in connection with the enjoyment of another strata lot or the common property.” This means, for instance, that a pipe may be common property, even though the pipe is physically in the centre of a strata lot.

For example, in Taychuk v. The Owners, Strata Plan LMS 744, 3 the Supreme Court of British Columbia regarded pipes inside a strata lot as common property. The pipes supplied a bathtub and several sinks with badly discoloured water. The court found that the relevant pipes inside the strata lot were connected to other pipes that serviced all the other units in the building. Applying the definition of common property, the court inferred from these circumstances that the relevant pipes inside the strata lot were intended to be used in connection with the enjoyment of another strata lot. Since the pipes constituted common property, the strata corporation was responsible to repair the water problem. 4

In Chan v. Strata Plan VR-151, the air space above a strata lot was considered part of the common property. 5 In this case, there was a four storey strata apartment building. An owner’s ground floor unit had a patio. According to the strata plan, the patio was part of the strata lot, but only to a height level with her indoor ceiling. The patio contained a tall cedar tree which apparently intruded into the views of some of the upper units above. When the strata corporation passed a bylaw prohibiting the owner from permitting her tree to grow beyond the height of her strata lot, the owner claimed that the passage of the bylaw was significantly unfair, contrary to the Strata Property Act. 6 The owner claimed, in effect, that the tree was within her airspace. Since there is no common law right to a view in the upper units, the owner claimed it was significantly unfair to pass the bylaw.

At common law, ownership of land extends beyond the land’s surface. With certain exceptions, ownership includes the areas directly above and below the surface. A landowner may control the air space above his or her land to the extent the owner may reasonably use it, subject to statutory restrictions. 7

While air space above a strata lot could form part of the strata lot, in this case it did not. Recall that the definition of common property includes, “that part of the land and buildings shown on a strata plan that is not part of a strata lot …” 8

Everything in a strata plan is either part of a strata lot or part of the common property. In Chan v. Strata Plan VR-151, the court regarded the air space above the owner’s strata lot as, “part of the land shown on a strata plan that is not part of a strata lot”. This meant that the air space above the strata lot’s patio was common property. Since the bylaw governed the use of common property air space, the bylaw was valid and there was no significant unfairness. The court warned, however, that steps taken to enforce the bylaw could be subject to challenge as significantly unfair. The court noted that the strata corporation allowed the tree to grow high above the owner’s strata lot long before she bought it. The court cautioned that trimming or removing the tree in accordance with the bylaw may be an expensive endeavour. Depending on the circumstances, it might be significantly unfair for the strata corporation to impose that cost entirely on that owner.

Use Of Common Property

Every owner is entitled to use the common property, unless its use is otherwise restricted to certain persons.

There are three main ways an owner, or in some cases a tenant, may acquire the right to use common property exclusively in some way.

1. The developer, or later, the eligible voters, may designate the area as limited common property (“LCP”).

2. The strata corporation may permit an owner or tenant to exercise short-term, exclusive use or a special privilege over the relevant area.

3. In the early stages of the development, a developer may take a long-term lease over a portion of the common property. Alternatively, a developer may enter a license agreement for the use of the relevant area. Typically, the developer later assigns the developer’s leasehold or license rights, as the case may be, to the first purchasers of strata lots. When a first purchaser sells his or her strata lot, they further assign their leasehold or license rights to the next buyer, and so on.

Each of these devices is explained below.

Limited Common Property

The Strata Property Act defines limited common property as follows: 9

The developer, or later the eligible voters, can designate common property as LCP for use in connection with one or more strata lots. The only sure way to verify whether, for example, a balcony, patio, or any other feature is LCP is to check both the strata plan and the resolutions dealing with common property filed at the Land Title Office.

The LCP designation attaches to a strata lot, not to an individual owner or tenant. Whoever from time to time is the strata lot’s owner, or in the case of a rental, the owner’s tenant, has exclusive use of the relevant common property area. Because the LCP designation attaches to the strata lot, the right to use the LCP is passed to a new owner when the property is sold, or to a tenant if the property is leased.

Every owner who has the right to use LCP must allow the strata corporation reasonable access to the LCP for the strata corporation to perform its duties. 10

Developer’s LCP Designation

A developer can designate common property as LCP when he or she files the strata plan at the Land Title Office. 11 The developer’s LCP designation appears on the strata plan. See Appendix A for an example of developer-designated LCP among the sample strata plan excerpts.

No uniform practice exists among developers in the way they designate common property as LCP in strata plans. In one building, for example, all of the balconies and patios may be designated as LCP in the strata plan. On the other hand, in the strata plan for the building next door, each balcony and patio may be part of its associated strata lot. Never assume that because a balcony or patio is associated with a strata lot that the balcony or patio is LCP. The only sure way to tell is by checking the strata plan and any resolutions dealing with the common property at the Land Title Office.

If the eligible voters wish to remove the developer’s LCP designation, they must pass a unanimous resolution to amend the strata plan to remove the LCP designation and then file a reference or explanatory plan in the prescribed form, whichever the Registrar requires. The strata corporation must also file a Certificate of Strata Corporation (Form E), being the required form, to certify passage of the necessary resolution. 12 The form is found among the forms in the regulations.

LCP Parking Stalls

The Strata Property Act, however, creates some exceptions for designating LCP parking stalls. 13

At any time before the first annual general meeting (the “first AGM”), the Strata Property Act permits the developer to unilaterally amend the strata plan to designate existing parking stalls as LCP. In doing so, the developer acts as the strata council and must act in good faith with a view to the best interests of the strata corporation. This designation does not require approval by a resolution at a general meeting. 14

Alternatively, if certain requirements are met to ensure a minimum number of parking stalls, the developer may, before the first AGM, designate up to a maximum of two parking stalls per strata lot as LCP. 15 In this case, the developer is not required to act in the best interests of the strata corporation. This designation does not require approval by a resolution at a general meeting. 16

With one exception, these LCP parking provisions are not available to a developer who deposited the strata plan under the former Condominium Act. The exception occurs where the strata plan is a phased one, and a phase is deposited after July 1, 2000, when the Strata Property Act came into force. 17

Owners’ LCP Designation

The eligible voters may change the designation of common property to LCP with or without amending the strata plan. 18

Amending the Strata Plan

The eligible voters may change the designation from common property to LCP by amending the strata plan. This requires a unanimous vote at an annual or special general meeting. 19

After passing the necessary resolution, the strata corporation must apply to the Registrar of Land Titles to amend the plan by filing a reference or explanatory plan, whichever the Registrar requires, in the prescribed form. 20

The strata corporation must also file a Certificate of Strata Corporation (Form E), being the required form, to certify passage of the necessary resolution. When the owners use this method to designate common property as LCP, the LCP designation appears in the amended strata plan in the drawing showing the particular area.

If the eligible voters want to remove an LCP designation they previously made by amending the strata plan, they must follow the same steps in reverse. The eligible voters must pass a unanimous resolution to amend the strata plan to remove the LCP designation and then file the necessary documents with the Registrar at the Land Title Office. 21

Without Amending the Strata Plan

The eligible voters may designate common property as LCP without amending the strata plan with a 3/4 vote at an annual or special general meeting. 22

After passing the necessary 3/4 resolution designating common property as LCP, the strata corporation must file the resolution in the Land Title Office with a sketch, satisfactory to the Registrar, that defines the area of LCP and specifies each strata lot whose owners are entitled to exclusively use the LCP. The resolution designating common property as LCP is not effective until it is filed at the Land Title Office. 23

When the eligible voters use this method to designate common property as LCP, the LCP designation does not show up in the relevant portion of the strata plan because the owners have not amended the strata plan. Instead, the Registrar records the resolution changing the designation from common property to LCP among the resolutions dealing with common property.

If the eligible voters want to remove an LCP designation they previously made by 3/4 vote, they must follow the same steps in reverse. The eligible voters must pass a resolution by 3/4 vote to remove the LCP designation and then file the resolution at the Land Title Office. The resolution removing the LCP designation is not effective until it is filed at the Land Title Office. 24

Short Term Exclusive Use Or Special Privilege

The strata corporation may give an owner or tenant permission to exclusively use common property that is not designated LCP, or to use a common asset. For example, in a strata plan where parking stalls and storage lockers are common property, the strata corporation may permit an owner or tenant to use a particular parking stall or locker.

According to the Strata Property Act, a strata corporation may give this permission in one of two forms: by entering a short term exclusive use agreement or by conferring a special privilege. 25. The Strata Property Act does not explain the difference between a short term exclusive use agreement and a special privilege. The phrase short term exclusive use agreement suggests a contractual arrangement in which the strata corporation and an owner or tenant, as the case may be, are the parties. On the other hand, a special privilege appears to be a right conferred by the strata corporation upon an owner or tenant. In each case, the result appears effectively the same. The individual receives the right to exclusively use a portion of the common property, subject to the requirements of the Strata Property Act and the terms of the particular arrangement. In any event, since the Act treats both forms of permission the same, in this chapter a reference to one applies to the other, unless stated otherwise.

If the permission or privilege involves a significant change in the use or appearance of the common property, the eligible voters must first approve the arrangement by a 3/4 vote at a general meeting, as described later in this chapter. 26 In all other cases, the strata council, on behalf of the strata corporation, may approve the short term exclusive use agreement. Sometimes, for political reasons, a strata council may instead put the question of granting such permission to a majority vote at a general meeting.

In a short term exclusive use agreement, the strata corporation must not grant permission for more than one year. The strata corporation can also impose conditions as part of the agreement. Upon renewal, the strata corporation can change the period (bearing in mind the one-year maximum) and the conditions. 27

The strata corporation can also cancel the short term exclusive use agreement at any time by giving the owner or tenant reasonable notice of the cancellation. 28

In a short term exclusive use agreement, the permission attaches personally to the individual owner or tenant, as the case may be. It does not attach to the strata lot.

Under the former Condominium Act, many owners had arrangements equivalent to short term exclusive use agreements. In such cases, the regulations permit those arrangements to continue, in accordance with their terms, under the Strata Property Act. Those arrangements, however, may only be renewed in accordance with the Strata Property Act. 29

In Reid v. The Owners, Strata Plan No. LMS 2503, the superior courts in British Columbia narrowly interpreted certain privileges over common property. 30

Case Study

Several strata lots adjoined a large entryway area that was designated as common property on the strata plan. The strata council passed a resolution under section 76(1) of the Strata Property Act giving two owners temporary permission to place specifically listed plants and other garden items on the common property area.

The complainant was an owner whose rear windows directly overlooked the entryway area. He complained that the owners with temporary permission had placed some of their permitted shrubs directly in front of his windows, thereby obstructing his view. The complainant also argued that the same owners were using the area from time to time as a dog pen, a place to store personal belongings, a place to air out camping equipment, and as a place to host picnics, barbecues and parties where alcohol was served.

The complainant asked the court to revoke the strata council’s resolution on the ground that the arrangement was significantly unfair to him, contrary to section 164 of the Act.

In the Reid case, the court found that the strata council’s resolution only gave the other owners a special privilege, not short term exclusive use. The court, however, did not explain the significance of the distinction.

The placement of the shrubs across the complainant’s view exceeded what the strata council’s resolution authorized the owners to do. In other words, by placing the shrubs in those locations the neighbouring owners went beyond their authority under the arrangement. The court advised that the council should take steps to ensure that the plants were placed elsewhere.

Similarly, there was evidence that the other owners were using the entryway area for pets, storage, the airing out of camping equipment, and social events as alleged by the complainant. The court pointed out that none of these uses were authorized by the council’s resolution. If the other owners were misusing the entryway in that fashion, the court noted that the strata council should take steps to rectify the matter.

The court held, however, that the strata council’s decision to permit the neighbours to place plants on the common property did not constitute the kind of burdensome or harsh conduct necessary to establish significant unfairness. 31 When the complainant later appealed against that decision, his appeal was dismissed.

The Reid case demonstrates that where a strata corporation gives an owner or tenant a short term exclusive use agreement or special privilege, it is likely the court will narrowly interpret that permission. An owner or tenant should never assume, for instance, that because a short term exclusive use agreement expressly allows her to do one thing, it necessarily implies that she may also do something else.

Developer’s Long Term Lease Over Parking and Storage

Generally speaking, when a tenant enters a lease over land, the tenant obtains exclusive possession of the property for the term of the lease.

Some developers use the device of a lease to acquire rights over the use of common property areas, usually involving parking stalls and storage facilities.

[NEW] While specific details vary with each lease, this is the general model. In the early stages of a development, the developer leases the intended parking or storage areas to an associated corporation for a lengthy period of time (for example, 99 years). Later, when preparing the strata plan, the developer designates those same areas as common property in the strata plan. When the developer eventually files the strata plan at the Land Title Office, the common property parking stalls and storage lockers are subject to the associated corporation’s prior long term lease over those spaces.

[NEW] If the first purchaser of a strata lot wants the use of a parking stall or storage locker, the purchaser pays extra. In return, the developer causes the long-term tenant, the developer’s associated corporation, to partially assign or sub-lease the particular parking stall or locker to the purchaser.

[NEW] In this way, the purchaser obtains exclusive possession of the relevant parking stall or storage locker for the balance of years remaining under the long term lease. Typically, when the first purchaser sells the strata lot, he or she will also further assign his or her leasehold interest in the parking stall or locker, as the case may be, to the next buyer, and so on with each sale. At the end of the 99 year term of the lease, ultimate possession of the relevant area reverts, in law, to the owners as tenants in common, subject to the strata corporation’s control. Recall that even though the owners, as tenants in common, own the common property, the strata corporation controls it.

[NEW] Long-term leases of this sort are seldom registered at the Land Title Office. If the strata corporation does not have a copy, then one should check with the Superintendent of Real Estate whether the developer filed a disclosure statement for the development. If so, the disclosure statement should contain a copy of the long-term lease.
In some cases, a developer enters a license agreement with the developer’s associated corporation, instead of a long-term lease. Although a license is legally different from a lease, from a buyer’s point of view the practical effect of the developer’s license arrangement is roughly the same. The buyer obtains an exclusive right to use the parking stall or storage locker for a period of time.

[NEW] The terms of a long-term lease are very important. For instance, it is common for a lease of this kind to require anyone who takes an assignment or sublet of lease rights to own a strata lot in the development. When selling a strata lot, the seller usually further assigns his or her leasehold parking or storage rights to the buyer, as described above. Even if the seller fails to formally transfer these leasehold rights to the buyer, it is fairly common for the long-term lease to deem their assignment to the buyer anyway.

[NEW] Christian v. Calvano is a good example. 32  The strata complex included parking stalls, some two-car garages and storage lockers. Before depositing the strata plan, the developer, as landlord, entered a long-term lease with an associated corporation, as tenant, for all the parking and storage areas in the development. After registering the lease in the Land Title Office, the developer later filed the strata plan.

[NEW] When the owner (“Mr. C.”) bought his strata lot from the developer, he also purchased from the long-term tenant, the developer’s associated corporation, a partial assignment of the long-term lease for the use of parking stall 30 and a storage locker. Needing more space, eight months later Mr. C. paid an additional $60,000 for a partial assignment of the long-term lease for the use of Garage No. 3.

[NEW] In 2011, Mr. C. listed his strata lot for sale, including his respective leasehold interests in parking stall 30, the locker and the garage. When the property did not sell, he reduced his list price and excluded from the listing his leasehold interest in the garage. It appears that Mr. C. also told his listing licensee to tell potential buyers that the garage lease was available for an extra $65,000. Later that year, Mr. C. entered a contract of purchase and sale to sell his strata lot to the buyer with an assignment of the seller’s respective leasehold interests in parking stall 30 and the storage locker. The contract did not expressly deal with the garage. Despite some negotiation, Mr. C. never reached any agreement with the buyer to purchase the seller’s leasehold interest in the garage.

[NEW] After the sale completed, the strata corporation notified the buyer that her purchase included the leasehold interest in the garage. According to the long-term lease, an owner may only further assign his or her leasehold parking or storage rights so long as that owner owns a strata lot. Should an owner sell the strata lot without assigning their leasehold parking or storage interest to another owner or to some other purchaser, the lease deemed the leasehold interest to be automatically assigned to the purchaser. Since the parties’ contract did not include the seller’s leasehold interest in the garage, the lease deemed that leasehold interest to be automatically assigned to the buyer.

[NEW] When Mr. C. objected, the buyer sued to affirm her leasehold interest in the garage. Given the wording in the long-term lease, the court confirmed that the seller’s leasehold interest in the garage was automatically assigned to the buyer.

Parking

The rights and duties of an owner, or tenant, in connection with a parking stall depend on the designation of the parking space. The reader can use the following analysis to better determine the designation of a parking stall and the rights, if any, attached to it. The same analysis may apply to other features, such as storage lockers:

When investigating the designation of a parking stall, one must first examine the strata plan, the resolutions affecting common property, the strata corporation’s records and any other relevant documents.

Bearing in mind that in a strata plan, everything is either part of a strata lot or part of the common property, the designation of a parking stall will usually involve one of the following arrangements:

1. The parking stall is a separate strata lot

In a non-residential strata development, a parking stall may be a separate strata lot on the strata plan.

This is no longer allowed in residential strata plans. Section 244(2) of the Strata Property Act says,

In rare cases, however, in some older residential strata plans, parking stalls still exist as separate strata lots;

2. The parking stall is part of the strata lot

The strata plan may show that a parking stall is part of a strata lot. In other words, the strata lot includes the parking space.

3. The parking stall is part of the common property

If the parking stall is common property, one of the following arrangements usually applies:

  1. (a) The parking stall is LCP in connection with a particular strata lot;
  2. (b) The strata corporation has given permission to an owner or tenant, as the case may be, to use the parking stall under a short term exclusive use agreement or a special privilege;
  3. (c) The portion of the common property used for parking is subject to a prior long term lease in favour of the developer, or someone associated with the developer, who has sold a partial assignment of rights under the lease to a first buyer to use the parking stall. Often, the first buyer has already assigned his or her rights under the lease to the next buyer and so on. Alternatively, in rare cases, the developer may substitute a licence scheme for a long-term lease in this model.

The use of parking areas can be further complicated by the mistaken promises of the developer. In the end, the strata plan governs, no matter what a developer may promise to the contrary. The case of Hill v. Strata Plan NW 2477 is a good illustration. 33

Case Study

The seller was the developer of a new strata complex. The buyers wanted two parking stalls with their strata unit.

In the strata plan, the area containing the parking stalls was common property.

The Contract of Purchase and Sale said, in part,

Vendor guarantees two parking spots with unit.

Shortly before completion, the strata corporation called its first AGM. At the meeting, the owners passed a new bylaw limiting parking stalls to one per unit. Owners wishing additional stalls would have to apply to the strata corporation and pay a set monthly fee.

When the buyers considered legal action against the strata corporation, they learned for the first time that all of the parking stalls were common property, under the control of the strata corporation. The developer had no authority to sell the parking stalls.

The court refused to permit the developer’s promise in the contract of purchase and sale to override the registered strata plan. Since the strata plan designated the parking stalls as common property, only the strata corporation could dispose of, or otherwise regulate, the stalls.

Despite the buyers’ contract with the developer, the new bylaw governed the situation. If the buyers wanted a second parking stall, they would have to apply to the strata corporation and pay the monthly fee under the bylaw.

Presumably, the buyers would have to claim against the developer for any damages suffered as a result of the developer’s failed promise to provide “two parking spots” under the contract.

To assist strata lot owners in dealing with parking stalls, the Strata Property Act requires the strata corporation to keep a list of owners with their strata lot addresses and parking stall numbers, if any. 34 In October 2009 the province passed amendments 35 to the Strata Property Act which, at the date of this writing, are not yet in force. If the province brings these amendments into force, they will require that an Information Certificate (Form B) include which parking stalls and storage lockers, if any, have been allocated to the strata lot. A regulation is necessary to bring these amendments into force. 36 For information about an Information Certificate (Form B), see Chapter 13, Record Keeping.

Changes to Common Property

The Strata Property Act and the Standard Bylaws regulate many aspects of common property.

Significant Change in Use

It is possible for the members of a strata corporation to change the use or appearance of common property or a common asset. For example, a strata corporation may wish to convert a common property area of grass to a paved parking lot. Alternatively, the strata corporation might wish to turn the caretaker’s suite, a common asset, into a wood-working room.

To make a significant change to the use or appearance of common property or land that is a common asset, the Strata Property Act requires that the change must first be approved by a resolution passed by 3/4 vote. 37 The only exception to the need for a 3/4 vote is where the change is necessary to ensure safety or prevent significant loss or damage.

Alterations to Common Property

The Standard Bylaws require that before an owner makes an alteration to common property, including LCP or a common asset, the written approval of the strata corporation must be obtained. 38 As noted immediately above, if the alteration results in a significant change in the use or appearance of common property, a 3/4 vote at a general meeting is also required. For instance, where, without prior approval, the owner of a non-residential strata lot drilled six holes through an exterior wall of the building to vent dry-cleaning equipment, the owner breached the standard bylaws. At the same time, the owner breached the Strata Property Act by making a significant change in the use or appearance of common property 39 without the necessary prior approval by 3/4 vote at a general meeting. 40

Additionally, the Standard Bylaws provide that the strata corporation may require an owner to take responsibility for any expenses relating to an alteration to common property as a condition of the strata corporation’s approval. 41

For example, suppose that a wooden deck is common property or LCP. If an owner wishes to install a vinyl coating on the deck, permission from the strata corporation is required. The permission may depend upon the owner’s written agreement to take responsibility for