Part 30 published on 01/05/10
Court refuses application to amend strata plan
The strata plan was deposited and registered in 1984. In 2006, it was discovered that fences and hedges, installed by the developer, did not conform to the limited common property yard areas designated on the registered plan. Visitor parking arrears also did not conform to the registered plan.
Two of the strata lot owners demanded that the strata corporation modify the physical features (fences etc.), in the vicinity of their lots, in order to bring them into conformity with the plan. After considering the options, the strata corporation instead applied to court for an order amending the strata plan to bring it into conformity with the existing physical features throughout the entire property. This option was estimated to be less expensive than modifying the physical features to conform with the registered plan.
The corporation’s application was approved by a three-quarter vote. The strata corporation did not attempt to pass a unanimous resolution, in order to amend the plan in accordance with Section 257 of the Strata Property Act. The corporation’s application also was not brought pursuant Section 52 of the Act (which allows a Court application where an attempted unanimous resolution is narrowly defeated). Instead, the strata corporation sought the amendment under Section 164 of the Strata Property Act, on the ground that it would be significantly unfair to force the strata corporation to bring the existing physical features into conformity with the registered plan.
The Court refused the strata corporation’s application. The Court said that the strata plan could only be amended under Section 257 of the Strata Property Act or by utilizing the relief from unanimity contained in Section 52. The Court’s decision included the following:
“Section 164 is not a catch-all provision that permits dissatisfied petitioners to obtain relief from the Court every time they fail to secure the required number of votes at a council meeting to effect their wishes. Rather, s. 164 does no more than authorize proceedings by an owner to redress the actions of a strata corporation that are significantly unfair to that owner.”
“Just because conduct adversely affects some to the benefit of others is not a basis for a finding of significant unfairness under s. 164, particularly when the consequence is mandated by the requirements of the SPA itself. Direct compliance with governing legislation cannot be considered significantly unfair.”