Abdoh v. Owners, Strata Plan KAS 2003 (B.C. Supreme Court)

This strata property contains 73 residential strata lots and 9 commercial strata lots.  The plaintiffs owned one of the residential lots.  Among other things, the plaintiffs applied to Court for the following: 

• A declaration that the commercial owners had no right to use a parking area designated as limited common property for the residential owners, and an order requiring that the strata corporation take reasonable steps to prevent such use. 
• An order requiring the removal of cooling equipment servicing one of the commercial lots, located in a small part of the parking area that was not used for parking. 

The Court dismissed the owners’ application.  The Court said: 

At the time of the hearing, the only continuing non-permitted use of (the parking area) relates to the placement of the Cooling Equipment belonging to (one of the commercial tenants).  The Strata Corporation and Strata Council have acted to disallow the other non-permitted uses of the (limited common property) parking area, and the commercial owners are complying.

…

The Strata Corporation’s position on enforcement of the bylaws in respect of the Cooling Equipment is essentially that the breach is benign and does not interfere with any other owner’s actual or potential use and enjoyment of the (limited common property) for its intended purpose. 

I do not hold that a de minimus argument would necessarily assist (the commercial owners), if the Strata Corporation, acting through the strata council, decided to enforce the bylaws in the case of the Cooling Equipment, but I find that the de minimusprinciple applies to the plaintiffs’ complaints in respect of the Strata Corporation’s acquiescence in the continued placement of that equipment, in the circumstances of this case.  Unlike the initial inaction of the Strata Corporation respecting unauthorized parking, the effect of this inaction is of trifling consequence to any of the 73 residential owners of the (limited common property) parking area. 

Further, I am not persuaded that the Strata Corporation or it’s council has contravened the Act, or has failed to fulfill its responsibilities under the Act, in choosing not to enforce a bylaw simply for the sake of enforcement, at the behest of one owner, in circumstances where no benefit would accrue to any owner, and substantial costs would be incurred by a long-term tenant of a commercial owner. 

[Editorial Note:

 1.  I was surprised to see that the strata corporation was awarded costs and the plaintiff owners were not awarded any costs whatsoever.  According to the decision, the strata corporation only took steps to prevent the parking breaches after commencement of the application.  The decision specifically states that the strata corporation “did eventually take decisive action in stopping the non-permitted parking use by commercial owners and invitees… once the plaintiffs’ point was driven home by commencement of this proceeding”.  It seems to me, then, that the application successfully achieved one of its primary purposes.   

Nevertheless, this decision stands for a key principle:  Strict enforcement of condominium bylaws is not required in every case.  The strata council / Board can exercise reasonable discretion, and may decide not to enforce in appropriate circumstances.]