31/05/2018 – Jurisdiction British Columbia
Part 62 published on 01/06/2018
Court orders reconstruction of a roof, to conform with approvals given in relation to changes to common property
This case involved a dispute between the strata corporation and the owners of two adjacent strata lots which comprised a beachfront duplex. The central dispute related to changes made by one of the two owners to the roof above their strata lot, resulting in different roof lines between the two lots (ie. between the two sides of the duplex). The petitioning owners (with the unchanged, original roof) applied for an order that the other owner’s roof be reinstated at the cost of the strata corporation or the other owner. The petitioning owners also sought additional damages based upon alleged negligence of the other owner. Both owners also claimed that the strata corporation had acted significantly unfairly.
The strata corporation agreed that the roof should be reinstated, because the changes to the roof were not in accordance with approvals provided (for related exterior alterations that had been requested by both owners).
The Court held as follows:
- The changes to the roof were not in accordance with approvals given.
- The appropriate remedy is to require the owner (who had changed their roof) to remove the roof and replace it with a roof similar to the original roof (at the owner’s cost); and if the owner fails to do so within an appropriate time, to require the strata corporation to do the necessary work.
- The strata corporation did not treat anyone significantly unfairly.
- The petitioning owner (with the original roof) does not have any claim for negligence against the other owner (and therefore no claim for additional damages against the other owner).
On the question of costs, the Court said as follows:
The (Strata Corporation) argued that, from the beginning of this action, the (Strata Corporation) has concurred with the order for (the owner who changed their roof) to remove the unapproved alterations. The (Strata Corporation) submits a Bullock order which permits a successful plaintiff to add to the costs recoverable from the unsuccessful defendant the amount of costs which the plaintiff might otherwise be obliged to pay to the successful defendant.
I agree. In this case, the problems all arose from (the one owner changing their roof), which does not comply with the (Building Permit) or the approvals by the (Strata Corporation).
As a result, (the owner who changed their roof) is required to pay the (petitioning owners) their costs of this lawsuit. The (petitioning owners) are required to pay the (Strata Corporation) its costs of this lawsuit, but the (petitioning owners) are entitled to include in their claim for costs from (the owner who changed their roof), as a disbursement, the costs payable by them to the (Strata Corporation).