Part 35 published on 01/09/11
Corporation’s refusal to allow owner to change opaque “spandrel window” to normal vision window significantly unfair. Owner permitted to change window
This property contains 158 strata lots in two high-rise towers which are connected by townhomes. The developer’s original plans called for west-facing windows in the 01 units to be normal vision windows. For a reason that was not in evidence, the developer instead installed west-facing “spandrel windows” in the 01 units. [Spandrel windows are opaque windows that do not allow vision through the windows.] The petitioner, an owner of an 01 unit, sued the developer. The developer agreed to replace the spandrel window with a normal vision window, provided the strata council approved.
The dispute arose as a result of the privacy concerns of the owners of the 02 units. The particular west-facing windows (in the 01 units) are very close to the east-facing windows of the 02 units. The Court further summarized the facts as follows:
Under the strata corporation’s by-laws, any changes to common property require the written approval of the strata corporation.
…
The proposed change was discussed at a strata council meeting on April 22, 2008. Certain owners of the 02 units were opposed to the change because the spandrel windows in the 01 units act as a privacy screen for them. Replacing the spandrel with vision glass would result in their loss of privacy.
Because the proposed change was controversial, the strata council decided that the proposed change was a significant change in the use or appearance of the common property under s.71 of the (Strata Property Act) which requires a resolution passed by a three-quarters vote.
The required motion (at an owners’ meeting) was defeated, with 19 owners in favour and 54 owners opposed.
The Court concluded that this decision of the strata corporation (to refuse the requested window change) was significantly unfair to the petitioner, within the meaning of s.164 of the Strata Property Act. The Court felt that the owners of the 01 units should not have been denied their expected westward view in order to give the 02 units unexpected extra privacy. (And of course the 02 owners could still look out their own windows.) The Court said:
Allowing the petitioners to change the spandrel window to vision glass would allow the 01 unit and the 02 unit occupants to a view outside the window, and privacy by closing blinds or coverings when the occupants want privacy. This would in my view accomplish the greatest good for the greatest number.
The 01 owner was permitted to change the window (with the work to be carried out at the developer’s expense).