Part 2 published on 01/05/03
Actions of Strata Council not “significantly unfair”. Owners permitted to make limited use of patio
This was a dispute involving three owners, the Strata Corporation, and a patio.
Two units – owned by Ms. Flotten and Mr. and Mrs. Nomura – face each other across the patio, and the patio comprises a common property entryway to those units. The back wall of a third unit – owned by Mr. Reid – also borders the common entry. There are three picture windows in that back wall. In other words, the patio is the view from Mr. Reid’s rear windows.
Mr. Reid complained to the Strata Council that Ms. Flotten and the Nomuras were placing personal belongings, including patio furniture and planters, on the patio. Initially, the Strata Council agreed, and sent letters to Ms. Flotten and the Nomuras asking them to remove the items. However, the Strata Council ultimately resolved to grant the Nomuras and Ms. Flotten permission to place the following items on the patio: four potted cedar trees, one potted holly bush, one half-barrel planter, one garden bench, one tripod planter, three rectangular window boxes, one potted fuschia tree and various small planters filled with annuals clustered around the larger planters and the perimeter. This permission was given on the following terms and conditions. Ms. Flotten and the Nomuras were to be responsible for the care and upkeep of these items and for keeping the area tidy and clean. They would also be liable for any damage to the patio which occurred as a result of the placement of these items. Finally, it was made clear that the permission was granted on a temporary basis and could be withdrawn at the discretion of the council.
Mr. Reid applied to court for a declaration that the Strata Council’s decision was significantly unfair to him, and for an order reversing that decision.
The court said that the decision of the Strata Council was not “significantly unfair” within the meaning of Section 164 of the Strata Property Act. The court also said that the items placed on the patio did not constitute a “significant change” so as to require a three-quarter vote of the owners – within the meaning of Section 71 of the Act. The items were permitted to remain on the patio.