Part 56 published on 01/11/16
Court determines that the strata lots are “residential”; that the strata corporation cannot grant licenses of the boat slips for a period in excess of one year; and that the strata corporation cannot control activity outside the strata property
The petitioning owners asserted that some of the strata lots were non-residential and that voting to amend the corporation’s by-laws, in accordance with section 128 of the Strata Property Act, should be based on the two types of units. The Court disagreed. The Court said that all of the strata lots were “residential”. The Court said:
The uncontradicted evidence is that the actual use of all of the lots has been residential. Clearly, residential use has been the intention of the owners for an extended period of time.
Given the circumstances of this case, it is my view the section must recognize the intention that is manifestly apparent from the actual use over an extended period of time. To look to the original intentions of a developer who is long removed from the development would defeat the purpose of the section. There is no evidence here that the petitioners relied on the disclosure statements.
The Court also held as follows:
a) In accordance with s. 76 of the Strata Property Act, the strata corporation could not grant licenses to use the boat slips for more than one year.
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b) The strata corporation could not pass a by-law to control or regulate moorage on the lake, which is outside the common property.
