Part 2 published on 01/05/03
Actions of Strata Corporation not “significantly unfair”. Owner not entitled to use deck
Shaughnessy Place is a Strata development that contains 76 Strata units over 6 floors. Each unit in the complex has two or three patio decks.
The Strata Corporation agreed to allow the owner of Suite 601 to use an adjacent roof area as an additional deck/patio, and a sliding door was installed in one of the walls of the unit in order to allow access to this additional patio. This was subject to many conditions which were ultimately recorded in a lease between the Strata Corporation and the owner. The lease included the following statement:
“In the event of a change of registered ownership, the Strata Council of that time shall have the option to renew this lease arrangement and of access to the area in question.”
The owner sold the suite and sought approval to include the transfer of the lease with the sale of the unit. This was refused by the Strata Council. In the meantime, the purchasers, Dr. and Mrs. Gentis, were advised in the purchase agreement that the particular deck “may not be allowed to remain”.
Following the sale, Dr. and Mrs. Gentis requested continued use of the deck, and the Strata Council again refused. However, the council was prepared to allow access to the area for watering and maintaining flower boxes. This was unsatisfactory to the Gentis’. They arranged for a meeting of the owners, in the hopes of obtaining a special resolution to designate the deck as limited common property (for their use). The meeting was held and the resolution was defeated by a significant margin of 51 opposed and 14 in favour.
The Gentis’ then petitioned the court for a declaration that the Strata Council’s refusal was significantly unfair, and an order that they be permitted to continue to use the deck.
The court concluded that the Strata Council’s decision was not significantly unfair. The court said:
- The council’s decision was based on consideration of legitimate factors;
- The vote of owners, although “not dispositive of the issue”, is additional evidence that the Strata Council’s decision represented the interests of a majority of the owners;
- The Gentis’ will not be disadvantaged by the loss of this deck;
- The Gentis’ were warned of the uncertainties surrounding their continued use of the deck. They could not have formed a reasonable expectation that they would be permitted to continue to use the deck.