Mike Mangan has updated TCM Online, the electronic version of The Condominium Manual, to include the recent developments from Chan v. Strata Plan VR-151, 2010 BCSC 1725, affecting the definition of Common Property.

Protecting A View

 

A strata corporation may adopt a bylaw requiring owners to refrain from interfering with one another’s views.

In Chan v. Strata Plan VR-151, the court considered whether the common law creates an easement to protect a strata lot owner’s view.[1] In a four storey strata apartment building, an owner’s ground floor unit had a patio. According to the strata plan, the patio was part of the strata lot, but only to a height level with her indoor ceiling. The patio contained a tall cedar tree which apparently intruded into the views of some of the upper units above. Following complaints by owners whose view was affected by the tree, the strata corporation adopted a bylaw to address the situation. The bylaw prohibited the owner of a ground floor unit from allowing any tree or plant on that strata lot from extending above the height of the strata lot. The court found that the common law does not create an easement to preserve a neighbour’s view. The court noted, however, that owners in a strata corporation may agree, by enacting a bylaw, to refrain from interfering with one another’s views.

Air Space Above a Strata Lot

 

In Chan v. Strata Plan VR-151, the air space above a strata lot was considered part of the common property.[2]

The facts in the Chan case are described above. When the strata corporation passed the bylaw prohibiting the owner from permitting her tree to grow beyond the height of her strata lot, the owner claimed that the passage of the bylaw was significantly unfair, contrary to the Strata Property Act.[3] The owner claimed, in effect, that the tree was within her airspace. Since there is no common law right to a view in the upper units, the owner claimed it was significantly unfair to pass the bylaw.

At common law, ownership of land extends beyond the land’s surface. With certain exceptions, ownership includes the areas directly above and below the surface. A landowner may control the air space above his or her land to the extent the owner may reasonably use it, subject to statutory restrictions.[4] While air space above a strata lot could form part of the strata lot, in this case it did not.

The Strata Property Act defines common property to include, “that part of the land and buildings shown on a strata plan that is not part of a strata lot …”[5] Everything in a strata plan is either part of a strata lot or part of the common property. In the Chan case, the court regarded the air space above the owner’s strata lot as, “part of the land shown on a strata plan that is not part of a strata lot”. This meant that the air space above the strata lot’s patio was common property. Since the bylaw governed the use of common property air space, the bylaw was valid and there was no significant unfairness. The court warned, however, that steps taken to enforce the bylaw could be subject to challenge as significantly unfair. The court noted that the strata corporation allowed the tree to grow high above the owner’s strata lot long before she bought it. The court cautioned that trimming or removing the tree in accordance with the bylaw may be an expensive endeavour. Depending on the circumstances, it might be significantly unfair for the strata corporation to impose that cost entirely on that owner.

 

The Following Sections of TCM Online Have Been Updated

http://condomanual.ca/tcm3/lawsuits/

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[3]Strata Property Act, s. 164. For information about the significant unfairness remedy under the Strata Property Act, see Chapter 27, Lawsuits.

[4] For information about air space strata plans, see Chapter 4, Strata Plan Types, Styles and Uses.

[5]Strata Property Act, s. 1 (definition of “common property”).