Carrying Out Repairs

 

When considering a repair or maintenance problem, it is important to keep in mind two separate questions. First, who is responsible to carry out the repair or maintenance work? Second, who is ultimately responsible to pay for that work?

The Strata Property Act consistently uses the phrase, repair and maintain, which suggests that repairs differ from maintenance. Neither term is defined in the legislation. Despite any technical difference in their meaning, the legislation clearly treats both repairs and maintenance the same. Accordingly, every reference below to repairs includes maintenance, unless context requires otherwise.

To answer the question, “Who is responsible to carry out certain repair work?” a strata corporation must look to the Strata Property Act and the corporation’s bylaws. In this chapter, we assume that a strata corporation has the Standard Bylaws under the Act. To the extent that a strata corporation amends its bylaws to deal differently with repairs, the answer will differ. Before applying the analysis in this chapter, verify whether the repair bylaws under consideration are those found in the Standard Bylaws. If a strata corporation’s repair bylaws differ from the Standard Bylaws, then together with the Act the corporation’s particular bylaws will govern the answer.

This chapter explains how to determine who must actually perform a repair under the Strata Property Act. After determining who must make the repair, the next question is who must ultimately pay for it. For information about answering the second question, see Chapter 26, Paying For Repairs.

The Standard Bylaws

The Strata Property Act deals more clearly with the subject of repairs than the former Condominium Act. Unfortunately, the most significant repair provisions are found in the Standard Bylaws, rather than in the body of the Act. This means that a strata corporation may change its repair scheme by amending the corporation’s bylaws. When it comes to repairs, however, most strata corporations use the Standard Bylaws. Some strata corporations do not.

It is essential to identify a strata corporation’s repair bylaws before approaching any repair problem. For information about identifying a strata corporation’s statutory repair bylaws and the extent to which those bylaws are altered by any amended bylaw, see Chapter 19, Statutory Bylaws and the Effect of the Strata Property Act.

The Repair Scheme

The Strata Property Act and the Standard Bylaws together dictate who must perform a repair, according to whether the subject of the repair is common property, limited common property (“LCP”) or part of a strata lot. In each case, the Act and Standard Bylaws divide responsibility between the strata corporation and an owner, depending whether the repair occurs in common property, LCP or a strata lot.

The following explanation tracks this scheme.

Common Property and Common Assets

As a general rule, if the subject of a repair is common property, or a common asset, the strata corporation must carry out the repair. 1 There are a few exceptions in which an owner may be responsible to make the repair.

For the purpose of determining responsibility for making a repair, the Strata Property Act and the Standard Bylaws treat both common property and common assets the same. Accordingly, when speaking of repairs, in this chapter every reference to common property includes common assets, unless the context requires otherwise.

Strata Corporation’s Responsibility

The Strata Property Act requires a strata corporation to repair common property and common assets. 2 In particular, if property is common property (and has not been designated as limited common property), the strata corporation must repair it. This is a statutory duty and the strata corporation cannot escape its responsibility. Tadeson v. Strata Plan NW 2644 3 is a good example.

Case Study

A residential strata complex contained 35 units. The building envelope suffered water penetration. An engineering report recommended extensive repairs to the building envelope, which was common property.

The strata council presented special resolutions (now called “3/4 vote” resolutions) at two separate general meetings to carry out the repairs. In each case, the resolutions failed because too many owners objected to the cost of the work.

In frustration, three owners applied to the Supreme Court of British Columbia for an order requiring the strata corporation to carry out the repairs.

The court ordered the repairs and authorized a special assessment (now called a special levy) to all of the owners for $312,645 to pay for the work.

The court held that the strata corporation must fulfill its statutory duty to repair. The eligible voters, by defeating the special resolutions, could not, in effect, agree to excuse the strata corporation from its statutory obligation to repair the common property. 4

Strata Corporation Must Act Reasonably

A strata corporation’s obligation to repair common property must be judged with a test of reasonableness. The principle is summarized in Wright v. Strata Plan No. 205, 5 a case decided under the former Condominium Act:

In other words, a strata corporation must act reasonably when carrying out its duty to repair and maintain.

In John Campbell Law Corporation v. The Owners, Strata Plan 1350, an owner sued a strata corporation for damages on several grounds, including breach of statutory duty and negligence. The damages occurred when sewage backed up into the owner’s unit from a sewer pipe that was common property. The owner claimed the strata corporation was strictly liable as a result of a breach of its statutory duty under section 72 of the Strata Property Act to repair and maintain common property. The central question was whether, under the Strata Property Act, a strata corporation is strictly liable for a breach of its statutory duty to maintain and repair, or liable only where the corporation fails to act reasonably. The court reaffirmed that a standard of reasonableness prevails, saying in part: 6

By analogy to the standard of care of a reasonable person in the law of negligence, the John Campbell case effectively confirms a standard of care of the reasonable strata corporation in a claim for breach of statutory duty. An owner wishing to sue a strata corporation for damages for breach of the statutory duty to repair must show that the corporation failed to take all reasonable steps to inspect and maintain the relevant property, consistent with the practice of other strata associations generally. As in a negligence claim, in a suit against a strata corporation for breach of a statutory duty to repair, the claimant must present evidence to establish the standard among strata corporations generally for inspection, repair and maintenance. In other words, one has to first establish a benchmark before one can prove that someone has failed to achieve that benchmark. After the norm among strata corporations is established, the court may then measure whether the strata corporation in question acted reasonably in the circumstances. A claimant who fails to produce such evidence risks the dismissal of his or her lawsuit for failure to establish the relevant benchmark.

In the John Campbell case, the sewage backup occurred when roots from a tree on a neighbouring property blocked the strata corporation’s sewage pipe. Since the strata corporation had never before experienced problems with the pipe, the corporation had not previously inspected it for potential blockages. Nor did the corporation have any policy for regularly inspecting the sewage pipe. There was no evidence, however, to suggest that other strata corporations made regular inspections of their sewer pipes, whether or not a problem had occurred. In addition, the evidence revealed that most strata corporations do not usually flush sewer pipes unless a problem has first presented itself.

The court dismissed the owner’s claims for breach of statutory duty and negligence. The court found that unless there was some obvious reason to regularly inspect the sewer pipe, the lack of an inspection policy could not be held against the strata corporation. Bearing in mind the evidence concerning the inspection and maintenance practices of other strata corporations, the strata corporation in question acted reasonably. Even though the strata corporation never inspected or maintained the sewer pipe before the incident, there was no reason to be concerned about a sewage blockage, especially where no other strata corporations inspected their sewer pipes in similar circumstances.

In Basic v. Strata Plan LMS 0304, the British Columbia Court of Appeal reiterated that a strata corporation must act reasonably when carrying out its duties to maintain and repair common property. 7  In Basic, an owner had the use of a common property storage locker. There was a drain near the locker. In 1997 and 1999 water backed up through the drain wetting the contents of the owner’s locker. In each case, the strata corporation promptly hired plumbers who cleared the drain with a roto-rooter.

In 2000, water from the drain again reached the owner’s locker. He spent two days cleaning the locker and its wet contents. When the owner told strata council about the problem, it arranged within a day for a plumber to cap the drain.

Still, the water problem persisted. In September 2001 the strata corporation hired an engineer, who recommended re-routing the drains to the parkade below. Within two months, the strata corporation implemented the engineer’s suggestions, completing the work by November that year.

In November 2006, a leaky pipe inside the locker caused another flood. The strata corporation repaired the pipe by early 2007.

The strata corporation also posted notices warning owners to elevate the contents of their lockers above the floor. In addition, every night a strata council member inspected the common property areas, including the storage area in question.

The owner sued the strata corporation for damages for negligence and breach of statutory duty to repair common property. He claimed that during the 2000 clean-up he was exposed to harmful mould, which caused him cold-like symptoms, including shortness of breath.

While a strata corporation must act reasonably to maintain and repair the common property, the trial court emphasized that the strata corporation is not an insurer. The 2000 flood was not the result of any negligence or breach of statutory duty by the strata corporation. The court dismissed the owner’s claim, finding that here the strata corporation acted reasonably to repair the various water problems.

In another case, a strata corporation breached its statutory duty to repair common property when it failed for a period of approximately eight months to assess the condition of a building’s envelope. 8 The strata council had received an engineer’s report to the effect that building envelope deficiencies in one strata lot may also exist in other strata lots in the building. The council members and owners were well aware that their six-storey, 22-unit building had suffered water ingress problems for years. An assessment of the building envelope was not only prudent, it was necessary.

After receiving the engineer’s report, it was unreasonable in the circumstances to wait approximately eight months to take action regarding a building envelope assessment.

Similarly, a strata corporation acts unreasonably if it attempts without justification to shift its responsibility to repair common property to an owner. 9 For example, in Taychuk v. The Owners, Strata Plan LMS 744, 10 certain pipes inside a strata lot were common property. The pipes supplied badly discoloured water to the unit, and the strata corporation was responsible to repair the water problem. Except for one period of roughly 18 months, the strata corporation took consistent steps over seven years to solve the problem, including consulting experts, flushing the system, and replacing certain valves. Progress stalled for approximately 18 months when the strata corporation proposed installing a particular filtration system in the owners’ unit and insisted that the owners would have to bear the cost of replacing the filters and maintaining the system. The owners objected. The owners commenced legal proceedings and, for a time, the strata corporation took no further steps to solve the problem.

The court found that the strata corporation breached its duty to act reasonably by making the filtration option dependant on the owners paying to maintain it. Since it was the strata corporation’s duty to repair and maintain the common property, it was not reasonable for the strata corporation to require the owners to assume that obligation. 11

The court declared that the strata corporation breached its duty to repair during the relevant period. The court gave the successful owners liberty to apply again to the court if the discoloration problems returned. The court also awarded costs in favour of the owners who brought the application.

An owner cannot be relieved from paying his or her proportionate share of a special levy to repair common property merely because the strata corporation has, in the past, breached its duty to the owner to act reasonably regarding the repair of that common property. 12 In the Taychuk case, the successful owners asked the court for a remedy in the nature of an order to exempt them from paying any share of a special levy to raise funds to repair the common property hot-water system. The court held that the Strata Property Act does not permit such a remedy.

The court, however, exempted the successful owners under section 167(2) of the Strata Property Act from paying any of the strata corporation’s legal expenses in the proceeding. 13

A Good Repair Versus The Best Possible Repair

A strata corporation which chooses a good repair solution, as opposed to the best repair solution, is not necessarily, for that reason alone, acting unreasonably. 14

Weir v. Strata Plan NW 17 is a good illustration. 15

Strata Corporation’s Liability For Injury

In addition, if injury is caused by a strata corporation’s failure to repair common property, the corporation may incur liability. Cater (Guardian Ad Litem) v. Ghag Enterprises Ltd. (No. 1 and 2), 16 is a good illustration.

Case Study

The owner was a corporation that leased the strata lot to a young family. At the time, the owner’s representative told the tenants that the lease, in effect, entitled them to use the driveway in front of the unit.

The driveway was common property. The driveway contained a hole described as a depression about three to four feet wide and five inches deep. The depression was in plain view and remained there for some months.

The tenants’ eight-year-old daughter rode her bike through the depression and fell. She suffered a broken leg. On behalf of their daughter, the tenants successfully sued the owner of the strata lot and the strata corporation for damages under the Occupiers Liability Act.

The Occupiers Liability Act defines the term occupier as a person who is in physical possession of premises or has responsibility for, and control over, the condition of the premises, the activities conducted on those premises and the persons allowed to enter those premises. Under the Occupiers Liability Act, every occupier has a duty to take care that persons are reasonably safe in using the premises. 17

The court found that the strata corporation and the owner were both occupiers within the meaning of the Occupiers Liability Act. Since the driveway was common property, the strata corporation was an occupier because it had a statutory duty under the condominium legislation to repair and properly maintain the driveway. The owner was also an occupier because it had legal control, as a landlord, over the premises, including the associated right to use the driveway.

The court found the child partly at fault and allocated 25 per cent (25%) of responsibility for the accident to the child. The court assigned 75 per cent (75%) of the liability equally between the owner and the strata corporation, who were each 37.5 per cent (37.5%) responsible.

Owner’s Responsibility

Section 72(2)(b) of the Strata Property Act permits a strata corporation, by bylaw, to make an owner responsible for repairs to common property, “only if identified in the regulations and subject to prescribed restrictions.” When the province first brought the Act into force on July 1, 2000, the government specifically refrained from proclaiming section 72(2)(b) into force.

Effective October 12, 2001, the province brought section 72(2)(b) of the Strata Property Act into force. 18 Unfortunately, however, the regulation that brought section 72(2)(b) into force does not identify any specific common property to which it applies or prescribe any restrictions. Since section 72(2)(b) only permits a strata corporation, by bylaw, to make an owner responsible for repairs to common property that is, “identified in the regulations,” this section cannot be used until the government creates a regulation to identify the applicable common property. For this reason, in Fraser v. Strata Plan VR 1411, the court found that several of a strata corporation’s amended bylaws were unenforceable to the extent they required an owner to repair features that were common property. For instance, one of the amended bylaws in question said: 19

Since all, or virtually all, of the features listed in paragraphs (a) through (e) of this amended bylaw were part of the common property, the court held the amended bylaw unenforceable. The court found that the strata corporation could not, by bylaw, require an owner to repair common property until the province enacts the required regulation to identify what repairs to common property may be the subject of such bylaws and to prescribe the necessary restrictions.

It appears, however, that in at least two situations a strata corporation may by agreement, rather than a bylaw, compel an owner to repair common property.

First, under the Standard Bylaws, an owner may ask the strata corporation for permission to alter common property, including LCP, or a common asset. The Standard Bylaws permit the strata corporation to require, as a condition of its approval, that the owner take responsibility for any expenses relating to the alteration. 20Presumably, the owner will be responsible for expenses relating not only to the initial alteration but to any further expenses that arise as a result of the alteration, including repairs or additional insurance. Note, also, that section 59(3) of the Strata Property Act requires each Information Certificate (Form B) to disclose any agreements under which the owner takes responsibility for expenses relating to alterations to the common property or common assets, among other things. 21 For information about the Information Certificate (Form B), see Chapter 13, Record Keeping.

If a strata corporation approves an owner’s request to alter common property in exchange for the owner’s promise to pay for any expenses relating to the alteration, the strata corporation should always record the agreement in writing. The written document will serve as an accurate record of the agreement for future strata councils and property managers. Experience also suggests that recording the agreement in writing tends to avoid disputes later.

Note that an owner’s agreement, in exchange for permission to alter common property, is not likely binding on subsequent owners of the same strata lot. Normally, an agreement is binding only on the parties to it. If a strata corporation wishes to make an owner’s agreement to pay for repairs to alterations to common property binding on subsequent owners, the corporation should seek legal advice.

At present, our land title registration system does not appear to offer any type of charge that a strata corporation might register against title to the owner’s strata lot to bind subsequent owners to the agreement. From the strata corporation’s perspective, the corporation may wish, as a term of the owner’s agreement to repair common property, to insist that if the owner sells his or her strata lot, he or she must require the buyer to assume the owner’s obligations to the corporation under the agreement.

In theory, if an owner enters an agreement with the corporation to repair common property, that owner’s liability may continue indefinitely, depending on the wording of the agreement. For instance, in the absence of wording that terminates the owner’s liability upon a sale of the strata lot, an owner who sells his or her strata lot may nevertheless remain liable to the corporation for the cost of repairs, even though he or she is no longer a member of the corporation. Where repair costs are potentially significant, an owner may wish to obtain legal advice before finalizing any agreement with the strata corporation.

Second, the Strata Property Act permits a strata corporation to enter into a short term exclusive use agreement with an owner or tenant to give that person the right to exclusively use common assets or common property that is not designated as LCP. 22 When a strata corporation gives an owner or tenant exclusive permission to use common property under these provisions, the corporation may make the arrangement subject to conditions. 23 It appears possible for a strata corporation to require, as part of the agreement, that the owner or tenant carry out certain repair work on the common property allocated for that person’s exclusive use. To avoid disputes, the corporation should record any short term exclusive use agreement in writing. For information about a short term exclusive use agreement, see Chapter 17, Common Property.

Limited Common Property

Where the subject matter of a repair is LCP, the Standard Bylaws divide responsibility for repair work between the strata corporation and an owner. 24

Strata Corporation’s Responsibility

The Standard Bylaws specifically require a strata corporation to carry out repair work on LCP in certain circumstances.

The Standard Bylaws require a strata corporation to carry out all repair work on LCP that, in the ordinary course of events, occurs less often than once a year. 25

In addition, if any of the following is designated as LCP, the Standard Bylaws make the strata corporation responsible to carry out the repair work, no matter how often the repairs ordinarily occur: 26

  • the structure of the building,
  • the exterior of the building,
  • chimneys, stairs, balconies and other things attached to the exterior of the building,
  • doors, windows and skylights on the exterior of a building or that front on the common property, or
  • fences, railings and similar structures that enclose patios, balconies and yards.

The Standard Bylaws differ significantly from the approach taken under the former Condominium Act. Under the former Act, an owner typically carried out all routine repairs on LCP for the exclusive benefit of his or her strata lot. 27

Owner’s Responsibility

Where the common property has been designated as LCP, the strata corporation may, by bylaw, make an owner who has a right to use the LCP responsible for its repair. 28

Note that a bylaw is required; strata council alone does not have the authority to make an owner responsible for LCP repairs. In Guenther v. Strata Plan KAS431, there was a three-storey wooden-frame building with 42 strata lots. 29Every unit had an LCP balcony. All but one of the balconies had earlier been enclosed by the various owners.

The strata corporation’s repair bylaws corresponded to those in the standard bylaws. With regard to LCP, the strata corporation’s bylaw said,

The bylaws restricted the strata corporation’s duty to repair and maintain LCP to repairs and maintenance that ordinarily occur less than once a year. The bylaws also required the corporation to repair and maintain LCP such as “railings and similar structures that enclose balconies,” no matter how often the repair or maintenance ordinarily occurs.

Repairs became necessary when the strata corporation discovered that water was penetrating many of the balcony enclosures. In response, the strata council passed a motion in 1999 declaring that it is an owner’s responsibility to repair his or her balcony. The motion also required an owner to first obtain the strata council’s approval before making repairs and to use an appropriate construction professional. Despite strata council’s motion, it appears that none of the owners repaired their LCP balconies. In 2009, an owner asked the Supreme Court of British Columbia for a declaration that the strata corporation was in breach of its duty to repair the LCP balconies.

Since the bylaws required the strata corporation to repair LCP “railings and similar structures that enclose balconies”, the corporation breached its duty to repair the LCP balconies. The Strata Property Act permits a strata corporation to make an owner responsible for LCP repairs by enacting a suitable bylaw. Since a bylaw was necessary, the strata council alone had no authority to make owners responsible for balcony repairs. The council’s motion was of no force or effect. If the strata corporation wished to change the allocation of responsibility for LCP repairs to the balconies, a bylaw amendment was necessary.

The Standard Bylaws require every owner with the use of LCP to repair it, except to the extent that the strata corporation has that responsibility under the bylaws. 30

Under the Standard Bylaws, for example, if a parking stall is designated as LCP, the owner is responsible to carry out most repair work on the parking stall. Any repair, however, that occurs less often than once a year, such as repainting lines, or resurfacing, is the responsibility of the strata corporation to perform.

Strata Lot

Where the subject of a repair is part of a building strata lot (that is, a strata lot that is not part of bare land strata plan) the Standard Bylaws divide responsibility to perform the repair between the strata corporation and an owner.

Strata Corporation’s Responsibility

The Standard Bylaws require a strata corporation to repair the following if they are part of building strata lot (that is, a strata lot that is not part of bare land strata plan): 31

  • the structure of the building,
  • the exterior of the building,
  • chimneys, stairs, balconies and other things attached to the exterior of a building,
  • doors, windows and skylights on the exterior of a building or that front on the common property, and
  • fences, railings and similar structures that enclose patios, balconies and yards.

The Strata Property Act also permits the strata corporation, by bylaw, to take responsibility for the repair and maintenance of specified portions of a strata lot. 32 For example, a strata corporation may amend this provision in the Standard Bylaws to expand or reduce the corporation’s duty to carry out repair work on particular portions of a strata lot.

Owner’s Responsibility

The Standard Bylaws require each owner to repair and maintain his or her own strata lot, except to the extent that the strata corporation has that responsibility under the bylaws. 33

Duty to Repair v. Insurance

Some individuals mistakenly try to determine the duty to perform a repair on the basis of whose insurance covers the problem. This is wrong. Whether the strata corporation, or an owner or tenant, or some or all of them have insurance has nothing to do with determining who is responsible to carry out a repair. The liability to carry out a repair is determined according to the Strata Property Act and the bylaws, as described in this chapter. For an illustration of the irrelevance of insurance to the duty to make a repair, see “Insurance v. Duty to Repair” in Chapter 16, Insurance.

Typical Disputes

Deciding who is responsible to carry out repair work is likely the most common area of dispute between strata corporations and owners. Despite the prevalence of these disputes, strata managers receive little guidance in this area. The courts have not produced much case law concerning repairs because most disputes are settled informally or through arbitration.

As a general rule, the legislation, and in particular the statutory bylaws, have always assigned responsibility according to whether the subject of the repair is common property, LCP or a strata lot.

In reality, many repair problems include features shared between a strata lot and a neighbouring unit, LCP or common property. In many cases, the former Condominium Act overlooked the practical difficulties in assigning responsibility where strata lots are physically linked in various respects to other strata lots or to LCP or common property.

One of the few sources of information in this area is Understanding and Improving the Condominium Concept, 34 by Gerry Fanaken in which the author relates his extensive experience in solving these disputes over many years under the former Condominium Act. With that author’s permission, the following guidelines are adapted from his text, taking into account changes introduced by the Strata Property Act and some of the most common disputes. Among other things, the Strata Property Act expands the definition of common property. 35 The changes in the definition of common property will also change the approach to some repair problems.

For the most part, the disputes described below under the Condominium Act did not distinguish between the responsibility to carry out the repair work and the ultimate responsibility to pay for the repair. Readers should keep in mind that, under the Strata Property Act, the two obligations will not necessarily be the responsibility of the same party.

Finally, in the following review every reference to a strata lot is a reference to a building strata lot, being a strata lot that is not part of a bare land strata plan.

Hot Water Heating Systems

Many strata complexes have a gas-heated boiler to heat water, which is then circulated through pipes to the individual strata lots. This type of system is often used to heat the complex or, alternatively, to supply hot water to the strata units. If the complex uses hot water to heat the facilities, each strata lot typically has a thermostat to regulate the temperature of the suite. The thermostat usually controls some form of zone valve, which regulates the flow of hot water to and from the unit. Some zone valves are located inside strata lots, others are located in a common property area.

Condominium Act

In the past, if the thermostat failed, the strata corporation held the owner responsible because it was located inside the strata lot.

If the zone valve failed, and it was located within the common property, the strata corporation accepted responsibility. If the failed zone valve was inside a strata lot, most strata corporations still accepted responsibility. These strata corporations considered the zone valve to be an integral part of the building’s heating system. On the other hand, some strata corporations imposed liability on the owner because the valve was inside the strata lot.

Strata Property Act

The Strata Property Act expands the definition of common property to include, 36

Under this definition, clearly the zone valve and, arguably, the thermostat, are common property.

If so, under the Standard Bylaws, the strata corporation must carry out repair work on the zone valve and, in appropriate cases, the thermostat.

Windows and Doors

In a building strata plan (that is, one that is not a bare land strata plan), window and door repairs are frequently the subject of disputes.

Condominium Act

The statutory bylaws under the Condominium Act required the strata corporation to maintain and repair the exterior of buildings excluding, among other things, windows and doors included in a strata lot. 37 A plain reading of this provision suggested that if a strata lot’s exterior window broke, it was the owner’s responsibility to carry out the repair work.

To complicate matters, the property insurance policies carried by most strata corporations included exterior windows, subject to a deductible. If an exterior window broke, most strata corporations assumed responsibility in view of their insurance coverage. However, many strata corporations charged back the deductible to the owner because the statutory bylaws excluded windows from the strata corporation’s responsibility.

Strata Property Act

The Strata Property Act and its Standard Bylaws clarify the respective responsibilities of a strata corporation and an owner to repair property that is common property, or LCP or part of a strata lot.

Common Property

If a window or door is common property or a common asset, the strata corporation must carry out the repair work on it. 38

Limited Common Property

Section 8(c) of the Standard Bylaws deals, in part, with a strata corporation’s responsibility to carry out repair work on LCP as follows:

Accordingly, under the Standard Bylaws, if an exterior window or door is LCP, the strata corporation must carry out the repair work.

Strata Lot

Section 8(d) of the Standard Bylaws also deals, in part, with a strata corporation’s responsibility to carry out repair work on a building strata lot (being a strata lot that is not part of a bare land strata plan). Section 8(d) says, in part:

So, if an exterior window or door is part of a strata lot, the Standard Bylaws require the strata corporation to carry out the repair work on that window or door, as the case may be.

Electricity

Most strata lots have their own fuse boxes, including a master electrical on/off switch for the unit, and a meter. In most residential complexes, a strata lot’s electrical meter is usually kept with all the other meters in a meter room. Typically, the meter room is part of the common property.

Condominium Act

If a strata lot experienced a power loss and the source of the problem could be isolated and fixed within the strata unit, including its fuse box, most strata corporations considered the owner responsible. For example, a power failure might be caused by an overloaded circuit or a defectively wired appliance in the strata unit.

On the other hand, if the difficulty was in the meter room, and the meter room was part of the common property, the strata corporation usually took responsibility to fix it. For example, a defect in the main trip-switch in the meter room might cause a power failure in the strata unit. Since the defect arose in the meter room, which was common property, the strata corporation was responsible.

Strata Property Act

Strata corporations dealing with electrical problems under the Strata Property Act will likely follow their past practice under the former Condominium Act, as described above. Note that the definition of common property in the Strata Property Act says, in part: 39

This definition will help solve disputes where the source of the electrical problem can be located. If the problem occurs within a strata lot, including the fuse box, the owner will have to perform the repair work under the Standard Bylaws.

On the other hand, if the source of an electrical problem is located in the wiring within a floor, wall or ceiling that forms a boundary with another unit or common property, under the Standard Bylaws the strata corporation must carry out the repair work. Similarly, if the problem occurs within wiring that is inside a strata lot, but the wiring is intended to be used for the enjoyment of another strata lot or the common property, the strata corporation must carry out the repair work.

Fireplaces

Some strata lots include fireplaces. In most cases, the fireplaces do not appear on the strata plan, so it is hard to say what portion, if any, extends beyond the strata lot to the common property.

Wood-Burning Fireplaces

In the case of a wood-burning fireplace, the chimney may occupy both the strata lot and the common property.

Condominium Act

The Condominium Act did not address responsibility for chimneys. If some, but not all, strata lots had fireplaces, many strata corporations required the owners to clean and maintain the chimneys. Other strata corporations carried out annual chimney maintenance to ensure overall safety but charged back the cost to the owners with fireplaces. If all the strata lots had chimneys, the strata corporation typically carried out annual chimney maintenance.

Strata Property Act

The Standard Bylaws make the strata corporation responsible for maintaining the chimneys. 40

Gas Fireplaces

Gas fireplaces do not need chimney maintenance but may require repairs. Neither the Condominium Act nor the Strata Property Act specifically refer to gas fireplaces.

In the past, most strata corporations considered owners responsible for repairs to gas fireplaces within their strata lots. Nothing in the Strata Property Act or Standard Bylaws suggests that past practices will change.

Toilets and Bathtubs

Neither the former Condominium Act nor the Strata Property Act refer specifically to toilets or bathtubs.

Condominium Act

In the past, the location of the problem determined responsibility.

Toilets

For example, if a toilet was plugged inside the toilet itself, a strata corporation looked to the owner to fix it.

If, however, the cause of the plugged toilet was beyond the toilet somewhere in the plumbing below floor level, the strata corporation accepted responsibility because the problem occurred within the common property. This position was also consistent with the statutory bylaws under the Condominium Act, which provided in part: 41

Bathtubs

Strata corporations applied the same approach to leaky bathtubs. If a leak arose, for example, in the perimeter caulking between the tub and the wall or floor, the owner was responsible. Similarly, if the bathtub developed pinhole leaks in its surface, the owner had to fix it.

On the other hand, if a leak arose in the bathtub drain, which was situated between the strata lot and the common property drain, the strata corporation performed the repair work.

Strata Property Act

Toilets

The wording of the Strata Property Act suggests that if the source of the problem is within the toilet, the owner must fix it. If, however, the problem arises within the pipes, whether inside the strata lot or beyond it, the strata corporation must carry out the repair work. 42

Bathtubs

In the case of bathtubs, under the Strata Property Act many strata corporations follow the same approach they took under the Condominium Act, as described above.


 

Notes:

  1. For information about common property and common assets, see Chapter 17, Common Property.
  2. Strata Property Act, s. 72. See also Schedule of Standard Bylaws, s. 8(a), (b).
  3. Tadeson v. The Owners, Strata Plan NW 2644 (1999), 30 R.P.R. (3d) 253, 1999 CanLII 6999 (B.C.S.C.).
  4. See also, for example, Clarke v. Strata Plan VIS770, 2010 BCSC 705 where, at the request of an administrator, the court ordered a special levy after the eligible voters defeated a resolution, proposed by the administrator, for a special levy for much needed repairs
  5. Wright v. The Owners, Strata Plan No. 205 (1996), 20 B.C.L.R. (3d) 343, 1996 CanLII 2460 (S.C.), aff’d (1998), 43 B.C.L.R. (3d) 1, 1998 CanLII 5823 (C.A.).
  6. John Campbell Law Corporation v. The Owners, Strata Plan 1350, 2001 BCSC 1342 at para 18. See also Basic v. Strata Plan LMS 0304, 2011 BCCA 231 at para. 12, leave to appeal to S.C.C. dismissed with costs (13 October 2011), 2011 CanLII 63745
  7.  Basic v. Strata Plan LMS 0304, 2011 BCCA 231, leave to appeal to S.C.C refused 2011 CanLII 63745.
  8. Oldaker v. The Owners, Strata Plan VR 1008, 2007 BCSC 669, reopened 2008 BCSC 346, reasons on costs 2009 BCSC 697, aff’d 2010 BCCA 241.
  9. As at the date of this writing, it appears that a strata corporation may compel an owner to repair common property only on the basis of a prior agreement between the corporation and the owner. For example, this might occur where an owner asks the strata corporation for permission to alter common property and the corporation, as a condition of its approval, requires the owner to agree to maintain that common property.
  10. Taychuk v. The Owners, Strata Plan LMS 744, 2002 BCSC 1638.
  11. Taychuk v. The Owners, Strata Plan LMS 744, 2002 BCSC 1638, at para 42.
  12. Taychuk v. The Owners, Strata Plan LMS 744, 2002 BCSC 1638.
  13. For information about an owner’s obligation to contribute to the cost of a lawsuit in which the owner sues the strata corporation, see Chapter 27, Lawsuits.
  14. Weir v. Strata Plan NW 17, 2010 BCSC 784.
  15.  Weir v. Strata Plan NW 17, 2010 BCSC 784
  16. Cater (Guardian ad litem) v. Ghag Enterprises Ltd. (No. 1), 1991 CanLII 2275, [1991] B.C.J. No. 656 (QL)(S.C.) and Cater (Guardian ad litem) v. Ghag Enterprises Ltd. (No. 2), 1991 CanLII 2300, [1991] B.C.J. No. 2451 (QL)(S.C.).
  17. Occupiers Liability Act, R.S.B.C. 1979, c. 303, ss. 1 and 3. The definition and duty remain the same in the Occupiers Liability Act, R.S.B.C. 1996, c. 337, ss. 1 and 3, being the current version of the statute.
  18. B.C. Reg. 241/2001.
  19. Fraser v. Strata Plan VR 1411 et al., 2006 BCSC 1316, at para 9.
  20. Strata Property Act, Schedule of Standard Bylaws, s. 6.
  21. Strata Property Regulation, Form B.
  22. Strata Property Act, s. 76.
  23. Strata Property Act, s. 76(2).
  24. For information about limited common property, see Chapter 17, Common Property.
  25. Strata Property Act, Schedule of Standard Bylaws, s. 8(c)(i).
  26. Strata Property Act, Schedule of Standard Bylaws, s. 8(c)(ii).
  27. See, for example, the statutory bylaws in the Condominium Act, ss. 115(c) and 128(3).
  28. Strata Property Act, s. 72(2)(a). For information about designating common property as limited common property, see Chapter 17, Common Property.
  29. Guenther v. Strata Plan KAS431, 2011 BCSC 119.
  30. Strata Property Act, Schedule of Standard Bylaws, s. 2(2).
  31. Strata Property Act, Schedule of Standard Bylaws, s. 2(2).
  32. Strata Property Act, s. 72(3).
  33. Strata Property Act, Schedule of Standard Bylaws, s. 2(1).
  34. Gerry Fanaken, Understanding and Improving the Condominium Concept (Vancouver: Vancouver Condominium Services Ltd., 1994), pp. 45 to 55.
  35. Condominium Act, s. 1(1) (definition of “common property”) and Strata Property Act, s. 1(1) (definition of “common property”).
  36. Strata Property Act, s. 1(1) (definition of “common property”).
  37. Condominium Act, s. 116(f).
  38. Strata Property Act, s. 72(1) and Schedule of Standard Bylaws, s. 8(a), (b).
  39. Strata Property Act, s. 1(1) (definition of “common property”).
  40. Strata Property Act, Schedule of Standard Bylaws, s. 8(d).
  41. Condominium Act, s. 116(d).
  42. Strata Property Act, s. 1(1) (definition of “common property”).