Repairing A Limited Common Property Balcony
To make an owner responsible to repair limited common property (“LCP”), a bylaw is required. A recent court case confirms that since a bylaw is necessary, a strata council alone may not dictate what LCP the owner must repair.
When considering repairs under the Strata Property Act, one must consider two separate questions. First, who must perform the repair; second, who must ultimately pay for that repair.
Generally speaking, we answer the first question by looking to the Strata Property Act and a strata corporation’s bylaws. Depending whether the repair involves common property, limited common property or a strata lot, the bylaws may divide responsibility between the strata corporation and an owner. For example, in the standard bylaws, the strata corporation must perform repairs on LCP in two circumstances. First, the strata corporation must repair LCP that in the ordinary course of events occurs less often than once a year. Second, no matter how often the repair or maintenance ordinarily occurs, the strata corporation must carry out repairs on LCP where the LCP forms part of:
- the structure of a building;
- the exterior of a 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;
- fences, railings and similar structures that enclose patios, balconies and yards;
A Recent Case
In Guenther v. Strata Plan KAS431, 2011 BCSC 119, there was a three-storey wooden-frame building with 42 strata lots. Every 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,
3.2 An owner who has the use of limited common property must repair and maintain it, except for repair and maintenance that is the responsibility of the Strata Corporation as directed by the B.C. Strata Property Act.
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.
Ultimately, an owner successfully 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 court found that 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. Given the necessity for a bylaw, the strata council alone had no authority to make owners responsible for the LCP 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.
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