Legal

June 17, 2024 Published by British Columbia Chapter - By Phil Dougan

Whose Duty To Repair And Maintain?

From CCI BC Strata Connection Magazine, Volume 02, Spring/Summer 2024

One of the many ‘ah-ha’ moments I recall in Law School was the idea that if legally, one person is said to have a right, for that to actually be enforceable in the real world, another person must have a duty to perform; and that duty establishes the right. In strata corporations, nuisance law looms large: the right to quiet enjoyment and freedom from any significant interference with that quiet enjoyment of property is a repeatedly litigated right. Less contentious, at least until recently, was the duty to repair and maintain common property. This was because the Strata Property Act (the “Act”) set out, in various ways, that the repair of common property was the strata corporation’s duty (see, for example, s. 3, 72, 94, 96, standard bylaw 8,). However, in recent years, this clear duty, is less distinct. Part of the change arises from an aggressive interpretation of s. 72:

Repair of Property

72  (1) Subject to subsection (2), the strata corporation must repair and maintain common property and common assets.

(2) The strata corporation may, by bylaw, make an owner responsible for the repair and maintenance of (a) limited common property that the owner has a right to use, or (b) common property other than limited common property only if identified in the regulations and subject to prescribed restrictions.

(3) The strata corporation may, by bylaw, take responsibility for the repair and maintenance of specified portions of a strata lot.

The theory goes: common property is a repair duty of the strata corporation only if subsection 2 does not apply. If subsection 2 is made to apply, then owners can be made responsible for common property repair. Section 72(2) (b) is not directly accessible for this purpose because the Government is allowed to make regulations regarding owner’s duties to repair common property (see, s. 292(2)(j)), but it has not made any such regulation.

But, if common property is made into limited common property (“LCP”, see for examples. 74), then the strata corporation can also pass bylaws to make owners responsible for the repair and maintenance of that property (see s. 128). Thus, in two steps, (the “Strata Two-Step”) s.72(1) is avoided, and owners can find themselves responsible for the repair and maintenance of common property.

Is this a good development? We argue, it is an unintended development. (see, 59(3)(c), standard bylaw 6) If owners were ever to take responsibility for common property repair and maintenance, it was because they voluntarily took on that duty via an alteration agreement, to obtain a concession of a change of common property that was for that owner’s benefit.

The Strata Two-Step is not a voluntary process for an owner who is targeted by the new duties. Suppose by way of example, owners in a particular building, have designated parking stalls by way of sub-leases. The concrete parkade floor is badly cracked and needs considerable repairs to close the cracks and level the concrete. But, the cracks and damage is only over about 10 stalls, 100 stalls are fine. The owners do not want to pay for the expensive concrete remediation, so can the strata corporation perform the Strata Two-Step, and make those ten owners who have cracked parking stalls responsible for the concrete? The Strata Two-Step would appear to say, yes.

We do not think the Strata Two-Step was intended under the Act; and nor should involuntary-repair duties be imposed upon owners. Chief Justice Bauman famously described the regime of communal responsibility in a strata corporation by telling the owners before him “you are all in it together” (Owners, Strata Plan LMS 1537 v. Alvarez, 2003 BCSC 1085 (CanLII), https://canlii.ca/t/57p4, 35, 40) These observations arose in part, from noting the regime under the Act and ss. 72, and 99 – common property repair and common expense payment by all owners.

Further, the alteration agreements mentioned above, are voluntary. Owners can choose to take on a repair duty, if they want a change to common property that makes signing such a document a good quid pro quo. The Government could have made regulations to allow for owners to be imposed with the duty to repair various forms of common property; but in nearly 25 years of the Strata Property Act, no regulations have arisen.

Section 77 of the Act says:
77  An owner who has the right to use common property, including limited common property, or common assets must allow the strata corporation reasonable access to the common property or common assets to exercise its powers and perform its duties.

And s.3 says:
3   Except as otherwise provided in this Act, the strata corporation is responsible for managing and maintaining the common property and common assets of the strata corporation for the benefit of the owners.

So, while there is latitude, such as alteration agreements, we argue the intention of the Act, is for the common property to be repaired and maintained by the strata corporation, and therefore that expense is to be covered collectively by all owners, per their unit entitlement. We say s.77 suggests regardless as to whether property is common property or LCP, the strata corporation should be repairing it. Making individual owners responsible for common property, and particularly structural matters, is a recipe for disaster. Do we want an owner’s brother-inlaw fixing the concrete in the parkade; or repairing rusty rebar on the 20th floor balcony?

Experience tells us, we often end up with enough problems with structural issues, when the professionals deal with the repairs; making owners responsible for such matters (and we have seen stratas seeking to make owners responsible for roofs, HVAC systems and building envelope systems) is a guarantee the building will deteriorate. The purpose of the Strata Property Act is consumer protection. The huge costs incurred by owners to buy into strata communities must be protected, so that the improper repair and maintenance of the building is not the reason owners lose money on their resale value.

Phil Dougan, LLB

The opinions in this article are the opinions of only Phil Dougan, and if you have met him, you wi l know he is very opinionated – so do not take his word for it – look into this matter yourself, before you suddenly are responsible to fix the concrete in your building! Otherwise, Phil is a Partner at Citadel Law Corporation, and in his spare time, he tries to have spare time.