TO REPAIR OR NOT TO REPAIR?

by Shawn Smith

This is a question that strata corporations will undoubtedly have to face from time to time as buildings age (and sometimes even when they are new). Answering this question is often the difficult part.

The starting point in such an analysis is always Section 72(1) of the Strata Property Act (the "Act"). This section places the responsibility for the repair and maintenance of the common property (which includes limited common property) on the shoulders of the strata corporation. Section 72(2) allows the strata corporation, by way of a bylaw, to make individual owners responsible for the repair and maintenance of limited common property. Each owner is responsible for repairs and maintenance to their strata lot (except those parts for which the strata corporation is responsible as the result of a bylaw - i.e. structural portions).

The more detailed aspects of the repair and maintenance responsibilities of the strata corporation (which can vary are set out in the bylaws. Standard Bylaw 8 (which is reproduced at the end) is an example of such a bylaw. Such bylaws generally make the strata corporation responsible for the repair and maintenance of the common property and such other things as windows, doors, balconies, and the exterior and structure of the building.

The key element to any such analysis is to determine the "nature" of the property in question. In other words, is it part of the strata lot or is it common property or limited common property? This will determine who is responsible for its repair and/or maintenance. The problem, especially with things in the interior of the building, such as plumbing and heating systems, is that the determination of the nature of the property is not always clear-cut. In such cases, reference needs to be made to the Act and in particular the definition of "common property". (A "strata lot" being defined as the part of the strata plan which is not shown as common or limited common property on a strata plan).

In the Act common property is defined as:

• that part of the land and buildings shown on a strata plan that is not part of a strata lot, and
• pipes, wires, cables, chutes, ducts and other facilities for the passage or provision of water, sewage, drainage, gas, oil, electricity, telephone, radio, television, garbage, heating and cooling systems, or other similar services, if they are located
• within a floor, wall or ceiling that forms a boundary
• between a strata lot and another strata lot,
• between a strata lot and the common property, or
• between a strata lot or common property and another parcel of land, or
• wholly or partially within a strata lot, if they are capable of being and intended to be used in connection with the enjoyment of another strata lot or the common property;

Attention should also be paid to Section 68 of the Act, which defines where the boundary between strata lots (and a strata lot and the common property) is. Generally speaking it is "midway between the surface of the structural portion of the wall, floor or ceiling" dividing the two.

Once the responsibility of the strata corporation to repair something is established, the question often becomes, what must the strata corporation actually do? (It should be noted that the duty to repair common property is the same whether the repairs arise by way design defect or general deterioration - see Strata Plan 1229 v. Trivantor Investments (1995)(BCSC)). This issue was recently considered in the case of Taychuk v. Strata Plan LMS744 2002 BCSC 1638.

In Taychuk, the owners of the strata lot began experienced ongoing problems with the hot water supplied to their bathtub. The water was always a yellow-brown colour. (No health risk appeared to have existed). The problems began in 1994. Various tests and investigations were done and some attempts at fixing the problem were made. All to no avail. In 1998 there was a proposal by the strata corporation to install an "under-fixture water filtration system". The strata corporation would pay for the installation with the owners paying for the filters as time went on. The owners rejected this proposal and no other methods to solve the problem were pursued.

The question before the court was whether or not the strata corporation had had and was, living up to its duty to repair and maintain the common property (the water supply system clearing falling within the definition of common property). In order to do so, the court had to determine what was meant by "repair". For that it turned to the definition cited in a previous case, Sterloff v. Strata Corp. of Strata Plan No. VR2613 (1994)(BCSC) That definition read:

"It is true that the primary meaning of the word "repair" is to restore to sound condition that which has previously been sound, but the word is also properly used in a sense of to make good. Moreover, the word is commonly used to describe the operation of making an article good or sound, irrespective of whether the article has been good or sound before.

The court also referred to the case of Wright v. Strata Plan No. 205 (1996)(BCSC), which held that the strata corporation had to act reasonably in its attempts to undertake the repairs but were not guarantors of a perfect outcome. As the court in that case held put it, the strata corporation's duty "is to do all that can reasonably be done in the way of carrying out their statutory duty; and therein lies the test to be applied to their actions."

The court found that the strata corporation, for the most part, acted reasonably. The only instance where it didn't was where it refused to install the "under-fixture water filtration system" unless the owners paid for the filters. Here the court found there was a viable solution that the strata corporation should have undertaken, even if that meant paying for the filters. The strata corporation was also found to be in breech of its duty when it chose to do nothing about the problem. As long as reasonable steps as flushing the system were taken, the strata corporation was carrying out its duty.

As a final note, there should also be a distinction made between "responsibility" and "liability" (in certain circumstances). For example, an owner may cause damage to the common property for which they are liable at law. This does not change the fact that the strata corporation must still fix the damage regardless of whether or not that owner is willing to or has paid for it. The duty to repair doesn't change.

Shawn M. Smith is an associate lawyer with the law firm of Cleveland & Doan located in White Rock and may be reached at 536-5002. This article is intended for information purposes only and nothing contained in it should be viewed as the provision of legal advice.