Hard Times With Hardwood-A Look At The Installation Of Hardwood Floors Under The Strata Property Act.

One of the first things a strata corporation should do when approaching this topic is to determine whether or not to even permit the installation of hardwood floors (or for that matter other hard flooring surfaces such as tile). This is of greatest concern in buildings with poor sound proofing between floors (usually older buildings). The concern is of course with noise traveling to the unit below. The noise usually comes from people walking or dropping things on the floor. Often the complaints are about noise at night (which is when the building is most quiet). Quite often there is nothing that the upstairs residents can do to reduce the noise. Unless one can fly, one has to walk. These situations can be stressful to all involved and can lead to tensions between residents, inevitably drawing the strata council into the fray.

The mere possibility of noise traveling to the unit below is not necessarily a reason to prohibit such flooring altogether. Should the Owners decide to permit the installation of hardwood floors, then any bylaw which permits the installation of hardwood flooring (even if it doesn't specifically refer to hardwood floors) should be amended to include one or more of the following provisions:

As an aside, any bylaw that addresses alterations (whether to a strata lot or otherwise) should require permits where necessary, qualified trades for electrical and plumbing and adequate third party liability insurance during the course of the alterations. Where appropriate, the owner undertaking the alterations should be required to take responsibility, in writing, for any future costs associated therewith. The latter is not necessary for something like a hardwood floor that is typically not the responsibility of the strata corporation to repair and replace.

If the Owners decide not to permit the installation of hardwood floors, then a bylaw must be enacted specifically prohibiting their installation. (It would not affect those who have such floors already).

Each strata corporation's bylaws will be somewhat different in regard to the issue of the alteration of a strata lot. For the purposes of this article I will only review the application of the Standard Bylaws under the Strata Property Act. Standard Bylaw 5 addresses the alteration of strata lots. Subsection (1) of that bylaw requires that an owner "obtain the written approval of the strata corporation before making an alteration to a strata lot" which involves one of several listed parts of the building. Although floors are not specifically listed they do fall under item (g), which is "those parts of the strata lot which the strata corporation must insure under section 149 of the Act". Section 149 refers to "fixtures" which Regulation 9.1 defines to include floor coverings. Thus, in order to remove or alter the floor covering in a strata lot, an owner must seek the permission of the strata corporation (i.e. the council). Under the bylaw, the strata corporation cannot unreasonably withhold its permission. This means that hardwood floors cannot be refused if it would be unreasonable to do so. The key question is when does the refusal become "unreasonable"? For example, is it unreasonable to refuse permission if the owner proposes to put in suitable underlay that would prevent sound transfer? Arguably yes. If the Owners wish not to have hardwood floors then it is best to prohibit them entirely to avoid such situations.

Owners who install hardwood floors should also be aware that such an "upgrade" may not be covered by the strata corporation's insurance. Section 149 of the Strata Property Act only requires the strata corporation to insure those "fixtures" installed by the owner-developer as part of the original construction. If there was no hardwood flooring installed by the owner developer then it is not insured by the strata corporation's insurance policy. An extra rider on the owner's own policy may need to be purchased.

There have been two recent cases involving hardwood floors, which are of interest. The first is Harvey and Genge v. The Owners Strata Plan NW2489 a decision of the B.C. Supreme Court. The second (and more interesting) is Konieczna v. The Owners, Strata Plan NW2489, which is a decision of the B.C. Human Rights Tribunal. An older case, Campbell v. Stilwell also deserves brief mention. It is an unreported decision of the British Columbia Supreme Court from 1977.

The Konieczna case is of more interest to strata corporations and owners and has the potential to have a much more significant impact. In 2000 the respondent strata corporation passed a bylaw prohibiting the installation of flooring other than wall-to-wall carpeting in any of the strata lots. Ms. Konieczna, who had purchased her strata lot in 1987, had developed a severe allergy to latex, which is found in most carpeting. In late 2000 she applied for permission to install hardwood flooring to relieve her allergy symptoms. The council refused on the basis of the new bylaw prohibiting flooring other than wall to wall carpet. Ms. Konieczna applied to the British Columbia Human Rights Tribunal on the basis that she had a "disability" and that the strata corporation was required under the Human Rights Code to make "accommodation" for her by permitting her to install the hardwood flooring. The tribunal, after concluding it had jurisdiction over the matter, held that Ms. Konieczna had a disability, that the effect of the bylaw was discriminatory and that the strata corporation had to accommodate her disability by allowing her to install the hardwood flooring. (The tribunal's review of the application of the Human Rights Code to strata corporations is quite interesting in itself). This decision not only creates an exception to a bylaw, which prohibits hardwood flooring but potentially also to other bylaws, which create a hardship for persons with a disability (i.e. pets, occupancy limits, age).

In the Campbell case, the upstairs owner installed marble flooring which created an unacceptable level of noise for the owner below. The court ordered that the upstairs owner place rugs or carpets over the well traveled areas. The owner below, since this was community living, would have to endure some degree of noise. Strata corporations, when giving permission to install hard flooring could include a similar condition in their permission (assuming the bylaws permit such conditions to be attached. Standard Bylaw 5 does not).

The installation of hardwood flooring in apartment style strata corporations can be something with the potential to create tension and problems. However, by properly addressing the issue in advance some of these effects can be relieved or eliminate

This article is intended for information purposes only and should not be taken as the provision of legal advice. Shawn M. Smith is an associate lawyer with Cleveland & Doan and can be reached at (604) 536-5002 or shawn@cleveland-doan.com