Strata Plans and Common Property

Cleveland

Doan LLP

Strata

Lawyers

ALTERATIONS:

EVERYTHING YOU EVER

WANTED TO KNOW

__________

PRESENTED BY  SHAWN M. SMITH

Strata plans come in two types:

- conventional (shows  buildings: apartments,

townhomes or detached homes)

- bare land (no buildings shown)

Strata plans are divided into three different areas:

strata lots, common property and limited common

property

THE STRATA PLAN

THE STRATA PLAN

THE STRATA PLAN

"common property" means

(a)that part of the land and buildings shown on a strata plan that is

not part of a strata lot, and

(b)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

(i) within a floor, wall or ceiling that forms a boundary

(A) between a strata lot and another strata lot,

(B) between a strata lot and the common property, or

(C) between a strata lot or common property and

another parcel of land, or

(ii) 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;

THE STRATA PLAN

Certain types of common property (i.e. pipes, wires, ducts, etc.)

are defined by their 

physical location 

(i.e. within in a boundary

wall).

"limited common property"

 means common property designated

for the exclusive use of the owners of one or more strata lots;

Typically LCP is:

- decks, patios, balconies

- parking spaces

- storage

LCP can also be common property that, by its nature, services

only one strata lot - 

Louie v. Strata Plan VR-1323 (2015), 55

C.C.L.I. (5th) 217

THE STRATA PLAN

"strata lot"

 means a lot shown on a strata plan

Unless the strata plan says otherwise

, the boundary

between strata lot and common property is the midway

point of the wall, floor or ceiling – s.68 SPA

Boundary between two strata lots is the 

midway point of

the wall, floor or ceiling.

LCP boundaries are determined by physical measurements

set out on the plan.

THE STRATA PLAN

s.120 SPA – except to the extent that contrary bylaws

are filed in the Land Title Office (LTO) the Standard

Bylaws are the bylaws of the strata corporation.

Most strata corporations use the Standard Bylaws

when it comes to alterations.

Those bylaws can be replaced, amended or

supplemented – s.128 SPA.

THE STANDARD BYLAWS

Standard Bylaw 5 addresses alterations to strata lots and

consequential alterations to the common property.

Standard Bylaw 6 addresses alterations to the common

and limited common property.

Both require an owner to obtain written permission before

undertaking work.

A key difference between the two is that approval under

Standard Bylaw 5 cannot be unreasonably withheld.

Where approval is withheld the strata council needs to

have a justifiable reason for doing so.

THE STANDARD BYLAWS

Standard Bylaw 5 captures changes to:

(a)    

the structure of a building;

(b)    

the exterior of a building;

(c)    

chimneys, stairs, balconies or other things

attached to the exterior of a building;

(d)     

doors, windows or skylights on the exterior of a

building, or that front on the common property;

(e)    

fences, railings or similar structures that enclose

a patio, balcony or yard;

(f)      

common property located within the boundaries

of a strata lot;

(g)     

those parts of the strata lot which the strata

corporation must insure under section 149 of the

Act.

THE STANDARD BYLAWS

Standard Bylaw 5(1)(g)

…those parts of the strata lot which the strata

corporation must insure under section 149 of the

Act.

Under s.149 the strata corporation is required to insure:

(a)

buildings shown on the strata plan, and

(b)

fixtures built or installed on a strata lot, if the

fixtures are built or installed by the owner

developer as part of the original construction on the

strata 

lot.

THE STANDARD BYLAWS

Regulation 9.1 “fixtures” includes “items attached to a

building, including floor and wall coverings and

electrical and plumbing fixtures, but does not include,

if they can be removed without damage to the

building, refrigerators, stoves, dishwashers,

microwaves, washers, dryers or other items”

As a result Bylaw 5(1) applies to work involving:



Flooring



Cabinets



Plumbing fixtures (ie. tubs and showers)



Fireplaces



Stairs

THE STANDARD BYLAWS

BARE LAND STRATA CORPORATIONS:



Standard Bylaw 5 does not apply.



Absent a registered building scheme, there are no

restrictions on what can be built.



Can enact bylaws which control what can be built, where

it can be built, etc.



Cannot restrict things which a building scheme allows -

Winchester Resorts Inc. v. Strata Plan KAS2188 (2002),

4 B.C.L.R. (4th) 390.

THE STANDARD BYLAWS

The term “alteration” was first given judicial

consideration by the Ontario Superior Court of Justice

in Wentworth Condominium Corporation 198 v.

McMahon 2009 CarswellOnt. 1273.

“alteration” means “something that changes the

structure”.

But what does that really mean? What is a change?

What is meant by structure?

WHAT IS AN ALTERATION?

The Owners, Strata Plan NWS254 v. Hall 2016 BCSC 2363.

“Here, the work involved the removal and replacement of

four windows and the patio door. The replacement of the

windows and door 

did not change the structure of the

respondent’s unit, or the common property

. I conclude that

the replacement of the four windows and the patio door

was not an “alteration” within the meaning of ss.5(1) or

6(1) of the Standard Bylaws requiring the prior approval in

writing of the Strata Corporation

.”

Bottom Line: Replacing like for like is not an alteration

.

WHAT IS AN ALTERATION?

Allwest International Equipment Sales Co. v. The Owners,

Strata Plan LMS4581 2018 BCCA 187



An alteration is something that changes the building (i.e.

makes it different)



What is meant by “structure” doesn’t really matter.



The change must have an element of materiality to it.



Court of Appeal confirmed that cutting a 2 inch hole in a

wall was enough to be an alteration.

WHAT IS AN ALTERATION?

Allwest 

has far reaching implications for interior work.

Standard Bylaw 5(1)(g) includes within its scope:

“items attached to a building, including floor and wall

coverings and electrical and plumbing fixtures”.

Almost anything that is not a routine repair or

replacement (like for like) would be caught by it.

Consider whether that is what owners want.

WHAT IS AN ALTERATION?

Some examples of minor things being considered

“alterations” are:

•

Wilchek v. The Owners, Strata Plan VR 55, 2017

BCCRT 67 – Minor plumbing work necessary to

connect a dishwasher would alter common property.

•

Friedrich v. The Owners, Strata Plan K515, 2018

BCCRT 184 - painting exterior French doors a different

colour was an “alteration”.

WHAT IS AN ALTERATION?

•

Parnell v. The Owners, Strata Plan VR 2451,

2018 BCCRT 7 the installation of doorbell cameras

and video surveillance cameras were considered

alterations.

•

Boyer v. Downey et al, 2018 BCCRT 156 the

drilling of lag bolts into joists to support a medical left

system was held to be an alteration because of the

impact on the strength of the joists.

WHAT IS AN ALTERATION?

Standard Bylaw 6 – common property



has limitations when it comes to changes to patios,

decks, balconies and yard areas.



not everything that is done will constitute an

alteration (or even an addition or improvement).



much will turn on how the item is constructed or

where it is placed.

WHAT IS AN ALTERATION?

Term “alteration” is not uniformly applied when it comes to

structures:



hot tub is not an alteration - The Owners, Strata Plan

LMS4255 v. Newell 2012 BCSC 1542



gazebo-type structure on a patio was an alteration -

Giddings et al v. The Owners, Strata Plan BCS 3620,

2018 BCCRT 61



construction of an arbour in a back yard was an

“alteration or addition or doing a renovation or other

work” -  Zhang v. The Owners, Strata Plan BCS1115 2017

BCCRT 79

WHAT IS AN ALTERATION?

Changes to landscaping generally considered an alteration:



planting of trees and bushes on the common property -

Wu v. Hu and The Owners, Strata Plan BCS 3579, 2017

BCCRT 81.



planting of trees,  placement of large vegetable boxes,

the removal of a hedge and its replacement with a fence,

the construction of  patio and the installation of drainage

were alterations - Anthony v. Schnapp 2016 BCSC 1839



installing a fence and planting a garden is an alteration 

-

Friedrich

 v. 

The Owners, Strata Plan K515

, 2018 BCCRT

18

WHAT IS AN ALTERATION?

“Habitable area” is defined as “the area of a

residential strata lot which can be lived in, but does

not include patios, balconies, garages, parking stalls

or storage areas other than closet space.”

It is used to determine each strata lot’s unit

entitlement which in turn determines its share of the

common expenses.

Those portions of the strata lot which are not

considered habitable area are identified on the strata

plan.

SPECIAL KINDS OF ALTERATIONS

s.70(4) of the SPA

Subject to the regulations, if an owner wishes to increase

or decrease the habitable part of the area of a residential

strata lot, by making a nonhabitable part of the strata lot

habitable… and the unit entitlement of the strata lot is

calculated on the basis of habitable area… or on the basis

of square footage in accordance with section 1 of the

Condominium Act…, the owner must:

(a) seek an amendment to the Schedule of Unit

Entitlement under section 261, and

(b)

obtain the unanimous vote referred to in section 261

before making the change.

SPECIAL KINDS OF ALTERATIONS

Regulation 5.1(2) exempts an owner from the unanimous

vote requirement where the increase to the habitable area,

combined with any previous increase to the habitable area,

is:



less than 10% of the habitable area of the strata lot and



less than 20 square metres.

The prior written approval of the strata corporation, as set

out in the bylaws, is still required.

Typical situation where s.70(4) applies is enclosing a

garage or part of it

SPECIAL KINDS OF ALTERATIONS



Enclosing common or limited common property (i.e.

a balcony) does not trigger a change in the unit

entitlement.



Unit entitlement is based on the habitable area of

the strata lot, not areas outside it.



Changing the way in which common property is used

by enclosing it does not change its nature; it is still

common property.

SPECIAL KINDS OF ALTERATIONS

Removing a wall between two strata lots – s.70(1) and (2)

of the SPA.

Permission cannot be refused so long as the work complies

with:

(i) a building regulation within the meaning of the

Building Act,(i.e. the Building Code); and

(ii) any applicable municipal or regional district

bylaws

Must not interfere with the provision of utilities or other

services to any other strata lot or to the common property.

Does not create a single new strata lot.

SPECIAL KINDS OF ALTERATIONS

8 (1)

A person must not, without a bona fide and reasonable

justification,

(a) deny to a person or class of persons any

accommodation, service or facility customarily

available to the public, or

(b) discriminate against a person or class of persons

regarding any accommodation, service or facility

customarily available to the public

because of the race, colour, ancestry, place of origin, religion,

marital status, family status, physical or mental disability, sex,

sexual orientation, gender identity or expression, or age of that

person or class of persons

HUMAN RIGHTS CODE



The Code applies to strata corporations because they are

providing “services” - 

Konieczna

 v. 

The Owners Strata Plan

NW2489

 2003 BCHRT 38.



 Strata corporation is 

obligated to accommodate a person

with a disability to the point of undue hardship – see Mahoney

obo Holowaychuk v. The Owners, Strata Plan NW332 et al

2008 BCHRT 274.



each party has certain obligations with respect to establishing

the need for the accommodation and alternative

accommodation options - Leary v. Strata Plan VR1001, 2016

BCHRT 139

HUMAN RIGHTS CODE

When considering a request for permission involving the Code,

the Tribunal has said:

“I disagree with the submission of the Strata Council that it

cannot consider specific or special needs of its unit owners.

However, I agree with its submission that requiring Mrs.

Calderoni follow the procedure set out in its by-laws, regarding

a proposed renovation, is not a contravention of the Code. In my

view, the Strata Council has a duty to ensure that it bases its

review of a proposed modification of a unit on adequate and

reliable information and plans.”

Calderoni v. Strata Council Plan No. K6 2009 BCHRT 10

HUMAN RIGHTS CODE

Standard Bylaws 5 and 6 both refer to the permission of

the strata corporation.

In most cases that means the permission of the strata

council.

Under ss.4 and 26 of the SPA the strata council performs

the powers and duties of the strata corporation.

s.71 - the strata corporation must not make a significant

change in the 

use

 or 

appearance

 of common property

unless approved by a ¾ vote

GIVING PERMISSION

When is an alteration “significant”? Factors to consider:

(1)

A change would be more significant based on its

visibility or non-visibility to residents and its visibility or

non-visibility towards the general public;

(2) 

Whether the change to the common property affects

the use or enjoyment of a unit or a number of units or an

existing benefit of a unit or units;

(3)

Is there a direct interference or disruption as a

result of the changed use?

GIVING PERMISSION

(4) 

Does the change impact on the marketability or

value of the unit?

(5) 

The number of units in the building may be

significant along with the general use, such as whether it

is commercial, residential or mixed use; and

(6)

Consideration should be given as to how the strata

corporation has governed itself in the past and what it has

allowed. For example, has it permitted similar changes in

the past?

GIVING PERMISSION

Examples of “significant” changes:



the installation of garden lighting - 

O’Neill

 v. 

The Owners,

Strata Plan LMS 898

, 2018 BCCRT 20;



the placement of a gazebo on a patio - 

Giddings et al

 v.

The Owners, Strata Plan BCS 3620

, 2018 BCCRT 61;



extension of a deck and installation of railings – 

Foley v.

The Owners, Strata Plan VR387 2014 BCSC 1333.



Planting of garden beds and fruit trees, removing a

hedge and constructing a fence – 

Anthony v. Schnapp

2016 BCSC 1839

GIVING PERMISSION

Requests for permission can be made in writing or by asking for

a hearing under s.34.1 of the SPA.

Under s.34.1 a hearing must be held within 4 weeks and written

decision provided within 1 week afterwards.

No deadline to respond to a written request.

Two month delay was okay where there was a reason for it -

Grant v. The Owners, Strata Plan BCS 337, 2018 BCCRT 70

Council cannot call an emergency meeting to approve a request.

An owner’s lack of planning is not an emergency.

GIVING PERMISSION

Standard Bylaws require approval to be in 

writing

Be very clear and detailed about what was approved. It

helps when the owner expands the scope of work.

Council has discretion to impose conditions even

though the bylaws don’t say so - The Owners, Strata

Plan BCS 983 v. Muir, 2018 BCCRT 157

Nonetheless, the bylaws should list the conditions so

owners are aware in advance and council has some

parameters within which to work.

GIVING PERMISSION

Some of the major things to be concerned about:



Structural changes (are they safe?)



Is a building permit required? (Onus should be placed on

the owner to prove one is not required)



Who is doing electrical and plumbing work?



Flooring – noise impact and how to minimize



Is a change to the development permit required?

GIVING PERMISSION

Some examples of when a building permit is required when you:

•

Make alterations, additions or repairs to an existing building

•

Complete a previously unfinished area in an existing building,

•

Make interior structural renovations

•

Remodel or construct a deck

•

Install or alter plumbing within a building

•

Install a new chimney or fireplace

•

Enclose your carport or change your garage to living space

•

(Regional District of Nanaimo website)

GIVING PERMISSION

Some examples of when a building permit is 

not

 required for:

•

Installing cupboards

•

Roofing repairs or replacements (providing that no structural

changes are made)

•

Exterior finish repair or replacement (e.g., stucco or siding,

providing that no structural changes are made)

•

Landscaping or sidewalks

•

Fences less than 2 meters in height

(Regional District of Nanaimo website)

GIVING PERMISSION

Three areas of concern re common property

alterations:



Builders Liens



Worksafe coverage



Warranties for previous work 

(the alteration could

limit the applicability of warranties for building

envelope repairs and other work)

GIVING PERMISSION

Common property is owned by all owners as tenants-in-

common - s.66 SPA

Strata corporation controls the common property on behalf

of the owners – s.3 SPA

Since there is not a separate title for common property,

liens for work done on or to the common property get

registered against title to the strata lots

Where someone employs trades without Worksafe

coverage, they are liable for the costs related to an injury

suffered by a worker.

GIVING PERMISSION

Does some sort of exclusive use designation need to

accompany the permission?

Friedrich

 v. 

The Owners, Strata Plan K515

, 2018 BCCRT

184



the owner did extensive improvements to the yard behind

their strata lot



Effectively enclosed the area with plantings and a fence



CRT ordered the owner to apply for exclusive use

designation

GIVING PERMISSION

Exclusive use designated in one of two ways:



Short term exclusive use under s.76 SPA



Must be renewed annually



Can be revoked on reasonable notice



Is granted to a person, not a strata lot



Limited common property designation under s.74 SPA



Approved by ¾ vote at AGM/SGM



Carries over to the next owner

GIVING PERMISSION

Under the Standard Bylaws, a strata corporation can

require an owner to:

“agree, in writing, to take responsibility for any

expenses relating to the alteration.”

Commonly referred to as an “Assumption of Liability

Agreement” (ALA) or an “Indemnity Agreement”.

Purpose is to ensure that the strata corporation does

not incur additional repair and maintenance costs as a

result of the alteration.

ASSUMPTION OF LIABILITY

Refusal to sign an ALA is a breach of the strata

corporation’s bylaws – Corner v. The Owners, Strata

Plan K833 2017 BCCRT 89.

Failure to take action where an owner doesn’t sign one

when required can lead to the strata corporation being

responsible for the costs to repair -Allard v. The

Owners, Strata Plan VIS 962, 2017 BCCRT 111

ASSUMPTION OF LIABILITY

Critical when the alteration relates to or impacts an

area which the strata corporation is obligated to repair

and maintain under the SPA or its bylaws.

Not always necessary for alterations to a strata lot

interior since the owner is already responsible to

repair and maintain the strata lot.

They cannot make the owner responsible for repairs

and maintenance for which the strata corporation

would otherwise be responsible.

ASSUMPTION OF LIABILITY

The existence of an ALA has to be disclosed on a Form

B. Item (c) requires:

Are there any agreements under which the owner of

the strata lot described above takes responsibility for

expenses relating to alterations to the strata lot, the

common property or the common assets?

__no  __ yes [attach copy of all agreements]

A failure to disclose an ALA on the Form B will make

strata unable to make a new owner responsible for

costs related to an alteration – s.59(5) SPA

ASSUMPTION OF LIABILITY

Form B and s.59 would appear to imply that a new

owner is automatically bound by the terms of the ALA

signed by the prior owner.

However, that may not be the case.

Easement cases: positive covenants only binding on

the parties to the original agreement, not successor

owners; unless those successor owners have agreed in

writing to be bound by those agreements.

ASSUMPTION OF LIABILITY

Two ways to address this potential problem:

•

have a procedure (and bylaw) in place to have

new owners sign the assumption agreement; or

•

pass a bylaw which makes owners responsible

for additional costs where that was term of the

original approval.

ASSUMPTION OF LIABILITY

ALA does not make an owner responsible to actually

carry out repairs, only to reimburse the strata for the

costs of doing so.

Making an owner responsible for repairs requires an

amendment to the bylaws.

In the case of common property, s.72(2)(b) does not

allow that.

REPAIRS AND MAINTENANCE

At common law, when an object is attached or affixed

to land with some degree of permanence, it becomes

part of the land and hence a “fixture”.

The greater the degree of attachment, the greater the

chance it is a fixture and not a chattel.

Where an object rests on its own weight it is presumed

to remain a chattel.

Whether it is a fixture depends upon whether the

purpose of the attachment is (a) to enhance the land,

or (b) for the better use of the chattel as a chattel.

REPAIRS AND MAINTENANCE



if something is attached to the common property (i.e.

a balcony enclosure) it becomes part of the common

property.



heat pumps (air conditioners) which serviced

individual strata lots placed on the common property

were strata responsibility to repair - Newman v. The

Owners, Strata Plan EPS680 2017 BCCRT 122 and

Warren v. The Owners, Strata Plan VIS6261 2017

BCCRT 139



In Warren, the same reasoning was extended to a

hose bib, roof top irrigation system, and landscaping

REPAIRS AND MAINTENANCE

Allard v. The Owners, Strata Plan VIS 962, 2017 BCCRT

111



Prior owner installed a solarium enclosing a balcony



Prior owner refused to sign an ALA. Strata did nothing

about it.



New owner bought unit.



Bylaws obligated the strata corporation to repair things

attached to the exterior of the building.



New owner not liable for repair costs. Strata had to

repair.

REPAIRS AND MAINTENANCE

Under s.149 of the SPA, the strata corporation is

required to insure the building as built by the owner-

developer.

Alterations are generally not covered by the strata

corporation’s insurance.

Alterations, upgrades and improvements to a strata lot

are generally covered by the owner’s insurance.

Alterations to common property may be covered by the

strata corporation’s insurance policy, depending on

the wording.

INSURANCE

S.161 of the SPA permits owners to obtain insurance for

property and against perils not covered by the strata

corporation’s insurance

The section uses the word “may” and is thus permissive. A

bylaw mandating an owner to obtain insurance would be

contrary to the SPA and unenforceable – s.121 SPA

This would also include any provision requiring an owner to

obtain liability insurance since s.161 refers to it.

As a named insured on the strata corporation policy an

owner is entitled to use the coverage under that policy.

INSURANCE

The primary methods for enforcing the bylaws of a strata

corporation are:

(a) 

imposing fines against the offending

tenant or owner;

(b) 

taking steps to remedy a contravention

pursuant to s.133 of the SPA;

(c) 

seeking an order of the CRT that the

owner comply with the bylaws.

Don’t delay enforcement – In The Owners, Strata Plan KAS 510

v. Nicholson, 2017 BCCRT 48 the CRT refused to order the

removal of a deck where it had been there more than two years.

UNAPPROVED ALTERATIONS

Standard Bylaw 24 would apply to unauthorized

alterations:

“If an activity or lack of activity that constitutes a

contravention of a bylaw or rule continues, without

interruption, for longer than 7 days, a fine may be

imposed every 7 days.”

However, fines don’t always have the desired effect.

Cannot levy fines indefinitely – that is not enforcing

the bylaws.

UNAPPROVED ALTERATIONS

s.133 SPA: The strata corporation may do what is

reasonably necessary to remedy a contravention of its

bylaws or rules, including

(a) doing work on or to a strata lot, the common

property or common assets, and,

(b) removing objects from the common property or

common assets.

Unapproved alterations is perhaps one of the only areas

where this is a practical option.

Cannot lien for costs incurred under s.133.

UNAPPROVED ALTERATIONS

Strata corporations can also seek orders to deal with

unapproved alterations:



The Owners, Strata Plan BCS 983 v. Rempel, 2018 BCCRT

130 the court ordered the owner to remove part of a

canopy which exceeded what had been approved.



Boyer v. Downey et al, 2018 BCCRT 156 the owner was

ordered to repair damage caused by an unauthorized

alteration.



Wu v. Hu and The Owners, Strata Plan BCS 3579, 2017

BCCRT 81 - CRT ordered an owner who constructed a

fence without approval to apply for retroactive

permission

.

UNAPPROVED ALTERATIONS

The Owners, Strata Plan VR 484 v. Lawetz, 2017 BCCRT 59



Previous owner installed washing machine without

permission and contrary to bylaws



Strata refused to give retroactive permission because

plumbing system couldn’t handle additional flow from

machines



CRT held it was reasonable to refuse permission based

on the concerns surrounding plumbing



Current owner was ordered to remove machine and

restore plumbing

UNAPPROVED ALTERATIONS

Retroactive approval

Is a practical means of addressing unapproved alterations.

It strikes a balance between enforcement and accommodation.

Conditions can be imposed, but they should not be punitive.

Fines can be imposed until those conditions are met.

Need not be given but owners will have difficulty claiming it is

significantly unfair not to grant it - Allwest International

Equipment Sales Co. v. The Owners, Strata Plan LMS4581 2017

BCSC 1646

UNAPPROVED ALTERATIONS

QUESTIONS

BYLAWS FOR OUR TIMES