Can a Strata Allocate Repair of Common Property Roofs to Owners?
The main difference is that the exterior of the house in a bare land is not common property and, therefore, the owner has the default obligation to repair and maintain the exterior: not the strata corporation. In a regular strata corporation, the exterior of the buildings are common property and the expense to repair and maintain is shared proportionately between all owners.
In certain regular strata corporations, the owners want to operate as a bare land strata because then each owner would be responsible for repairing and maintaining their own roofs, siding, etc.
In the case of Oakley v The Owners, Strata Plan VIS 5481, 2017 BCCRT 17, the owner asked the CRT to make each strata lot owner responsible for the repaid and maintenance of the exterior walls and roofs of their strata lot.
Since the strata was created in 2004, the strata had been under the impression that the roofs and exterior of each strata lot was common property, which was confirmed by a legal opinion. However, the strata was concerned about long term ear and tear on exteriors and roofs and amended its bylaws to make each owner responsible for regular maintenance of exteriors and roofs - and was aware at the time that such a bylaw was not likely to be enforceable.
The CRT noted that, to determine responsibility for the repair and maintenance of the exterior and roofs, one must look at the definition of common property in the Strata Property Act, review the strata plan for what is and isn't common property, and then follow the Act with respect to the repair and maintenance obligation.
The CRT found that, pursuant to section 68(1) of the Act, the exterior and roofs were part of the common property. Section 72 of the Act says that a strata may not make an owner, by bylaw, responsible for the repair and maintenance of the common property. Therefore, the strata's amendment to its bylaws was invalid and unenforceable.
Therefore, even if it is desirable for owners to repair and maintain their own exterior and roofs, it may not be possible to enforce that scheme depending on the strata plan and the type of strata that it is. There may be some creative workarounds depending on what the owners are willing to do to resolve the issue. However, a full discussion of what those workarounds are is beyond the scope of this post.
Taeya Fitzpatrick has specialized in strata law for most of her practice, has won cases for her clients in the BC Supreme Court, the BC Court of Appeal, and assisted with a client succeeding in defending a Civil Resolution Tribunal claim. Taeya offers full services to a strata corporation or a strata owner from redrafting the strata’s bylaws, collection of outstanding strata fees or other charges, issues with bylaw enforcement, to amending the strata plan. For more information on the services provided, you can reach Taeya by email, phone: 250-762-6111, or at her Web Page.