Unapproved Alterations Can Lead to Fines and Ordered Removal

In the case of  The Owners, Strata Plan KAS 1201 v Neilson, 2021 BCCRT 667, there was a dispute about a fence that the owner built without the strata's permission. The strata sought $1,300 in fines for ongoing bylaw contraventions, $2,695.50 for the strata's legal fees, and an order than the fence be removed. 

In response, the owner says that the strata's lack of approval was unfair. 

Prior to installing the disputed fence, the owner applied to the strata for approval to install a 6' cedar fence around his strata lot. The strata replied that the owner could install a chain link fence instead. The owner went ahead with construction of the cedar fence without approval. Complaints were received and fines were levied. 

The CRT found that the owner did require the strata's written approval prior to construction of the fence and he contravened the bylaws when he built the fence without approval. 

 33. [The owner] says the strata unfairly withheld its approval of his fence application. He argues that by obtaining consent of the 2 adjoining lots he complied with the requirements for approval. The strata concedes that the 2 adjoining strata lot owners consented to the fence. It says that is only 1 requirement of alteration bylaw 3, and satisfaction of that requirement did not guarantee strata council's approval. I agree. Bylaw 3 also gives council explicit discretion to consider the materials and height of the fence, which I find the strata council did appropriately. 

 . . . 

 36. The burden of proving unfair treatment rests with Mr. Neilson. I find there was nothing unfair about the strata's decision to withhold approval of the fence given the discretion alteration bylaw 3 gives the strata council, and the 3 complaints received. I find it significant that the strata was willing to accommodate Mr. Neilson if he would build a chain-link fence. For clarity, I find the strata's conduct was neither oppressive nor unfairly prejudicial. . . 

 As the owner had already sold their strata lot, the CRT did not order the removal of the fence. However, the CRT did order that the owner pay the strata its legal fees $2,695.50 as bylaw enforcement expenses and also ordered the owner to pay half of the strata's CRT fees. No fines were awarded because the strata didn't enforce the bylaws properly as per Section 135 of the Act. 

TAEYA FITZPATRICK 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: 250-763-4323.