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Foley v The Owners, Know Your Rights When Renovating Your Strata Unit

Many homeowners have ideas on home decorations and renovations for their homes after purchase. However, if you are a Strata owner, your rights to renovate your home may be limited by the Strata Property Act (SPA). This article will examine a court case Foley v The Owners, Strata Plan VR 387, 2014 BCSC 1333, where a homeowner’s renovations were deemed to be a violation of the law.


Types of Property in the Strata

For context, there are three kinds of property in Strata: Strata Lot Property, Common Property, and Limited Common Property. The SPA defines them as:

  • Strata Lot Property: The part of the Strata privately owned by the unit owner as shown in the Strata Plan.

  • Common Property: Anything that is not a Strata Lot Property

o Includes space inside walls if they are used to install wiring, pipes, and other such facilities.

  • Limited Common Property: Common property reserved for a single or a few unit owners.

o Includes reserved parking lots, reserved storage areas, and balconies of units.


Changes to Common Property

While owners are generally free to alter their own strata lot property, common property, including limited common property, can only be altered with a 3/4 vote approving the change at an annual general meeting (AGM) or a special general meeting (SGM). The one exception if the change is immediately required for safety or prevention of future loss.

Making significant changes to common property without approval can result in a fine being imposed and an order to restore the property. Continued non-compliance can lead to a lawsuit, as was the case in Foley v The Owners.



Foley v The Owners involves renovations made by Mr. Martin, owner of a penthouse unit. When the roof needed repairs, Mr. Martin decided to also renovate and add extensions to the roof decks. However, the roof and decks of the penthouse were common property, so some of the other owners objected to Mr. Martin’s renovations. The Strata Councils and the owners cannot agree amongst themselves whether the renovations are “significant,” and the issue eventually reached the British Columbia Supreme Court.


The Judge summarized the factors for “significant change” as the following:

1) A change would be more significant based on its visibility or non-visibility to residents and the general public;

2) Whether the change to the common property affects the use or enjoyment or existing benefit of a unit or several units;

3) Is there a direct interference or disruption because of the changed use?

4) Does the change impact the marketability or value of the unit?

5) The number of units and the use of these units and common property in the building may be considered.

6) Consideration should be given as to how the strata corporation has governed in the past and what it has allowed.


The Judge also gave an example of a non-significant change to common property (planting cedars, bushes, and shrubbery in the entrance area) and a significant change to common property (cutting holes in a wall to install vents for dry cleaning machines).

Mr. Martin’s roof renovations were visible to the residents and public. It impacted other units as the extended deck was directly above another unit’s bedroom and provided a clear view of other unit’s decks that were not visible previously. The judge also found the extended deck enhances the value of Mr. Martin’s unit and the Strata Council has not approved similar changes in the past.


Another factor considered by the Judge is that only Mr. Martin and the people he allows into his unit can use the deck and the extensions. With the renovations, Mr. Martin has “ostensibly incorporated that portion of the common property into his private area.” Considering all these factors, the Judge concluded that Mr. Martin’s changes were “significant” and required a 3/4 vote approval at an AGM or SGM.


Democratic Government of a Strata

However, the Judge did not want to simply order the extension be removed, stating “in my view, it is important that owners in a strata complex attempt to resolve their differences by following the procedures contemplated by their bylaws and by the Strata Property Act. A court proceeding should be a last resort.”


With that in mind, the Judge ordered the Strata Corporation to call an SGM for a 3/4 vote to approve of Mr. Martin’s deck renovations.


Usually, a 3/4 vote must happen before the change and that there should never be a 3/4 vote to approve maintaining the current state of common property. But in Foley, the deck extension was made without approval, so a vote was ordered as a retroactive attempt to approve of the change. If Mr. Martin’s deck extension is approved of in the SGM, then any future change to his deck, including reverting it to its original form, would need a 3/4 vote approval at an AGM or SGM.


Conclusion

When buying a Strata Property, it is important to understand where your Strata Lot Property ends and where Common Property begins. Areas such as the roof and balconies of your units, the spaces within the walls, and the outside facing walls of the building are likely to be common property and cannot be significantly altered without 3/4 vote approval at an AGM or SGM.


If you are unsure about whether an area is common property, you should consult your Strata Property Manager. If you believe that there is a violation of the SPA infringing on your rights as a unit owner and the issue has not been resolved by the Strata Council or an AGM, you should seek out independent legal advice. The lawyers of Henderson & Lee frequently handle Strata related disputes and can advise you on your options. Please feel free to contact our office at (604) 558-2258 to book an initial consultation.


Chris Wong is an articled student at Henderson & Lee who has assisted in cases involving Strata related disputes.

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