14.12 Correction Of Errors

CASE LAW

No Error Found in Land Surveyor’s Exercise of Judgment

In the underlying action, the purchaser of a strata lot claimed from the developer a purchase price abatement on the basis that the constructed lot differed from that shown on the draft strata plan by more than five per cent. The land surveyor had included the area of an internal staircase in the draft strata plan but excluded the internal staircase area when preparing the final plan, which therefore showed the area of the lot to be about six per cent less than the area depicted on the draft strata plan. The developer petitioned for an order under s. 14.12 of the Strata Property Regulation to correct what it said was an error on the final strata plan and to require the registrar to accept an amended final strata plan depicting the area of the unit as including the internal staircase. Uncontradicted expert evidence showed that, in deciding whether to include the area of an internal staircase in a strata plan, the land surveyor must exercise independent professional judgment. The expert found no error in the surveyor’s exercise of judgment. The court found no “error” within the meaning of s. 14.12 of the Regulation and dismissed the petition (Bogner Kerrisdale Developments Inc. v. 1224095 BC Ltd., 2021 BCSC 1289 (Chambers)).

Rectification of Bare Land Strata Plan Error in Omission of Common Property Designation

In Baker v. Strata Plan KAS 2750, 2022 BCSC 1449, the petitioners were owners in a bare land strata corporation situated on a hillside. The court granted their petition, ordering the correction of the strata plan to designate a failing retaining wall as common property, making the strata corporation responsible for its remediation costs.

The petitioners claimed the wall was originally intended to be designated as common property when the strata plan was deposited in the land title office in 2004, but due to an error, it was not classified as such. They sought rectification of the strata plan to correct this error.

The court granted the petition in favour of the owners on the basis of evidence that included uncontradicted evidence of the developer’s instructions to designate the wall as common property and a contemporaneous disclosure statement consistent with that intention.

The court ordered the strata corporation to prepare an explanatory plan to correct the error and directed the registrar of land titles to correct the error in the strata plan, pursuant to s. 14.12 of the Strata Property Regulation.

Trial Needed to Determine Whether LCP Parking Space Designation Erroneous

In Chow v. Strata Plan NW 3243, 2017 BCCA 28, the owners of six units in a 37-unit townhouse complex (the “Chow petitioners”) claimed the exclusive right to use parking spaces adjacent to their units that were reserved by the strata corporation for visitor parking. Their claim was based on the designation of the spaces in the registered strata plan as “limited common property” (“LCP”). The majority of the owners (the “Co petitioners”) claimed the designation was a mistake. Efforts to resolve the problem by passing a resolution to amend the strata plan foundered because such an amendment required unanimous approval, which was not obtained. The Chow petitioners applied for an order enjoining interference with their use of the parking spaces. The Co petitioners sought relief under s. 164 of the Strata Property Act, claiming the LCP designation was in error and that failure to remove it would be significantly unfair. The Chow petition was allowed; the Co petition was dismissed. The Co petitioners appealed.

Held, appeal allowed. The judge’s view that the only way to amend the strata plan was by way of a resolution unanimously passed under s. 257 was in error. Errors in the designation of property may be corrected under s. 14.12 of the Strata Property Regulation. Accordingly, the judge’s conclusion that whether the LCP designation was a mistake was “irrelevant” to the analysis was misconceived; the “equities” of the analysis could only properly be undertaken if it was known whether the Co petitioners were relying on a "state of title" that they reasonably believed was in error, or that was in fact, to the surprise of most involved, the true state of title. In the result, the court remitted the two petitions to the Supreme Court for new hearings.

Registrar’s Limited Jurisdiction Does Not Extend to Remedy Contested Errors

The City of Vancouver’s development permit, issued later than the respondent’s presale agreement to purchase the penthouse strata lot (“Strata Lot 60”) in a residential tower to be built by Concord Pacific (“Concord”) (of which the respondent was CEO and president), stipulated that all residents, occupants, and commercial tenants of the building were to have access to all amenity facilities. In its development application, the developer had requested that certain areas be excluded from the computation of floor space ratio on the basis that they would be amenity spaces for the use and enjoyment of all residents.

The filed disclosure statement (pursuant to the Real Estate Development Marketing Act, S.B.C. 2004, c. 41) included a preliminary strata plan that said Concord would be able to designate certain limited common property areas as amenity areas. The strata plan noted that Level 2 of the building (“L-2”) would have an amenity area with the notation “LCP SL 60”. The disclosure statement also identified other common property for the use and benefit of all owners, including, for example, a theatre, swimming pool, exercise room, and other amenities. None of these common property shared amenity spaces appeared on L-2.

When the City signed the strata plan filed in the land title office more than four years later, it failed to notice that the plan violated this condition by making the L-2 amenity space (including a private elevator, a private lobby, a private street entrance, and a private parking area) limited common property for the sole use and benefit of the penthouse owner. On application by the strata corporation, the registrar of land titles declined to declare the discrepancy an error, saying the preliminary strata plan, the filed strata plan, and the disclosure statement were consistent. On subsequent application by Concord, the City declined to amend the development permit.

Here, the court dismissed the respondent’s application to strike the strata corporation’s petition against the respondent personally. The court said (at para. 28), “[a] central issue between the parties is the respective jurisdictions of the Registrar and this Court to determine whether an error has occurred in a registered strata plan, and to remedy an error if one is found to exist”. The court considered the equitable remedy of rectification as developed in Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56, available where a mutual mistake or a unilateral mistake is made. While the court has equitable jurisdiction to rectify documents, the registrar’s jurisdiction is found in s. 14.12 [Correction of errors] of the Strata Property Regulation and, pursuant to Entwistle v. Strata Plan EPS 3342, 2019 BCSC 1311 (Chambers), does not address the elements of rectification. The registrar’s limited jurisdiction does not extend to remedy contested errors, which must be done by the court, pursuant to its equitable jurisdiction and s. 4 of the Law and Equity Act, R.S.B.C. 1996, c. 253.

The court did not accept the respondent’s argument that the petition was an impermissible collateral attack on the registrar’s decision to be dismissed as an abuse of process. Rather, the strata corporation “seeks rectification of the filed Strata Plan, which if successful, would lead to the determination that the L-2 Amenity Space was never supposed to be for the benefit of Mr. Hui” (at para. 53), and its petition is not brought for an ulterior or improper purpose (Strata Plan BCS3702 v. Hui, 2023 BCSC 1420, affirmed 2024 BCCA 262).