246 Schedule Of Unit Entitlement

REGULATIONS AND FORMS

The Strata Property Regulation, B.C. Reg. 43/2000, is included at chapter 58 (Strata Property Regulations). The forms prescribed by the Strata Property Regulation are included at chapter 59 (Strata Property Forms). The director’s directions for electronic submissions are set out in the Electronic Land Title Plan and Plan Application Requirements, v. 2.6, available at https://ltsa.ca/wp-content/uploads/2020/10/Electronic_Land_Title_Plan_and_Plan_Application_Requirements.pdf.

Schedule of Unit Entitlement, Form V

The Strata Property Regulation prescribes Form V, Schedule of Unit Entitlement, for the purpose of s. 246 of the Act. For electronic submissions, an image of the originally signed Form V must be submitted as a supporting document to the electronic Strata Property Act Filing form.

Fees Payable to Superintendent

See s. 14.8 of the Strata Property Regulation for the fee payable to the Superintendent of Real Estate for examining the Schedule of Unit Entitlement under s. 246 of the Act.

“Habitable Area”

See s. 14.2 of the Strata Property Regulation for the definition of “habitable area” for the purpose of s. 246 of the Act.

Amendment to Schedule of Unit Entitlement by Court Order: Section 246(7)

See s. 14.13 of the Strata Property Regulation for the conditions to be fulfilled before an application may be brought under s. 246(7) of the Act.

First Phase Deposited before July 1, 2000

Section 17.17(2) of the Strata Property Regulation provides that if the first phase of a phased strata plan has been deposited in the land title office before July 1, 2000, the requirements for the schedule of unit entitlement, schedule of voting rights, schedule of interest on destruction, and address for service set out in ss. 1(2) to (6) and 4(f) to (i) of the Condominium Act and the forms required for those sections apply to all phases of the phased strata plan. Sections 245(a) to (c), 246 to 248, and 250(2)(a) to (c) of the Strata Property Act do not apply in these circumstances.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Registrar Does Not Review Schedule of Unit Entitlement

See s. 249(3) of the Act, which provides that the registrar is under no duty to ensure that a Schedule of Unit Entitlement complies with the Act or the regulations, or has been approved by the superintendent.

CASE LAW

The petitioner brought an application under s. 246(7) of the Act for an order amending a schedule of unit entitlement that included a habitable area of 3,302 square feet for the petitioner’s strata lot. The petitioner said that only 2,245 square feet of his 4,040 square foot strata lot was habitable. This calculation excluded a parking area of 828 square feet and a storage area of 967 square feet. Referring to the definition of “habitable area” in s. 14.2 of the Strata Property Regulation, the court found that the petitioner was entitled to exclude the parking area from the calculation but that the petitioner’s calculations should not have excluded the storage area because it was an area that “could be lived in” whether or not the petitioner chose to develop it for residential purposes. After deducting the parking area but not the storage area, the habitable area of the petitioner’s strata lot was 3,212 square feet. As the petitioner did not meet the threshold test under s. 14.13 of the regulation establishing a 10% difference between the actual habitable area of the strata lot and the net square footage used to calculate the unit entitlement, the court dismissed the petitioner’s application (Kranz v. Strata Plan VR 29, 2003 BCSC 183, affirmed 2004 BCCA 108).

The petitioners and respondents owned one- and two-storey units in a strata development. Common expenses were shared on the basis of unit entitlement calculated by reference to the habitable area of each unit. The garage in each unit was included in the habitable area. The ground floors in all of the two-storey units were excluded from the calculation of the habitable area but were finished and used as living areas. The petitioners, owners of the one-storey units, applied under s. 246 of the Act for an order amending the Schedule of Unit Entitlement. Section 14.2 of the Strata Property Regulation defines “habitable area” 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”. The court determined that the habitable area is not the portion of a residential strata lot that is actually inhabited but rather the portion that could be inhabited. In this respect, the phrase “can be lived in” means the area within a residential strata lot that “can, could [be] or is capable of being lived in … free of serious defects that might harm health and safety”. In this case, looking at the actual use of the units, the court ordered an amendment to the Schedule of Unit Entitlement, first, to exclude the garages from the habitable area and, second, to include the ground floor areas in the two-storey units (Fenwick v. Parks, 2004 BCSC 1132).

The petitioners, a majority of owners in a strata corporation, applied for an order under s. 246 of the Act amending the strata corporation’s Schedule of Unit Entitlement. At the time the strata plan was registered, the schedule, although purportedly based on square footage, actually excluded finished, habitable basement areas in 30 of 78 strata lots. As a result, the petitioners, as majority owners without finished basements, paid the same monthly fees as minority owners with finished basements. A committee representing majority and minority owners negotiated a compromise agreement on reallocation. A resolution based on the compromise received the support of 90% of the owners but not the unanimous support required to amend the schedule. In response to the petitioners’ application for an order amending the schedule, the court found it had no statutory jurisdiction to alter or amend the initial allocation approved by the superintendent under s. 246(3). Similarly, the court had no jurisdiction to adopt the formula proposed by the committee and approved by 90% of the owners. However, under s. 246(7) and (8), the court had jurisdiction to amend the schedule on the basis of habitable area because the purported allocation in the original schedule did not accurately reflect the actual habitable area of the strata lots (Smith v. Strata Plan LMS 1821, 2007 BCSC 402).

The petitioners were owners in a residential strata property development. They opposed a special levy to replace the roof, on the grounds that the Schedule of Unit Entitlement was inaccurate. At the time the schedule was deposited in the land title office under the former Condominium Act, a majority of the units had unfinished basements. Several had unfinished lofts above their garages. The petitioners’ units had neither basements nor lofts. The original calculation of unit entitlements was based on the habitable area of each strata lot. None of the unfinished space was included. Over many years, a number of basements were finished but the schedule was never amended. In this action, the petitioners sought an order under s. 246(7) and (8) of the Strata Property Act that the schedule be amended to reflect the actual habitable area of each strata lot. The court dismissed the petition. “Habitable area” encompasses all space located within a strata lot that is reasonably available for habitation, regardless of its present use, finishings, or level of development. The plain meaning of s. 70(4) of the Strata Property Act is that a schedule must be amended if the habitable area of a strata lot is increased or decreased, not if it is physically changed or improved. Section 14.13 of the Strata Property Act Regulation precludes s. 246 applications if the inaccuracy was contained in the schedule at the time the strata property was deposited. There was only one possible inaccuracy for consideration—the exclusion of basement and loft areas from the schedule—and that inaccuracy was contained in the schedule when it was deposited with the strata plan (Barrett v. Strata Plan LMS 3265, 2017 BCCA 414).