257 Amending Strata Plan To Designate Limited Common Property

REGULATIONS AND FORMS

The Strata Property Regulation, B.C. Reg. 43/2000, is included at chapter 58 (Strata Property Regulations), and the forms prescribed by the Strata Property Regulation are included at chapter 59 (Strata Property Forms).

For electronic land title forms, see E-filing Directions v. 1.9, available at https://ltsa.ca/wp-content/uploads/2020/10/E-filing-Directions.pdf and reproduced in chapter 70 (Director’s Directions). For hardcopy land title transfer forms, see DR 04-11, Hardcopy Land Title Forms available at https://ltsa.ca/dr_04-11_hardcopy_land_title_forms.

Application to Deposit Strata Plan

Submissions

The director has approved the use of the electronic Application to Deposit Plan at Land Title Office. This form is available at https://ltsa.ca/wp-content/uploads/2021/04/LTO-Application-to-Deposit-Plan_V21.pdf.

The amended strata plan sheets designating or removing the designation of limited common property (LCP) tendered for deposit in a land title office must be accompanied by the electronic Application to Deposit Plan at Land Title Office. For amending electronically filed strata plans, select Strata (Amendment). For amending hardcopy strata plans, select Strata (Hardcopy Amendment).

Certificate of the Strata Corporation, Form E: Section 257(b)(ii)

The Strata Property Regulation prescribes Form E, Certificate of Strata Corporation, for the purpose of s. 257(b)(ii) of the Act.

Submissions

On the Strata Property Act Filing form, select Form E, Certificate of Strata Corporation, and attach an image of the original Form E or attach an image of the Form E to a Declaration.

The Declaration or Strata Property Act Filing form with attached Form E must be submitted in support of the Application to Deposit Plan at Land Title Office.

Notation on Common Property Record

See s. 14.14 of the Strata Property Regulation, which provides that, when an instrument designating limited common property is filed in the land title office, the registrar must note the designation on the common property record. If the designation is removed, the registrar must note the cancellation of the designation on the common property record.

PRACTICE

Instruments Filed in Support

Submissions

The director has approved the use of the electronic Survey Plan Certification Form. This form is available at https://ltsa.ca/wp-content/uploads/2020/10/LTO-Survey-Plan-Certification_V15.pdf.

An electronic amended strata plan attached to a Survey Plan Certification form tendered for deposit in a land title office must be accompanied by the electronic Application to Deposit Plan at Land Title Office. The signatures of the owners and holders of registered charges and plan approvals are located in the appropriate schedules in the electronic Application to Deposit Plan at Land Title Office.

The Declaration or Strata Property Act Filing form with attached Form E must be submitted in support of the Application to Deposit Plan at Land Title Office.

Amended Sheet of Strata Plan

To amend a strata plan to designate or remove a designation of limited common property, the strata corporation must submit an amended sheet of the strata plan to the land title office. The amended sheet must be prepared by a British Columbia land surveyor. The amended sheet must contain all of the information from the original sheet of the plan and must be numbered as an amended sheet of the strata plan. Where a sheet is being amended multiple times, the amended sheets must be numbered in the following format: Amended sheet 1A of 6, Amended sheet 1B of 6. The plan title must include a “Pursuant to s. 257” statement. The registrar retains the original sheet on deposit and endorses a reference to the amended sheet on the original.

Information Required for Each Designation of Limited Common Property

The registrar requires that the following information be shown on an amended sheet for each limited common property designation:

1. the dimensions of the limited common property;
2. a notation indicating which strata lots are granted exclusive use of the limited common property, unless the plan makes it obvious in some other way which strata lots have been granted such use; and
3. in the case of a bare land strata plan, posting in accordance with the requirements of Rules 7-10 to 7-11, Division 2 of Part 7, of the Survey and Plan Rules.

Information Required for Removal of Designation of Limited Common Property

If a designation of limited common property is being removed from the strata plan, the amended sheet of the strata plan must contain all of the information from the original sheet of the plan and make it evident what limited common property is being removed.

Reference or Explanatory Plan: Section 257(b)(i)

Under s. 257, the registrar does not accept a sketch plan. In determining whether a reference plan or an explanatory plan is required, the registrar considers the nature of the common property, the location of previously defined buildings and boundaries, and whether the plan is a bare land strata plan.

The registrar’s decision on whether to require a reference plan or an explanatory plan is guided by the considerations set out under s. 99 of the Land Title Act. With respect to an amendment to a strata plan to designate limited common property, the registrar prefers a reference plan. However, the registrar may accept an explanatory plan as long as:

1. the new boundaries do not contain excessive curves or jogs and are not affected by a natural boundary; and
2. the registrar is of the opinion that a survey is not required to establish the location of the boundaries on the ground.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Designation of Limited Common Property

See ss. 73 and 74 of the Act for the circumstances under which common property may be designated as limited common property by the owner developer, by amendment to the strata plan, or by a 3/4 vote of the strata corporation.

Removal of Designation of Limited Common Property

See s. 75 of the Act for the circumstances under which a designation of limited common property may be removed by amendment to the strata plan or by a 3/4 vote of the strata corporation.

CASE LAW

A 37-unit strata complex was constructed with a two-car garage attached to each unit. Each garage was designated in the strata plan as limited common property for the exclusive use of the adjacent unit. Seven units had an additional carport stall attached to the garage. These stalls were designated in the strata plan as limited common property for the exclusive use of the adjacent unit but were marked as visitor parking. The petitioners, owners of six units having additional stalls, commenced a petition claiming exclusive use of the additional stalls. The respondents, the majority of owners, commenced a petition claiming that the stalls had been designated as limited common property by mistake. The court dismissed the petitioners’ petition and allowed the respondents’ petition. On the evidence, it was apparent that the parking stalls had been designated as limited common property by mistake and that mistake was amenable to correction under s. 14.12 of the Strata Property Regulation. The respondents were entitled to a declaration that the parking stalls were common property for the use of visitors, and the registrar of land titles was directed to correct the strata plan accordingly (Chow v. Strata Plan NW 3243, 2017 BCSC 2331).

Invalid Residential Parking Stall Lease Assignments in Strata Corporation

In Abstract Projects Inc. v. Strata Plan EPS 6069, 2023 BCSC 42, the petitioner (“A. Co.”) sought a declaration construing a parking facility lease as requiring the respondent strata corporation to recognize and register lease assignments of residential parking stalls to non-residential strata lot owners or others. It also sought an injunction prohibiting the strata corporation from interfering with the rights of assignees of residential parking stalls to uninterrupted access to their leased stalls and, failing compliance, permission to remove the interior security gate from the parkade separating residential from non-residential parking stalls.

Beginning in 2016, the petitioner, A. Co., began a development that included 82 strata lots, forming a mixed-use residential and commercial strata corporation. The development consisted of 75 residential strata lots and seven commercial strata lots. The building included underground parking stalls, some of which were eventually designated as “Limited Common Property for the Exclusive use of” residential strata lot owners (the “Residential Parking Stalls”). The Residential Parking Stalls were located behind an interior security gate, whereas the parking stalls designated as “Limited Common Property for the Exclusive use of” commercial strata lot owners (the “Commercial Parking Stalls”) were located in front of the interior security gate. In a contract titled “Parking Facility Lease” dated October 2019, A. Co. purported to lease parts of the development’s common property comprising all of the parking stalls in the development to another corporation (“B&W”) for 99 years, permitting B&W to “partially assign or sublet this Lease and its rights under this Lease to an owner or purchaser of any strata lot within the development or to the Strata Corporation”. The lease was dependent on filing of the strata plan creating the strata corporation and common property (that being the parking stalls) to be subdivided by the lease. The respondent strata corporation and the petitioners—A. Co. and B&W—also entered into an agreement in October 2019 titled “Agreement-Parking Facility Lease” (the “Compliance Agreement”), under which the respondent acknowledged notice of the lease and agreed to comply with its terms.

The issue raised by the petitioners was whether the respondent strata corporation was obligated to comply with the lease to give effect to B&W’s right to assign Residential Parking Stalls to non-residential strata lot owners. Put another way, the question was whether the respondent was obligated to respect assignments of Residential Parking Stalls by B&W to assignees that did not own residential strata lots in the face of the “limited common property for exclusive use of residential strata lot owners”. The petitioners relied on Supreme Court Civil Rule 2-1(2)(c) in contending that the sole or principal question to be considered was the construction of the lease and whether mandatory or injunctive relief should be granted.

Held, petition dismissed. The lease was a subdivision of common property that, if properly effected, could have had the effect of extinguishing the rights of residential strata lot owners to exclusive use of the parking stalls. In order to achieve that result, the owner developer acting as the strata corporation council (before the first conveyance) should have complied with s. 257 of the Strata Property Act to amend the strata plan to remove the designation of limited common property made by the owner developer. It was clear that A. Co. did not take those steps to remove the designation of limited common property under s. 257 or to register the lease in compliance with s. 253 and s. 265 of the Strata Property Act. Thus, the owner developer did not meet its obligations triggered by the lease after filing the strata plan, and it was not a valid transfer of interests in the strata development without having “first obtained subdivision approval” and complying with s. 253 and s. 265 of the Strata Property Act. Absent the filing of an amended plan indicating that the designation of limited common property had been removed from the parking stalls, persons searching the title to the residential strata lots would not have understood that persons other than residential strata lot owners could have access to and use of Residential Parking Stalls. Moreover, absent resolutions that might have been passed reflecting the owner developer’s decision to change the status of the parking stalls, that information would not come to the attention of prospective purchasers by examining the historical resolutions of the strata corporation. The requirements of the Land Title Act and the Strata Property Act rendered the lease invalid because it constituted a subdivision of common property without compliance with the required application process set out in s. 253 and s. 265 of the Act. The lease did not grant B&W the right to assign Residential Parking Stalls to entities or persons that were not owners of residential strata lots in the development, and the orders sought could not be granted.