3 Use Of Property

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

See s. 123(1) of the Act and s. 17.12 of the Strata Property Regulation, B.C. Reg. 43/2000, at chapter 58 (Strata Property Regulations), regarding application of bylaws respecting pets.

CASE LAW

CRT Interpretation of Intended Purpose on Strata Plan Patently Unreasonable

In Skelly v. Fayad, 2022 BCSC 2205, the petitioner sought judicial review of a decision by the Civil Resolution Tribunal and the setting aside or quashing of part of its decision. As well, she sought relief ordering the respondent to stop using his strata lot for business purposes and/or an order remitting the matter to the CRT for reconsideration.

The petitioner and the respondent each owned one of two strata lots in a duplex. The petitioner had sought relief from the CRT with respect to the respondent’s erection of a squash court, the location of a storage unit, siding repairs, and bylaw enforcement regarding the respondent’s operating his furniture design business out of his strata lot. All issues but for the respondent’s operation of his business from his strata lot were dealt with to the satisfaction of the parties by the CRT. The petitioner argued that, pursuant to s. 3(1)(e) of the Schedule of Standard Bylaws (the “Standard Bylaws”), an owner must not use a strata lot in a way that “is contrary to a purpose for which the strata lot or common property is intended as shown expressly or by necessary implication on or by the strata plan”.

Here, the strata plan provided that “the strata plan is entirely for residential use”. The CRT determined that while it was undisputed that the respondent operated a furniture business out of his strata lot, the respondent did not use his strata lot “primarily” for the business, but rather used it “primarily” to reside in full-time. The CRT considered residential use as opposed to business use on a quantitative rather than qualitative basis, finding that the evidence did not disclose that the amount of business being conducted by the respondent reached the level required to offend s. 3(1)(e) of the Standard Bylaws.

Held, matter remitted to CRT for reconsideration. Questions about the CRT’s findings of fact or law or its exercise of discretion are assessed on a “patently unreasonable” standard, which is whether the legal determination borders on the absurd. The CRT’s finding that the amount of business being conducted from the respondent’s strata lot did not offend the Act or the strata plan was patently unreasonable, because the strata plan clearly stated that the strata plan was “entirely” for residential use and the dictionary meaning of “entire” is “with no part left out; whole; without qualification; absolute”. Such a definition did not invite a quantitative analysis by weighing the evidence, but rather required a qualitative assessment, and in this case, the strata plan was express, specific, and unambiguous. The issue of whether the respondent was in breach of s. 3(1)(e) for his use of his strata lot for business purposes was remitted to the CRT for further consideration.