73 Designation Of Limited Common Property

PRACTICE

Designation of Limited Common Property by Owner Developer: Section 73(a)

Owner developers may designate an area on the strata plan as limited common property when they tender the strata plan for registration. The following must be shown on the strata plan:

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, a posting in accordance with the requirements of Rule 7-10 of the Survey and Plan Rules.

Notation on Common Property Record

See s. 14.14 of the Strata Property Regulation, B.C. Reg. 43/2000, at chapter 59 (Strata Property Regulations), 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 for the strata plan.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Amendments to Strata Plan

See ss. 75 and 257 of the Act regarding amendments to a strata plan to designate or remove a designation of limited common property.

Removal of Limited Common Property

See ss. 75 and 257 of the Act regarding removal of designation of limited common property.

Designation of Limited Common Property by 3/4 Vote

Under s. 74 of the Act, the strata corporation has the authority to designate an area as limited common property at an annual or special general meeting.

Exclusive Use and Enjoyment of Common Property

Under s. 76 of the Act, the strata corporation has authority to grant an owner exclusive use and enjoyment of common property.

CASE LAW

No Jurisdiction to Designate Limited Common Property

Given ss. 73 and 74 of the Act, a court has no inherent jurisdiction to designate certain common property as limited common property in the absence of a 3/4 vote of the owners and a proposed sketch plan (Large v. Strata Plan 601, 2005 BCSC 1128).

Contracts for Exclusive Use

Under s. 73(a) of the Strata Property Act and s. 53(2) of the Condominium Act, an owner developer may only designate common property as limited common property by a designation on the strata plan. The following case, decided under the Condominium Act, emphasizes this point.

Under the Condominium Act, the respondents (the “purchasers”) negotiated a clause in their interim agreement with the appellant (the “vendor”) for the exclusive use of two parking stalls. The agreement was executed after the vendor registered the strata plan in the land title office. The vendor did not designate any parking stalls as limited common property on the strata plan. Therefore, the purchasers could not claim that the two parking stalls had been designated as limited common property for their exclusive use (Hill v. Strata Plan NW 2477, 1991 CanLII 529 (BC CA)).

Extent of Plan Designating Limited Common Property

Although s. 73(a) of the Strata Property Act and s. 53(2) of the Condominium Act both permit limited common property to be designated as such on the strata plan, nothing more is required of the plan with respect to limited common property. The following case under the Condominium Act clarifies this principle.

The plaintiff purchased a strata lot in a commercial complex for use as a hair salon. Subsequently, the plaintiff wanted the defendant, the owner developer, to enlarge a washroom to the size shown on the plan for the limited common property. Section 4 of the Condominium Act set out the requirements for a strata plan, and s. 53 provided for the creation of limited common property. Section 53(2) permitted an owner developer to designate areas as limited common property when tendering a strata plan for registration. Nothing in the Act required more with respect to what a plan must disclose about limited common property. The purpose of the plan was to describe boundaries and indicate which strata lots had the use of limited common property, not to delineate the amenities therein. In dismissing the plaintiff’s action, the court found that it was unnecessary to detail the size of the washrooms shown on the drawing that was filed as part of the plan (Panfour Holdings Ltd. v. United Properties Ltd., 1998 CanLII 5413 (BC SC)).