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)).

CRT Ordered to Reconsider Erroneous Decision Based on Uncorrected Strata Plan

On judicial review (“JR”) of the decision in Greene v. Strata Plan BCS 3495, 2022 BCCRT 1170, the petitioning commercial strata lot owner in a mixed-use strata corporation asked the court to decide that the Civil Resolution Tribunal (“CRT”) decision was patently unreasonable. The CRT member (which the court referred to in error as the “arbitrator”) had proceeded on the basis that a patio, for which the petitioner had been denied approval of proposed alterations because the alleged required voting threshold had not been met, was common property (“CP”) rather than limited common property (“LCP”).

Section 71 of the Strata Property Act requires a 3/4 vote at a general meeting to approve a significant change in use or appearance of CP, while the strata corporation’s bylaws exempted non-residential lot owners from needing written approval for alterations to their LCP.

The court observed (at paras. 10 and 11):

Originally designated by mistake as common property on the strata plan, this was corrected by a court order of November 12, 2013, stating that strata lot 9 was to have full and exclusive use of the patio and its designation was to be changed from common property to limited common property for strata lot 9.

The court order was filed in the Land Title Office in 2014. Since at least 2020, the patio’s designation as limited common property for strata lot 9 was indicated on the common property record of the Strata registered in the Land Title Office. It appears however that the registered strata plan was not corrected.

Originally, the strata corporation and the petitioner had signed an alteration and indemnity agreement confirming that the patio was LCP and authorizing the petitioner to construct glass enclosures, and the renovations received municipal approval.

A residential strata lot owner filed a dispute with the CRT, naming the strata corporation as the respondent and seeking revocation of the alteration and indemnity agreement. He argued that the proposed renovations constituted a significant change to the use and appearance of CP and so required 75% approval. The strata corporation opposed his position. The petitioners were aware of but did not participate in the CRT proceedings.

The CRT held that the contemplated renovations constituted a significant change in appearance to CP and ordered the strata corporation to hold general meeting seeking a 75% vote. When the 75% approval was not obtained, the strata corporation revoked its consent to the alterations.

In dismissing the petitioner’s first attempt to challenge the CRT decision on the basis that the respondent had acted significantly unfairly and in breach of its own bylaws (Coquitlam Holding Ltd. v. Strata Plan BCS 3495, 2024 BCSC 229 (Chambers)), the court found that the CRT had proceeded based on the error that the patio was CP (at para. 33):

This finding, which may well have been key to the ultimate decision of the Tribunal on the issue of significant change, seems to be clearly wrong. The status of that area was not dependant on Mr. Greene’s assertions, nor on the “uncorrected” Strata Plan, rather it had already been determined by order of this Court to be LCP, not CP. With great respect, it was not open to the CRT Member to reverse a finding and order of this Court in that regard. Having proceeded based on this error, the CRT found that the alterations were a significant change and ordered the vote which resulted in the motion failing to obtain the required 75% approval.

Despite the error, that court dismissed the petition as framed, because it did not challenge the CRT decision by JR. That court ordered that the time limit for JR application be extended. This court now conducted the JR.

Held, for petitioner. The court remitted the case back to the CRT for reconsideration in light of the correct classification of the patio in issue as LCP. The court directed the CRT to grant the petitioners standing, given their strong interest in the outcome and the fact that the strata corporation was now taking a position adverse to them (Coquitlam Holding Ltd. v. Strata Plan BCS 3495, 2025 BCSC 512).

See also “Common Property (Practice Bulletin No. 0395)” in chapter 72.