What happens when a strata unit owner's right to privacy
conflicts with the need for common property repairs? Generally, the
unit owner will lose out to the strata council, provided the strata
council acts reasonably and for a legitimate purpose. This is one
of the downsides of strata living: you are not really the king of
your castle. Your personal interest may need to give way to the
collective interests of the strata as a whole.
A recent case from North Vancouver illustrates this
point, though it also highlights the perils of acting unreasonably
and with disregard for the collective interests of your strata
neighbours. Mr. Getzlaf had a ground floor strata unit which opened
onto the strata parkade roof. The building had a lush and extensive
garden on the common property outside his unit that shielded it
from the parkade. Unfortunately, the roof membrane beneath his
garden required replacing, in part because of the damage done to it
by tree roots. The strata held a meeting of its owners and resolved
to undertake the membrane repairs recommended by the engineers.
Those repairs necessitate the permanent removal of Mr.
Getzlaf's garden. While he voted against the measure, it passed
and the roof repairs were done. The garden was replaced by concrete
pavers and river rock. This resulted in a complete loss of privacy
for Mr. Getzlaf's unit. He was not happy about it.
Mr. Getzlaf demanded that the strata replace the garden and
restore his privacy. The strata responded that the roof project was
not finished and any construction on or adjacent to his unit would
need to be approved by the strata. The strata did not want to risk
more damage to the new roof membrane. Unwisely, Mr. Getzlaf ignored
the strata's warning and built a privacy screen, a gazebo and a
fire pit on what he considered to be his "common
property". The strata asked him to take it all down. Mr.
Getzlaf refused. The strata then imposed fines on Mr. Getzlaf which
he did not pay. Instead, Mr. Getzlaf went to court seeking orders
that the strata replace his roof top garden and reverse the fines.
He wanted his privacy back. He lost.
The reasons Mr. Getzlaf lost are at the heart of strata property
law and the communal living arrangement of a strata. While the
judge had sympathy for Mr. Getzlaf's loss of privacy, Mr.
Getzlaf's personal interests gave way to the collective
interests of the strata to repair the roof membrane. The relevant
legal principles included:
A strata corporation must consider and act in the best
interests of all the owners. They must strive to achieve the
greatest good for the greatest number;
The strata must comply with all the notice and procedural
requirements when considering and acting on matters that affect the
individual interests of the owners; and
The courts will not interfere with the exercise of a strata
council's judgement unless it can be shown the council acted in
a "significantly unfair" manner, meaning the conduct has
to be burdensome, unfair, wrongful or in bad faith. An act that is
a "trifling unfairness" or causes a "mere
prejudice" will not suffice.
One of Mr. Getzlaf's problems was that his strata council
had done everything properly and had made a reasonable decision to
replace the roof membrane. He could not show that decision was
"significantly unfair" or procedurally flawed. The other
of Mr. Getzlaf's problems was that he had not come to court
with "clean hands". He had refused to meet with the
strata when invited to discuss a compromise. He had acted on his
own to re-install his garden without the strata council's
permission and in defiance of their request that he not do so. To
that extent, he was the author of his own misfortune.
If your strata intends to do something that may adversely affect
your unit, then you should not, as Mr. Getzlaf did, simply ignore
them and do what you please. You must act reasonably and
cooperatively with your strata to try to reach a consensus. A
strata's failure to consider reasonable alternatives to a
proposed course of action may be "significantly unfair".
However, unless you take part in exploring and proposing reasonable
alternatives, you cannot complain later when the strata
legitimately decides to do something in the interests of all the
strata owners. You cannot act only in your personal interests when
they conflict with the wider interests of the strata as a whole.
And you will not get your way all the time. That is one of the
prices of living in a communal environment.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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