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Strata Property: Right to Privacy v. Necessary Repairs

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:

  1. 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;
  2. 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
  3. 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.

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Our Real Estate Law Blog provides brief commentary on current legal trends and developments affecting your business. The topics addressed in Lawson Lundell’s Real Estate Law Blog are of interest to commercial real estate developers, real estate and strata agents, investors, landlords and tenants, as well as a variety of industry groups. 

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