A dispute about who must pay to repair a retaining wall at a Summerland stratum brought property owners and a strata council before a Civil Resolution Tribunal.
The applicant, Bon Yaseniuk, said the retaining wall is not common property, so the owners of strata lots on which the wall is located must pay for its repair. The strata said the wall is common property, even though it is located on certain lots within the strata.
The strata was created in 2005 and consists of 24 strata lots. While the strata plan identifies some common property, Katie Campbell, vice-chair of the tribunal, said the retaining wall does not meet the criteria of common property. Instead, the wall is part of the property of the lots on which it is located.
The strata said a bylaw, approved by a three-quarters vote in October 2019, makes it responsible to repair the wall. However, Campbell said a bylaw amendment has not been filed with the provincial Land Titles Office. Until the bylaw is filed, it has no effect, she said.
At a stratum, general meeting held on July 30, 2020, strata ownership voted in favour of a three-quarters vote approving a $401,000 special levy to pay for wall remediation.
The strata collected payments of $16,714 from each owner and deposited them in a separate bank account.
However, Campbell said the strata was not entitled to collect this special levy from the owners.
“The strata was not entitled to require owners to pay for that expense,” she said. “The strata had not yet filed the October 2019 bylaw amendment which would give it authority to do so.”
As a result, if the strata have not filed the October 2019 bylaw amendment in the Land Titles Office by May 26, 2021 — two months after the date of the tribunal’s decision — it must refund all special levy payments collected and interest earned.
The strata may not spend strata funds to fulfill the conditions of the October 2019 resolution.
In addition, the strata must reimburse Yaseniuk $225 for his tribunal fees.
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